State v. Scholl

System expenses the Unified Judicial and SDCL 16-19-70.2.

allowed under Justice, SABERS, Acting Chief KONENKAMP, ZINTER

MEIERHENRY, Justices, participating. Justice, GILBERTSON, Chief himself disqualified, did not

deeming

participate. SD Dakota, Plaintiff

STATE South Appellee, SCHOLL, Defendant Lee

Lonnie Appellant.

No. of South Dakota.

Supreme Court 26, 2004. April on Briefs on

Considered 30, 2004.

Decided June

patrol car when he received a radio dis- patch directing units the area to re- spond report possible to a drunk driver on Westport Dispatch Avenue. ad- vised that an informant called in report to seeing “leaving the driver Scarlet O’Hara’s stumbling pretty badly bar having problems getting Toyota into Tacoma [his] pickup.”1 gave The informant the license plate number of the vehicle which bore plates commercial from the State of Ne- braska. The informant also described the Toyota vehicle as a blue pickup with a topper on it. The informant followed the vehicle from the bar onto Interstate 29 and then east on Twelfth Street and continued update dispatch on the location of the vehicle until it turned onto Westport Ave- nue. General, Long, Attorney Lawrence E. [¶ 3.] Within three or four minutes of Wald, Sherri Attorney Sundem Assistant receiving initial dispatch, Officer Rein- General, Pierre, Dakota, Attorneys South wald encountered the vehicle plaintiff appellee.

for the location where the informant said it Parsons, A. Ronald Jr. and T. Matthew began would be and pursue it.2 Rein- Johnson, Heidepriem, Miner, Tobin of wald followed the approximate- vehicle for Janklow, Falls, Marlow and Sioux South blocks, ly eleven confirming li- Dakota, Attorneys for defendant ap- number, cense color and type vehicle pellant. all matched the description. Although Reinwald did not any observe

MEIERHENRY, Justice. law, violations of the driving Lonnie appeals Scholl a circuit anything leading else him to believe that court affirming order magistrate court impaired, the driver was conviction for one count under solely on the basis of the informant (DUD- the influence of alcohol We affirm. information. After Reinwald and,

identified Scholl as the driver FACTS Scholl, his observations of him had At approximately perform p.m. 10:30 on a series of sobriety field tests. September 13, 2002, Sioux Falls Police Of- results of the tests led to Scholl’s ficer Brian Reinwald was duty in his arrest for DUI. A blood test administered quoted language 1. The is from the trial he could see the officer's car and went on his findings suppression court's of fact aon mo- way. police report The officer's later includ- findings tion. unchallenged are in this ed the telephone informant's name and num- appeal. that, ber and according dispatch, indicated uncooperative he was and wished to be left 2. As Officer Reinwald encountered the vehi- out of the incident. cle, the dispatch informant mentioned to stop may product not be the yielded result While shortly arrest after whim, caprice curiosity, idol mere in the weight of alcohol blood. 0.227% enough it is is based After his indictment DUI “specific and articulable facts which tak- court, in magistrate court trial to a prior together en with rational inferences ob- suppress to all evidence moved Scholl facts, reasonably from those warrant the of vehicle stop a result of tained as intrusion.” Under these [the] stan- stop violated on dards, well that a traffic it is established to Amendments Fourth and Fourteenth minor, violation, creates however suffi- VI, and Article Sec- the U.S. Constitution to of a stop cient cause driver vehi- 11 the South Dakota Constitution. tion of cle. later was denied. Scholl was The motion ¶¶ Chavez, 93, 15-16, v. State 2003 SD 668 to 120 of and sentenced convicted DUI (citations omitted). 89, 95 N.W.2d jail days 100 sus- days county in the with to suspicion necessary support reasonable plus and a fíne of costs pended $650 may by an stop a traffic be infor- year. driving privileges of for one loss tip. mant’s to his conviction circuit appealed Scholl carry An informant’s sufficient court, validity of again challenging the justify to a reliability” “indicia of [vehi- affirmed stop. The circuit court vehicle it fails to to stop though even rise cle] 21, 2003. entered Scholl an order October the probable the level of cause needed to appeals now this Court. for an arrest or search warrant. “All required stop that is not is be ISSUE whim, caprice, of product mere curiosity.” idle have a Did Officer Reinwald suspicion of of ¶ a violation Olhausen, 120, 7, v. SD State 1998 587 support stop of omitted). law sufficient to (citations 715, N.W.2d 717-718 vehicle? Scholl’s The ultimate determination of exis- suspicion stop of to a tence a reasonable requirement of a rea 6.] The [¶ of reviewed de question vehicle is a law to suspicion of a violation law sonable ¶ Faulks, 115, 8, 2001 State v. SD novo. has set support stop a traffic been forth 613, 617. 633 N.W.2d follows: a This Court has considered The Fourth Amendment United involving stops vehicle number of cases protects citizens States Constitution upon tips. e.g. informant See State based from unreasonable searches and sei- (S.D.1984); Anderson, v. 359 N.W.2d 887 protection general- Although this zures. (S.D. Kissner, v. 58 390 N.W.2d State search, to ly requires probable cause Czmowski, 1986); 72 N.W.2d State v. 393 requisite level neces- “[t]he Lownes, (S.D.1986); 499 State v. N.W.2d sary is stop to effectuate the vehicle (S.D.1993); State, v. 508 N.W.2d 896 cause neces- equivalent probable to Olhausen, (S.D.1993); 120, 587 1 1998 SD a sary an warrant.” Herrmann, arrest search 715; v. SD N.W.2d State All is that required Only a few these 652 N.W.2d 725. suspicion cases, however, has “a reasonable a officer involved vehicle have Therefore, tip. fac- stop solely an informant’s stop automobile.” based Kissner, Czmowski, a support e.g. supra; supra; tual traffic basis needed See Lownes, Graf, These supra.3 supra; is minimal. independent ob- stops remaining vehicle based 3. The cases have involved predate relayed patrolling the United States Su- information offi- cases all and, preme thereafter, Court’s decision Florida shortly cers an officer 146 L.Ed.2d subject U.S. S.Ct. found the at an stopped vehicle (2000). did not While J.L. involve intersection in location mentioned stop, validity of vehicle it did consider the turned, the informant. As the driver the search of a a bus immediately officer solely that he was having any “without observed incidents of decision, carrying gun. reaching driving.” Id. at The stop 724-25. emphasized Court “indi- led to the arrest and of a pas- conviction reliability” necessary anony- cia of for an senger for possession tip mous to furnish reasonable cocaine. investigatory stop. for an See v. Alabama In determining the whether White, 330, 110 U.S. S.Ct. tip provided informant’s adequate cause (1990)(information 110 L.Ed.2d 301 provid- Wheat, in stop Eighth the vehicle the anonymous may ed by tip sufficiently be defined test Circuit as follows: justify investigative stop). reliable an anonymous tip Whether an suffices to Lownes, supra.

Accord found Court give rise to reasonable suspicion de- such lacking stating, indicia in J.L. “All the pends quantity on both the of informa- go had to on in this case was conveys tion as well as quality, unknown, report bare of an unaccountable reliability, information, degree of that of explained informant who neither how he totality viewed under the of the circum- gun supplied any knew about the nor [White, supra stances. tipa has ]. “[I]f for believing he had inside information a relatively degree reliability, low of about J.L.” 529 U.S. 120 S.Ct. more information will be required to establish requisite quantum suspi- of Wheat, In United States cion than be required tip would if the (8thCir.2001), F.3d 722 Circuit were more Id. reliable.” Appeals Court applied Wheat, added). 726 (emphasis F.3d at requirements of in J.L. context The court looked to number of factors to Wheat, stop. trav- informant the quantity assess the in- eling phone in Iowa used a cell report formant information found the follow- another driver’s local to a ing integral determining considerations police department. The informant de- an anonymous tip “whether of erratic driv- color, scribed the other vehicle’s make and may ing justify stop.” an investigatory Id. gave model and the first three of its letters at 731. plate number. He also provided First, the other vehicle’s location and the di- anonymous pro- must rection which it moving. The infor- information, vide sufficient quantity of complained mant other vehicle such as the make and model “passing vehicle, wrong numbers, side of the its license road, cutting cars, off other and otherwise bearing, location and and similar inno- ” being driven if by ‘complete details, as officer, maniac.’ cent so that the and court, 278 F.3d at 724. The informant be certain that arresting Herrmann, e.g. officer); servations by arresting officer. See supra (stop

Anderson, supra (stop based on speeding based on informant's viola- equipment directly officer). directly violations observed tion observed stopped is the same as the one identified safety, that failure to them immedi- by the caller. The time interval be- ately risks sudden and potentially devas- tween of the receipt tip and location of and, tating therefore, accidents there is a vehicle, though going princi- substantial government interest in effect- pally question of reliability, may ing stops such as quickly possible. also be a factor here. cient ^[*] must also contain a suffi information to ^{[*] [*]} support Wheat: conclusion [¶ 11.] Based Eight as to the Circuit reached the validity the above following factors, an inference that the tipster has wit [W]e find that the initial stop of the nessed an actual traffic violation that vehicle which Wheat was a passenger compels stop. immediate A law en was not totality unreasonable under the forcement officer’s mere hunch does not of the circumstances. An anonymous amount to suspicion. caller an extensive description F.3d at 731-732. that, of a vehicle based on his contempo- regard 10.] With to assessing eyewitness observations, raneous he be- degree or of an anony- lieved being operated was dangerously, tip, mous the court observed that “pri- specific and cited examples of moving mary tipster’s reliability determinant of a . violations. When Officer Samuelson is the basis of his knowledge” and further caught up with the vehicle minutes later driving observed that “in erratic cases the while it stopped intersection, was at an tipster’s of the knowledge ... [all- details, he corroborated all its innocent always most ... from eyewit- comes his confirming that it was the one identified Wheat, ness F.3d observations[.]” by tipster. Within seconds after the this, that, 734. From the court concluded motion, vehicle resumed Officer Samuel- anonymous “an tip conveying contempo- son effected an immediate investigatory raneous observation of activity criminal stop, rather than proceed allow to and whose innocent details are corroborated is potentially endanger other vehicles. ... Id. at As credible[.]” 735. to the risk circumstances, Under totality anonymous that an tip might be a fiction so, he had to do intended to cause trouble another mo- and the was valid under the Fourth torist, the court determined that the risk and Fourteenth Amendments. tips slight compared false is to the risk Wheat, 278 F.3d at 737. allowing of not to immediately investigatory stops conduct of potentially Employing analy a similar impaired regard, drivers. sis here leads to a similar conclusion. The court noted that drunk possibly erratic and tipster4 provided description an extensive pose drivers public that, imminent threat of a vehicle contempora- based on his that, It is notable truly anonymous, in contrast with J.L. and call is the informant has not tipster placed credibility in this case com- at risk and can lie with pletely anonymous. impunity. While it is reviewing judge not clear from The court cannot identity the record credibility whether his was communi- of the informant and the risk of J.L., prior cated stop, to the officer unacceptable.” his name fabrication becomes J„ telephone appeared and number (Kennedy, in the offi- U.S. at 120 S.Ct. 1375 report. cer’s concurring). arrest In his tipster concurrence in Since the in this case Kennedy Justice anonymous, noted the risks associat- was not these risks were not anonymous tips: telephone ed with present "If the here. observations, eyewitness report neous he believed informant’s of an intoxicated driver being operated dangerously. at a convenience store who down de- fell twice color, However, make mod- scription getting included its while into his vehicle. Roberts, el number. and its Nebraska State 293 Mont. 977 P.2d (1999), also tipster followed the Montana Court constantly kept dispatch updated upheld validity on its bearing. pro- details report location These that two men who had vided a sufficient of information fighting got pickup been into a and that for law enforcement to be certain that the the driver was drunk because he could “barely was the one identified walk.”5 tipster. When Officer Reinwald hold that tipster’s [¶ 14.] We obser- caught up with the vehicle within minutes suspi- vations here a reasonable by dispatch of notification in the location cion that Scholl was while under be, where the said it would the influence of perceive alcohol. We details, corroborated all its innocent con- distinction between observations at a fast firming that it was the one identified Miller, food restaurant as in supra such tipster. corroborating After these de- Stewart, at convenience supra store as tails, Officer Reinwald effected an investi- and observations at a bar where the likeli- gatory stop rather than allow it to proceed hood of alcohol consumption obviously potentially endanger other vehicles. requires leap enhanced. It no logic In contrast with tip- common sense to person deduce that a ster here did not specific examples cite stumbling from a bar late in evening moving violations that he Rath- exhibiting difficulty observed. getting into his er, reported only that he observed the vehicle well be under the influence of suspect stumbling “pretty badly” while incapable safely alcohol and operating leaving Roberts, the bar and also having problems the vehicle. See 977 P.2d at 981 (common getting into his vehicle. Courts have come sense must illumine court’s re- to different conclusions as to the sufficien- view of whether officer requisite suspi- had cy of Moreover, the cause for a vehicle stop justify based cion to stop). vehicle we solely upon an important informant’s observations of find it in cases of this nature non-driving suspect. behavior of a tipster’s the basis of the knowledge or Miller, (N.D. State v. N.W.2d 638 be communicated to law enforce- 1994), the North Dakota Supreme Court ment. As Circuit noted in invalidated traffic primary based “the tip- determinant of a informant’s report possible drunk ster’s is the basis of his knowl- “barely driver could up” Thus, who hold his edge!.]” head 278 F.3d in drive-up lane of a fast food supra, restau- where the tipster failed to State, rant. In Stewart v. explain S.W.3d 646 how he gun knew about the or to (Tex.App.2000), the Texas Court of Ap- supply any basis for believing he had in- peals a stop invalidated based side information suspect, about Summers, car); 5. See ramp also State v. balancing No. 02 CA and his himself on his (Ohio Ct.App. 2002 WL Sept.27, City Rocky Surovey, River v. No. 2002)(unpublished)(stop upheld (Ohio.Ct.App. where bar- 2002 WL 232882 Feb. 2002)(unpublished)(stop upheld information was based tender/informant's where infor- upon her observation of the staggering driver’s red wa- mant observed driver out of her door, tery eyes, swaying way pizza his shop having difficulty getting on the into stumbling van). his off of an outside wheelchair investigato- Court invalidated the the caller only said the driver was Here, ry stop “possibly” and search. the basis of the intoxicated and that the caller tipster’s knowledge was disclosed to law described no driving. The Court yielded a enforcement and reasonable sus- also noted that the officer made no at- picion tempt verify while the informant information Thus, by under the influence of alcohol. we locating the car on the street identified tip by hold that was en- the informant and that only facts permitting hanced to a level corroborated the officer were that the stop. driver owned a brown automobile with the given number. Because the strongly Scholl relies on this tip failed specific to contain facts concern- Graf, Court’s decision in 508 N.W.2d conduct, ing driving give failed to detailed authority holding the stop of his vehicle information to substantiate However, invalid. contains factual Graf give greater reliability and no because distinctions that led to the result in that attempt was made verify the location of case. did While involve vehicle Graf vehicle, this Court held the vehicle solely tip, on an informant’s n stop in invalid. Graf vague was more than in this Ah case. anonymous citizen notified the Sioux Falls The simply defects are “possible that a drunk driver present not here. The was not com- large brown car” heading west on an pletely anonymous. provided city identified street and provided the li- his information suspicion, However, cense number of the vehicle. ie., personal observation of the driver case, unlike this officer did stumbling badly from a having bar and proceed immediately to the location trouble getting into his vehicle. tip- tipster, identified proceeded but ster a complete description of the the area of the registered resi- owner’s model, gave make and the color of dence and thirty-four waited for minutes the vehicle and its unique Nebraska li- subject until he saw the vehicle turn in cense number. The tipster identified the front of him. He then followed the vehicle location of the vehicle and the direction in to the owner’s residence about half a block moving. which it was tipster kept The in time, away. During that he did not ob- constant contact dispatch with and contin- any serve traffic violations or erratic driv- ually updated it on the location of the ing.- After the parked vehicle was in the Finally, vehicle. within minutes of the driveway, the officer confronted the driver dispatch, first the officer proceeded here subsequent sobriety and field testing led to by to the location tipster identified and his arrest for DUI. verified the informant information before Applying

[¶ 16.] the same standards of bringing subject a stop. vehicle to White, 325, from 496 U.S. 110 tipster While the did not specific describe 2412, S.Ct. 110 L.Ed.2d 301 that would driving conduct as a basis for the stop, as subsequently by discussed, be followed the Supreme previously we have he did de- Court in supra by and non-driving yielded scribe conduct that Wheat, in supra, Circuit this suspicion Court found reasonable that the driver was tip in insufficient to while under the influence of alco- Graf support the stop. regard, distinctions, In that upon hol. Based these we do specifically the Court noted that there not persuasive reject find here and it Graf anonymous little content to the tip, authority that in particular this case. 90 details, officer, cent so that the and the totality of Based

[¶ 18.] circumstances, court, may we hold that certain Offi- be that foregoing suspicion had a reasonable is the same as the one identified cer Reinwald the stop by and that stop Scholl’s vehicle the caller. and under the Fourth Fourteenth

valid Amendments. tip must also contain a sufficient Affirmed. [¶ 19.] quantity information to an support inference has witnessed KONENKAMP, SABERS [¶ 20.] compels actual traffic violation that Justices, concur. A stop. immediate law enforcement GILBERTSON, Chief Justice [¶ 21.] officer’s mere hunch not amount to does Justice, ZINTER, concur in result. ... suspicion reasonable neither does private citizen’s. (concur- GILBERTSON, Chief Justice result). ring in (internal 278 F.3d at 731-32 citation and omitted). footnote As articulated Jus- I concur with result of this dissent, tice in anonymous Sabers’ out opinion separately point but write contained information that by Graf that the case relied principally (S.D. Scholl, State, driver; v. 508 N.W.2d 1 1. a possible drunk Graf 1993), light in to should overruled be Street; 2. on was westbound 10th day’s the rationale contained decision and automobile; large 3. in a brown J.L, in v. 529 U.S. 120 S.Ct. Florida identified 1E3312. (2000), 1375, 146 L.Ed.2d 254 and United (Sabers, J., dissenting). 508 N.W.2d at 6 278 722 States F.3d outlined Given the factors in (8thCir.2001). likely Graf, a 3-2 decision of this reaching conclusion Court, today. differently would be decided did anonymous sup- Graf I also submit the result ply requisite depended large part upon the fact that support stop, majority ap- a vehicle personally officer did not plied the correct standard considered any driving. observe incidents of erratic under (noting See at 3 that “Officer N.W.2d totality of the circumstances. any driving- Schmit did not observe White, at 2 (quoting Alabama v. N.W.2d only part. Grafs facts corroborat- 325, 330, U.S. S.Ct. ed were a that Graf owned (1990)). L.Ed.2d Since this Court brown automobile with license given however, Graf, Eighth handed down number.”). In Appeals Circuit Court decided of Wheat rejected specifically Circuit of rea- this line wherein addressed and clarified the fac- soning, observing: tors relevant to this standard the con- an anonymous tip alleging text of erratic reading A of careful driving: jurispru- Fourth Court’s Amendment

First, the anonymous tipster pro- that this on the suggests emphasis must dence information, predictive aspects anonymous tip vide of of an sufficient such as make and model applicable tips purporting be less vehicle, plate numbers, contemporaneous, readily its describe actions, bearing, location and similar inno- criminal as in the observable driving witnessed an- case of erratic 2004 SD with clandes- other motorist.... Unlike ADRIAN, Wallace Plaintiff offenses, possessory such as tine crimes Appellee, involving drugs guns, those including predictive corroboration of the el- where Lynn McKinnie, tip may only be the means Rich McKINNIE and ements of Appellants, ascertaining the informant’s Defendants and basis knowledge, erratic cases the (South Dakota), NA, Citibank tipster’s knowledge likely Ranch, L.L.C., Adrian always, it apparent. Almost comes to be Defendants. observations, eyewitness from his verify pos- is no need to there No. 22860. inside information. sesses Supreme Court of South Dakota. (internal omitted). citation F.3d at 734 April on Briefs Considered 2004. uphold stop despite also Today, we did per- officer

fact Decided June sonally erratically observe Scholl drive any traffic violations.

commit sum, agree I with result majority opinion

suspicion to Scholl’s vehicle existed However, majority

this case. where distinguish Graf, I

opinion chooses to extent overrule it is

would with and recent opinion

inconsistent this only will

precedent. Failure to do so re- unnecessary attorneys

sult in confusion courts

and circuit confronted with traffic upon anonymous tips alleging

stops based driving. ZINTER, Justice, joins this writing.

special

Case Details

Case Name: State v. Scholl

Court Name: South Dakota Supreme Court

Date Published: Jun 30, 2004

Citation: 684 N.W.2d 83

Docket Number: None

Court Abbreviation: S.D.