*1 WUEST, Justice. Dakota, Plaintiff
STATE of South approximately On October Appellee. and a.m., Depart- 1:00 the Sioux Falls Police sobriety ment up set south- roadblock for bound traffic on Minnesota Avenue THILL, Gregory Jay Defendant Falls, Sioux point South Dakota. At the Appellant. roadblock, patrol car was stationed lights flashing. patrol with its red Another No. 17382. lights car with flashing its amber was Supreme Court of South Dakota. parked approximately 350 feet north of the roadblock. Traffic cones were set Argued May 1991. street direct traffic southbound July Decided through the roadblock. Persing (Persing)
Officer duty was on assigned to check cars at the roadblock (Thill) Gregory when he observed car make a hand turn driveway left into a at approximately patrol the location of the flashing car with the lights. amber Pers- ing Thill stopped watched as in the drive- way, backed into pro- out the street and northbound, ceeded in the direction from Persing whence he immediately got came. patrol into his car and followed Thill. approximately turned left two blocks north of the roadblock and again ap- turned left proximately Persing two blocks later. then stopped Thill, his again after car was head- ing in the direction the roadblock. stop, Pursuant Persing observed appearance Thill’s physical and adminis- sobriety tered field tests. upon Based his observations, Persing placed Thill ar- under Thill, rest. questioning After Persing transported Safety him to Public Build- ing, agreed where Thill to take an intoxiliz- er charged test. He then with DWI. trial, Before suppress Thill moved to his arrest and the evidence pursuant obtained it, arguing Officer Persing had no Persing’s basis him. sole stopping reason for Thill’s vehicle was prior fact he turned going had through the roadblock. observed moving driving by or violations erratic Thill. The trial court denied the motion to suppress proceeded and the case to trial. Barnett, Gen., Mark Atty. Wade A. Hub- magistrate judge guilty found Thill bard, Gen., Deputy Pierre, Atty. plain- for appealed of DWI. Thill his conviction to appellee. tiff and court, circuit which affirmed the judgment Parliman, Thomas Falls, W. Sioux magistrate. Thill appeals defendant and appellant. single court and raises issue: whether
87
whim,
stop
product
cause
caprice,
Officer
had sufficient
not the
of mere
or
curiosity.
enough
idle
It is
if the stop
Thill’s automobile.
is
upon “specific
based
and articulable
Stopping an automobile and detain
which,
facts
together
taken
with rational
ing
occupants
its
a
constitute
“seizure”
facts,
from
inferences
those
reasonably
the
meaning
within the
Fourth and Four
warrant
[the] intrusion[.]”
of the
teenth Amendments
United States
Anderson, 331 N.W.2d
570 (citing
Peo-
at
Prouse,
v.
Constitution. Delaware
440
ple
Ingle,
v.
413, 420,
36 N.Y.2d
369
1396,
648, 653,
1391,
99 S.Ct.
59
U.S.
39,
(1975)).
N.Y.S.2d
330
44
N.E.2d
660,
minimum,
(1979).
L.Ed.2d
667
At a
Anderson,
Accord
v.
State
359
N.W.2d 887
then, law enforcement must have an articu-
suspicion
lable
reasonable
that the mo
Whether
the avoidance of a roadblock
subject
is
torist
to seizure for violation of
constitutes
suspicion
stop
reasonable
a
663,
Id. at
stop
law before
the
the
occurs.
motorist
is an issue which has been ad
1401,
673. See
at
L.Ed.2d at
99 S.Ct.
59
jurisdictions,
dressed in several
with mixed
Cortez,
United
411,
also
States v.
449 U.S.
jurisdictions
results. At
least
five
hold
690,
(1981).
101 S.Ct.
66
621
L.Ed.2d
that a driver’s effort to
a
avoid roadblock is
Anderson,
In State v.
avoid street, person point. should also able be on the at a roadblock. Id.
to avoid a confrontation
scenario,
factual
made a
at 494.
*3
Arresting
lawful left hand turn.
officer
Notwithstanding
general free
the
yards
testified that he was 150
confrontation,
find
police
we
dom to avoid
from Thill’s vehicle when it made a left
in
police
the
roadblock
this
the
of
avoidance
question
hand turn. There is no doubt—no
to create an articu-
sufficient
instance was
Persing’s only
at
reason for later
all—that
suspicion of criminal
and reasonable
lable
pursuing, stopping,
seizing
Thill
and
the
and their use on
activity. Automobiles
vehicle was the fact that Thill turned be-
significant
subject
the
of
roads are
state
going through
fore
the roadblock.
It is
(e.g. licensing, registra
regulation
state
undisputed
that
demonstrated no
distinguishes
re
tion).
the
This fact
cases
behavior,
driving
no erratic
criminal
behav-
Talbot,
majority of
upon in
the
which
lied
ior, moving
proceeded
no
violations as he
people are
pedestrians. And while
involved
away
the roadblock or
from it.
pro
of their Fourth
not shorn
Therefore,
absolutely
spe-
there was
they step from the sidewalks
tection when
suspicion
and
cific
articulable
of a violation
automobiles, Prouse, 440
at
into
U.S.
their
Anderson,
stop.
the
before
State v.
59 L.Ed.2d at
decision,
By
N.W.2d
this
subject to
their actions on the road become
adopts
Dakota
the rule that
act
South
the
regulation and restriction.
increased state
avoiding
by
of
itself—creates
roadblock—
road,
Consequently, actions taken on the
suspicion
type
an articulable
of some
the character of which would be innocent
activity.1
criminal
In this train of reason-
context,
give
may well
rise to an
another
ing, majority opinion in
is
error on both
suspicion
and reasonable
of a
fact,
propositions,
of its
the one of
respecting
of the law
the use or
violation
law,
other of constitutional
and its conclu-
ownership of an automobile.
sion withers.
at the
Thill’s turnabout
entrance of the
questioning
argument by
Under
at oral
subsequent
and his
circuitous
roadblock
writer,
it was admitted
the Assist-
suspicion
route constituted
(a)
Attorney
ant
General that
there is no
Thill was in violation of the
re-
law
forbidding
in this state
statute
avoid-
specting
ownership
the use or
of an auto-
(b)
got
ance of a roadblock and
Thill never
subsequent stop of Thill’s
mobile. The
ve-
into the lane of cones which channeled the
hicle
therefore lawful. Such a conclu-
Persing’s
traffic to Officer
roadblock.
majority
juris-
sion is
with the
consonant
dictions
have addressed this issue.
which
have,
us, another erosion of
We
We affirm.
requirement
minimal
intru
employed
as a
sion. Minimal intrusion
MILLER, C.J.,
AMUNDSON, J.,
and
legal theory
justify
very
existence of
concur.
proposi
a roadblock.
I hearken unto this
Supreme
tion: the United States
Court has
SABERS, JJ.,
HENDERSON and
checkpoints upon
authorized motorist
dissent.
there is
basis that
a minimal
intrusion on
HENDERSON,
(dissenting).
Justice
motorists and minimal discretion of offi
join
I
the dissent of Justice Sabers.
Sitz,
U.S. -,
Michigan
cers.
so,
(1990).
doing
it
ap
is noted that
dissent is S.Ct.
110 L.Ed.2d
It
supported by
that,
Dakota,
majority viewpoint
pears
in the
to me
in South
we will
Talbot,
United
permit
upon
States. State v.
792 P.2d
maximum intrusions
motorists
(Utah 1990).
majority
opinion,
grant
Via the
maximum discretion to officers.
actually
1. There is no evidence that he
avoided
from
feet
it.
the roadblock. He made a left turn some 450
extremely difficult to understand Or.
judicial philosophy. we go. Generations come and So do civiliza- think, everything do, everything mans we (to tions. pillars liberty include write, decide, everything every prin- we we stepping automobile) and driving into philo- ciple upon advance is founded we depending rise and upon vigilance. fall A sophical concept. underlying This truth great Empire. civilization fell—the Roman *4 medicine, not in holds the field of fast Why? happened truths, What to the as political systems, within social and but also 2 perceived men them? justice. the search for These fields are “hunch”, A today, we decide enough anything but exact sciences. and seize automobile. This slender us, will, in All our exercise free of my reed is too tenuous for constitutional make as to that honest- a decision which we application. Objectivity away. flies And is, ly apparent is the truth believe it, unfortunately, with protections so do the us, appealing the most at the moment. We which the Fourth grants: Amendment say it or our do it or write it within own right people “The of the in be secure perception Unques- of ethics and the Law. houses, persons, effects, their papers and tionably, by, as decades and time each rolls against unreasonable searches and seizures . . ." by arrives at a what individual decision truths, truth, as he sees fasten he will
upon.
SABERS,
(dissenting).
Justice
myself
spirit
I would attach
to the
of the
I
stop may
dissent.
a traffic
While
Fourth Amendment to the United States
cause,
require probable
it
“at
require
does
prescribed
security
Constitution.
It has
a
least
suspicion”
which,
by
today,
action of this Court
of a violation
the law.
v.
Delaware
circumscribed,”
“seriously
would be
Prouse,
648, 663,
1391,
440 U.S.
99 S.Ct.
Prouse,
in
phrase set forth
Delaware v.
1401,
(1979);
their “option to avoid the
giving them the ... v.
checkpoints.” United States Martinez-
Fuerte, 543, 558, 96 S.Ct. 428 U.S. (1976); Michigan L.Ed.2d -,
Sitz, 496 U.S.
Certainly the officer was within his Thill
rights to follow after he turned roadblock, he
from the but since never did any illegal or unusual
observe even behav- Thill, he continued to have no articu-
ior
lable or reasonable
doing anything wrong. majority opinion suggest strains to *5 Saying
otherwise. that the officer had a suspicion”
“reasonable does not make it so.
The officer must be able to articulate some-
thing about a defendant’s behavior before
making reasonably which leads suspect specific may
the officer to crime Nothing
have committed. been of the sort
happened here. unreasonably vehicle was seized Const,
violation of U.S. amend. IV and Const, VI, South Dakota art. 11. There- §
fore, I respectfully dissent. HAWKINS, Appellant,
Kenneth H. PETERSON, Appellee.
Jeanine
No. 17312.
Supreme Court South Dakota.
Considered on Briefs March 1991. July
Decided