#27218-a-JMK
2015 S.D. 64
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ARIA M. MEYER, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA
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THE HONORABLE GREGORY J. STOLTENBURG
Judge
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MARTY J. JACKLEY
Attorney General
ELLIE J. BAILEY
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
DONALD M. MCCARTY of
Helsper, McCarty, Mahlke & Kleinjan, P.C.
Brookings, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON MARCH 23, 2015
OPINION FILED 07/22/15
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KERN, Justice
[¶1.] South Dakota State University (SDSU) police stopped Defendant Aria
Meyer and several others in a group on suspicion of underage consumption and for
violating South Dakota’s open container law. The State charged Meyer with
underage consumption pursuant to SDCL 35-9-2 and driving under the influence
(DUI) pursuant to SDCL 32-23-1(1). Meyer moved to suppress all evidence
stemming from the stop. After an evidentiary hearing, the magistrate court denied
the motion. Pursuant to a stipulation and agreement, Meyer was found guilty of
DUI but retained the right to appeal the court’s denial of her motion to suppress.
Meyer appealed to the circuit court, and it affirmed. Meyer now appeals to this
Court. We affirm.
BACKGROUND
[¶2.] Just after midnight on September 15, 2013, SDSU student patrol
officers Jack Dunteman and Brennan Albrecht were on bicycle patrol on SDSU’s
campus. The student officers were wearing gray uniform shirts and black pants.
Dunteman spotted a group of about eight individuals in a parking lot gathered
around an open tailgate of a Ford Escape. The Escape’s taillights were on. As
Dunteman approached, he observed the group walk toward Young Hall, which
primarily houses freshman and sophomore students. According to Dunteman, some
of the individuals appeared to stumble and could not walk in a straight line, but he
could not identify which particular students. Dunteman arrived at the Escape and
smelled the odor of alcohol. Dunteman also peered in the rear driver’s-side window
and saw two open Coors Light cans, one sealed Coors Light can, an open container
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of Bud Light Straw-Ber-Ritas, and an open bottle of UV Blue Vodka. Dunteman did
not witness any of the group members consume alcohol and did not know their ages.
Dunteman reported his observations to dispatch and requested a sworn officer.
[¶3.] Dunteman observed a patrol car driving nearby and, when it stopped,
he spoke with SDSU Police Officer Jonathan Anderson. Dunteman told Officer
Anderson that the group that had just crossed the street in front of his patrol car
was the group Dunteman had been watching. By this time, the group members
were standing outside of Young Hall approximately 20 feet from the east entrance
closest to the parking lot. Officer Anderson, who was dressed in a black police
uniform, proceeded to make contact with the group and observed that each
individual appeared to have consumed alcohol. 1 Officer Brandon Schultz arrived on
the scene shortly thereafter to assist Officer Anderson. Together, Officer Anderson
and Officer Schultz reviewed each of the group member’s driver’s licenses and
determined that everyone in the group was under 21 years old. Officer Anderson
asked the student officers to run a license-plate check on the Escape. The vehicle
was registered to Meyer. When asked to identify herself, Meyer raised her hand
and stepped forward.
[¶4.] Officer Anderson took Meyer to his patrol car and asked her questions.
Meyer told Officer Anderson that she, along with the other group members, had
consumed alcohol that night and that she had driven the vehicle. Officer Anderson
1. This question of who initiated the stop was contested at the suppression
hearing. Meyer and several of the group members testified that an officer on
a bicycle made the stop while Dunteman and Officer Anderson testified that
Officer Anderson made the stop. The court ultimately determined that
Officer Anderson made the stop.
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administered field sobriety tests and a preliminary breath test, both of which Meyer
failed. Officer Anderson then arrested Meyer, read her the DUI advisement card,
and administered a Miranda warning. Meyer waived her Miranda rights and said
that she had consumed Straw-Ber-Ritas. Meyer also said she had driven the
Escape and was under the influence of alcohol. Law enforcement obtained a
warrant to draw her blood, and the blood draw indicated her blood alcohol content
was 0.169%.
[¶5.] The State charged Meyer with DUI and underage consumption. Meyer
moved the court to suppress all evidence, asserting that law enforcement lacked
reasonable suspicion and probable cause to make the stop. The magistrate court
held an evidentiary hearing on the motion on December 9, 2013. The magistrate
court denied Meyer’s motion to suppress and entered findings of fact and
conclusions of law. The parties entered into a stipulation whereby Meyer agreed to
waive her right to a jury trial and proceed to a court trial. In exchange, the State
agreed to dismiss the underage consumption charge, and the parties agreed Meyer
would preserve the right to appeal the magistrate court’s decision. At the court
trial on April 21, 2014, the court convicted Meyer of DUI. Meyer appealed the
motion to suppress to the circuit court, and it affirmed. Meyer appeals to this
Court.
[¶6.] Meyer raises one issue in this appeal:
Whether the magistrate court and the circuit court erred in
denying the motion to suppress.
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STANDARD OF REVIEW
[¶7.] “This Court reviews the denial of a motion to suppress alleging a
violation of a constitutionally protected right as a question of law by applying the de
novo standard.” State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622
(quoting State v. Madsen, 2009 S.D. 5, ¶ 11, 760 N.W.2d 370, 374). “Under this
standard, we review the [magistrate] court’s findings of fact under the clearly
erroneous standard, but we give no deference to its conclusions of law.” Id. (quoting
State v. Haar, 2009 S.D. 79, ¶ 12, 772 N.W.2d 157, 162).
ANALYSIS
[¶8.] “The Fourth Amendment to the United States Constitution and Article
VI, section 11 of the South Dakota Constitution protect individuals from
unreasonable searches and seizures.” State v. Aaberg, 2006 S.D. 58, ¶ 9, 718
N.W.2d 598, 600 (footnote omitted). “Generally, probable cause must exist before
law enforcement is permitted to seize an individual.” Id. (citing Terry v. Ohio, 392
U.S. 1, 15-19, 88 S. Ct. 1868, 1876-78, 20 L. Ed. 2d 889 (1968)). “However, if law
enforcement officers lack the probable cause necessary to effectuate a custodial
arrest, officers may perform a brief, investigative stop based on reasonable
suspicion.” State v. Mohr, 2013 S.D. 94, ¶ 13, 841 N.W.2d 440, 444.
[¶9.] We have noted that “[a]rticulating a precise definition of reasonable
suspicion is ‘not possible.’” Aaberg, 2006 S.D. 58, ¶ 10, 718 N.W.2d at 600 (quoting
Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911
(1996)). We apply “a common-sense and non-technical approach to determining
reasonable suspicion, one that deals with the practical considerations of everyday
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life.” Mohr, 2013 S.D. 94, ¶ 14, 841 N.W.2d at 444 (quoting State v. Sound Sleeper,
2010 S.D. 71, ¶ 16, 787 N.W.2d 787, 791). “A reviewing court must look to the
‘totality of the circumstances’ to determine whether the officer had a ‘particularized
and objective basis’ for suspecting criminal activity.” Id. (quoting State v. Johnson,
2011 S.D. 10, ¶ 8, 795 N.W.2d 924, 926). “The factual basis needed to support an
officer’s reasonable suspicion is minimal.” Id. However, an officer’s stop cannot be
“the product of mere whim, caprice, or idle curiosity.” Id. (quoting State v. Satter,
2009 S.D. 35, ¶ 6, 766 N.W.2d 153, 155).
[¶10.] Meyer first argues that the magistrate court clearly erred when it
found that Officer Anderson effectuated the stop. “In applying the clearly erroneous
standard[,] . . . [t]he question for the appellate court ‘is not whether it would have
made the same findings [as] the [circuit] court did, but whether [upon review of the
entire record the appellate court] is left with a definite and firm conviction that a
mistake has been committed.’” In re Estate of Hobelsberger, 85 S.D. 282, 289, 181
N.W.2d 455, 459 (1970) (quoting Zenith Radio Corp. v. Hazeltine Research Inc., 395
U.S. 100, 123, 89 S. Ct. 1562, 1576, 23 L. Ed. 2d 129 (1969)).
[¶11.] The magistrate court heard conflicting testimony on who stopped
Meyer and the other members of the group. Colin Holler, one of the group
members, testified that the group was stopped by someone on a bicycle in a police
uniform. Holler further testified that they waited several minutes for a law
enforcement officer to arrive in a vehicle. Another group member, Chaas Delgado,
testified that it was an individual on a bicycle who stopped the group outside of
Young Hall. He testified that after the person on the bicycle stopped the group, a
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patrol vehicle pulled up. Delgado said he felt compelled to stop. Similarly, group
member Faith Laleman stated that an individual on a bicycle asked the group to
stop. According to Laleman, the student officer approached the group, said he could
smell alcohol, and asked for their IDs. Later, a patrol vehicle arrived at the scene.
Likewise, Meyer testified it was a bicycle officer who stopped the group, and they
waited for an officer in a patrol vehicle to arrive. Delgado, Holler, and Meyer could
not recall the color of the uniform worn by the officer who stopped them. Laleman
said the officer wore an all-black uniform. Holler, Laleman, and Delgado testified
they had been drinking that night, and each received citations for minor in
consumption.
[¶12.] Student officer Dunteman testified that he did not stop the group, but
rather, that Officer Anderson made the stop. Dunteman further testified that he is
only authorized to stop someone if instructed by law enforcement or if someone’s life
is in danger. Officer Anderson testified that he stopped the group based on the
information provided by Dunteman. After hearing the conflicting testimony,
observing the witnesses, and weighing their credibility and demeanor, the
magistrate court determined Officer Anderson stopped the group. We give
deference to the factfinder “to determine the credibility of witnesses and the weight
to be given to their testimony.” Strong v. Atlas Hydraulics, Inc., 2014 S.D. 69, ¶ 16,
855 N.W.2d 133, 140 (citing Peterson v. Issenhuth, 2014 S.D. 1, ¶ 15, 842 N.W.2d
351, 355). Based upon our review of the record and giving appropriate weight to the
magistrate court’s ability to judge the credibility of the witnesses, we are not left
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with a definite and firm conviction that a mistake has been made. The
determination that Officer Anderson made the stop is not clearly erroneous.
[¶13.] Meyer next argues that Officer Anderson lacked reasonable suspicion
to make the stop. He testified that he stopped Meyer and the other members of the
group based solely on what Dunteman relayed to him. “An informant’s tip may
carry sufficient ‘indicia of reliability’ to justify a Terry stop even though it fails to
rise to the level of the probable cause needed for an arrest or search warrant.” State
v. Olhausen, 1998 S.D. 120, ¶ 7, 587 N.W.2d 715, 717-18 (citing Alabama v. White,
496 U.S. 325, 328, 110 S. Ct. 2412, 2415, 110 L. Ed .2d 301 (1990)). “The tip’s
degree of reliability depends on the quantity and quality of the tipster’s
information.” State v. Burkett, 2014 S.D. 38, ¶ 47, 849 N.W.2d 624, 636 (quoting
State v. Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d 551, 556).
[¶14.] Here, Dunteman was an on-duty, student-patrol officer, not just an
anonymous tipster. 2 Officer Anderson, therefore, had reason to trust the report
received from Dunteman. Dunteman witnessed a group of individuals gathered
around an open tailgate of a Ford Escape in an SDSU parking lot just past
midnight. 3 As Dunteman rode his bicycle to investigate, the group started walking
towards Young Hall, a dormitory primarily for freshman and sophomore students.
Dunteman saw several of the group members stumble as they walked. Once
2. Student patrol officers are charged with keeping the campus safe, preventing
property damage, and alerting SDSU law enforcement to criminal activity.
3. The parking lot is a campus lot requiring a parking pass issued by SDSU.
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Dunteman was near the Escape, he smelled the odor of alcohol and saw containers
of alcohol in the vehicle. Dunteman relayed these details to Officer Anderson.
[¶15.] Based on the totality of the circumstances presented to Officer
Anderson through student officer Dunteman, Officer Anderson had a reasonable
and objective basis to suspect Meyer was involved in criminal activity. 4 “The
quantum of proof necessary for reasonable suspicion is somewhere above a hunch
but less than probable cause.” Herren, 2010 S.D. 101, ¶ 21, 792 N.W.2d at 557
(citing United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 750, 151 L. Ed. 2d
740 (2002)). Officer Anderson’s stop of Meyer was more than a “hunch” because of
the specific facts relayed to Officer Anderson by a trustworthy source. While
neither Dunteman nor Officer Anderson knew the ages of the group members prior
to obtaining their IDs, it was rational to infer that they were under 21 years old
because the group members were on a college campus near a dormitory housing
mainly freshman and sophomore students. See Mohr, 2013 S.D. 94, ¶ 16, 841
N.W.2d at 445 (“[O]fficers [may] draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them[.]”). Dunteman’s conclusion that the group members had
consumed alcohol or were intoxicated was logical and based on his observations.
The totality of the circumstances suggests that Meyer was engaged in criminal
activity. Officer Anderson had an articulable and rational basis to briefly stop the
group, including Meyer, and investigate whether criminal activity was afoot.
4. SDCL 35-9-2 provides in part: “It is a Class 2 misdemeanor for any person
under the age of twenty-one years to purchase, attempt to purchase, or
possess or consume alcoholic beverages. . . .”
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[¶16.] Lastly, Meyer asserts Officer Anderson did not have a particularized or
individualized suspicion to believe Meyer was involved in criminal activity because
it was impossible to ascertain which group members had potentially violated the
law based on the facts of this case. See City of Indianapolis v. Edmond, 531 U.S. 32,
37, 121 S. Ct. 447, 452, 148 L. Ed. 2d 333 (2000) (“A search or seizure is ordinarily
unreasonable in the absence of individualized suspicion of wrongdoing.”); 5 accord
Mohr, 2013 S.D. 94, ¶ 14, 841 N.W.2d at 444 (requiring officers to have
particularized basis for suspecting criminal activity).
[¶17.] Meyer cites Commonwealth v. Mistler, 912 A.2d 1265 (Pa. 2006) to
support her argument. In Mistler, undercover officers attended a large, fraternity-
house party where they witnessed suspected under-aged students consuming
alcohol. Id. at 1267-68. The officers observed a bartender at a makeshift bar
handing out drinks to people “youthful in appearance” in the basement of the
fraternity house. Id. at 1268. Once backup arrived, all of the partygoers were
separated into two groups, those over 21 and those under 21. Id. All 56 of the
under-age partygoers were issued citations. Id. After balancing the government’s
interest in crime prevention, the individuals’ liberty interest against unreasonable
searches and seizures, and the public’s interest, the court held that it could “identify
5. In City of Indianapolis, the city set up a series of checkpoints “to interdict
unlawful drugs.” 531 U.S. at 35, 121 S. Ct. at 451. The Supreme Court had
previously carved out limited exceptions to the individualized suspicion
requirement for sobriety and border checkpoints because of “the magnitude of
the State’s interest” in safety and policing its borders. Id. at 38-39, 121 S. Ct.
at 452-53. However, the Supreme Court held that drug checkpoints violated
the Fourth Amendment “[b]ecause the primary purpose of the Indianapolis
checkpoint program [was] ultimately indistinguishable from the general
interest in crime control.” Id. at 48, 121 S. Ct. at 458.
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no factor that elevates the level of public concern regarding underage drinking
beyond that of ‘a general interest in crime control.’” Id. at 1272. The Pennsylvania
court noted that the United States Supreme Court “has not condoned suspicionless
searches where the program is aimed at uncovering evidence of ordinary criminal
wrongdoing.” Id. at 1272 (citing City of Indianapolis, 531 U.S. at 42-43, 121 S. Ct.
at 455). 6 Thus, the Pennsylvania court held that law enforcement’s actions did “not
comport with constitutional requirements” and all evidence had to be suppressed.
Id. at 1273-74.
[¶18.] The present case is distinguishable. While it is true that the students
were in a group, Officer Anderson, based on information received from Dunteman,
had an individualized suspicion to stop each member of the group based on the
totality of the circumstances. Dunteman observed each of the eight group members
gathered around the tailgate of the Ford Escape with the taillights illuminated.
Upon investigation, the area behind the tailgate smelled of alcohol, Dunteman saw
multiple opened and unopened alcohol containers in the Ford Escape, and several of
the members stumbled as they walked away. Unlike Mistler, each group member
was observed in the immediate and particular area connected to the suspected
illegality. Furthermore, Meyer’s group remained intact and cohesive until Officer
Anderson conducted the investigatory stop. In Mistler, on the other hand, not every
partygoer had been observed within the immediate and particular area of the
suspected illegality, and the large group did not remain intact or cohesive.
6. While generalized and suspicionless stops may be appropriate in some
instances (e.g., border or DUI checkpoints), no such policy existed in the
Mistler case. 912 A.2d at 1273.
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[¶19.] This case did not involve a “suspicionless search” aimed at “general
crime control” or discovering “ordinary criminal wrongdoing.” See id. at 1273. Law
enforcement officials and campus police do not have carte blanche authority to
perform stops or searches en masse wherever a group of individuals is gathered.
Here, the State was able to prove that Officer Anderson stopped Meyer because he
had a reasonable and particularized suspicion to believe that she was involved in
criminal activity. The stop was not “the product of mere whim, caprice, or idle
curiosity.” See Mohr, 2013 S.D. 94, ¶ 13, 841 N.W.2d at 444. Therefore, upon
consideration of the totality of the circumstances, we hold that Officer Anderson
had an individualized, objective, and reasonable basis to believe that Meyer was
engaged in criminal activity. Meyer’s Fourth Amendment rights were not violated
by the stop. We affirm.
[¶20.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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