#26393, #26395-aff in pt, rev in pt & rem-JKK
2013 S.D. 37
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
BRIAN DENNIS AMICK, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
JERAULD COUNTY, SOUTH DAKOTA
****
THE HONORABLE TIM D. TUCKER
Judge
****
MARTY J. JACKLEY
Attorney General
CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellant.
JOHN R. STEELE of
Steele & Steele, PC
Plankinton, South Dakota Attorneys for defendant
and appellee.
****
ARGUED ON MARCH 20, 2013
OPINION FILED 05/08/13
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KONENKAMP, Justice
[¶1.] A deputy sheriff stopped a pickup truck because he did not see the
vehicle’s temporary license permit on the rear window. A DUI arrest followed. On
a motion to suppress, the circuit court concluded that the deputy unconstitutionally
extended the scope of the stop by initiating contact with the driver when the deputy
could have first confirmed that the temporary license permit was valid. On appeal,
the State asserts that the deputy lawfully approached the driver. By notice of
review, the driver argues that the stop was invalid at its inception.
Background
[¶2.] On September 11, 2011, Deputy Sheriff Shane Mentzer was on patrol
in Wessington Springs. It was the weekend of the Bull Bash Rodeo, an event
drawing many visitors to town. At 3:25 a.m., he noticed a black four-door, crew cab
pickup. Considering the late hour, he followed the truck and noticed that it had no
license plate in the rear license plate bracket. Deputy Mentzer activated his lights
and initiated a stop. His in-car video camera recorded much of what happened.
[¶3.] In the first thirty-five seconds of the video, the deputy can be seen
walking from his patrol car toward the driver’s side of the pickup. He directed his
flashlight into the left side of the pickup box. Almost simultaneously, a person can
be seen sitting up in the box for just a moment. Deputy Mentzer pointed his light
into the box for a second time and continued walking. As he approached the driver,
he shined his flashlight into the open rear passenger window and saw an open beer
container. Once at the driver’s window, he recognized the driver as Brian Dennis
Amick.
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[¶4.] Because of the open container, the first question the deputy asked
Amick was whether he had been drinking. Amick answered that he had had “a
couple.” A DUI investigation ensued, and Amick was arrested. It was not until
later during the stop that the deputy noticed an unexpired temporary license permit
in the lower right-hand corner of the pickup’s rear window.
[¶5.] Amick was charged with driving under the influence in violation of
SDCL 32-23-1(1). He moved to suppress the evidence obtained as a result of the
stop. He argued that Deputy Mentzer was required to first look for a validly
displayed temporary license permit before initiating any contact with the driver.
And because the deputy should have seen a valid temporary license permit, had he
looked, initiating contact with the driver was an impermissible extension of the
investigatory stop. Amick also argued that the deputy’s reason for the stop was
unreasonable at its inception.
[¶6.] At the suppression hearing, Deputy Mentzer testified that he tried to
look for a properly displayed temporary license permit. The State asked, “[I]s there
a reason at least in your mind that you did not see those plates on the initial stop?”
He replied, “On the initial stop from behind the - - the rear window of the vehicle
was tinted, rather dark. Along with the fact that there was people sitting in the
back of the pickup. I’m not positive, they - - their heads could have been blocking,
was not - - was not helping the issue of being able to see.” The video recording of
the stop was played for the circuit court.
[¶7.] During cross-examination, Deputy Mentzer said that when he stopped
Amick he saw a rear license plate bracket bearing the name and logo of “Vern Eide
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Ford,” which he knew to mean that the vehicle had been recently purchased. He
conceded that he did not use the spotlight equipped with his vehicle to look for a
temporary license permit. He repeated that he tried to shine his flashlight toward
the lower right-hand corner of the rear window, but there was a passenger
obstructing his view.
[¶8.] To support his claim that Deputy Mentzer would have been able to see
Amick’s temporary license permit, Amick offered the testimony of his father,
Dennis. Dennis and Amick had reenacted the stop and sought to introduce the
photographs taken from their reenactment. The court admitted the photographs
over the State’s objection.
[¶9.] In a bench ruling, the court granted Amick’s motion to suppress. It
concluded that Deputy Mentzer had an articulable reason to stop Amick’s pickup.
But the court found that the scope of the stop was “simply to see if there’s a license
plate.” The court held that the deputy should have first looked for the presence of a
temporary license permit in the rear window, confirmed its validity, then “[a]t that
point the officer simply returns to his vehicle and the other vehicle’s free to go. . . .
The paper plates are readily visible from the back of the pickup, and so the search
never goes any farther.” Because the deputy initiated contact with Amick, the court
ruled that the scope of the stop was unconstitutionally extended.
[¶10.] In the court’s written findings of fact and conclusions of law, it further
explained that Deputy Mentzer knew from his ordinary experience that the
presence of a dealer logo plate meant that the vehicle had recently been purchased.
Yet, after seeing the logo plate, the deputy did not look for a valid temporary license
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permit on the lower rear area of the back window. 1 Because Deputy “Mentzer could
have verified the presence and expiration date of the temporary paper permit
displayed on Amick’s vehicle without ever getting out of his patrol car and without
approaching Amick’s pickup,” the court suppressed the evidence and dismissed the
case.
[¶11.] On appeal, the State contends that the court erred in ruling that the
stop was impermissibly extended. By notice of review, Amick argues the court erred
when it ruled that Deputy Mentzer validly initiated the stop. 2
Analysis and Decision
[¶12.] We address Amick’s notice of review issue first, because if the stop was
invalid at its inception, we need not determine the constitutionality of Deputy
Mentzer’s actions after the stop. See State v. Littlebrave, 2009 S.D. 104, ¶ 11, 776
N.W.2d 85, 89. Amick contends the court erred when it concluded that there were
1. Deputy Mentzer testified that a temporary license plate is “generally
displayed in the lower right-hand corner of the rear window.” In its findings
of fact, the circuit court found that the pickup’s “valid, unexpired temporary
paper plates were properly displayed in the lower right rear window.”
(Emphasis added.) But under SDCL 32-6B-27, the temporary license permit
must be displayed in the lower left-hand corner of the rear window. Because
this fact was not raised below, the State chose not to raise it on appeal.
2. “‘A motion to suppress for an alleged violation of a constitutionally protected
right raises a question of law, requiring de novo review.’” State v. Hess, 2004
S.D. 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Herrmann, 2002 S.D. 119,
¶ 9, 652 N.W.2d 725, 728 (citations omitted)); State v. Tofani, 2006 S.D. 63, ¶
24, 719 N.W.2d 391, 398. Findings of fact are reviewed under the clearly
erroneous standard. Tofani, 2006 S.D. 63, ¶ 24, 719 N.W.2d at 398. “Yet ‘the
application of a legal standard to those facts’ is reviewed de novo.” State v.
Stevens, 2007 S.D. 54, ¶ 5, 734 N.W.2d 344, 346 (quoting Hess, 2004 S.D. 60,
¶ 9, 680 N.W.2d at 319 (citing State v. Lamont, 2001 S.D. 92, ¶ 12, 631
N.W.2d 603, 607 (citation omitted))).
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reasonable and articulable facts to justify the investigatory stop of his pickup. An
investigatory stop is constitutional when a law enforcement officer has specific and
articulable suspicion to believe a crime was or is being committed. See State v.
Overbey, 2010 S.D. 78, ¶ 16, 790 N.W.2d 35, 41.
[¶13.] South Dakota law prohibits operating a motor vehicle on public roads
without valid and properly placed licensure. See SDCL 32-5-98; SDCL 32-6B-27.
Here, the court found that while the deputy followed Amick’s pickup, he could not
see a properly displayed and valid license. It is undisputed that Amick did not have
a rear license plate. See SDCL 32-5-98. Yet Amick had a temporary license permit
in his rear window. That permit, the court found, would have been visible from
approximately thirty feet away with the use of a flashlight or spotlight. Amick does
not challenge these findings as clearly erroneous, nor does he claim that the deputy
should have been able to confirm the validity of the permit without stopping
Amick’s pickup. Thus, the court did not err when it ruled that the initial stop of
Amick’s pickup was based on reasonable and articulable suspicion that Amick’s
pickup was without a license.
[¶14.] We next address the State’s argument that the circuit court erred
when it ruled that Deputy Mentzer unconstitutionally extended the scope of the
stop. The State claims that, contrary to the court’s findings, the deputy did look for
a temporary license permit in the lower corner of the rear window, but was
prevented from doing so “possibly because the passenger in the pickup blocked his
view of the back window of the pickup.” We review a court’s findings of fact for
clear error. Tofani, 2006 S.D. 63, ¶ 24, 719 N.W.2d at 398. The court made no
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specific findings on whether the deputy’s view of the temporary license permit was
blocked by the people sitting in the pickup box. Nonetheless, by finding that the
deputy would have been able to see the temporary license permit from at least
thirty feet away had he shined his flashlight or vehicle spotlight on the rear
window, the court in effect rejected the deputy’s testimony that he was prevented
from viewing the permit because his view was obstructed. The video recording does
not contradict the court’s findings, and the State presented no further evidence that
the deputy’s view was blocked. Thus, the court’s findings and credibility
determination were not clearly erroneous.
[¶15.] The State next argues that even if Deputy Mentzer could have
confirmed the validity of the temporary license permit before talking to Amick, he
was authorized to, at a minimum, approach Amick, explain the reason for the stop,
and tell Amick he was free to go on his way. Amick responds that the deputy was
not authorized to make any contact with him after the moment the deputy should
have confirmed the validity of the temporary license permit. Amick believes the
deputy was required to turn around, walk back to his patrol car, and drive away.
[¶16.] “[A]n investigative detention must be temporary and last no longer
than is necessary to effectuate the purpose of the stop.” State v. Ballard, 2000 S.D.
134, ¶ 11, 617 N.W.2d 837, 841 (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.
Ct. 1319, 1325-26, 75 L. Ed. 2d 229 (1983) (citations omitted)). And an officer’s
actions during the stop must be “‘reasonably related in scope to the circumstances
that justified the interference in the first place.’” United States v. Bloomfield, 40
F.3d 910, 915 (8th Cir. 1994) (quoting United States v. Cummins, 920 F.2d 498, 501
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(8th Cir. 1990)). Once the reason for detaining an individual has evaporated, the
“‘officer must allow the driver to proceed without further constraint.’” State v.
Hayen, 2008 S.D. 41, ¶ 7, 751 N.W.2d 306, 309 (quoting Ballard, 2000 S.D. 134, ¶
12, 617 N.W.2d at 841) (additional citation omitted).
[¶17.] In Hayen, the officer stopped a vehicle on suspicion that its temporary
license permit had expired. Id. ¶ 1. Like here, the officer in Hayen made no effort
to confirm the validity of the permit before talking to the driver. See id. ¶ 2.
Because the officer could have dispelled his suspicion before talking to Hayen, we
held that the officer unconstitutionally expanded the scope of the stop by asking
Hayen for his license and proof of insurance. Id. ¶ 13.
[¶18.] In this case, however, we are asked to decide to what extent an officer
can continue to detain a driver after the reason for the initial stop has been
dispelled. Does the fact that an officer cannot ask a driver for his license and proof
of insurance after the suspicion justifying the stop has evaporated also mean that
an officer cannot approach or initiate contact with a driver in any manner? In
Hayen, we cited United States v. McSwain, 29 F.3d 558, 562 (10th Cir. 1994) for the
rule that, even when the reason for the stop is dispelled, as a matter of courtesy, an
officer may approach a driver and explain the reason for the initial stop. 2008 S.D.
41, ¶ 12, 751 N.W.2d at 310-11. Yet this language from McSwain was dicta. See 29
F.3d at 561-62.
[¶19.] A few courts have directly decided what a law enforcement officer is
permitted to do when the reasonable suspicion warranting the initial stop has been
dispelled and no further reasonable and articulable suspicion of criminal activity
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exists. 3 The prevailing view is in line with McSwain’s proposition: an officer,
having stopped a vehicle on the basis of a reasonable and articulable suspicion of a
violation, may continue the detention to approach the driver and explain the
mistaken reason for the stop. For these courts, the opposite conclusion would not
only be impractical but would require absurd police conduct. 4 As one court
explained, “[d]rivers should not be left to wonder why they were stopped, nor should
they have to experience the fear or confusion, however fleeting, that may result
from a lack of explanation.” See Morris, 259 P.3d at 124. On seeing a lawful
license, simply turning and walking away “would be impractical.” Lopez, 631
N.W.2d at 813.
[¶20.] Fourth Amendment analysis measures “‘the reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s personal
security.’” See Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 332, 54 L.
Ed. 2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 1878-79, 20
L. Ed. 2d 889 (1968)). Indeed, “[t]he Fourth Amendment does not protect against
all searches and seizures, but only against unreasonable searches and seizures.”
3. State v. Morris, 259 P.3d 116, 124 (Utah 2011); see also United States v.
Jenkins, 452 F.3d 207, 214 (2d Cir. 2006); People v. Bartimo, 803 N.E.2d 596,
603-04 (Ill. App. Ct. 2004) (citing People v. Adams, 587 N.E.2d 592, 593 (Ill.
App. Ct. 1992)); Commonwealth v. Garden, 883 N.E.2d 905, 909 (Mass. 2008),
superseded by statute on other grounds; State v. Lopez, 631 N.W.2d 810, 813-
14 (Minn. Ct. App. 2001).
4. In an unpublished decision, an Arizona appellate court relied on a now-
reversed Utah Court of Appeals case to hold that an officer cannot initiate
contact with a driver in any fashion. Arizona v. Condit, 2011 W.L. 1086885
(citing State v. Morris, 214 P.3d 883, 888 (Utah Ct. App. 2009), rev’d by State
v. Morris, 259 P.3d 116 (Utah 2011)).
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State v. Deneui, 2009 S.D. 99, ¶ 13, 775 N.W.2d 221, 229 (citing United States v.
Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605 (1985)).
Accordingly, we conclude that when an officer stops a vehicle based on objectively
reasonable suspicion of illegal activity, and the officer’s suspicion is dispelled, the
officer may nonetheless approach the driver and explain the mistake. But the scope
of this brief interaction must be limited and continue only long enough for the
officer to speak to the driver. See Morris, 259 P.3d at 124. “[T]he officer may not
ask for identification, registration, or proof of insurance at this time unless during
this brief encounter, new reasonable suspicion of criminal activity immediately
arises that justifies further detention.” Id.
[¶21.] We now examine Deputy Mentzer’s conduct in detaining Amick after
he should have confirmed the validity of the temporary license permit. The video
recording of the stop shows that less than thirty-five seconds passed from the time
the deputy stopped Amick until he first initiated contact. Deputy Mentzer exited
his patrol car, walked toward the pickup, shined his flashlight at the pickup several
times, and stopped at Amick’s window. Although the deputy did not specifically
examine the temporary license permit, his continued detention of Amick was
neither unreasonably long nor unlawful in scope. See id. Moreover, because the
deputy observed the open beer bottle in the backseat area of the pickup as he
approached Amick, the deputy had facts independent of the initial stop to justify a
continued detention to investigate the new suspicion of criminal activity. Thus, it
was error for the circuit court to suppress the evidence gathered as a result of the
stop and to order dismissal of the case.
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[¶22.] Affirmed in part, reversed in part, and remanded.
[¶23.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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