#25614-a-JKM
2010 S.D. 101
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ANNETTE M. HERREN, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA
* * * *
HONORABLE DAVID R. GIENAPP
Judge
* * * *
MARTY J. JACKLEY
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
MICHAEL E. McCANN of
McCann, Ribstein & McCarty, P.C. Attorneys for defendant
Brookings, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 15, 2010
OPINION FILED 12/22/10
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MEIERHENRY, Justice
[¶1.] A Brookings County Deputy Sheriff stopped Annette Herren’s vehicle
primarily because of his observation that it hesitated too long (about 40 seconds) at
a stop sign at a rural intersection. The stop resulted in Herren’s arrest for driving
while under the influence of alcohol. Herren challenges the constitutionality of the
investigatory stop, claiming that the arresting officer did not have reasonable
suspicion to stop her. The trial court determined that the officer had reasonable
suspicion based on her delay at the stop sign. Herren appeals the trial court’s
ruling. We hold that the totality of the circumstances – the stop-sign delay along
with an anonymous tip concerning a possible drunk driver – provided the officer
with reasonable suspicion to proceed with the investigatory stop. Affirmed.
FACTS
[¶2.] The facts surrounding the stop are not disputed. At approximately
9:00 p.m. on August 2, 2009, the officer received a radio communication from
dispatch that an anonymous male had called to report that a possible drunk driver
would be driving on Highway 14 from Flandreau, South Dakota, to Toronto, South
Dakota. The anonymous caller described the vehicle as a “blue Ford Durango.” In
response, the officer drove to a rural intersection at Highway 14 and 478th Avenue
between Flandreau and Toronto. The officer parked his patrol car and waited.
[¶3.] The officer eventually saw a vehicle approach the intersection and stop
at the stop sign. He testified at the preliminary hearing that “when [the vehicle]
came to stop at the stop sign it appeared to be a Dodge Durango.” The vehicle
remained stopped for approximately 40 seconds. After the vehicle began to drive
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through the intersection, the officer immediately “pulled in behind the vehicle,
activated [his] red lights . . . and made a traffic stop on the vehicle.” The officer said
he made the traffic stop because the driver stopped too long at the intersection for
no apparent reason.
[¶4.] At the suppression hearing, the officer explained why he stopped
Herren:
State’s Attorney: At the preliminary hearing, [Deputy], you
had testified that you would have stopped
this vehicle even though without any prior
warning that the driver might have been
intoxicated; do you remember that?
Deputy: Yes, I do.
State’s Attorney: And I believe you testified that was because
of the length of this stop?
Deputy: That is correct.
State’s Attorney: And why would you have stopped the vehicle
as a result of that?
Deputy: Through my training and experience the
length of stop as this one has, excuse me, as
this one, that is an indicator of a possible
impaired driver.
State’s Attorney: That is something that you learned through
your training and experience?
Deputy: Yes, sir.
State’s Attorney: And from what you had observed there was
no reason for this vehicle to stop at this stop
sign for some 45 seconds? 1
1. The video of the stop indicates the vehicle was stopped for 30 seconds. The
officer said he activated the video camera about 10 seconds after she stopped.
(continued . . .)
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Deputy: That is correct.
State’s Attorney: There was no traffic to prevent the driver
from proceeding?
Deputy: No, there was not.
...
(on cross-examination)
Herren’s Attorney: And so the only reason you stopped her was
because she stopped at the stop sign for some
30 seconds or so?
...
Deputy: The reason I stopped the vehicle was for the
extended period of time that she stopped at
the stop sign, being an indicator of impaired
driving.
Herren’s Attorney: And that’s the only reason you stopped her,
wasn’t it?
Deputy: I was acting on the possible anonymous tip of
an impaired driver with the vehicle matching
the description as a Durango and the length
of the stop, that’s why I stopped her.
[¶5.] Relying on the officer’s testimony, the trial court found that the officer
“stopped [Herren’s] vehicle because of its inordinate delay at the stop sign and not
because of the anonymous tip.” Based on its findings, the trial court concluded:
That the fact that the vehicle was stopped at the stop sign for
longer than the amount of time normally used considering the
total lack of any traffic which would have warranted such
extended stopping time constituted an articulable fact which
______________________
(. . . continued)
Based on that evidence, Herren’s stop would have been approximately 40
seconds rather than the 45 seconds testified to.
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under the totality of the circumstances warranted the Deputy’s
actions; the stop was not the product of mere whim, caprice or
idle curiosity.
ISSUE
[¶6.] Did the officer have reasonable suspicion to make an investigatory stop
of Herren’s vehicle, that is, did the officer have a particularized and objective basis
for suspecting legal wrongdoing under the totality of the circumstances?
ANALYSIS
[¶7.] We review the trial court’s findings of fact under the clearly erroneous
standard and the conclusions of law de novo. State v. Sound Sleeper, 2010 S.D. 71,
¶ 12, 787 N.W.2d 787, 790 (citing State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d
618, 622). The parties do not challenge the trial court’s findings as clearly
erroneous. Because constitutional questions are reviewed de novo, we are not
bound by the trial court’s reasoning. State v. Wendling, 2008 S.D. 77, ¶ 8, 754
N.W.2d 837, 839. An investigatory traffic stop must be “based on objectively
reasonable and articulable suspicion that criminal activity has occurred or is
occurring.” State v. Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d 911, 914. The United
States Supreme Court directs reviewing courts as follows:
When discussing how reviewing courts should make reasonable-
suspicion determinations, we have said repeatedly that they
must look at the “totality of the circumstances” of each case to
see whether the detaining officer has a “particularized and
objective basis” for suspecting legal wrongdoing. This process
allows officers to draw on their own experience and specialized
training to make inferences from and deductions about the
cumulative information available to them that “might well elude
an untrained person.” Although an officer’s reliance on a mere
“‘hunch’” is insufficient to justify a stop, the likelihood of
criminal activity need not rise to the level required for probable
cause, and it falls considerably short of satisfying a
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preponderance of the evidence standard.
United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 750, 151 L.Ed.2d 740
(2002) (citations omitted).
[¶8.] Recognizing that the term “reasonable suspicion” cannot be precisely
defined, we have said that it “is a common-sense and non-technical concept dealing
with the practical considerations of everyday life.” State v. Quartier, 2008 S.D. 62, ¶
10, 753 N.W.2d 885, 888 (citations omitted). We determine reasonable suspicion
based on an objective standard. State v. Hodges, 2001 S.D. 93, ¶ 16, 631 N.W.2d
206, 210-11. Reasonable suspicion to stop must be based on “specific and
articulable facts which taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.” State v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d
406, 413 (citation omitted). “[I]n making a reasonable suspicion determination, we
must [l]ook at the ‘totality of the circumstances’ of each case to see whether the
detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing.” Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d at 914 (citations omitted).
“The stop may not be the product of mere whim, caprice or idle curiosity.” Id.
The delay at the stop sign, alone, did not create reasonable suspicion.
[¶9.] The trial court determined that the delay at the stop sign created
reasonable suspicion of criminal activity. Although the law does not specify how
long a vehicle should stop at a stop sign, the officer testified that, based on his
training and experience, a lengthy stop at a stop sign is an indication of impaired
driving. Herren points out that the officer did not “see her driving erratically or
irregularly, and he did not see her violate any traffic laws.” Thus, Herren refutes
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the officer’s claim that the delayed stop created reasonable suspicion of impaired
driving. The State, however, does not claim that the delayed stop by itself created
reasonable suspicion, but that the delayed stop was a factor to consider under the
totality of the circumstances.
[¶10.] We first address whether Herren’s delayed stop created reasonable
suspicion as the trial court determined. Other jurisdictions, under similar facts,
have found delayed stops at stop signs insufficient to create reasonable suspicion to
stop a vehicle. In State v. Fields, the Wisconsin Court of Appeals held that a five-to-
ten-second delay at a stop sign in a rural area without other traffic was not, by
itself, sufficient to permit an officer to lawfully stop a vehicle. 239 Wis.2d 38, 47,
619 N.W.2d 279, 284 (2000). The Fields court reasoned that even though the officer
believed, based on his training and experience, that stopping at a stop sign for an
extended time was an indication of illegal activity, such an extended stop was not a
“specific and articulable fact” to “justify reasonable suspicion that Fields had
committed or was committing an unlawful act.” Id. at 48, 619 N.W.2d at 285.
[¶11.] In State v. Hein, the Washington Court of Appeals held that a five-to-
seven-second delay at a stop sign did not give an officer reasonable suspicion. 2002
WL 1825752 (Wash.Ct.App.). In Hein, the court determined that a vehicle’s delay
before turning at a stop light after the light turned green was not, by itself, enough
to support reasonable suspicion. Id. As support for its holding, Hein cited State v.
DeArman, 54 Wash.App. 621, 625, 774 P.2d 1247, 1249 (1989). In DeArman, the
Washington Court of Appeals held that “the simple fact that [Defendant] remained
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motionless at a stop sign for [45 to 60] seconds [did] not rise to the level of providing
a reasonable suspicion that he was engaged in criminal activity.” Id.
[¶12.] Finally, in Stiffler v. State, the Florida District Court of Appeals held
that an officer lacked reasonable suspicion to stop a vehicle after it stopped at a stop
sign for “a long time.” 744 So.2d 1187, 1188 (Fla.Dist.Ct.App. 1999). This case
included additional factors, including that the stop was in a high-crime area and
that the defendant fidgeted toward his pant pocket. Id. The Stiffler Court
determined that while these facts were “suspicious,” they did not rise to reasonable
suspicion. Id.
[¶13.] Generally, these cases hold that a delayed stop at an intersection does
not amount to reasonable suspicion of criminal activity. We find their reasoning
persuasive and applicable to the present case. Thus, contrary to the trial court’s
analysis, we hold that Herren’s 40-second stop at the intersection, alone, does not
rise to the level of reasonable suspicion. See Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d
at 914 (citation omitted).
The stop-sign delay coupled with the anonymous tip created reasonable suspicion
under the totality of the circumstances.
[¶14.] Although we conclude that the delayed stop, alone, did not constitute
reasonable suspicion, our analysis does not end here. Since our review of asserted
constitutional violations is de novo, we are not bound by the trial court’s rationale.
Sound Sleeper, 2010 S.D. 71, ¶ 12, 787 N.W.2d at 790 (citing Ludemann, 2010 S.D.
9, ¶ 14, 778 N.W.2d at 622). Our determination must be based on an objective
standard that considers whether “the facts observable to the law enforcement officer
at the time of the stop entitle an officer of reasonable caution to believe the action
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taken was appropriate[.]” Hodges, 2001 S.D. 93, ¶ 16, 631 N.W.2d at 210-11
(quoting State v. Vento, 1999 S.D. 158, ¶ 8, 604 N.W.2d 468, 470). We make this
determination based on the “totality of the circumstances.” See Arvizu, 534 U.S. at
273, 122 S.Ct. at 750.
[¶15.] The State on appeal does not rely solely on the lengthy stop. Instead,
the State claims that under the totality of the circumstances the officer’s
observation of Herren’s “forty-second delay . . . coupled with the anonymous tip and
the corroborating observations” sufficiently established reasonable suspicion. The
State argues that “[j]ust because [the deputy] stated he relied on the unusually long
stop as the sole basis for pulling Herren over does not preclude this Court from
considering the tip in the totality of the circumstances.”
[¶16.] Although the officer testified that his main reason for stopping
Herren’s vehicle was the lengthy stop at the stop sign, he also indicated that he was
acting on the anonymous tip. He said: “I was acting on the possible anonymous tip
of an impaired driver with the vehicle matching the description as a Durango and
the length of the stop, that’s why I stopped her.” Reasonable suspicion depends on
whether the officer had a “particularized and objective basis for suspecting legal
wrongdoing” under the totality of the circumstances. We, therefore, turn our
attention to the tip and analyze whether it, with the stop-sign delay, amounted to
reasonable suspicion.
[¶17.] The degree to which law enforcement can rely on an anonymous tip
depends on the tip’s degree of reliability. State v. Scholl, 2004 S.D. 85, ¶ 9, 684
N.W.2d 83, 86. The tip’s degree of reliability depends on the quantity and quality of
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the tipster’s information. Id. As was pointed out by the Eighth Circuit in United
States v. Wheat, “[I]f a tip has a relatively low degree of reliability, more
information will be required to establish the requisite quantum of suspicion than
would be required if the tip were more reliable.” Scholl, 2004 S.D. 85, ¶ 9, 684
N.W.2d at 86 (emphasis added) (citing Wheat, 278 F.3d 722, 724 (8th Cir. 2001)).
[¶18.] The State claims that the tip was reliable because the “tipster provided
law enforcement with the model, make and color of the suspect vehicle, that a
female was driving, and the route the possible intoxicated driver would travel.” The
State further notes “the fact that the tipster knew the rural route the suspect driver
would travel indicated he had intimate knowledge regarding the driver and her
actions.” Herren, on the other hand, claims that the tip lacked sufficient quality
and quantity of information to be reliable.
[¶19.] There were some problems with the tip. Alone, the tip did not provide
the officer with reasonable suspicion to stop the vehicle. See id. All the record
indicates is that the tipster told law enforcement that a possible intoxicated female
was driving a blue Ford Durango from Flandreau to Toronto, South Dakota. How
the anonymous tipster acquired his information is unknown. See id. ¶ 14, 684
N.W.2d at 88. The tipster did not provide a license plate number and gave a
confusing description of the vehicle. See id. The tipster described the vehicle as a
Ford Durango, which the officer knew was an invalid description because, as the
officer explained, it could not have been a Ford Durango since Dodge makes a
Durango, not Ford. The tipster described the vehicle as blue; Herren’s vehicle was
green.
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[¶20.] Without a license plate number or accurate description of the make
and color of the vehicle, the officer had no way to verify whether the car he saw at
the stop sign was the same one reported. See id. The officer acted on the tip by
driving to the highway specified by the tipster where he eventually saw a Durango.
Although the trial court discounted the anonymous tip as the reason for the stop, it
can at least be considered as part of the totality of the circumstances. Under the
totality of the circumstances, the tip added to the officer’s quantum of suspicion
even though the tip’s degree of reliability was low.
Conclusion
[¶21.] Independently, neither the 40-second stop at the intersection nor the
anonymous tip rise to the level of reasonable suspicion of legal wrongdoing. But
under the totality of the circumstances, the tip and delayed stop increased the
quantum of proof. The quantum of proof necessary for reasonable suspicion is
somewhere above a hunch but less than probable cause. 2 Arvizu, 534 U.S. at 274,
122 S.Ct. at 750. Reasonable suspicion merely requires that an officer have a
“particularized and objective basis for suspecting legal wrongdoing.” Arvizu, 534
U.S. at 274, 122 S.Ct. at 750 (citation omitted).
[¶22.] We hold that, under the totality of the circumstances, the officer had a
“particularized and objective basis for suspecting legal wrongdoing.” The officer (1)
received a tip that a possible drunk driver in a Durango was driving toward Toronto
2. Proof of probable cause exists when the facts “would lead a reasonable and
prudent person to believe it fairly probable that a crime has been committed.
. . .” State v. Hanson, 1999 S.D. 9, ¶ 14, 588 N.W.2d 885, 890 (quoting State
v. Zachodni, 466 N.W.2d 624, 629 (S.D. 1991)).
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from Flandreau and (2) saw a vehicle generally matching that description
hesitating for 40 seconds at an intersection. These facts, together, gave the officer
more than a hunch of legal wrongdoing. Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d at
914 (citation omitted). While individually neither the tip nor the delay at the
intersection would have satisfied the reasonable suspicion standard, together they
provided the requisite quantum of proof necessary to justify the investigatory stop.
[¶23.] Affirmed.
[¶24.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and
SEVERSON, Justices, concur.
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