#25968-rev & rem-SLZ
2011 S.D. 92
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
SHANNA C. STARKEY, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE WALLY EKLUND
Judge
* * * *
MARTY J. JACKLEY
Attorney General
JENNIFER D. POHLMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellant.
ANGELA COLBATH
Rapid City, South Dakota Attorney for defendant
and appellee.
* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 14, 2011
OPINION FILED 12/21/11
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ZINTER, Justice
[¶1.] Shanna Starkey was arrested for driving under the influence of
alcohol. The stop was based on the officer’s perception that Starkey was attempting
to evade the police. The circuit court suppressed the evidence, concluding that the
officer lacked reasonable suspicion to justify the stop. We reverse because, under
the totality of the circumstances, Starkey’s evasive driving provided reasonable
suspicion that criminal activity was afoot.
Facts and Procedural History
[¶2.] Around 2:00 a.m. on July 21, 2010, police officer Brian Fletcher was
patrolling in downtown Rapid City. He was stopped at a red light in the center lane
of Main Street, a three lane one-way street. Fletcher noticed Starkey’s vehicle
leaving a parking place behind him on Main Street. As Starkey left the parking
place, she entered the left lane of the three lane street, but she stopped in her lane
of traffic and did not move forward to the intersection where Fletcher was stopped.
Even though there were no cars in front of her, Starkey remained stopped in the left
lane of traffic, staying four or five car lengths behind Fletcher’s patrol vehicle until
the light turned green. When the light turned, Fletcher proceeded through the
intersection and Starkey proceeded to the intersection but turned left on Mount
Rushmore Road. Suspicious of Starkey’s unusual stop, Fletcher decided to follow
Starkey’s vehicle.
[¶3.] Because Fletcher had proceeded through the intersection, he turned
left at the next two intersections to try to locate Starkey’s vehicle. Fletcher found
Starkey’s vehicle stopped at a stoplight, headed south on Mount Rushmore Road.
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When Fletcher began to follow Starkey, she turned left onto Kansas City Street.
She then drove one-half block, turned left into a church parking lot, drove through
the parking lot and into an alley making what the court described as an “S”
maneuver. Although Fletcher attempted to meet Starkey’s vehicle at the end of the
alley, she turned onto St. Joseph Street, then onto Seventh Street, and then back to
Main Street, where she parked near the front of a bar near the parking space where
her trip began. Fletcher pulled in behind Starkey’s vehicle and turned on his patrol
lights. Fletcher approached Starkey and stated: “Looks like you’re doing a lot of
work trying to avoid me.” Fletcher also noticed evidence of alcohol consumption.
Starkey was ultimately arrested for driving under the influence.
[¶4.] Starkey moved to suppress the evidence. She argued that Fletcher did
not have reasonable suspicion to stop her vehicle. The circuit court suppressed,
reasoning that there were no observable traffic violations. The court ruled: “I am
unable to discern specific and articulable facts which taken together with rational
inferences from those facts, reasonably warrant this stop. . . . There were no traffic
violations that should have prompted the pursuit.” In its formal findings of fact and
conclusions of law, the court concluded that an objective law enforcement officer in
Fletcher’s position would not have concluded that “Starkey was in violation of law
or that [Starkey’s] actions gave rise to suspicion of illegal activity to merit the stop.”
This Court granted the State’s motion for intermediate appeal.
Decision
[¶5.] “An investigatory traffic stop must be ‘based on objectively reasonable
and articulable suspicion that criminal activity has occurred or is occurring.’” State
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v. Herren, 2010 S.D. 101, ¶ 7, 792 N.W.2d 551, 554 (citation omitted). The suspicion
must be based on the totality of the circumstances, and the officer may make
inferences and deductions from the information observed.
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 the
preponderance of the evidence standard.
Id. (quoting United States v. Arvizu, 534 U.S. 266, 273-74, 122 S. Ct. 744, 750, 151
L. Ed. 2d 740 (2002) (internal citations omitted)). “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 taken was appropriate.’” Id. ¶ 14 (citations omitted).
We review de novo the application of these constitutional standards to the
undisputed facts of this case. See State v. Wright, 2010 S.D. 91, ¶ 8, 791 N.W.2d
791, 794.
[¶6.] The circuit court first reasoned that “[t]here were no traffic law
violations that should have prompted the pursuit.” There is no dispute that had
Fletcher observed a traffic violation, however minor, he would have had probable
cause to initiate a stop. State v. Akuba, 2004 S.D. 94, ¶ 16, 686 N.W.2d 406, 414.
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But in order to justify an investigatory stop, an officer’s suspicion need not rise to
the level of probable cause that a traffic or other offense has been committed.
Although probable cause is generally required for a search, the
requisite level of suspicion necessary to effectuate the stop of a
vehicle is not equivalent to probable cause necessary for an
arrest or a search warrant. Law enforcement officers are only
required to show a reasonable suspicion to stop an automobile.
That is, an officer must have specific and articulable suspicion of
a violation. Therefore, the basis needed for a traffic stop is
minimal.
State v. Lockstedt, 2005 S.D. 47, ¶ 16, 695 N.W.2d 718, 722 (citations and internal
quotation marks omitted). “While the stop may not be the product of mere whim,
caprice or idle curiosity, it is enough that the stop is based upon ‘specific and
articulable facts which taken together with rational inferences from those facts,
reasonably warrant the intrusion.’” Id. ¶ 17 (citations omitted). The relevant facts
and inferences need only give rise to an “objectively reasonable suspicion” of a
violation. State v. Ballard, 2000 S.D. 134, ¶ 13, 617 N.W.2d 837, 841. Therefore,
the circuit court erred to the extent it reasoned that a traffic violation was
necessary to pursue the stop.
[¶7.] The circuit court also concluded that “an objective law enforcement
officer in Fletcher’s position would not conclude [that] . . . Defendant’s actions gave
rise to suspicion of illegal activity to merit the stop.” This conclusion is not
supported by the facts and law concerning evasive conduct. Fletcher testified that
he initiated the investigatory stop partly because of Starkey’s evasive driving.* The
* Fletcher also testified that he initiated the stop because Starkey was
speeding in the alley. The circuit court found that the speeding allegation
(continued …)
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court acknowledged that driving included Starkey’s remaining stopped in her lane
of traffic four to five car lengths behind Fletcher while he was at the stoplight. The
court also acknowledged Starkey’s evasive “S” maneuver and her circuitous route
through downtown Rapid City that began and ended near a bar at closing time.
From this, Fletcher inferred that Starkey was attempting to evade him. Indeed, the
first thing Fletcher said upon approaching Starkey was “[it] looks like you’re doing
a lot of work trying to avoid me.”
[¶8.] The circuit court erred in failing to consider that conduct designed to
evade contact with the police may establish reasonable suspicion for an
investigatory detention. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676,
145 L. Ed. 2d 570 (2000). In State v. Noteboom, 2008 S.D. 114, ¶ 11, 758 N.W.2d
457, 461, we summarized the application of Wardlow in a case involving a vehicle
that attempted to avoid the police:
In Illinois v. Wardlow, the United States Supreme Court
recognized that flight may be one of the factors leading law
enforcement to suspect criminal activity is afoot. 528 U.S. 119,
124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000). In Wardlow,
the defendant fled when he saw “police officers patrolling an
area known for heavy narcotics trafficking.” Id. at 121, 120 S.
Ct. at 674. The officers ran after him, stopped him, and did a
protective pat down search. The Court determined that, in
addition to the defendant’s presence in the high-crime area, his
“unprovoked flight upon noticing the police” raised the officers’
suspicions. Id. at 124, 120 S. Ct. at 676. The Court analyzed it
as follows:
Headlong flight—wherever it occurs—is the
consummate act of evasion: It is not necessarily
indicative of wrongdoing but it is certainly
(…continued)
was not supported by the record. We defer to that finding of fact and give the
speeding allegation no consideration in our analysis.
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suggestive of such. In reviewing the propriety of an
officer’s conduct, courts do not have available
empirical studies dealing with inferences drawn
from suspicious behaviors, and we cannot
reasonably demand scientific certainty from judges
or law enforcement officers where none exists.
Thus, the determination of reasonable suspicion
must be based on commonsense judgments and
inferences about human behavior.
Id. at 124-25, 120 S. Ct. at 676. Even though an individual has
“a right to ignore the police and go about his business,” the
Court determined that “unprovoked flight” was not “going about
one’s business.” The Court explained that officers can detain
“individuals to resolve ambiguity.” Id. at 125, 120 S. Ct. at 677
(citations omitted).
We ultimately concluded that the suspect’s driving away from the police was
a factor to consider in reasonable suspicion analysis. Id. ¶ 13.
[¶9.] More to the point, in State v. Thill, this Court held that a defendant’s
avoidance of a sobriety checkpoint constituted reasonable suspicion to initiate an
investigatory stop. 474 N.W.2d 86, 88 (S.D. 1991). “Thill’s turnabout at the
entrance of the roadblock and his subsequent circuitous route constituted a
reasonable suspicion that Thill was in violation of the law respecting the use or
ownership of an automobile. The subsequent stop of Thill’s vehicle was therefore
lawful.” Id.
[¶10.] The Minnesota Supreme Court also holds that reasonable suspicion
may arise from evasive driving. State v. Johnson, 444 N.W.2d 824, 827 (Minn.
1989) (concluding that “the trooper reasonably inferred that defendant was
deliberately trying to evade him and that, as a result, the trooper reasonably
suspected petitioner of wrongdoing.”). The Johnson court cautioned, however, that
there is a difference between being startled by the presence of the police and an
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officer’s reasonable inference that the driver is deliberately trying to evade the
officer.
As we see it, the issue is partly a semantic question depending
on what one means when one says that the defendant engaged
in evasive conduct. On the one hand, if a driver merely appears
startled at the sight of a police officer passing him and then
slows down a bit and if a reasonable police officer would not
infer any wrongdoing from the driver’s response, then the officer
does not have a particular and objective basis for suspecting the
driver of criminal activity and may not stop the driver. On the
other hand, if the driver’s conduct is such that the officer
reasonably infers that the driver is deliberately trying to evade
the officer and if, as a result, a reasonable police officer would
suspect the driver of criminal activity, then the officer may stop
the driver.
Id. at 826-27. Thus, reasonable suspicion arises when the officer reasonably infers
that the driver is deliberately trying to evade the officer, and as a result, a
reasonable police officer would suspect the driver of criminal activity. Id.
[¶11.] In this case, Starkey was not involved in an isolated act in which she
was merely startled. Nor was this a case where she only made one turn that
avoided the officer. Starkey engaged in numerous evasive maneuvers, including a
stop in her lane of traffic for no apparent reason and what the circuit court
described as an “S” maneuver and travel “over nine blocks on a circuitous route
through downtown Rapid City.” The setting was also relevant. Location is a
contributing factor to the reasonable suspicion determination. Wardlow, 528 U.S.
at 124, 120 S. Ct. at 676. Here, the evasive conduct occurred in downtown Rapid
City, near the time multiple bars were closing, and Starkey’s trip began and ended
near the front of one of those bars. This is an appropriate factor to be considered by
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law enforcement in reasonable suspicion analysis. See Paulson v. Comm’r of Pub.
Safety, 384 N.W.2d 244, 246 (Minn. App. 1986).
[¶12.] That Starkey’s conduct may be subject to reasonable interpretations
other than evasion does not alter the reasonableness of the inference drawn by
Fletcher. Johnson, 444 N.W.2d at 827 (“While defendant’s behavior may have been
consistent with innocent behavior, it also reasonably caused the officer to suspect
that defendant was deliberately trying to evade him.”). We therefore conclude that
the inference of evasive driving and wrongdoing drawn by Fletcher was objectively
reasonable given the totality of Fletcher’s observations. He observed Starkey
engage in multiple evasive maneuvers on a circuitous route that could have led a
reasonably objective officer to believe that Starkey was involved in wrongdoing and
was deliberately trying to evade the officer. See Thill, 474 N.W.2d at 88 (holding
that avoidance and a circuitous route constituted reasonable suspicion that the
driver was in violation of the law respecting the use or ownership of an automobile).
As the Minnesota Supreme Court observed in Johnson:
Our decision, of course, should not be interpreted in any way as
making it easier for police to justify stopping motor vehicles. We
simply reaffirm the standard which we have followed in
numerous cases: that a police officer may make a brief limited
investigative stop if the officer has a particular and objective
basis for suspecting the person stopped of criminal activity.
444 N.W.2d at 827.
[¶13.] Reversed and remanded for further proceedings consistent with this
opinion.
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[¶14.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and
WILBUR, Justices, concur.
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