State v. Scholl

GILBERTSON, Chief Justice

(concurring in result).

[¶ 22.] I concur with the result of this opinion but write separately to point out that the case principally relied upon by Scholl, Graf v. State, 508 N.W.2d 1 (S.D.1993), should be overruled in light of today’s decision and the rationale contained in Florida v. J.L, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and United States v. Wheat, 278 F.3d 722 (8thCir.2001).

[¶ 23.] In reaching its conclusion in Graf that the anonymous tip did not supply the requisite reasonable suspicion to support a vehicle stop, the majority applied the correct standard and considered the quantity and quality of the tip under the totality of the circumstances. 508 N.W.2d at 2 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990)). Since this Court handed down Graf, however, the Eighth Circuit Court of Appeals decided Wheat wherein it addressed and clarified the factors relevant to this standard in the context of an anonymous tip alleging erratic driving:

First, the anonymous tipster must provide a sufficient quantity of information, such as the make and model of the vehicle, its license plate numbers, its location and bearing, and similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.
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The tip must also contain a sufficient quantity of information to support an inference that the tipster has witnessed an actual traffic violation that compels an immediate stop. A law enforcement officer’s mere hunch does not amount to reasonable suspicion ... neither does a private citizen’s.

278 F.3d at 731-32 (internal citation and footnote omitted). As articulated by Justice Sabers’ dissent, the anonymous tip in Graf contained information that

1. a possible drunk driver;

2. was westbound on 10th Street;

3. in a large brown automobile;

4. identified by license plate 1E3312.

508 N.W.2d at 6 (Sabers, J., dissenting). Given the factors outlined in Wheat, it is likely that Graf, a 3-2 decision of this Court, would be decided differently today.

[¶ 24.] I also submit the result in Graf depended in large part upon the fact that the arresting officer did not personally observe any incidents of erratic driving. See 508 N.W.2d at 3 (noting that “Officer Schmit did not observe any erratic driving-on Grafs part. The only facts corroborated by the police were that Graf owned a brown automobile with the given license plate number.”). In Wheat, the Eighth Circuit specifically rejected this line of reasoning, observing:

A careful reading of the Supreme Court’s Fourth Amendment jurisprudence suggests that this emphasis on the predictive aspects of an anonymous tip may be less applicable to tips purporting to describe contemporaneous, readily observable criminal actions, as in the *91case of erratic driving witnessed by another motorist.... Unlike with clandestine crimes such as possessory offenses, including those involving drugs or guns, where corroboration of the predictive elements of a tip may be the only means of ascertaining the informant’s basis of knowledge, in erratic driving cases the basis of the tipster’s knowledge is likely to be apparent. Almost always, it comes from his eyewitness observations, and there is no need to verify that he possesses inside information.

278 F.3d at 734 (internal citation omitted). Today, we also uphold a stop despite the fact that the arresting officer did not personally observe Scholl drive erratically or commit any traffic violations.

[¶ 25.] In sum, I agree with the result of the majority opinion that reasonable suspicion to stop Scholl’s vehicle existed in this case. However, where the majority opinion chooses to distinguish Graf, I would overrule Graf to the extent it is inconsistent with this opinion and recent precedent. Failure to do so will only result in unnecessary confusion for attorneys and circuit courts confronted with traffic stops based upon anonymous tips alleging erratic driving.

[¶ 26.] ZINTER, Justice, joins this special writing.