State v. Hett , 2013 S.D. LEXIS 73 ( 2013 )

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2013 S.D. 47
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JASON R. HETT, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
HARDING COUNTY, SOUTH DAKOTA
****
THE HONORABLE JOHN W. BASTIAN
Judge
****
MARTY J. JACKLEY
Attorney General
MATT NAASZ
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
RONDA MILLER of
Belle Fourche, South Dakota Attorney for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON MAY 20, 2013
OPINION FILED 07/03/13
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KONENKAMP, Justice
[¶1.] Jason Hett appeals his convictions for driving under the influence of
alcohol (DUI) and for an open container violation. He argues that the circuit court
erred in denying his motion to suppress evidence obtained after the stop of his
vehicle because the law enforcement officer had no reasonable suspicion of a
violation of law to support the stop. We affirm, concluding that the circuit court did
not err in denying the motion to suppress because the officer had a reasonable
suspicion that Hett violated a statute requiring his vehicle to “be driven as nearly
as practicable entirely within a single lane[.]” SDCL 32-26-6.
Facts and Procedural History
[¶2.] At 11:30 p.m. on the night of December 3, 2011, South Dakota
Highway Patrol Trooper Jody Moody was patrolling in rural Harding County,
heading north toward the town of Buffalo. About three miles south of Buffalo,
Trooper Moody met and observed a southbound pickup cross the fog line and drive
on the shoulder of the highway. 1 Trooper Moody turned his patrol car around,
pursued the pickup, and stopped it. On making contact with the driver, later
identified as Hett, Moody detected the odor of an alcoholic beverage.
[¶3.] Trooper Moody was quickly joined at the scene by Trooper Jonathan
Deuter, another South Dakota Highway Patrol Trooper patrolling in the area.
Trooper Moody turned Hett over to Trooper Deuter to investigate Hett for DUI.
1. The “fog line” is the solid white line on the right hand side of the lane of
travel that marks the edge of the legally drivable portion of highway. See
generally SDCL 32-26-5, et seq.
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Trooper Deuter proceeded to interview Hett, to administer a series of field sobriety
tests, and to have him take a preliminary breath test. The breath test indicated a
result of 0.20% and, based upon that and the other results of the investigation,
Trooper Deuter arrested Hett for DUI. A search was then conducted of Hett’s
pickup and an open can of beer was found inside. Hett was transported to the
Meade County jail where blood was drawn for a blood alcohol test that later
indicated a result of 0.211% by weight of alcohol in the blood.
[¶4.] Hett was charged by information with: one count of DUI by driving or
actual physical control of a vehicle while under the influence of alcohol; an
alternative count of DUI by driving or actual physical control of a vehicle while
having 0.08% or more by weight of alcohol in the blood; one count of not driving
properly in his lane; and one count of open container. A part two habitual offender
information was also filed alleging that Hett had one prior DUI conviction.
[¶5.] Hett moved to suppress all the evidence obtained as a result of the stop
of his vehicle on the basis that the State did not have sufficient cause for the stop.
After an evidentiary hearing, the circuit court entered findings of fact, conclusions
of law and an order denying the motion to suppress on the basis that Hett’s crossing
of the fog line provided reasonable suspicion of a violation of law necessary to
support the stop.
[¶6.] At his jury trial, Hett was found guilty of DUI by driving or actual
physical control of a vehicle while having 0.08% or more by weight of alcohol in the
blood and one count of open container. The jury acquitted Hett of the remaining
charges including the lane violation. A court trial was later held on the allegations
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of the part two habitual offender information, and the court adjudicated Hett guilty
of second offense DUI. He was sentenced to ninety days in the county jail for the
DUI with eighty days suspended on various conditions including payment of a $500
fine. In addition, Hett was fined $54 for his open container violation. He appeals. 2
Analysis and Decision
[¶7.] Hett contends that a “vehicle driving over the fog line when meeting a
law enforcement vehicle” will not “provide law enforcement with sufficient cause to
justify a traffic stop.” Generally, the Constitution’s Fourth Amendment prohibition
against unreasonable searches and seizures applies to motor vehicle stops and law
enforcement must obtain a warrant to support a stop. Rademaker, 2012 S.D. 28, ¶¶
8-9, 813 N.W.2d at 176. “However, as an exception to this general rule, an officer
may stop a car, without obtaining a warrant, if there is ‘reasonable suspicion . . .
that criminal activity may be afoot.’” Id. ¶ 9 (quoting Wright, 2010 S.D. 91, ¶ 10,
791 N.W.2d at 794). An officer’s observation of “a traffic violation, however minor,”
provides reasonable suspicion of a violation of law sufficient to support a traffic
2. Standard of review:
A motion to suppress based on an alleged violation of a
constitutionally protected right is a question of law reviewed de
novo. The trial court’s factual findings are reviewed under the
clearly erroneous standard. Once the facts have been
determined, however, the application of a legal standard to
those facts is a question of law reviewed de novo. This Court
will not be restricted by the trial court’s legal rationale.
State v. Rademaker, 2012 S.D. 28, ¶ 7, 813 N.W.2d 174, 176 (quoting State v.
Wright, 2010 S.D. 91, ¶ 8, 791 N.W.2d 791, 794).
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stop. 3 See State v. Starkey, 2011 S.D. 92, ¶ 6, 807 N.W.2d 125, 128 (citing State v.
Akuba, 2004 S.D. 94, ¶ 16, 686 N.W.2d 406, 414). See also State v. Lockstedt, 2005
3. In both Wright and State v. Erwin, 2013 S.D. 35, 831 N.W.2d 35 we analyzed
the traffic stops using the standard of probable cause, rather than reasonable
suspicion, because in both cases the officers observed a traffic violation and
used that as the basis for the stop. See Wright, 2010 S.D. 91, ¶ 13, 791
N.W.2d at 795; Erwin, 2013 S.D. 35, ¶¶ 3-4, 831 N.W.2d at 66-67. In Whren
v. United States, the Supreme Court wrote that “[a]s a general matter, the
decision to stop an automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred.” 517 U.S. 806, 810, 116
S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996)(emphasis added). But we do not
believe a court is precluded from analyzing a traffic stop under the
reasonable suspicion standard. The United States Courts of Appeals for a
number of circuits have rejected the view that the Supreme Court’s language
in Whren was intended to change the reasonable suspicion standard for
traffic stops. As analyzed by the Third Circuit in United States v. Delfin-
Colina:
Was the Court [by its language in Whren], shifting gears, now
requiring “probable cause” as the predicate for a traffic stop?
The consensus is to the contrary. As Judge William Fletcher
has recently observed, the Second, Sixth, Eighth, Ninth, Tenth
and Eleventh Circuits have all “construed Whren to require only
that the police have ‘reasonable suspicion’ to believe that a
traffic law has been broken.”
464 F.3d 392, 396 (3rd Cir. 2006) (emphasis added) (quoting United States v.
Willis, 431 F.3d 709, 723 (9th Cir. 2005) (W. Fletcher, J., dissenting)
(additional citations omitted). The Eighth Circuit continues to refer to
“‘reasonable suspicion’” of a “‘traffic violation’” as a basis for a stop. See
United States v. Beard, 708 F.3d 1062, 1065 (8th Cir. 2013) (quoting United
States v. Washington, 455 F.3d 824, 826 (8th Cir. 2006)). In fact, the Eighth
Circuit appears to refer interchangeably to both reasonable suspicion and
probable cause for traffic stops, even when the stop is based upon a traffic
violation. See United States v. Hastings, 685 F.3d 724, 727 (8th Cir. 2012)
(stating, “‘a traffic stop is reasonable if it is supported by either probable
cause or an articulable and reasonable suspicion that a traffic violation has
occurred.’”) (quoting Washington, 455 F.3d at 826). Considering these
authorities, we do not perceive the Supreme Court’s decision in Whren as
changing our settled law on reasonable suspicion to stop motor vehicles for
traffic violations. Either reasonable suspicion or probable cause to believe a
(continued . . .)
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S.D. 47, ¶ 17, 695 N.W.2d 718, 723 (stating that, “a traffic violation, however minor,
is sufficient to justify the stop of a vehicle.”). “‘Therefore, the basis needed for a
traffic stop is minimal.’” Starkey, 2011 S.D. 92, ¶ 6, 807 N.W.2d at 128 (quoting
Lockstedt, 2005 S.D. 47, ¶ 16, 695 N.W.2d at 722).
[¶8.] Referred to as the “practicable lane statute” in some jurisdiction, see
State v. Wolfer, 780 N.W.2d 650, 652 (N.D. 2010), South Dakota's version, SDCL 32-
26-6, provides:
On a roadway divided into lanes, a vehicle shall be driven as
nearly as practicable entirely within a single lane and may not
be moved from such lane until the driver has first ascertained
that such movement can be made with safety. A violation of this
section is a Class 2 misdemeanor.
[¶9.] The circuit court found as a fact that Trooper Moody observed a single
instance where Hett’s vehicle crossed over the fog line and was driven on the
shoulder of the road. 4 The court reasoned that this constituted observation of a
violation of SDCL 32-26-6, and when an officer “has specific and articulable facts
which taken together with the rational inferences from those facts,” it reasonably
warranted Trooper Moody’s stop of Hett’s vehicle. On that basis, the circuit court
denied Hett’s motion to suppress. Hett argues on appeal that the circuit court erred
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(. . . continued)
violation occurred will support a stop. Since this case was argued before the
circuit court on the basis of reasonable suspicion, was decided on that basis,
and has also been argued as a reasonable suspicion case before this Court, we
resolve it in those terms.
4. Despite testimony to that effect at the suppression hearing, the circuit court
declined to find that Trooper Moody also observed Hett cross over the center
line because the trooper failed to testify to that observation at the earlier
preliminary hearing.
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in concluding that a single instance of crossing the fog line violates SDCL 32-26-6.
If that were so, Hett asserts “every slow moving vehicle, wide load, or traveler that
moves over to the right whether it be defensive driving or to avoid a wide load,
would be in violation.”
[¶10.] There is a division of authority on this issue. The State cites United
States v. Herrera Martinez, in which the Eighth Circuit upheld a traffic stop based
upon a single instance of a vehicle crossing the fog line in “violation of a South
Dakota statute requiring [drivers] to stay ‘as nearly as practicable’ within one
traffic lane.” 5 354 F.3d 932, 934 (8th Cir. 2004) vacated on other grounds 549 U.S.
1164, 127 S. Ct. 1125, 166 L. Ed. 2d 889 (2007). In United States v. Carrasco-Ruiz,
the United States District Court for South Dakota relied on Herrerra Martinez in
observing that, “in South Dakota, crossing the fog line is a violation of SDCL 32-26-
6” that provides probable cause for a traffic stop. 6 587 F. Supp. 2d 1089, 1099
(D.S.D. 2008). In State v. Magallanes, the Nebraska Supreme Court cited Herrera
Martinez for the point that, “crossing [the] fog line one time [is] sufficient probable
cause to stop [a] vehicle under South Dakota law.” 824 N.W.2d 696, 701 (Neb.
2012). But the stop upheld in Magallanes was the result of two instances of
crossing the fog line. See id. at 698. Further, the stop was made under a statute
5. Although SDCL 32-26-6 was not specifically identified by the majority as the
statute at issue in Herrera Martinez, it was cited by the dissent. See 354 F.3d
at 935 n.1 (Lay, J., dissenting).
6. The arresting officer in Carrasco-Ruiz, however, observed the offending
pickup cross both the fog line and the center line before making the vehicle
stop. See 587 F. Supp. 2d at 1091.
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prohibiting driving on the shoulder of a highway rather than a practicable lane
statute like South Dakota’s. See id.
[¶11.] Hett cites United States v. Herrera-Gonzalez, however, in that case the
Eighth Circuit actually upheld a vehicle stop based upon an officer’s observation of
a vehicle crossing a fog line once for ten to fifteen seconds. 474 F.3d 1105, 1107 (8th
Cir. 2007). The stop was made under an Iowa practicable lane statute similar to
South Dakota’s. See id. In reaching its decision, the Eighth Circuit considered a
number of factors including: the duration of the crossing; the time of day; the
weather conditions; whether a full lane of travel was available to the driver; and the
existence of “adverse conditions that would have made it impractical for [the driver]
to keep his car in the lane[.]” Id. at 1110-11. The weight of these factors convinced
the court that the officer had a “reasonable basis to believe that a violation of the
Iowa Statute had occurred,” although it was “a relatively close question[.]” Id. at
1111.
[¶12.] Hett relies strongly on United States v. Freeman in which the Sixth
Circuit invalidated the traffic stop of a motor home under Tennessee’s practicable
lane statute where the motor home “briefly” crossed the white line separating the
right-hand lane of traffic from an emergency lane. 209 F.3d 464, 466 (6th Cir.
2000). In invalidating the stop, the court observed that it could not “agree that one
isolated incident of a large motor home partially weaving into the emergency lane
for a few feet and an instant in time constitute[d] a failure to keep the vehicle
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within a single lane ‘as nearly as practicable.’” Id. (quoting United States v.
Gregory, 79 F.3d 973, 978 (10th Cir. 1996)). 7
[¶13.] In Wolfer, the North Dakota Supreme Court reviewed numerous
divergent authorities such as those above and upheld a vehicle stop based upon a
single instance of a vehicle crossing a fog line in violation of a statute nearly
identical to SDCL 32-26-6. 780 N.W.2d 650. While “mindful of [the] body of law
addressing [similar] issues,” the court joined jurisdictions focusing their analysis
“on the reasonableness of an officer’s suspicion in light of the facts surrounding the
stop as they reflect the practicability of maintaining a single lane of traffic.” Id. at
652-53. Similar to the facts surrounding the stop considered by the Eighth Circuit
in Herrera-Gonzalez, the facts considered in Wolfer included: the length and
duration of the crossing and distance traveled outside the lane of traffic; the design
of the highway, such as the existence of curves in the road; traffic conditions, such
as highway congestion or vehicles braking in front of the suspect vehicle; and road
conditions, such as whether the road was dry and obstruction free. Id. at 652. The
court concluded in Wolfer that these facts demonstrated the “practicability of [the
suspect] remaining entirely within his lane” and went on to hold that the evidence
was “sufficient to support the [trial] court’s conclusion [that the] arresting officer
had a reasonable and articulable suspicion [that the suspect] had violated the
7. Gregory, another case relied upon by Hett, also held that a, “one-time entry
into the emergency lane failed to constitute a violation of a Utah statute
nearly identical to” the Tennessee provision at issue in Freeman. Freeman,
209 F.3d at 466. Although Gregory did not involve a motor home, it did
involve a U-Haul rental truck that crossed two feet into an emergency lane.
See Gregory, 79 F.3d at 975-76.
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practicable lane statute by crossing over the fog line.” Id. On that basis, the court
upheld the vehicle stop.
[¶14.] The North Dakota court chose an analytical framework in Wolfer it
found to be “consistent with North Dakota case law[.]” Id. at 653. A comparison of
North Dakota case law followed in Wolfer with the South Dakota case law cited
above on reasonable suspicion to stop vehicles and the applicable standards of
review for motions to suppress evidence reflects that they are also consistent.
Likewise, the North Dakota and South Dakota practicable lane statutes are
consistent. And the analysis employed by the North Dakota court in Wolfer is
consistent with that utilized by the Eighth Circuit in Herrera-Gonzalez. Therefore,
Wolfer provides a good framework for resolving the issue over the propriety of the
vehicle stop here.
[¶15.] As in Wolfer, the circuit court here “could have provided a more
detailed explanation of [its] findings” on the facts surrounding the stop. 780 N.W.2d
at 652. This did not inhibit review in Wolfer, however, where the court upheld the
stop based upon “the officer’s testimony and the video recording of the driving and
road conditions.” Id. (citing State v. Schmitz, 474 N.W.2d 249, 251 n.5 (N.D.
1991)). 8
8. This Court has followed a similar approach with abbreviated trial court
findings. See State v. Anderson, 2000 S.D. 45, ¶ 45, n.14, 608 N.W.2d 644,
658 n.14 (holding it unnecessary to remand to the trial court for specific
findings where the “‘record is clear and yields an obvious answer to the
relevant questions raised on appeal[.]’”) (quoting Scruggs v. State, 484
N.W.2d 21, 25 (Minn. 1992)); State v. Rough Surface, 440 N.W.2d 746, 750
(S.D. 1989) (holding that remand of the case for a determination of the
(continued . . .)
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[¶16.] The circuit court’s findings, Trooper Moody’s testimony, and the video
recording of the driving and road conditions in this case establish the following facts
surrounding the stop. Trooper Moody testified the vehicle stopped was a white Ford
pickup, contrasting with the unwieldy motor home in Freeman and U-Haul truck in
Gregory, two of the cases relied upon by Hett. See United States v. One Million,
Thirty-Two Thousand, Nine Hundred Dollars in U.S. Currency, 855 F. Supp. 2d
678, 695 (N.D. Ohio 2012) (distinguishing Freeman on the basis that it involved a
“large” motor home while One Million involved a less “unwieldy” pickup). Trooper
Moody further testified that he met the pickup at 11:30 at night and that, as he met
the vehicle, it crossed over the fog line by “at least a tire width.” The video
recording of the driving and road conditions at the location of the crossing depict
nothing more than a long, straight stretch of smooth, dry highway with no
significant curves or apparent obstructions or barriers in the pickup’s lane of travel.
These facts, like those in Wolfer, demonstrate the “practicability of [Hett] remaining
entirely within his lane.” See Wolfer, 780 N.W.2d at 652. Therefore, the evidence
is, “sufficient to support the [circuit] court’s conclusion [that Trooper Moody] had a
reasonable and articulable suspicion [that Hett] had violated the practicable lane
statute by crossing over the fog line.” See id. 9
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(. . . continued)
voluntariness of statements was unnecessary where it was “patently clear, on
the record, that appellant knowingly, intelligently, and voluntarily waived
his rights[.]”).
9. The fact that the jury ultimately acquitted Hett of the charge relating to
violation of the practicable lane statute has no effect on this conclusion. See
(continued . . .)
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[¶17.] Even if, however, Hett’s single instance of crossing over the fog line
might be deemed insufficient to provide reasonable suspicion to support stopping
his vehicle, there is additional evidence in the record to support the stop. Trooper
Moody testified at the suppression hearing and at trial that, after passing by Hett’s
vehicle, he looked in his rear-view mirror and again saw it cross over the fog line by
at least a tire width or more. At that point, he testified that he turned his patrol
car around and pursued Hett’s vehicle. Trooper Moody further testified that, during
his pursuit, he saw Hett’s vehicle cross over the center line by half a tire width.
[¶18.] The circuit court declined to enter findings on these additional
observations because Trooper Moody did not testify about them during the
preliminary hearing, apparently deeming Moody’s later suppression hearing
testimony not credible for that reason. However, this Court “must look at all the
facts available to [Trooper Moody] at the time the stop was effectuated” to
“determine whether reasonable suspicion existed based on the ‘totality of the
circumstances.’” Rademaker, 2012 S.D. 28, ¶ 12, 813 N.W.2d at 177 (quoting State
v. Herren, 2010 S.D. 101, ¶ 14, 792 N.W.2d 551, 556). This review is not limited to
evidence considered at the suppression hearing, but may extend to evidence
produced at trial. See United States v. Hicks, 978 F.2d 722, 724 (D.C. Cir. 1992)
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(. . . continued)
Heib v. Lehrkamp, 2005 S.D. 98, ¶ 24, 704 N.W.2d 875, 885 (holding a
subsequent acquittal irrelevant to the determination of probable cause to
arrest) (citing Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S. Ct. 2627, 2631, 61
L. Ed. 2d 343 (1979)). See also Boone v. State, 568 S.E.2d 91, 94 (Ga. Ct. App.
2002) (holding a “subsequent acquittal for [a] traffic offense [had] no bearing
on whether the officer had reasonable suspicion of unlawful conduct at the
time he instituted the traffic stop”).
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(noting that “reviewing courts routinely consider trial evidence in affirming pre-trial
suppression rulings.”); United States v. Brewer, 624 F.3d 900, 905 (8th Cir. 2010)
(noting that “‘[i]n reviewing the denial of a motion to suppress, [the court] must
examine the entire record, not merely the evidence adduced at the suppression
hearing.’”) (quoting United States v. Anderson, 339 F.3d 720, 723 (8th Cir. 2003)).
[¶19.] Here, a video recording of Trooper Moody’s pursuit and stop of Hett’s
vehicle introduced by the State at trial establishes that, as soon as Moody
approached Hett after the stop, he advised Hett that the stop was for crossing both
the fog line and the center line. 10 This on-scene statement about the basis for the
stop sufficiently buttresses Moody’s testimony at the suppression hearing and at
trial to provide additional support for the validity of the stop. See State v. Ballard,
2000 S.D. 134, ¶ 11, 617 N.W.2d 837, 840 (holding that the suspect’s “conduct in
crossing over the centerline and fog line provided reasonable suspicion to justify the
initial stop” of her vehicle).
[¶20.] In accord with the above analysis, we conclude that Trooper Moody
had reasonable suspicion of a violation of law sufficient to support the stop of Hett’s
vehicle and, therefore, the circuit court did not err in denying Hett’s motion to
suppress the evidence obtained as a result of the stop.
[¶21.] Affirmed.
10. While the video of the pursuit itself shows some weaving by Hett’s vehicle,
the lighting and contrast are not sufficiently clear, given the distance
between the vehicles, to confirm the actual crossing of the lane lines. The
recording is simply inconclusive on this point.
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[¶22.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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