State v. Sound Sleeper

#25391-a-DG
2010 SD 71IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ALVIN R. SOUND SLEEPER, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE THOMAS L. TRIMBLE
Judge
* * * *
MARTY J. JACKLEY
Attorney General
KIRSTEN JASPER
CRAIG M. EICHSTADT
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
PAUL PIETZ
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant
and appellant.
* * * *
ARGUED MARCH 22, 2010
OPINION FILED 08/18/10
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GILBERTSON, Chief Justice
[¶1.] Sound Sleeper appeals the circuit court’s denial of his motion to
suppress evidence. We affirm.
FACTS
[¶2.] On January 29, 2009, at 1:30 p.m., Rapid City Police Department
Detective Kelvin Masur was in the parking lot of an Exxon gas station on 634 East
North Street investigating a beer theft complaint. Masur took note of a man
leaving the gas station carrying a case of beer and a brown bag containing what
Masur believed to be a large bottle of beer. The man, eventually identified as Tony
Hutchinson, got into the passenger side, front seat of a waiting vehicle. At least two
other men were in the vehicle, the driver, Sound Sleeper, and another passenger.
[¶3.] According to Masur’s testimony, once the man was seated in the
vehicle, Hutchinson took the bottle from the brown bag and held it up in the air as if
to show it to the occupants of the vehicle. Hutchinson grasped the top of the bottle
with one hand over the top of the cap and with the other hand he held the base of
the bottle. As he brought the bottle down out of Masur’s sight, Hutchinson made a
motion that appeared to Masur as though he had opened the bottle. Masur was
concerned that what he had observed was a violation of SDCL 35-1-9.1, South
Dakota’s open container law. 
 SDCL 35-1-9.1 provides:
It is a Class 2 misdemeanor for any person occupying a motor
vehicle located upon a public highway or the right-of-way of a
public highway to consume any alcoholic beverage or have a
package or any receptacle containing an alcoholic beverage in
(continued . . .)
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[¶4.] Masur observed the vehicle exit the parking lot. He followed in his
unmarked gold Dodge Stratus, which was not equipped with either a siren or roof
top lights. Masur did not engage the red and blue lights on the unmarked car’s
visor or attempt to stop the vehicle. Instead, he called dispatch for a marked patrol
car to conduct a stop of the vehicle. However, before the patrol car could be
dispatched, the vehicle pulled into another parking lot after traveling
approximately two blocks and came to a stop. Masur did not observe the driver
commit any traffic violations while following the vehicle.
[¶5.] Masur pulled into the lot and parked behind the vehicle. He later
testified he was unsure whether there was enough room for the other vehicle to
back out and drive off. Masur, in plain clothing, exited his unmarked car,
approached the driver’s side window, and identified himself as a police officer.
Masur’s purpose for approaching the vehicle was to follow-up on his observations of
Hutchinson’s conduct at the Exxon gas station.
[¶6.] Masur initially asked the driver, Sound Sleeper, for his driver’s license
before asking any questions regarding the bottle of beer and whether it was open.
Sound Sleeper provided Masur with a South Dakota identification card rather than
a driver’s license. Masur informed Sound Sleeper and the occupants of
________________________
(. . . continued)
that person’s possession unless the seal of the original package
remains unbroken or the alcoholic beverage is so removed from
the passenger area of the motor vehicle that no occupant of the
motor vehicle has access to it.
(Emphasis added).
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the reason for approaching the vehicle. Hutchinson then held up the bottle, which
contained beer, and showed Masur that it was still sealed and had never been
opened.
[¶7.] As the conversation continued, Masur determined that Sound Sleeper’s
driver’s license was under suspension. Masur continued investigating once he
realized that Sound Sleeper was driving without a valid license. After engaging
Sound Sleeper in further conversation, Masur also noted Sound Sleeper’s eyes were
glassy and that his breath smelled of alcohol. Sound Sleeper was arrested for
driving under the influence after failing field sobriety tests. A subsequent blood
test showed his blood alcohol content by weight was .123.
[¶8.] Sound Sleeper moved to suppress all evidence seized as a result of the
stop, contending it was obtained in violation of the Fourth Amendment. Sound
Sleeper argued Masur did not have reasonable suspicion to approach the vehicle
and conduct an investigation concerning the open container. He further contended
that once the vehicle came to a stop Masur should have questioned Hutchinson, the
person Masur observed holding the beer, and not Sound Sleeper as the driver of the
vehicle.
[¶9.] The circuit court made its ruling on the record after the close of
arguments:
The officer demonstrated, you pretty much had to see it, that
he’s sitting in front of a liquor store. A gentleman comes out
with a brown paper bag. It’s reasonably articulable suspicion
it’s got alcohol in it. And then he sees it held up in a vehicle in a
manner that it appeared that the cap was about to be twisted
off.
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It went out of sight, and the officer was evidently fairly certain
that he took the cap off, which would make it an open container
in the vehicle, in violation of state law.
That he followed up on that. And in following up on that, he
approached the parked vehicle. He did not pull it over. He
approached the parked vehicle. He asked for identification from
the driver. He did not have identification. Well, he did. That’s
all he had. He didn’t have a valid driver’s license.
The circuit court denied Sound Sleeper’s motion from the bench.
[¶10.] Sound Sleeper’s objections to the State’s proposed findings of fact and
conclusions of law were denied. No definitive finding of fact or conclusion of law
was entered as to whether Sound Sleeper was seized within the meaning of the
Fourth Amendment, although the circuit court’s conclusion of law was that Masur
had reasonable and articulable suspicion that a crime was being committed.
[¶11.] Sound Sleeper was convicted after a bench trial at which time he also
admitted to a part two Information alleging two prior DUI convictions. He was
sentenced to two years in the South Dakota State Penitentiary. Sound Sleeper
appeals, raising the following issues:
1. Whether the officer had reasonable suspicion to approach the
occupants of the vehicle to investigate an open container
violation.
2. Whether the officer had reasonable suspicion to seize and
question Sound Sleeper, the driver of the vehicle, when it was
the passenger the officer observed with the beer bottle.
STANDARD OF REVIEW
[¶12.] “This Court reviews the denial of a motion to suppress alleging a
violation of a constitutionally protected right as a question of law by applying the de
novo standard.” State v. Ludemann, 2010 SD 9, ¶14, 778 NW2d 618, 622 (quoting
State v. Madsen, 2009 SD 5, ¶11, 760 NW2d 370, 374). However, we review the
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circuit court’s findings of fact under the clearly erroneous standard without
deference to its conclusions of law. Id. (citing State v. Haar, 2009 SD 79, ¶12, 772
NW2d 157, 162). Furthermore,
This court’s function under the clearly erroneous standard is to
determine whether the decision of the lower court lacks the
support of substantial evidence, evolves from an erroneous view
of the applicable law or whether, considering the entire record,
we are left with a definite and firm conviction that a mistake
has been made. In making this determination, we review the
evidence in a light most favorable to the trial court’s decision.
In re H.L.S., 2009 SD 92, ¶11, 774 NW2d 803, 807-8 (quoting State v.
Baysinger, 470 NW2d 840, 843 (SD 1991)) (internal citations omitted).
ANALYSIS AND DECISION
[¶13.] 1. Whether the officer had reasonable suspicion to
approach the occupants of the vehicle to investigate an
open container violation.
[¶14.] Sound Sleeper argues that he was seized within the meaning of the
Fourth Amendment without reasonable suspicion. He further argues that
reasonable suspicion existed only as to Hutchinson and that Masur did not employ
the least intrusive means to dispel or confirm his suspicions as to Hutchinson.
Sound Sleeper also argues that Masur should have approached the passenger side
of the car and once he saw the container was closed, Masur should have concluded
the seizure. Further error, Sound Sleeper argues, occurred when Masur asked
Sound Sleeper as the driver of the vehicle for his license. The State argues that
Masur had reasonable suspicion to stop the car. It further argues that it was
reasonable for Masur to approach Sound Sleeper as the driver and ask for his
license under our traffic stop case law.
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The Seizure of the Driver and Passengers
[¶15.] The Fourth Amendment’s prohibition against unreasonable searches
and seizures “requires generally the issuance of a warrant by a neutral judicial
officer based on probable cause prior to the execution of a search or seizure of a
person.” Id. ¶14, 772 NW2d at 808 (quoting State v. Mattson, 2005 SD 71, ¶29, 698
NW2d 538, 548). Law enforcement may, however, perform an “investigative
detention” rather than a full-blown custodial arrest based on reasonable suspicion.
State v. DeLaRosa, 2003 SD 18, ¶7, 657 NW2d 683, 685-86 (citing Terry v. Ohio,
392 US 1, 30, 88 SCt 1868, 1884-85, 20 LEd2d 889 (1968)). An officer may stop a
vehicle to either confirm or dispel the suspicion once the reasonable suspicion
standard has been satisfied. State v. Quartier, 2008 SD 62, ¶10, 753 NW2d 885,
888 (citing State v. Herrboldt, 1999 SD 55, ¶8, 593 NW2d 805, 808).
[¶16.] As we have noted on prior occasions, “articulating a precise definition
of reasonable suspicion is ‘not possible.’” Id. (quoting State v. Aaberg, 2006 SD 58,
¶10, 718 NW2d 598, 600). We use a common-sense and non-technical approach to
determining reasonable suspicion, one that deals with the practical considerations
of everyday life. Id. However, a “stop may not be the product of mere whim, caprice
or idle curiosity.” Id. (quoting State v. Akuba, 2004 SD 94, ¶15, 686 NW2d 406,
413). Reasonable suspicion is satisfied when the stop is based upon “‘specific and
articulable facts which taken together with rational inferences from those facts,
reasonably warrant the intrusion.’” Id. (quoting Akuba, 2004 SD 94, ¶15, 686
NW2d at 413).
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[¶17.] We also employ a “totality of the circumstances approach” in order to
determine whether the officer had a “particularized and objective basis” for
suspecting criminal activity. Haar, 2009 SD 79, ¶23, 772 NW2d 157, 167 (quoting
United States v. Arvizu, 534 US 266, 273, 122 SCt 744, 750-51, 151 LEd2d 740
(2002)). The detaining officers may “draw on their experience and specialized
training in making inferences from and deductions about the cumulative
information available to them that ‘might elude an untrained person.’” Id. (quoting
Arvizu, 534 US at 273, 122 SCt at 750-51, 151 LEd2d 740). We do not employ a
“divide-and-conquer” approach where innocent explanations for the reasonable
suspicion factors are examined standing alone. Id. (quoting Quartier, 2008 SD 62,
¶15, 753 NW2d at 889). “The totality of the circumstances need only support a
‘commonsense inference’ that criminal activity is occurring.” Quartier, 2008 SD 62,
¶16, 753 NW2d at 889 (quoting State v. Kenyon, 2002 SD 111, ¶18, 651 NW2d 269,
274).
[¶18.] Masur witnessed what he believed to be a violation of SDCL 35-1-9.1.
Masur did not use the red and blue lights on the unmarked car’s visor or attempt to
stop the vehicle. Instead, he approached the vehicle once it came to a stop. Upon
approaching the parked vehicle and identifying himself as a police officer, an
investigatory stop occurred as Sound Sleeper and the passengers submitted to his
authority by remaining in the car and engaging and responding to Masur’s
questions. Based on the reasonable suspicion that Hutchinson had an open
container of beer in the front seat of the car, Masur legally detained the car and all
its occupants, driver and passengers, in order to briefly investigate the matter.
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The Investigatory Stop
[¶19.] “[A]n investigative detention must be temporary and last no longer
than is necessary to effectuate the purpose of the stop.” State v. Hayen, 2008 SD
41, ¶7, 751 NW2d 306, 309 (quoting State v. Ballard, 2000 SD 134, ¶11, 617 NW2d
837, 841). “[T]he investigative methods employed should be the least intrusive
means reasonably available to verify or dispel the officer’s suspicion in a short
period of time.” Id. The investigative method must also “be ‘reasonably related in
scope to the circumstances that justified the interference in the first place.’” Id. “A
police officer, in performing his official work, may properly question persons when
the circumstances reasonably indicate that it is necessary to the proper discharge of
his duties.” State v. Krebs, 504 NW2d 580, 585 (SD 1993) (quoting State v.
Burkman, 281 NW2d 436, 439 (SD 1979)). “All questions asked by police officers
during a traffic stop must be analyzed to ensure they are reasonably related to the
initial justification for the stop or are supported by reasonable suspicion.” State v.
Funderburg, 2008-NMSC-026, ¶14, 144 NM 37, 183 P3d 922 927 (quoting State v.
Urioste, 2002-NMSC-023, ¶6, 132 NM 592, 52 P3d 964, 967).
[¶20.] Masur approached the driver’s side of the vehicle to initiate the
investigative stop. We do not take issue with what side of a vehicle an officer
chooses to approach. Instead, the officer must be able to use his judgment to
determine the safest manner in which to approach a stopped vehicle. “The risk of
harm to both the police and occupants is minimized if the officers routinely exercise
unquestioned command of the situation.” Brendlin v. California, 551 US 249, 258,
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127 SCt 2400, 2407, 168 LEd2d 132 (2007) (quoting Maryland v. Wilson, 519 US
408, 414, 117 SCt 882, 886, 137 LEd2d 41 (1997)).
[¶21.] Guidance is furnished by State v. Hanson. 1999 SD 9, 588 NW2d 885.
In Hanson we held that probable cause existed for the arrest of Hanson for
possession of marijuana while she was a passenger in the front seat of a car. Id.
¶¶2, 16, 588 NW2d at 888, 890. The contraband was found in the back seat of the
car. Id. ¶5, 588 NW2d at 888. Based on the totality of the factual circumstances in
that case, we affirmed the trial court. Id. ¶16, 588 NW2d at 890. We did so noting
that more had been shown than mere proximity to the contraband which by itself
was insufficient to uphold the arrest as access to the rear seat was available to
Hansen. Id. ¶15, 588 NW2d at 890.
[¶22.] State v. Patterson anchors the other end of the spectrum by showing
when reasonable suspicion about one passenger is not enough to raise
individualized reasonable suspicion about another passenger. 2006-NMCA-037,
¶28, 139 NM 322, 131 P3d 1286, 1293 (NM App). In Patterson, the New Mexico
Court of Appeals considered whether the observation of an open container of beer on
the floor board of the back seat of a car was sufficient to raise individualized
reasonable suspicion that a front seat passenger possessed “on his person” an open
container of alcohol. Id. That court noted that the arresting officer did not observe
Patterson with an open container, or an open container in the area near Patterson.
Id. Under those circumstances, that court held that no facts were articulated by the
officer beyond Patterson’s mere presence in the car. Id. Mere presence in the car
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without more is insufficient to create individualized suspicion that a person is
violating the open container law. Id.[¶23.] In the case at bar, based on his personal observations, Masur had two
choices: either follow up and check on a possible violation of the open container law
or simply walk away and ignore it. Based on his experience as a police officer, he
chose to investigate. What Masur believed to be an open container was viewed by
him in the front passenger seat and next to Sound Sleeper as the driver. Masur
further testified that the sole purpose in approaching the vehicle was his belief that
Hutchinson had opened the bottle of beer in the vehicle in violation of SDCL 35-1-
9.1. After following the car for two blocks and pulling into a parking lot behind the
vehicle, Masur no longer had a visual on the beer bottle. Unlike the facts in
Patterson, the bottle when spotted by Masur was easily within the reach of the
driver and created reasonable suspicion that Sound Sleeper may also have been in
possession of an open container or possibly drinking and driving. Masur
approached the driver of the vehicle to confirm or dispel his reasonable belief that
there was an open container of beer in the car, and if open, who was in possession of
it. Furthermore, the driver, as the person in control of the car, was the logical
person with whom to begin the inquiry into whether an open container of beer was
located inside the car.
[¶24.] Moreover, we are not dealing here with probable cause, which must be
particularized as to each party arrested, which was the standard met in State v.
Hanson. Nor are we dealing with a mere “‘inchoate and unparticularized suspicion
or hunch’ that criminal activity may be afoot.” See Terry, 392 US at 27, 88 SCt at
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1883, 20 LEd2d 889. Instead, we are dealing with reasonable suspicion that the
front seat passenger had opened the beer bottle and that an open container of
alcohol was in the vehicle’s front seat within reach of the driver where he could
possibly possess it. A violation of the statute occurs by mere possession of the open
container. See SDCL 35-1-9.1. Consumption is not required.
[¶25.] After approaching the vehicle in order to dispel or confirm the
reasonable suspicion that an open container of beer was in the front of the vehicle,
Masur asked Sound Sleeper for his driver’s license in order to ascertain his name
and whether contraband, in this case an open container of beer, was present in the
car. After Sound Sleeper handed over his South Dakota identification card,
reasonable suspicion arose that Sound Sleeper was driving without a valid license
in his possession and might not even legally have one. It was after Masur engaged
Sound Sleeper in further conversation that Masur began to suspect Sound Sleeper
had been drinking. As such, reasonable suspicion regarding Sound Sleeper’s lack of
a driver’s license and intoxication developed during the investigative detention of
the potential violation of South Dakota’s open container law in SDCL 35-1-9.1. On
the other hand, had Sound Sleeper produced a valid driver’s license and had no odor
of alcoholic beverage on his breath, once the officer had ascertained the beer had not
been opened, the car and its occupants would have been entitled to leave.
[¶26.] Affirmed.
[¶27.] KONENKAMP, ZINTER, MEIERHENRY, and SEVERSON, Justices,
concur.
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