State v. Mohr

#26579-a-DG
2013 S.D. 94
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JEFFREY SCOTT MOHR, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE KATHLEEN K. CALDWELL
Retired Judge
****
MARTY J. JACKLEY
Attorney General
BETHANY L. ERICKSON
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
MOLLY QUINN of
Minnehaha County Public Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
****
ARGUED NOVEMBER 5, 2013
OPINION FILED 12/18/13
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GILBERTSON, Chief Justice
[¶1.] Defendant Jeffrey Scott Mohr was convicted of possession of a
controlled substance, possession of drug paraphernalia, and obstructing a law
enforcement officer, after being mistakenly identified as a suspected armed robber
and detained by police. Mohr appeals, alleging officers did not have reasonable
suspicion of criminal activity to stop or frisk Mohr. Mohr asserts that evidence
against him was obtained in violation of his Fourth Amendment right against
unreasonable search and seizure and that the trial court erred by denying a motion
to suppress the evidence.
Facts and Procedural History
[¶2.] Mary Griffith was working as a casino attendant at Deuces Casino in
Sioux Falls, South Dakota, on the afternoon of August 3, 2011. Defendant Jeffrey
Scott Mohr entered the casino, wearing sunglasses and a baseball cap. Mohr got
change, snacks, and a drink, and began gambling at the machines. Griffith
immediately became frightened, concerned that Mohr was an unidentified fugitive
who had robbed other casinos in the area and was in the process of “casing the
place” as his next target.
[¶3.] A number of recent armed robberies in the area had placed casino
owners, employees, and law enforcement on heightened alert. Griffith’s friend, who
worked at another casino in Sioux Falls that had been robbed, told Griffith that the
robber had entered the casino wearing a baseball cap and sunglasses, got a snack, a
drink, and change, and then proceeded to play the machines for some time before
robbing the casino. Griffith’s manager had also placed a “wanted” poster up in
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Deuces Casino for employees to see. The poster was created by another casino in
Sioux Falls and showed three pictures of an armed robbery in progress, taken from
a casino video surveillance camera. The suspect pictured in the photos was a
Caucasian male wearing sunglasses and a baseball cap, holding up a casino at
gunpoint. The manager informed employees not to hesitate to call police if they
believed the person pictured on the poster was in the casino.
[¶4.] While Mohr was playing a video lottery machine, Griffith
surreptitiously conferred with two regular customers of the casino. After showing
the customers the poster, the customers agreed that Mohr looked like the man
pictured on the poster. Griffith then pushed the casino’s “panic button.” In
response to the panic button, Metro Communications phoned the casino and spoke
with Griffith. The dispatcher informed Griffith that if she did not feel safe talking,
Griffith could answer yes and no questions and pretend that someone else was
calling. A very frightened Griffith was able to relay that “he” was inside the casino
and that she and two customers thought it “certainly looked like him.” Griffith
indicated that she wasn’t able to tell if Mohr was armed, but she was able to relay
to the dispatcher Mohr’s location within the casino. Metro Communications
dispatched law enforcement to the scene while staying on the telephone with
Griffith.
[¶5.] When officers arrived, Griffith indicated toward Mohr, who was seated
at a video lottery machine. Although it was dark inside the casino, Mohr was still
wearing sunglasses and had his baseball cap pulled down over his face. Mohr was
asked to step outside. Mohr was accompanied outside by Officers Chris Bauman
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and Ryan Sandgren, who asked Mohr for an identification card, his birthdate, and
his address. Mohr complied.
[¶6.] Meanwhile, inside the casino, Griffith explained to Officers Nick Cook
and Andrew Siebenborn why she had made the call. Griffith then showed the
officers the poster with the photos of the robbery in progress at another casino.
Officer Siebenborn examined the poster and agreed that Mohr appeared to be the
same person depicted on the poster robbing the casino. Knowing that the previous
robberies had involved weapons, Officer Siebenborn went outside to speak with the
other officers and Mohr and ensure that Mohr had been patted down for weapons.
[¶7.] Once outside, Officer Siebenborn learned that Mohr had not been
patted down. At that time, Officer Siebenborn observed that Mohr seemed “jittery
and somewhat nervous.” He asked Mohr to place his hands against the building
and initiated a frisk of Mohr’s outer clothing. Officer Siebenborn felt a wallet in
Mohr’s pocket, but also a hard object Officer Siebenborn believed to be a weapon—
potentially a penknife or pocket knife.
[¶8.] As Officer Siebenborn attempted to verify the identity of the item and
look into the pocket, Mohr tensed up and spun around. Mohr was handcuffed and
placed under arrest for obstruction of a law enforcement officer. A subsequent
search of Mohr’s pocket revealed that the object in question was a hypodermic
needle. The search also uncovered a glass pipe with suspected methamphetamine
residue and a small baggie containing a white crystal or powder. Laboratory testing
later confirmed the presence of methamphetamine in the baggie and on the pipe.
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[¶9.] Mohr cooperated with further police investigation and was cleared of
any connection to the casino robberies. However, Mohr was charged with
Possession of a Controlled Substance (Methamphetamine), in violation of SDCL 22-
42-5 and SDCL 34-20B-16(6), Obstructing Law Enforcement Officer, in violation of
SDCL 22-11-6, and Possession of Drug Paraphernalia, in violation of SDCL 22-42A-
3. Mohr was arraigned on September 14, 2011 and entered a plea of not guilty to all
charges. On February 22, 2012, Mohr moved to suppress all evidence found on his
person as the product of an illegal search and seizure. A hearing on the motion was
held June 28, 2012 in front of the Honorable Peter Lieberman. The court heard
testimony from Griffith and the responding officers. The court denied the motion.
[¶10.] After the suppression hearing, the case was reassigned to the
Honorable Kathleen K. Caldwell. Mohr appeared in front of Judge Caldwell on
August 13, 2012 and waived his right to a jury trial. A trial by the court was held
October 15, 2012. The court found Mohr guilty on all counts. Mohr was given a
suspended sentence of five years in prison, on the conditions that Mohr serve two
years of formal probation and submit to weekly drug testing for a period of six
months. Mohr appeals his conviction, raising one issue: whether the trial court
erred in denying Mohr’s motion to suppress evidence based on the alleged violation
of Mohr’s Fourth Amendment rights. We affirm.
Analysis and Decision
[¶11.] 1. Whether the trial court erred in denying Mohr’s motion to
suppress evidence based on an alleged violation of Mohr’s Fourth
Amendment rights.
[¶12.] Mohr argues that the evidence against him in this case was the
product of an illegal search and seizure, in violation of his Fourth Amendment
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rights. “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. Bonacker, 2013 S.D. 3, ¶ 8, 825 N.W.2d 916, 919 (quoting State
v. Overbey, 2010 S.D. 78, ¶ 11, 790 N.W.2d 35, 40). The trial court’s findings of fact
are reviewed under the clearly erroneous standard, but we give no deference to the
trial court’s conclusions of law. Id. (citation omitted).
[¶13.] “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.” State v. Sound Sleeper, 2010 S.D. 71, ¶ 15, 787 N.W.2d 787, 791 (citations
and internal quotation marks omitted). However, if law enforcement officers lack
the probable cause necessary to effectuate a custodial arrest, officers may perform a
brief, investigative stop based on reasonable suspicion. Id. (citing State v.
DeLaRosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 685-86).
[¶14.] This Court has noted that it is impossible to articulate a precise
definition of reasonable suspicion. State v. Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d
885, 888 (citing State v. Aaberg, 2006 S.D. 58, ¶ 10, 718 N.W.2d 598, 600). See also
Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911
(1996) (“Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’
mean is not possible.”). Thus, this Court applies “a common-sense and non-
technical approach to determining reasonable suspicion, one that deals with the
practical considerations of everyday life.” Sound Sleeper, 2010 S.D. 71, ¶ 16, 787
N.W.2d at 791 (citing Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d 885 at 888). A
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reviewing court must look to the “totality of the circumstances” to determine
whether the officer had a “particularized and objective basis” for suspecting
criminal activity. State v. Johnson, 2011 S.D. 10, ¶ 8, 795 N.W.2d 924, 926 (citation
omitted). The factual basis needed to support an officer’s reasonable suspicion is
minimal. State v. Satter, 2009 S.D. 35, ¶ 6, 766 N.W.2d 153, 155 (citing State v.
Scholl, 2004 S.D. 85, ¶ 6, 684 N.W.2d 83, 85). “All that is required is that the stop
be not the product of mere whim, caprice, or idle curiosity.” Id. (quoting Scholl,
2004 S.D. 85, ¶ 6, 684 N.W.2d at 85).
[¶15.] Mohr first argues that the officers in question lacked the reasonable
suspicion necessary to justify even a brief investigatory stop. Mohr points to
language in State v. Haar, where we noted:
The critical question is, “would the facts available to the officer
at the moment of the seizure . . . warrant a man of reasonable
caution in the belief that the action taken was appropriate?
Anything less would invite intrusions upon constitutionally
guaranteed rights based on nothing more substantial than
inarticulate hunches, a result this Court has consistently
refused to sanction.”
2009 S.D. 79, ¶ 22, 772 N.W.2d 157, 167 (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S.
Ct. 1868, 1873, 20 L. Ed. 2d 889 (1968)). Although Mohr acknowledges that we
analyze the officer’s actions under the totality of the circumstances, he emphasizes
that the facts available to the officers were limited at the time officers seized Mohr.
Mohr asserts that officers only knew that the casino attendant triggered the duress
alarm, that the casino attendant believed the suspect from earlier robberies was in
the casino, that Mohr was wearing a hat and sunglasses, and that Mohr was
playing video lottery when officers arrived. He argues that because these facts do
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not indicate any criminal wrongdoing by Mohr, officers could not have had a
reasonable suspicion to subject him to an investigatory detention. We disagree.
[¶16.] We have previously explained that courts are not to “examine innocent
explanations for the reasonable suspicion facts standing alone, a process which the
Supreme Court described as a ‘divide and conquer’ analysis.” Id. ¶ 23 (quoting
Quartier, 2008 S.D. 62, ¶ 15, 753 N.W.2d at 889). The totality of the circumstances
approach “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.’” Id. (quoting United States v.
Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750-51, 151 L. Ed. 2d 740 (2002)).
[¶17.] Viewing the totality of the circumstances in this case, including
reasonable inferences and deductions made by the officers, we cannot conclude that
the officers in this case were acting on “an inarticulate hunch,” or that Mohr’s
seizure was the product of “mere whim, caprice, or idle curiosity.” See Haar, 2009
S.D. 79, ¶ 22, 772 N.W.2d at 167; Satter, 2009 S.D. 35, ¶ 6, 766 N.W.2d at 155.
Although the facts listed by Mohr correctly state the information conveyed to the
officers by the dispatcher, those facts alone do not provide a complete picture of the
totality of circumstances at the time of the seizure.
[¶18.] First, the officers in this case possessed knowledge beyond what had
been relayed to them by Griffith. Law enforcement personnel are allowed to rely
upon information conveyed by one officer to another for determinations of probable
cause and reasonable suspicion through the collective knowledge doctrine. State v.
Richards, 1998 S.D. 128, ¶ 15, 588 N.W.2d 594, 597 (citation omitted). Applying
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this doctrine, “the facts and knowledge of all the officers are viewed collectively.”
Id. ¶ 18 (citing State v. Krebs, 504 N.W.2d 580, 586 (S.D. 1993); State v. Baysinger,
470 N.W.2d 840, 844-45 (S.D. 1991); State v. Czmowski, 393 N.W.2d 72, 73 (S.D.
1986)). None of the officers in this case were directly involved with the
investigations of the prior casino robberies. However, Officer Siebenborn testified
that it was relayed to him, before the events giving rise to this case, that the
suspect in the earlier robberies had entered the casinos wearing a baseball cap and
sunglasses, and spent some time gambling before robbing the casinos with a
weapon. Under the collective knowledge doctrine, we analyze the officers’ actions in
this case in light of these additional facts.
[¶19.] Equipped with this knowledge of the prior robberies, the officers
responded to an emergency “panic button” call from a casino attendant. When the
officers arrived at the scene, a frightened employee, Griffith, indicated toward
Mohr. Although he did not seem to be presently engaged in any illegal activity,
Mohr was seated at a machine in an ill-lit casino, wearing sunglasses and a baseball
cap “pulled over his eyes substantially.” This behavior and dress may have seemed
only marginally suspicious in isolation, but it corresponded with the officers’
collective knowledge of the dress and habits of the suspect in the prior robberies.
The similarities between Mohr and the suspect, and the broader circumstances of
an emergency call about a potential robbery, support the conclusion that the officers
were acting on more than a “whim, caprice, or idle curiosity” when they seized
Mohr. See Satter, 2009 S.D. 35, ¶ 6, 766 N.W.2d at 155 (citation omitted).
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[¶20.] The fact that Griffith was an identifiable source of information, rather
than an anonymous tipster, is another factor that supports the officers’ reasonable
suspicion. An informant’s tip may support the reasonable suspicion necessary for
an investigative detention. See Scholl, 2004 S.D. 85, ¶ 6, 684 N.W.2d 83 at 85. The
reliability of an informant’s tip is greater when the informant is known or
identifiable, rather than anonymous, in part because the informant can be held
accountable if the allegations turn out to be fabricated. See Satter, 2009 S.D. 35, ¶¶
9-12, 766 N.W.2d at 155-56. See also SDCL 22-11-9 (classifying false reporting of
an emergency or crime as a Class I misdemeanor). Although Griffith only identified
herself as “Mary” during the emergency call, authorities knew that an employee at
Deuces Casino had pushed the alarm. Griffith was present at the casino when
officers arrived, and pointed Mohr out to the officers. By openly identifying herself
to authorities, Griffith lent at least some measure of reliability to her claim of a
present emergency caused by Mohr’s presence in the casino.
[¶21.] Mohr attacks the reliability of Griffith as an informant by pointing out
that the “primary determinant of a tipster’s reliability is the basis of [the tipster’s]
knowledge.” Scholl, 2004 S.D. 85, ¶ 10, 684 N.W.2d 83, 87. Because Griffith had
not witnessed Mohr commit any criminal activity, and because Griffith’s knowledge
was only through secondhand accounts and photos from a wanted poster, 1 Mohr
1. Focusing specifically on the poster in this case, Mohr distinguishes this case
from both United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d
604 (1985) and State v. Krebs, 504 N.W.2d 580 (S.D. 1993). In both Hensley
and Krebs, Terry stops based on reasonable suspicion were upheld where
officers acted in reliance on police-issued bulletins describing the suspect. In
both cases, the description or identity of the suspect was known to police at
(continued . . .)
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argues that Griffith’s “tip” to police could not be reliable enough to supply
reasonable suspicion. This argument again takes an improper “divide and conquer”
approach to the reasonable suspicion analysis.
[¶22.] If Griffith’s call is classified as a mere “tip” from an informant, and is
viewed in isolation, it might lack the factual basis for police to have a reasonable
suspicion of criminal activity. Mohr correctly points out that Griffith did not relay
any articulable facts of her firsthand observation of a crime in progress. The
emergency call only relayed what Mohr was wearing, where Mohr was in the casino,
and the vague statement that “it sure looks like him.” Even if those facts were
corroborated, Mohr asserts that officers could not connect Mohr’s actions with any
criminal wrongdoing. However, we again must view Griffith’s call as part of the
totality of the circumstances confronting the officers in this case.
[¶23.] When Griffith contacted police, it was not a simple informant’s tip, on
which the police could act in slow and calculated manner. It was an emergency call,
which often demands swift action, working with less information. When officers
entered the casino, Griffith immediately indicated toward Mohr. Although the
officers did not know exactly what Mohr had done, it was reasonable for the officers
to rely on their training and experience and infer that the emergency call to police
________________________
(. . . continued)
the time of seizure and police were acting in reliance on those descriptions.
Mohr is correct that these facts are distinguishable. The officers in this case
were not familiar with the particular identity or physical description of the
robbery suspect before seizing Mohr, and the poster in this case was not
issued by police, nor was it seen by the officers before they seized Mohr.
However, the officers’ familiarity with the suspect’s physical appearance
would only be one factor to consider and is not essential to a finding of
reasonable suspicion in this case.
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and the indication toward Mohr meant that it was likely Mohr had done something
criminal and sufficiently threatening in nature to warrant the call. 2 The overall
tone and nature of the call—an identified, concerned citizen feeling so threatened
that she is unable to speak openly with a dispatcher—further supports the officers’
reasonable suspicion of criminal activity.
[¶24.] In light of the totality of the circumstances supporting the officers’
reasonable suspicion of criminal activity, we next look at the actions taken by the
officers. Although the officers in this case did not possess the probable cause
necessary for an immediate arrest, we have noted that “Terry recognizes that it may
be the essence of good police work to adopt an intermediate response.” Johnson,
2011 S.D. 10, ¶ 16, 795 N.W.2d 924 at 928 (quoting State v. Boardman, 264 N.W.2d
503, 506 (S.D. 1978)). “A brief stop of a suspicious individual, in order to determine
his identity and maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known to the officer at the
time.” Id. (quoting Boardman, 264 N.W.2d at 506).
[¶25.] The intermediate response taken by the officers in this case—asking
Mohr for identification and asking him to step outside the casino for further
questioning—was reasonable. These actions allowed police to momentarily
2. On similar facts, in State v. Hunter, a Florida appellate court upheld a
temporary seizure where a gas station clerk could not talk when she called
911, and thus relayed no facts about the crime or suspected criminal. 615 So.
2d 727 (Fla. Dist. Ct. App. 1993). When officers arrived minutes after
receiving the call, the distressed clerk pointed at the defendant. Id. at 730.
The court held that even though no articulable facts of crime had been
conveyed during the call, officers had reasonable suspicion because of the call
and the fact that “retail establishments of this type . . . are popular targets of
armed robberies.” Id.
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maintain the status quo, especially the safety of Griffith and others in the casino,
while gathering more information to either confirm or dispel concerns of dangerous
criminal activity. The officers were taking the reasonable steps any officer would
have taken under the circumstances. Thus, viewing these actions in light of the
totality of the circumstances, we conclude that the police did not violate Mohr’s
Fourth Amendment rights by temporarily detaining him outside of the casino for
questioning.
[¶26.] Mohr further argues that the subsequent pat-down of his person was
not justified, even if police had reasonable suspicion to seize him. If an officer
believes that “the persons with whom he is dealing may be armed and presently
dangerous . . . he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him.” Terry, 392 U.S.
at 30, 88 S. Ct. at 1884-85. “The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was
in danger.” State v. Shearer, 1996 S.D. 52, ¶ 18, 548 N.W.2d 792, 796 (citation
omitted).
[¶27.] Mohr argues that officers were not justified in patting him down,
because the officers observed no weapons and Mohr was not acting in a disorderly or
threatening manner. Mohr notes that “the officers who spent five minutes talking
to Mr. Mohr believed that he was not a threat.” Mohr asserts that a frisk is only
justified “where nothing in the initial stages of the encounter serves to dispel [the
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officer’s] reasonable fear for his own or others’ safety.” Terry, 392 U.S. at 30, 88 S.
Ct. at 1884.
[¶28.] Although the officers outside with Mohr did not feel immediately
threatened, Officer Siebenborn knew that the dress and behavior exhibited by Mohr
matched that of the armed casino robbery suspect. The similarities between Mohr
and the prior armed robberies were reinforced by information Officer Siebenborn
gained while talking inside with Griffith and looking at the pictures of a prior
robbery in that area. What is learned during the course of an officers’ investigation
should not be ignored. See Speten v. State, 185 P.3d 25, 34 (Wyo. 2008) (“Terry
certainly should not be read so narrowly as to allow a weapons search at the onset,
or not at all.”). See also State v. Faulks, 2001 S.D. 115, ¶ 16, 633 N.W.2d 613, 619
(“We will not fault police officers for failing to pat-search an individual before that
person is a suspect in a crime.”). Upon seeing the photo of the robbery in progress,
Officer Siebenborn was equipped with even greater knowledge of the potential
danger Mohr posed.
[¶29.] Because Officer Siebenborn knew the prior robberies involved weapons
and he reasonably believed that Mohr may have been the perpetrator of those
robberies, it was reasonable for him to believe that Mohr was armed. Furthermore,
Officer Siebenborn noted that Mohr acted “jittery and excited” when Officer
Siebenborn came out of the casino, adding to a fear that Mohr might be concealing a
weapon. The totality of the circumstances supports Officer Siebenborn’s belief that
a frisk was necessary to ensure the safety of those present, even if the other officers
failed to immediately recognize that threat. Because the stop and frisk of Mohr was
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reasonable, police had probable cause to arrest Mohr for obstructing a law
enforcement officer, and the subsequently discovered evidence is admissible.
Conclusion
[¶30.] Under the totality of the circumstances, Mohr was not subjected to an
unreasonable search or seizure in violation of his Fourth Amendment rights.
Therefore, we affirm.
[¶31.] KONENKAMP, ZINTER and SEVERSON, Justices, and BROWN,
Circuit Court Judge, concur.
[¶32.] BROWN, Circuit Court Judge, sitting for WILBUR, Justice,
disqualified.
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