#26232-a-DG

2013 S.D. 3

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                   * * * *

STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

v.

ANDREW J. BONACKER,                          Defendant and Appellant.

                                   * * * *

                   APPEAL FROM THE CIRCUIT COURT
                   OF THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                   * * * *
                     THE HONORABLE JOSEPH NEILES
                                Judge

MARTY J. JACKLEY
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff and
                                             appellee.

NICOLE J. LAUGHLIN
MICHAEL G. MILLER
Minnehaha County Public Defender’s Office
Sioux Falls, South Dakota                    Attorneys for defendant and
                                             appellant.

                                    ****

                                             ARGUED ON
                                             OCTOBER 3, 2012
                                             OPINION FILED 01/09/13
#26232

GILBERTSON, Chief Justice

[¶1.]         Andrew Bonacker appeals his conviction for driving with a revoked

driver’s license. We affirm.

                           Facts and Procedural History

[¶2.]         At approximately 1:00 a.m. on April 3, 2010, South Dakota Highway

Patrol Trooper Isaac Kurtz was traveling west on 60th Street North in the City of

Sioux Falls when he noticed a vehicle traveling east approaching his patrol car with

its headlights at what appeared to be their high-beam setting. Kurtz later testified

that the light was intense, forcing him to look to the side as the vehicle passed by.

Once the vehicle had passed, Kurtz turned his patrol car around and initiated a

traffic stop of the other vehicle.

[¶3.]         Trooper Kurtz approached the driver’s window of the stopped vehicle

and explained the reason for the stop to the driver. In response, the driver, later

identified as Bonacker, stated that the lights were on their low-beam setting.

Further, Bonacker’s front seat passenger, who identified herself as the owner of the

vehicle, stated that she had previously had this problem. Bonacker demonstrated

the lights by flashing them against a nearby wall. Following this demonstration,

Kurtz commented, “O.K., they’re really bright, huh?” Kurtz then asked to see

Bonacker’s driver’s license. Bonacker informed Kurtz that he did not have a valid

license and a subsequent check of the license revealed that it was revoked.

Bonacker was then arrested and taken into custody for driving with a revoked

license.



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[¶4.]        Bonacker was indicted on May 20, 2010, for driving with a revoked

license. Bonacker moved to suppress the evidence and statements obtained during

the stop of his vehicle on the basis that, under the Fourth Amendment, the stop

should have ended after Trooper Kurtz confirmed that he did not fail to dim his

headlights. The magistrate court conducted a hearing on the motion to suppress

and later entered findings of fact, conclusions of law, and an order denying the

motion.

[¶5.]        Bonacker’s court trial was conducted in magistrate court on December

3, 2010. The magistrate court found Bonacker guilty and sentenced him to ninety

days in the county jail with eighty-five days suspended and a fine of $200 plus costs.

Bonacker appealed his conviction to circuit court arguing that the magistrate court

erred in denying his motion to suppress. After briefing, the circuit court entered a

memorandum decision along with findings of fact and conclusions of law affirming

Bonacker’s conviction, including the magistrate court’s decision on Bonacker’s

motion to suppress evidence. Bonacker now appeals to this Court.

                                        Issue

[¶6.]        Whether Bonacker’s federal and state constitutional rights
             were violated when he was detained by law enforcement after
             it was determined that there was no longer any articulable
             suspicion of criminal activity.

[¶7.]        Bonacker argues that Trooper Kurtz violated the prohibitions against

unreasonable search and seizure in both the United States and South Dakota




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Constitutions1 by continuing to detain him and by requesting his driver’s license

after he demonstrated his headlights and Kurtz knew that no violation had

occurred. Bonacker asserts that once Kurtz knew that no violation had occurred,

his basis for detaining him dissipated and he should have been allowed to leave.

Therefore, Bonacker contends Kurtz’s request for his driver’s license was an

unconstitutional detention that took longer than necessary to effectuate the purpose

of the stop and that it violated his rights under the federal and state constitutions.

Bonacker submits that the evidence from the unlawful detention should have been

suppressed and that, because it was not, his conviction must be reversed.

                                 Standard of Review

[¶8.]         This Court outlined the general standards of review applicable to

motions to suppress evidence in a similar case in State v. Overbey:

              “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 S.D. 9, ¶ 14, 778 N.W.2d 618, 622 (quoting State v.
              Madsen, 2009 S.D. 5, ¶ 11, 760 N.W.2d 370, 374). We review the
              trial court’s findings of fact under the clearly erroneous standard
              and give no deference to its conclusions of law. Id. (citing State
              v. Haar, 2009 S.D. 79, ¶ 12, 772 N.W.2d 157, 162). As this Court
              has often noted,

                     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.


1.      See U.S. Const. amend. IV; S.D. Const. art. VI, § 11.

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              In re H.L.S., 2009 S.D. 92, ¶ 11, 774 N.W.2d 803, 807-08
              (quoting State v. Baysinger, 470 N.W.2d 840, 843 (S.D. 1991)
              (internal citations omitted)).

2010 S.D. 78, ¶ 11, 790 N.W.2d 35, 40.

                                         Analysis

[¶9.]         The Fourth Amendment generally requires a warrant based upon

probable cause to support the search and seizure of a person. Id. ¶ 16, 790 N.W.2d

at 41. There is an exception to the warrant requirement for investigative

detentions based upon an officer’s “reasonable suspicion” of criminal activity. Id.

(citing State v. DeLaRosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 686 (citing Terry v.

Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968))). Thus, an

officer must have a ‘“specific and articulable suspicion of a violation’” of law to

support a traffic stop and observation of a minor traffic violation is sufficient. See

Overbey, 2010 S.D. 78, ¶ 16, 790 N.W.2d at 41 (citing DeLaRosa, 2003 S.D. 18, ¶ 8,

657 N.W.2d at 686 (citing State v. Cuny, 534 N.W.2d 52, 53 (S.D. 1995))). In State v.

Littlebrave, this Court further noted that the constitutional reasonableness of an

investigatory detention is judged under Terry and involves a two-part inquiry:

“[f]irst, was the stop ‘justified at its inception. . . . Second, were the officer’s actions

during the stop ‘reasonably related in scope to the circumstances which justified the

interference in the first place.’” 2009 S.D. 104, ¶ 11, 776 N.W.2d 85, 89 (quoting

Terry, 392 U.S. at 19-20, 88 S. Ct. at 1878-79).

[¶10.]        As to whether the stop here was justified at inception, the trial court

concluded that Trooper Kurtz clearly had a justifiable, objective reason for stopping

Bonacker’s vehicle because he believed its headlights were on a high-beam setting

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in violation of South Dakota’s motor vehicle laws. See SDCL 32-17-7 (making

failure to dim headlights a Class 2 misdemeanor). See also State v. Akuba, 2004

S.D. 94, ¶ 15, 686 N.W.2d 406, 413 (quoting State v. Chavez, 2003 S.D. 93, ¶ 16, 668

N.W.2d 89, 95) (noting a traffic violation, however minor, creates sufficient cause to

stop the driver of a vehicle). Bonacker does not challenge this determination.

Rather, Bonacker challenges whether Kurtz’s actions were reasonably related in

scope to the circumstances justifying the stop in the first place. In that regard,

Bonacker contests the trial court’s conclusion that Kurtz lawfully requested his

driver’s license following the demonstration of the car’s headlights. Bonacker

argues that Kurtz should have let him go immediately after the demonstration

because it established no headlight violation had occurred.

[¶11.]       In support of his argument, Bonacker relies on State v. Hayen, 2008

S.D. 41, 751 N.W.2d 306. In Hayen, a police officer stopped a new pickup truck

because he was unable to see the expiration date on the bottom of its temporary

thirty-day dealer’s license which was properly displayed on the rear driver’s side

window of the vehicle. A box in the back of the pickup obstructed the bottom of the

license and prevented the officer from seeing the expiration date before making the

stop. After the stop, the officer approached the pickup on the driver’s side and

walked by the license without checking the expiration date which could be easily

read at that point. Instead, the officer went directly to the driver’s window and

asked the driver for his driver’s license and proof of insurance. Only after the driver

provided these documents did the officer look at the expiration date on the dealer’s

license and find that it was valid. The officer then returned to his patrol car to run

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a warrant and driver’s license check which revealed an outstanding warrant for the

driver. The officer arrested the driver and a subsequent search of his person and

vehicle revealed methamphetamine residue and drug paraphernalia in the driver’s

coat pocket.

[¶12.]         In a subsequent prosecution of the driver in Hayen for controlled

substance violations, the driver moved to suppress the evidence gained from the

search for violation of his federal and state constitutional rights against

unreasonable searches and seizures. The trial court granted the motion to suppress

and the State appealed. This Court affirmed, noting the following pertinent

limitations on investigative detentions:

               “[A]n investigative detention must be temporary and last no
               longer than is necessary to effectuate the purpose of the stop.
               Similarly, the 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.” State v. Ballard,
               2000 S.D. 134, ¶ 11, 617 N.W.2d 837, 841 (emphasis added)
               (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319,
               1325-26, 75 L. Ed. 2d 229, 238 (1983) (citations omitted)). We
               also required that the investigation be ‘“reasonably related in
               scope to the circumstances that justified the interference in the
               first place.”’ Id. (quoting United States v. Bloomfield, 40 F.3d
               910, 915 (8th Cir. 1994) (quoting United States v. Cummins, 920
               F.2d 498, 502 (8th Cir. 1990) (quoting Terry v. Ohio, 392 U.S. 1,
               20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968)))). We said
               additionally that after the completion of the traffic investigation
               “an officer must allow the driver to proceed without further
               constraint. . . .”

Hayen, 2008 S.D. 41, ¶ 7, 751 N.W.2d at 308-09 (emphasis original).

[¶13.]         Based upon these limitations, we concluded in Hayen that the officer’s

request for the driver’s license and proof of insurance exceeded the limits of a lawful

investigative stop because the officer could have satisfied his suspicions by looking

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at the dealer’s license. Had he done so, it would have been clear that no violation

had occurred or was occurring and that the officer’s reason for detaining the driver

had dissipated. Absent any further articulable suspicion of criminal activity, we

held the officer’s extended detention of the driver violated the driver’s federal and

state constitutional rights. Thus, we concluded the officer’s request for the driver’s

license and proof of insurance was an unconstitutional detention and that the

evidence garnered from that detention was properly suppressed.

[¶14.]       Our holding in Hayen was premised upon United States v. McSwain,

29 F.3d 558 (10th Cir. 1994), a similar case from the Tenth Circuit Court of Appeals

involving a temporary registration sticker. McSwain and Hayen are part of a class

of cases collectively analyzed in 4 Wayne R. LaFave & David C. Baum, Search and

Seizure § 9.3(c) n. 95 (4th ed. 2004) where it is noted:

             The importance of the violation of law to the authority to run a
             check on a license and registration is illustrated by those cases
             holding that if there is a stopping on either reasonable suspicion
             or probable cause of a traffic violation which is determined
             immediately after the stop not to have been a violation at all, the
             officer may not continue the detention for a license/registration
             check.

Id. (emphasis added).

[¶15.]       A review of the cases cited in support of this point in LaFave, supra,

reveals that almost all of them involve a stop for some sort of license plate violation

where the objective information readily available to the officer immediately after

the stop and before the officer even approached the driver dispelled, or should have

dispelled, the reasonable suspicion of a violation of law that provided the basis for

the stop. See United States v. Wilkinson, 633 F.3d 938 (10th Cir. 2011) (where the

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vehicle was stopped because an officer saw its license plate tag unlawfully covered

in plastic and it was argued the officer should have verified the validity of the tag

and let the driver go); United States v. Pena-Montes, 589 F.3d 1048 (10th Cir. 2009)

(where the vehicle was stopped for lack of a license plate, but, after pulling the

vehicle over, the officer observed a dealer tag); United States v. Jenkins, 452 F.3d

207 (2d Cir. 2006) (where the vehicle was stopped for lack of a license plate, but on

approaching the vehicle, the officer noticed a temporary plate on the rear of the

vehicle); United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006) (where the

vehicle was stopped because it had no rear license plate and the temporary

registration tag could not be read, but as the officer approached the vehicle, he

could see the tag); McSwain, 29 F.3d 558 (where the vehicle was stopped for an

obstructed registration sticker, but, on approach, the officer saw the sticker was

valid); United States v. Horn, 970 F.2d 728 (10th Cir. 1992) (where the vehicle was

stopped for lack of a front license plate, but after the stop the trooper observed a

rear plate from a state where no front plate was required); People v. Redinger, 906

P.2d 81 (Colo. 1995) (where the vehicle was stopped for lack of a license plate, but,

while walking toward the vehicle, the officer observed a valid temporary

registration plate); State v. Diaz, 850 So.2d 435 (Fla. 2003) (where the vehicle was

stopped because the officer could not read its temporary tag, but, on approaching

the vehicle, the officer could see the tag was valid); State v. Chatton, 463 N.E.2d

1237 (Ohio 1984) (where the vehicle was stopped for lack of a license plate, but, on

approaching the vehicle, the officer observed a temporary tag visible through the

rear windshield); State v. Farley, 775 P.2d 835 (Or. 1989) (where the vehicle was

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#26232

stopped for lack of a license plate, but, when approaching the vehicle, the officer

noticed a valid temporary permit posted on the windshield).

[¶16.]       Even in those cases cited in LaFave, supra, where the stop did not

involve a license plate violation, objective information readily available to the officer

immediately after the stop quickly dispelled the reasonable suspicion of a violation

of law that provided the basis for the stop. See Holly v. State, 918 N.E.2d 323 (Ind.

2009) (where the vehicle was stopped because a license plate check indicated the

registered female owner had a suspended license, but on approaching the vehicle,

the officer observed a male driver); McGaughey v. State, 37 P.3d 130 (Okla. Crim.

App. 2001) (where the vehicle was stopped for having no operational taillights, but

as the officer approached the vehicle he could see louvers over the taillights and

that they were working). See also City of Fairborn v. Orrick, 550 N.E.2d 488 (Ohio

Ct. App. 1988) (where a motorcycle was stopped because the passenger was not

wearing protective eyegear, but the operator was wearing protective eyegear).

[¶17.]       One circuit court has described the holding in McSwain and, by

implication, those cases like it above, as “narrow.” United States v. Kirksey, 485

F.3d 955, 957 (7th Cir. 2007). The Seventh Circuit has taken particular note that

“McSwain involved a situation where the suspicion justifying the stop was

immediately dispelled and so there was no need for any additional investigation.”

Id. (emphasis added). The Tenth Circuit has itself subsequently distinguished

McSwain as involving a situation where the officer received a “clear refutation” of

the suspicion justifying the stop. Amundsen v. Jones, 533 F.3d 1192, 1200 (10th

Cir. 2008). In Jenkins, 452 F.3d at 213 n. 7, the Second Circuit specifically noted its

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decision was premised on the assumption that the officers’ initial reasonable

suspicion was dissipated by the time they began to speak to the driver of the

vehicle. State courts have also taken note of this factor. See McGaughey, 37 P.3d at

140 (noting the entire investigation of the basis for the stop was completed before

the trooper ever interacted with the driver).

[¶18.]         This is not a case in that narrow category of cases described above

where the investigating officer’s reasonable suspicion was, or should have been,

dissipated immediately after the stop or before ever approaching the driver. There

was nothing during Trooper Kurtz’s approach or even on his first contact with

Bonacker that provided him with objective information immediately dispelling his

reasonable suspicion. Kurtz observed what he reasonably suspected to be a failure

to dim headlights. There could be nothing in his observations as he pulled up

behind Bonacker’s vehicle or approached it on foot that could confirm whether

Bonacker had previously failed to dim his headlights or not. Thus, only his contact

and interaction with Bonacker and further investigation of the matter could dispel

his reasonable suspicion.2




2.       In this, we distinguish this case from United States v. Bustillos-Munoz, 235
         F.3d 505 (10th Cir. 2000), where a trooper was followed and passed by a
         vehicle that he believed failed to dim its headlights. The trooper then
         maintained his observation of the vehicle as he pursued and stopped it.
         Thus, when the trooper approached the driver and the driver quickly
         activated his high beams, the trooper could tell immediately that they had
         not been in use and moved on to investigate the adjustment of the lights.
         Here, Trooper Kurtz had to turn his patrol car around and pursue Bonacker
         after observing the failure to dim. Therefore, Kurtz testified at trial that he
         could not tell whether Bonacker had changed his lights before stopping his
                                                                     (…continued)
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#26232

[¶19.]       This Court previously set forth the principles governing the scope of

investigative detentions in Littlebrave, 2009 S.D. 104, ¶ 12, 776 N.W.2d at 89-90:

             A lawful traffic stop may become unlawful “if it is prolonged
             beyond the time reasonably required to complete” its purpose.
             Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837, 160 L.
             Ed. 2d 842 (2005). “[A]n investigative detention must be
             temporary and last no longer than is necessary to effectuate the
             purpose of the stop. [Further], the 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.” State v. Ballard, 2000 SD 134, ¶ 11, 617 N.W.2d
             837, 841 (citing Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.
             1319, 1325-26, 75 L. Ed. 2d 229, 238 (1983) (citations omitted)).
             However, “[a]n officer does not impermissibly expand the scope
             of a traffic stop by asking the driver questions, even if the
             subject of the questioning is unrelated to the original purpose of
             the stop, as long as the questioning does not unduly extend the
             duration of the initial, valid seizure.” State v. Akuba, 2004 S.D.
             94, ¶ 20, 686 N.W.2d 406, 415 (citing United States v. Ramos, 42
             F.3d 1160, 1165 (8th Cir. 1994) (Beam, J., concurring)); United
             States v. Shabazz, 993 F.2d 431, 437 (5th Cir.1993). Further, “a
             reasonable investigation of a traffic stop may include”
             questioning on “subjects like place of origination, destination,
             employment and the purpose of the trip.” Akuba, 2004 S.D. 94, ¶
             20, 686 N.W.2d at 415 (citing Ramos, 42 F.3d at 1161). An
             “officer’s request to examine a driver’s license and vehicle
             registration or rental papers during a traffic stop and to run a
             computer check on both ... are [also] within the scope of
             investigation attendant to the traffic stop.” United States v.
             Brigham, 382 F.3d 500, 508 (5th Cir.2004) (citations omitted).
             These questions “may efficiently determine whether a traffic
             violation has taken place, and if so, whether a citation or
             warning should be issued or an arrest made.” Id. For the same
             reasons, “an officer may undertake similar questioning of other
             vehicle occupants to verify information provided by the driver.”
             United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000) (citation
             omitted). “If complications arise during these routine tasks, the
             vehicle may reasonably be detained ‘for a longer duration than

___________________
(…continued)
      vehicle or whether the lights were the same or different than when Kurtz
      first saw the vehicle.

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               when a stop is strictly routine.’” United States v. Peralez, 526
               F.3d 1115, 1119 (8th Cir. 2008) (citing United States v. Olivera–
               Mendez, 484 F.3d 505, 510 (8th Cir.2007)).3

(Emphasis added). Accord State v. Sound Sleeper, 2010 S.D. 71, ¶ 19, 787 N.W.2d

787, 792.

[¶20.]         In carrying out his investigation here, Trooper Kurtz approached

Bonacker’s vehicle within forty-one seconds of having turned on his red lights.

Kurtz immediately greeted Bonacker and explained he stopped his vehicle because

Bonacker failed to dim his headlights. Bonacker indicated the lights were on their

low-beam setting. His companion, the owner of the vehicle, volunteered that she

had experienced problems in the past with other drivers flashing their headlights at

her as a signal to dim her lights when they were already at their low-beam setting.

At the same time, Bonacker demonstrated the lights’ high- and low-beam settings

by flashing them against a nearby building. At that point, approximately fifty-four

seconds after the stop, Kurtz commented, “O.K., they’re really bright huh?” Kurtz

then asked Bonacker if he had his driver’s license on him. Bonacker replied fifty-

seven seconds after the stop that he did not have one. Thus, the entire duration of

the stop from Kurtz’s activation of his red lights to Bonacker’s admission that he did

not have a driver’s license was less than one minute.




3.       We further noted in Littlebrave that, ‘“[c]omputerized license and registration
         checks are an efficient means to investigate the status of a driver and his
         auto, but they need not be pursued to the exclusion of, or in particular
         sequence with, other efficient means.’” 2009 S.D. 104, ¶ 14 n. 2, 776 N.W2d
         at 90 n. 2 (quoting Brigham, 382 F.3d at 511).

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[¶21.]         This brief detention reflects nothing but a routine traffic stop and

request for a driver’s license with only those questions, if they are even

denominated such, necessary to follow up on the reason for the stop. The

“questioning” did not amount to a minute in time and clearly did not

“unconstitutionally prolong the detention ‘beyond the time reasonably required to

complete’ its purpose.” Littlebrave, 2009 S.D. 104, ¶ 14, 776 N.W.2d at 90 (quoting

Caballes, 543 U.S. at 407, 125 S. Ct. at 837). Moreover, under the settled law of

this Court as set forth above, the request for the driver’s license was within the

proper ‘“scope of the investigation attendant to the traffic stop.’” Littlebrave, 2009

S.D. 104, ¶ 12, 776 N.W.2d at 89 (quoting Brigham, 382 F.3d at 508). See also

United States v. Hollins, 685 F.3d 703, 706-07 (8th Cir. 2012) (noting the Eighth

Circuit has “consistently held that ‘[a] reasonable investigation following a

justifiable traffic stop may include asking for the driver’s license and registration.’”

(quoting United States v. Clayborn, 339 F.3d 700, 702 (8th Cir. 2003) (quoting

United States v. Allegree, 175 F.3d 648, 650 (8th Cir. 1999))). As recently explained

by the Eighth Circuit Court of Appeals in United States v. Roberts: “Following a

traffic stop, police officers may conduct ‘a number of routine but somewhat time-

consuming tasks related to the traffic violation, such as computerized checks of the

vehicle’s registration and the driver’s license and criminal history, and the writing

up of a citation or warning.’” 687 F.3d 1096, 1099 (8th Cir. 2012) (quoting United

States v. Munoz, 590 F.3d 916, 921 (8th Cir. 2010)).4



4.       In this regard, we reject as an improper elevation of form over substance the
                                                                     (…continued)
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[¶22.]       Bonacker relies on Trooper Kurtz’s later testimony during the

suppression hearing and at trial that, by the time he requested Bonacker’s driver’s

license, he was satisfied with Bonacker’s explanation for the headlights and that he

only asked for the license to check its validity. Thus, Bonacker contends under the

authorities previously cited that Kurtz should have let him go and not asked him

for his license. However, “[w]hether a Fourth Amendment violation occurred ‘turns

on an objective assessment of the officer’s actions in light of the facts and

circumstances confronting the officer at the time.’” State v. Johnson, 2011 S.D. 10,

¶ 5, 795 N.W.2d 924, 926 (quoting State v. Chavez, 2003 S.D. 93, ¶ 48, 668 N.W.2d

89, 102 (Konenkamp, J., concurring)). “[W]e are not bound by a police officer’s

subjective rationale.” Littlebrave, 2009 S.D. 104, ¶ 18, 776 N.W.2d at 92 (quoting

Chavez, 2003 S.D. 93, ¶ 49, 668 N.W.2d at 103 (Konenkamp, J., concurring)). In

___________________
(…continued)
      suggestion of Bonacker’s counsel during oral argument that Trooper Kurtz
      should have requested the driver’s license first, before any other statement or
      question, and that, had he done so, there would be no issue here. As noted,
      this Court has stated the license check need not be pursued in a particular
      sequence during the investigation. See Littlebrave, 2009 S.D. 104, ¶ 14 n. 2,
      776 N.W.2d at 90 n. 2. While we have cautioned that the check may not be
      delayed “for the sole purpose of prolonging the detention so as to justify
      additional questioning,” that did not occur here where the request for the
      license was promptly made in conjunction with the investigation. Id.
      Finally, this Court has previously indicated it will not take issue with an
      officer’s manner of approaching a vehicle and that an officer, “must be able to
      use his judgment to determine the safest manner in which to approach a
      stopped vehicle” to ‘“exercise unquestioned command of the situation.”’
      Sound Sleeper, 2010 S.D. 71, ¶ 20, 787 N.W.2d at 792 (quoting Brendlin v.
      California, 551 U.S. 249, 258, 127 S. Ct. 2400, 2407, 168 L. Ed. 2d 132
      (2007)). Trooper Kurtz testified here that it was his usual practice to explain
      the reason for the stop at the outset to put the driver at ease as to the reason
      for the stop and license request and we find this testimony from a seven year
      veteran of the Highway Patrol to be both logical and persuasive.

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this review, we look to the salient facts known to the officer at the time. See

Johnson, 2011 S.D. 10, ¶¶ 8-12, 795 N.W.2d at 926-27. “It is our duty to make our

own legal assessment of the evidence to decide under the Fourth Amendment

whether the officer’s actions were ‘objectively reasonable.’” Littlebrave, 2009 S.D.

104, ¶ 18, 776 N.W.2d at 92 (quoting Chavez, 2003 S.D. 93, ¶ 49, 668 N.W.2d at 103

(Konenkamp, J., concurring)).

[¶23.]         Here, at the time he requested Bonacker’s driver’s license, Trooper

Kurtz had seen what he believed was a failure to dim violation by Bonacker, had

received an explanation for the violation from the occupants of the vehicle, had seen

a brief demonstration of the headlights while standing beside the vehicle, and had

made an ambiguous comment that the headlights were, “really bright huh?”5 With

those facts in hand, Bonacker’s investigation might reasonably have followed any

one of several possible paths forward: he might have completely disbelieved the

tendered explanation and demonstration and issued a citation for the violation; he

might have issued a warning ticket for the violation; he might have sought a more

extensive demonstration of the headlights while looking directly at the front of the

vehicle; or he might have accepted the explanation and demonstration already

provided and allowed the vehicle to go on its way. Additionally, Kurtz might have

investigated for a violation of SDCL 32-17-5 prohibiting headlights from projecting




5.       We cannot ascertain whether Kurtz’s comment was referring to brightness at
         high-beam or low-beam or whether Kurtz was simply responding to the
         occupants’ explanation of past problems with the vehicle’s bright headlights.

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a “glaring or dazzling light” and making that offense a Class 2 misdemeanor.6 See

e.g. Bustillos-Munoz, 235 F.3d 505, 513-14 (where after resolving a vehicle stop for

failure to dim headlights the trooper proceeded to investigate the alignment of the

headlights as regulated by a different statute and, during that investigation,

requested the operator’s driver’s license). That Kurtz later testified and denied any

intention to cite Bonacker for a violation of SDCL 32-17-5 makes no difference. See

State v. Vento, 1999 S.D. 158, 604 N.W.2d 468 (upholding on objective grounds an

investigative detention and request for a driver’s license for violation of a statute

governing display of license plates where the arresting officer testified that he

believed the license plate was properly displayed).7 Again, we are not governed by




6.    Although Bonacker was stopped for a violation of SDCL 32-17-7 making
      failure to dim headlights a Class 2 misdemeanor, SDCL 32-17-5 regulates the
      adjustment and brightness of headlights and prohibits them from projecting,
      “a glaring or dazzling light to persons in front of such [headlights].” Violation
      of this provision is also a Class 2 misdemeanor. Id.

7.    In Vento, an officer stopped a vehicle for failure to display a front license
      plate. After the stop, the officer saw the license plate lying flat in the front
      windshield on the passenger side of the vehicle. Nevertheless, the officer
      asked the driver for his driver’s license, learned it was revoked, and arrested
      the driver for driving under revocation. During the ensuing prosecution, the
      trial court granted a motion to suppress the evidence obtained after the
      officer saw the license plate because his reasonable suspicion dissipated at
      that point. The State appealed and this Court reversed, holding that despite
      testimony from the officer conveying his subjective belief that the license
      plate had been properly displayed, the officer was “objectively justified” in
      continuing to detain the driver after seeing the plate displayed in a manner
      that was in violation of the statute. Vento, 1999 S.D. 158, ¶ 11, 604 N.W.2d
      at 470. As authority for our position in Vento, we relied primarily on Whren
      v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89,
      98 (1996) holding that, “[s]ubjective intentions play no role in ordinary,
      probable-cause Fourth Amendment analysis.”

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the officer’s subjective rationale. See Littlebrave, 2009 S.D. 104, ¶ 18, 776 N.W.2d

at 92.

[¶24.]         Finally, even if Kurtz was subjectively satisfied with the occupants’

explanation and the demonstration of Bonacker’s headlights, he never conveyed

that satisfaction beyond his ambiguous comment that, “they’re really bright huh?”

Certainly he never conveyed to Bonacker at any time prior to requesting his driver’s

license that the investigation was complete and that Bonacker was free to leave. If

he had, we might well be confronted with a different situation here. See, e.g.,

Ballard, 2000 S.D. 134, 617 N.W.2d 837 (holding an officer’s continued detention of

a driver for use of a drug dog after the officer’s issuance of a warning citation and

advisement to the driver that she was “free to leave” was impermissible under the

Fourth Amendment).8 See also Roberts, 687 F.3d at 1099 (noting that, “once the

officer decides to let a routine traffic offender depart with a ticket, a warning or an

all clear – a point in time determined, like other Fourth Amendment inquiries, by


8.       Ballard was premised upon State v. Durke, 1999 S.D. 39, 593 N.W.2d 407.
         During oral argument, there was a suggestion that affirmance of the
         conviction here would necessitate abrogation or modification of Durke. That
         is not the case. In Durke, a trooper stopped a group of seven motorcyclists
         because, under South Dakota law, the handlebars were too high on four of
         the motorcycles. Although the motorcyclists were told they could leave once
         their motorcycles were in compliance with South Dakota law, it was not made
         clear to the three cyclists whose motorcycles were already in compliance that
         they were free to go. Instead, they remained on the scene and were subjected
         to a group search that resulted in their prosecution for various controlled
         substance and concealed weapon offenses. We ultimately affirmed the trial
         court’s suppression of evidence related to the three cyclists, holding they were
         detained after the purpose of the investigatory stop had ended as to them.
         That is not the case here where Trooper Kurtz had not yet completed the
         purpose of the investigatory stop when Bonacker admitted he had no driver’s
         license.

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objective indicia of the officer’s intent – then the Fourth Amendment applies to limit

any subsequent detention or search.” (quoting United States v. $404,905.00 in U.S.

Currency, 182 F.3d 643, 648 (8th Cir. 1999))).

                                         Conclusion

[¶25.]       We hold that when Trooper Kurtz requested Bonacker’s driver’s

license, Kurtz had not yet completed his investigation of the failure to dim offense

and, therefore, his request for the license was within the scope of the investigation

attendant to the traffic stop. Littlebrave, 2009 S.D. 104, ¶ 12, 776 N.W.2d at 89.

Bonacker’s admission at that point that he did not have a driver’s license provided

reasonable suspicion that he was driving without a valid license. See Sound

Sleeper, 2010 S.D. 71, ¶ 25, 787 N.W.2d at 794. This provided additional reasonable

suspicion to further extend the investigation in order to resolve the issue over the

status of Bonacker’s license. See Littlebrave, 2009 S.D. 104, ¶ 16, 776 N.W.2d at 91.

Thus, “further reasonable suspicion, supported by articulable facts, emerged”

during the stop “making the duration of [the] stop reasonable.” Id. (quoting

Brigham, 382 F.3d at 507).

[¶26.]       Based upon the foregoing, we find no violation of Bonacker’s federal or

state constitutional rights against unreasonable searches and seizures.

Accordingly, suppression of the evidence seized during the stop of Bonacker’s

vehicle was unwarranted and there was no error by the circuit court or magistrate

court in their rulings in this regard.

[¶27.]       Affirmed.

[¶28.]       ZINTER, SEVERSON, and WILBUR, Justices, concur.

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[¶29.]       KONENKAMP, Justice, concurs in result.



KONENKAMP, Justice (concurring in result).

[¶30.]       I concur with the Court’s holding that Trooper Kurtz was entitled to

ask Bonacker for his driver’s license, even after the trooper learned from Bonacker

that the original reason for stopping the car was mistaken. To investigate the

headlight violation, the trooper first had to talk with the driver. It should make no

difference if during the stop the trooper had inquired about the headlights either

before or after asking to see Bonacker’s driver’s license. As the Court points out,

during a lawful stop, within a reasonable time, investigating officers are not

required to carry out their procedures in any particular order. To require otherwise

would transform investigative stops into roadside rituals.

[¶31.]       Where I differ with the Court is in its speculation about what the

trooper could have done, might have believed, and may have investigated. Our

function restricts us to determining whether a challenged seizure fell within

constitutional and statutory limits. We should abstain from deciding the propriety

of law enforcement actions not before us. Producing a driver’s license is a routine

part of any traffic stop, and drivers are required by law to have it in their

possession and display it on “demand of a . . . peace officer.” SDCL 32-12-39. It is

enough, therefore, to declare that the trooper’s timely request to see a driver’s

license was within the scope of a lawful stop and “‘strictly tied to and justified by’

the circumstances which rendered its initiation permissible.” See Florida v. Royer,

460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983) (quoting Terry v.

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Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968)) (additional

citation omitted).




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