#26061-a-DG

2012 S.D. 8

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                * * * *

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

ROBERT CLARENCE DAHL,                     Defendant and Appellant.

                                * * * *

                    APPEAL FROM THE CIRCUIT COURT
                     OF THE FIFTH JUDICIAL CIRCUIT
                     BROWN COUNTY, SOUTH DAKOTA

                                * * * *

                       HONORABLE SCOTT P. MYREN
                                Judge

                                * * * *

MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

RICHARD A. SOMMERS
JUSTIN M. SCOTT of
Bantz, Gosch & Cremer, LLC
Aberdeen, South Dakota                    Attorneys for defendant
                                          and appellant.

                                * * * *

                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 14, 2011

                                          OPINION FILED 02/01/12
#26061

GILBERTSON, Chief Justice

[¶1.]        Robert Dahl appeals his conviction for third-offense DUI, arguing that

the circuit court erred in denying his motion to suppress evidence obtained from the

stop of his vehicle because the stop lacked reasonable suspicion. The arresting

officer initiated the investigatory stop to determine whether Dahl violated the

statute requiring a vehicle executing a right turn to be driven as closely as

practicable to the right-hand curb. Because the arresting officer’s interpretation of

the relevant statute was reasonable, we affirm.

                          Facts and Procedural Background

[¶2.]        At approximately 10:49 p.m., on the evening of May 14, 2010,

Aberdeen police officer Jeffrey Koval was driving east near the 100 block of

Southeast Sixth Avenue in Aberdeen. Officer Koval observed a red SUV make a

wide right-hand turn from a parking lot onto Sixth Avenue. According to Officer

Koval, the vehicle appeared to partially cross over the dotted white line separating

the two east-bound lanes of the four-lane street. Officer Koval initiated a traffic

stop and ultimately arrested the driver of the vehicle, Dahl, for driving under the

influence of alcohol.

[¶3.]        Dahl moved to suppress all evidence obtained from the stop of his

vehicle arguing that Officer Koval lacked reasonable suspicion to make the stop.

After reviewing the surveillance video from Officer Koval’s dashboard camera, the

circuit court concluded that Dahl’s vehicle had clearly crossed the dividing line and

that Officer Koval therefore had reasonable suspicion to make the stop. Following a




                                          -1-
#26061

bench trial, Dahl was convicted of third-offense DUI and was sentenced to two years

in the state penitentiary, with one year suspended. Dahl appeals.

                                Analysis and Decision

[¶4.]        Dahl argues that Officer Koval lacked reasonable suspicion to stop his

vehicle, and that the stop was therefore a violation of his Fourth Amendment

protection against unreasonable search and seizure. He further claims that all

evidence derived from the stop must be suppressed as a result of the constitutional

violation. “Our review of a motion to suppress based on an alleged violation of a

constitutionally protected right is a question of law examined de novo.” State v.

Bergee, 2008 S.D. 67, ¶ 9, 753 N.W.2d 911, 913-14 (quoting State v. Hayen, 2008

S.D. 41, ¶ 5, 751 N.W.2d 306, 308).

[¶5.]        “An investigatory traffic stop must be ‘based on objectively reasonable

and articulable suspicion that criminal activity has occurred or is occurring.’” State

v. Herren, 2010 S.D. 101, ¶ 7, 792 N.W.2d 551, 554 (quoting Bergee, 2008 S.D. 67, ¶

10, 753 N.W.2d at 914). In Herren, this Court quoted the United States Supreme

Court as follows:

             When discussing how reviewing courts should make reasonable-
             suspicion determinations, we have said repeatedly that they
             must look at the “totality of the circumstances” of each case to
             see whether the detaining officer has a “particularized and
             objective basis” for suspecting legal wrongdoing. This process
             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.” Although an officer’s reliance on a mere
             “‘hunch’” is insufficient to justify a stop, the likelihood of
             criminal activity need not rise to the level required for probable
             cause, and it falls considerably short of satisfying a
             preponderance of the evidence standard.


                                          -2-
#26061

Id. (quoting United States v. Arvizu, 534 U.S. 266, 273-74, 122 S. Ct. 744, 750, 151

L. Ed. 2d 740 (2002)).

[¶6.]        “Recognizing that the term ‘reasonable suspicion’ cannot be precisely

defined, we have said that it ‘is a common sense and non-technical concept dealing

with the practical considerations of everyday life.’” Id. ¶ 8 (quoting State v.

Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d 885, 888). “Reasonable suspicion to stop

must be based on ‘specific and articulable facts which taken together with rational

inferences from those facts, reasonably warrant [the] intrusion.’” Id. (quoting State

v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d 406, 413). “[I]n making a reasonable

suspicion determination, we must [l]ook at the ‘totality of the circumstances’ of each

case to see whether the detaining officer has a ‘particularized and objective basis’ for

suspecting legal wrongdoing.” Id. (quoting Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d

at 914). “The stop may not be the product of mere whim, caprice or idle curiosity.”

Id.

[¶7.]        Dahl argues that Officer Koval’s stop was based on his mistaken belief

that partially crossing into the left lane was prohibited by statute. This Court has

recently held that an officer’s objectively unreasonable “mistake of law” cannot

provide the basis for a traffic stop. State v. Wright, 2010 S.D. 91, ¶ 21, 791 N.W.2d

791, 799; Webb v. South Dakota Dept. of Commerce and Regulation, 2004 S.D. 63, ¶

10, 680 N.W.2d 661, 665. SDCL 32-26-17, the statute upon which Officer Koval

relied as the basis for his stop, provides in part:

             Except as otherwise provided in § 32-26-20, the driver of a
             vehicle intending to turn to the right at an intersection shall
             approach such intersection in the lane for traffic nearest to the
             right-hand side of the highway, and in turning shall keep as

                                           -3-
#26061

             closely as practicable to the right-hand curb or edge of the
             highway.

While this statute does not explicitly prohibit a driver from crossing into another

lane when making a right-hand turn, this does not necessarily mean that Officer

Koval made a mistake of law in concluding that Dahl’s conduct violated the statute.

Dahl was still required to stay “as close as practicable” to the right-hand curb. This

language requires an observing officer to exercise judgment in determining whether

a violation may have occurred.

[¶8.]        This case is therefore distinguishable from Wright and Webb, where

each officers’ interpretation of the applicable law was objectively unreasonable. See

Wright, 2010 S.D. 91, ¶ 21, 791 N.W.2d at 799; Webb, 2004 S.D. 63, ¶ 9, 680 N.W.2d

at 665. In this case, by contrast, the language of SDCL 32-26-17 requires the

officer to make a determination as to what is “practicable” under the circumstances.

Officer Koval reasonably concluded that Dahl’s vehicle did not stay as close as

practicable to the curb while making the turn, and he may well be correct that

Dahl’s conduct violated the statute. The stop initiated by Koval was therefore

appropriate to investigate whether Dahl violated SDCL 32-26-17.

[¶9.]        However, even if Dahl did not break any traffic laws, Officer Koval still

had reasonable suspicion to make the stop. This Court has upheld the

reasonableness of a traffic stop when an officer observes a vehicle crossing lines on

the road. See State v. Ballard, 2000 S.D. 134, ¶ 11, 617 N.W.2d 837, 840 (crossing

center line and fog line); State v. Sleep, 1999 S.D. 19, ¶ 8, 590 N.W.2d 235, 238

(crossing the dividing line between two lanes on a four-lane highway). A review of

the video evidence in this case supports the circuit court’s conclusion that Dahl’s

                                          -4-
#26061

vehicle “clearly crossed over the line” while making the right-hand turn. The turn

appeared to be considerably wider than necessary under the circumstances and

created the reasonable inference that the driver of the vehicle might be impaired.

This was a specific and articulable fact that Officer Koval identified as the basis for

his stop, rather than a mere hunch or curiosity. While the evidence may not have

been substantial, it was sufficient to satisfy the relatively low standard of

reasonable suspicion.

                                      Conclusion

[¶10.]       This case is distinguishable from Wright and Webb because Officer

Koval did not make a mistake of law by concluding that Dahl’s vehicle did not stay

“as close as practicable” to the right-hand curb when making the turn. Even if Dahl

did not violate any traffic laws, his wide turn and crossing over the dividing line

were sufficient to form the basis for reasonable suspicion to stop his vehicle.

[¶11.]       Affirmed.

[¶12.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




                                          -5-
