#27769-r-DG
2017 S.D. 12


                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA
                                 ****


STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      vs.

STEVEN ALEXANDER STANAGE,                 Defendant and Appellant.

                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                      BROOKINGS, SOUTH DAKOTA

                                 ****

               THE HONORABLE GREGORY J. STOLTENBURG
                              Judge

                                 ****


MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


DONALD M. MCCARTY
BENJAMIN KLEINJAN of
Helsper, McCarty &
 Rasmussen, P.C.
Brookings, South Dakota                   Attorneys for defendant
                                          and appellant.

                                 ****
                                          ARGUED OCTOBER 5, 2016
                                          OPINION FILED 04/05/17
#27769

GILBERTSON, Chief Justice

[¶1.]        Steven Alexander Stanage appeals from a final judgment of conviction

for driving under the influence. Stanage argues the circuit court erred in denying

his motion to suppress evidence obtained during a traffic stop and subsequent blood

draw. According to Stanage, the arresting officer lacked a reasonable basis to

conclude Stanage had committed a crime. We reverse.

                           Facts and Procedural History

[¶2.]        Shortly before 2 a.m. on October 26, 2014, in Brookings, South Dakota,

Stanage ordered food at the drive-up window of a Hardee’s restaurant. Adam Hill,

an employee working at the window, noticed Stanage’s eyes were bloodshot and his

speech slurred. Stanage also had some difficulty grasping the beverage he had

ordered. Hill reported his observations to James Debough, his shift supervisor.

Debough, in turn, contacted the police and told a dispatcher that a potentially

drunk driver was parked at the window. Debough described Stanage’s vehicle as a

“car” and gave its license-plate number but did not relay Hill’s observations

regarding Stanage’s eyes, speech, and motor control. Debough told the dispatcher

the employees had delayed Stanage’s order to stall his departure.

[¶3.]        The dispatcher contacted Brooking’s County Sheriff’s Deputy Jeremy

Kriese, who was only one block away from the Hardee’s. The dispatcher gave

Deputy Kriese the license-plate number and told him that Hardee’s employees were

holding Stanage at the drive-up window, but the dispatcher did not provide any

additional information regarding the informants’ identities to Deputy Kriese. At

Deputy Kriese’s request, the Hardee’s employees “released” Stanage. After Stanage


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drove away from Hardee’s, Deputy Kriese immediately initiated a traffic stop.

Deputy Kriese did not independently observe any suspicious behavior—the stop was

predicated entirely on the information provided by the dispatcher. Deputy Kriese

approached the vehicle and detected an overwhelming odor of alcohol emanating

from it. Deputy Kriese administered field sobriety tests and based on the results,

arrested Stanage for driving under the influence. Stanage submitted to a blood

draw, and an analysis of his blood revealed a blood alcohol content of 0.204% at

approximately 2:28 a.m.

[¶4.]        Stanage was charged with driving a vehicle while under the influence

of alcohol as a first offense. The case was first tried in magistrate court. Stanage

moved to suppress all evidence resulting from the stop, including the results of the

blood test. At the suppression hearing, Hill testified about the observations he

made on October 26—i.e., Stanage’s bloodshot eyes, slurred speech, and motor-

control difficulty. The court denied Stanage’s motion and convicted him of driving

while under the influence. Stanage appealed the magistrate court’s decision to the

circuit court, which affirmed.

[¶5.]        Stanage appeals, raising one issue: Whether Deputy Kriese had

reasonable suspicion to justify the traffic stop.

                                  Standard of Review

[¶6.]        “[W]e review a motion to suppress evidence obtained in the absence of

a warrant de novo.” State v. Walter, 2015 S.D. 37, ¶ 6, 864 N.W.2d 779, 782

(citation omitted). “[W]e review the circuit court’s factual findings for clear error




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but ‘give no deference to the circuit court’s conclusions of law.’” Id. (quoting Gartner

v. Temple, 2014 S.D. 74, ¶ 8, 855 N.W.2d 846, 850).

                                Analysis and Decision

[¶7.]        The Fourth Amendment protects a person from “unreasonable

searches and seizures[.]” U.S. Const. amend. IV. This protection generally requires

“that the police must, whenever practicable, obtain advance judicial approval of

searches and seizures through the warrant procedure[.]” Terry v. Ohio, 392 U.S. 1,

20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968). However, “[t]he Fourth

Amendment permits brief investigative stops . . . when a law enforcement officer

has ‘a particularized and objective basis for suspecting the particular person

stopped of criminal activity.’” Navarette v. California, ___ U.S. ___, ___, 134 S. Ct.

1683, 1687, 188 L. Ed. 2d 680 (2014) (quoting United States v. Cortez, 449 U.S. 411,

417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). The totality of the

circumstances determines whether such a particularized and objective basis exists.

Id. “Although a mere ‘hunch’ does not create reasonable suspicion, the level of

suspicion the standard requires is ‘considerably less than proof of wrongdoing by a

preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable

cause.” Id. (citation omitted) (quoting United States v. Sokolow, 490 U.S. 1, 7,

109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)).

[¶8.]        The information known to Deputy Kriese at the time of the stop was

limited. Although Hill had observed that Stanage’s eyes were bloodshot, his speech

was slurred, and his motor skills were impaired, this information was not known to

law enforcement at the time of the stop. Therefore, Hill’s observations may not be


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considered in determining whether Deputy Kriese had a particularized and

objective basis for suspecting Stanage was intoxicated. See Florida v. J.L., 529 U.S.

266, 271, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254 (2000) (“The reasonableness of

official suspicion must be measured by what the officers knew before they conducted

their search.” (emphasis added)). 1 Additionally, the State concedes that Deputy

Kriese did not independently observe any criminal activity or erratic driving on

Stanage’s part. 2 Thus, the stop was predicated entirely on the conclusory assertion

of unidentified-but-identifiable informants and a positive identification of Stanage’s

vehicle.

[¶9.]         The initial question in cases like this is whether the tip is credible.

Navarette, ___ U.S. at ___, 134 S. Ct. at 1688. The State contends that a finding of

reasonable suspicion is supported because the informants were identifiable.

Stanage contends that “[t]he call to Brookings dispatch that Deputy Kriese relied on

was an anonymous tip.” The credibility of an informant is enhanced when the

informant places his anonymity at risk. See id. at ___, 134 S. Ct. at 1689-90. While

“an unnamed individual who divulges enough distinguishing characteristics to limit


1.      The dissent argues that it was reasonable for Deputy Kriese to “infer” a
        factual premise for the informants’ conclusion that Stanage was intoxicated.
        See infra ¶ 30. But a conclusion is inferred from a factual premise, not the
        other way around. See Black’s Law Dictionary (10th ed. 2014) (defining
        inference as a “conclusion reached by considering other facts and deducing a
        logical consequence from them.” (emphasis added)). While an officer may
        make rational inferences from known facts, Terry, 392 U.S. at 21, 88 S. Ct.
        at 1880, he may not simply assume an informant’s conclusion is correct, see
        infra ¶ 10 & n.3.

2.      Independent observation is not required to form a particularized and
        objective basis for suspecting criminal activity, but it can compensate for an
        insufficient tip. See Navarette, ___ U.S. at ___, 134 S. Ct. at 1688.

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his possible identity to only a handful of people may be nameless, . . . he is capable

of being identified and thus is not anonymous.” United States v. Sanchez, 519 F.3d

1208, 1213 (10th Cir. 2008) (quoting United States v. Brown, 496 F.3d 1070, 1075

(10th Cir. 2007)); accord State v. Mohr, 2013 S.D. 94, ¶ 20, 841 N.W.2d 440, 446; see

also Navarette, ___ U.S. at ___, 134 S. Ct. at 1689-90 (considering law enforcement’s

ability to identify 911 caller as bolstering credibility of an unidentified informant).

Although Deputy Kriese did not know the specific identities of the informants at the

time of the stop, he did know they were Hardee’s employees working at the time of

the stop. Thus, for purposes of credibility, the informants in this case were not

anonymous, which enhances the reliability of the tip.

[¶10.]       Regardless, “[e]ven a reliable tip will justify an investigative stop only

if it creates reasonable suspicion that ‘criminal activity may be afoot.’” Navarette,

___ U.S. at ___, 134 S. Ct. at 1690 (quoting Terry, 392 U.S. at 30, 88 S. Ct. at 1884);

accord J.L., 529 U.S. at 272, 120 S. Ct. at 1379. The requirement that an officer

have reasonable suspicion prior to a stop is not abrogated simply because a third-

party informant is convinced a crime occurred. As noted above, an officer’s “mere

‘hunch’ does not create reasonable suspicion[.]” Navarette, ___ U.S. at ___,

134 S. Ct. at 1687. “[N]either does a private citizen’s.” United States v. Wheat,

278 F.3d 722, 732 (8th Cir. 2001). Even if an informant is credible, “[s]ufficient

information must be presented to the [officer] to allow that official to determine

[reasonable suspicion]; his action cannot be a mere ratification of the bare




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conclusions of others.” Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 2333,

76 L. Ed. 2d 527 (1983) (emphasis added). 3

[¶11.]         When an officer is not given an “explicit and detailed description of

alleged wrongdoing,” Navarette, ___ U.S. at ___, 134 S. Ct. at 1689, the officer must

have some other reason to believe the informant’s conclusion is correct.

               If, for example, a particular informant is known for the unusual
               reliability of his predictions of certain types of criminal activities
               in a locality, his failure, in a particular case, to thoroughly set
               forth the basis of his knowledge surely should not serve as an
               absolute bar to a finding of [reasonable suspicion] based on his
               tip.

Gates, 462 U.S. at 233, 103 S. Ct. at 2329-30; see also Adams v. Williams, 407 U.S.

143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972) (upholding conclusory tip

from known informant who had previously given accurate information). Even if an

informant has not previously provided information to the officer, the officer’s

ratification of the informant’s conclusion may be objectively reasonable if the officer

is aware that the informant has special training or experience relating to the

conclusion at issue. 4 In this case, however, the record does not reflect that the

informants had previously demonstrated unusual reliability in identifying

intoxicated drivers. Even if they had, Deputy Kriese was unaware of the


3.       Gates addresses the related context of a magistrate’s probable-cause
         determination. The reasoning is equally applicable to an officer’s reasonable-
         suspicion determination. While the burden of proof is less in the reasonable-
         suspicion context, in either case the burden of determining whether
         reasonable suspicion (or probable cause) exists belongs to the magistrate or
         officer and not to some third party.

4.       For example, a veteran law-enforcement officer, emergency-room physician,
         or bartender might identify intoxication more reliably than the average
         person.

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informants’ identities at the time he stopped Stanage, so such a circumstance—even

if reality—could not possibly have informed Deputy Kriese’s reasonable-suspicion

determination. 5

[¶12.]         Even so, the State contends it was reasonable to ratify the informants’

conclusion because Deputy Kriese confirmed the identifying detail provided by the

informants—i.e., the license-plate number. However, the United States Supreme

Court has specifically rejected the notion that identifying details like this can

corroborate an allegation of criminal activity.

               An accurate description of a subject’s readily observable location
               and appearance is of course reliable in this limited sense: It will
               help the police correctly identify the person whom the tipster
               means to accuse. Such a tip, however, does not show that the
               tipster has knowledge of concealed criminal activity. The
               reasonable suspicion here at issue requires that a tip be reliable
               in its assertion of illegality, not just in its tendency to identify a
               determinate person.

J.L., 529 U.S. at 272, 120 S. Ct. at 1379 (emphasis added). Stanage does not

dispute that Deputy Kriese had sufficient information to identify Stanage’s vehicle.

But the tip in this case consisted only of “easily obtained facts and conditions

existing at the time of the tip[;]” it does not suggest the informants had “reliable

information of [Stanage’s] alleged illegal activities.” Gates, 462 U.S. at 245,



5.       The dissent primarily focuses on the credibility of the informants in this case.
         As noted above, we agree the informants were credible. Supra ¶ 9. However,
         the basis of knowledge of even an “unquestionably honest citizen” is subject
         to some scrutiny. See Gates, 462 U.S. at 233-34, 103 S. Ct. at 2330
         (“[R]igorous scrutiny of the basis of [an unquestionably honest citizen’s]
         knowledge [is] unnecessary.” (emphasis added)). In other words, the question
         in this case is not whether Deputy Kriese had reason to believe the
         informants were telling the truth; the question is whether he had reason to
         believe they correctly concluded criminal activity was occurring.

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103 S. Ct. at 2335-36. Thus, under J.L., while the identifying detail provided to

Deputy Kriese makes the tip more reliable in the sense that it positively identified

Stanage’s vehicle, that detail does not support the conclusion that Stanage was

engaged in illegal activity.

[¶13.]       A number of Fourth Amendment decisions suggest that under these

circumstances, Deputy Kriese did not have a particularized and objective basis for

suspecting Stanage was intoxicated. In Navarette, the Supreme Court reviewed a

tip from an unidentified 911 caller. The tip, as relayed to an officer, said: “Showing

southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8–

David–94925. Ran the reporting party off the roadway and was last seen

approximately five minutes ago.” Navarette, ___ U.S. at ___, 134 S. Ct. at 1686-87.

California Highway Patrol officers located the described vehicle and initiated a

traffic stop based solely on the tip. Id. at ___, 134 S. Ct. at 1687. The Supreme

Court acknowledged that it was a “close case.” Id. at ___, 134 S. Ct. at 1692. Even

so, the Court upheld the stop because the informant was identifiable and “reported

more than a minor traffic infraction and more than a conclusory allegation of drunk

or reckless driving. Instead, she alleged a specific and dangerous result of the

driver’s conduct: running another car off the highway.” Id. at ___, 134 S. Ct. at 1691

(emphasis added). Unlike Navarette, the tip in the present case reported merely a

conclusory allegation of drunk or reckless driving. Considering that the United

States Supreme Court identified Navarette as a close case, the absence of one of the




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major factors relied on by the Supreme Court in reaching its decision strongly

suggests the present case falls short of reasonable suspicion. 6

[¶14.]         A case with facts analogous to Navarette is State v. Scholl, 2004 S.D.

85, 684 N.W.2d 83. In that case, an unidentified-but-identifiable informant

reported a possibly drunk driver. Id. ¶ 2, 684 N.W.2d at 84. Like Navarette but

unlike the present case, the tip included an explicit description of the alleged

offender’s behavior. The informant reported “seeing the driver ‘leaving [a] bar

stumbling pretty badly and having problems getting into his . . . pickup.’” Id. The

informant also provided information sufficient for law enforcement to correctly

identify the vehicle. Id. A police officer stopped the vehicle based solely on the tip.

Id. ¶ 3, 684 N.W.2d at 84. As the Supreme Court did in Navarette, we upheld the

stop in Scholl because the informant “describe[d] non-driving conduct that yielded a

reasonable suspicion that the driver was driving while under the influence of

alcohol.” Scholl, 2004 S.D. 85, ¶ 17, 684 N.W.2d at 89. Unlike the present case,

“[t]he tipster provided the basis of his information and suspicion, i.e., personal



6.       The dissent claims “the particular circumstances of Navarette distinguish it
         from the present facts.” Infra ¶ 26. There is no basis for such a claim. In
         Navarette, the Supreme Court considered that the informant’s use of the 911
         system enabled law enforcement to identify the informant. ___ U.S. at ___,
         134 S. Ct. at 1689-90. Thus, in Navarette, the informant was unidentified
         but identifiable. In the present case, the informants were also unidentified
         but identifiable. As explained above, an informant that is identifiable is not
         anonymous. Sanchez, 519 F.3d at 1213; accord Mohr, 2013 S.D. 94, ¶ 20,
         841 N.W.2d at 446; see also Navarette, ___ U.S. at ___, 134 S. Ct. at 1689-90.
         So contrary to the dissent’s claim, the present case is identical to Navarette
         in this regard.
         Regardless, the dissent’s argument misses the mark. We agree that the
         informants in this case were credible. See supra ¶ 9. But the problem is the
         content of the tip, not its trustworthiness. See supra ¶ 10 & n.3.

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observation of the driver stumbling badly from a bar and having trouble getting into

his vehicle.” Id.

[¶15.]       In upholding the stop at issue in Scholl, we examined similar cases

from other jurisdictions.

             In State v. Miller, 510 N.W.2d 638 (N.D. 1994), the North
             Dakota Supreme Court invalidated a traffic stop based upon an
             informant’s report of a possible drunk driver who could “barely
             hold his head up” in the drive-up lane of a fast food restaurant.
             In Stewart v. State, 22 S.W.3d 646 (Tex. Ct. App. 2000), the
             Texas Court of Appeals invalidated a stop based upon an
             informant’s report of an intoxicated driver at a convenience store
             who fell down twice while getting into his vehicle. . . .
             . . . We perceive a distinction between observations at a fast
             food restaurant such as in Miller, supra[,] or at convenience
             store as in Stewart, supra[,] and observations at a bar where the
             likelihood of alcohol consumption is obviously enhanced. It
             requires no leap of logic or common sense to deduce that a
             person stumbling from a bar late in the evening and exhibiting
             difficulty getting into his vehicle may well be under the
             influence of alcohol and incapable of safely operating the
             vehicle. . . .

Scholl, 2004 S.D. 85, ¶¶ 13-14, 684 N.W.2d at 88 (emphasis added). We explicitly

stated: “Moreover, we find it important in cases of this nature that the basis of the

tipster’s knowledge or suspicion be communicated to law enforcement.” Id. ¶ 14,

684 N.W.2d at 88. Unlike Navarette, Scholl, Miller, and Stewart, the basis of the

informants’ conclusion in this case was not communicated to Deputy Kriese.

Additionally, unlike Scholl, the location at issue in this case was a fast-food

restaurant and not a bar.

[¶16.]       Our decisions involving conclusory tips also support the conclusion

that Deputy Kriese did not have a reasonable suspicion of criminal activity. In

State v. Burkett, 2014 S.D. 38, 849 N.W.2d 624, an unidentified-but-identifiable


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informant contacted law enforcement to report a possibly intoxicated driver. As in

the present case, the tipster relayed identifying information of the alleged offender.

We noted that the tip was “minimal, almost conclusory in nature[.]” Id. ¶ 56,

849 N.W.2d at 638. However, unlike the present case, the officer independently

observed the alleged offender stop his vehicle “in the middle of a residential street

and rev[] its engine for no apparent reason.” Id. ¶ 8, 849 N.W.2d at 626. Thus,

although “the information conveyed to [the officer] was less in quantity than that in

Scholl,” Burkett, 2014 S.D. 38, ¶ 55, 849 N.W.2d at 638, “[u]nder the totality of the

circumstances, the officer’s corroboration of the tip by ‘a brief observation of erratic

driving’ compensated for an otherwise anemic tip[,]” Walter, 2015 S.D. 37, ¶ 11,

864 N.W.2d at 785 (citation omitted) (quoting Burkett, 2014 S.D. 38, ¶ 56,

849 N.W.2d at 638).

[¶17.]       In Mohr, we reviewed the investigative stop of an alleged offender after

a casino attendant—who was unidentified but identifiable—triggered a duress

alarm. The only other information known to the responding officers was 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.” Mohr, 2013 S.D. 94, ¶ 15, 841 N.W.2d at 445. We

recognized that the informant “did not relay any articulable facts of her firsthand

observation of a crime in progress” and that “viewed in isolation, [the tip] might

lack the factual basis for police to have a reasonable suspicion of criminal activity.”

Id. ¶ 22, 841 N.W.2d at 447. “[W]e upheld the detention and search because the

officers were familiar with the circumstances of the prior robberies, the attendant


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was an identifiable source, and the nature of an emergency call limited the ability of

the officers to investigate.” Walter, 2015 S.D. 37, ¶ 12, 864 N.W.2d at 785

(discussing Mohr, 2013 S.D. 94, ¶¶ 18-23, 841 N.W.2d at 445-47). 7 Aside from the



7.    Relying on State v. Tucker, 878 P.2d 855 (Kan. Ct. App. 1994), and State v.
      Rutzinski, 623 N.W.2d 516 (Wis. 2001), the dissent argues that the
      protections of the Fourth Amendment apply with lesser force when law
      enforcement is confronted with the possibility of public danger. See infra
      ¶¶ 34-37. According to the dissent, “[t]he risk to the public in not
      immediately stopping the vehicle was ‘death and destruction on the
      highways. This is not a risk which the Fourth Amendment requires the
      public to take.’” Infra ¶ 35 (quoting Tucker, 878 P.2d at 862). Yet in Tucker,
      the anonymous tip actually “indicated that the defendant . . . had been
      running other drivers off of the road.” Tucker, 878 P.2d at 858 (emphasis
      added). Likewise, the tip in Rutzinski actually alleged the defendant’s
      vehicle was “weaving within its lane, varying its speed from too fast to too
      slow, and ‘tailgating.’” 623 N.W.2d at 519. Thus, the tips in Tucker and
      Rutzinski—like the tip in Navarette but unlike the tip in the present case—
      involved more than a conclusory allegation of drunk or reckless driving. See
      supra ¶ 13.
      Even if the dissent were able to cite a case in which a court upheld—out of
      concern for public safety—a stop based on a conclusory allegation of drunk
      driving, the United States Supreme Court squarely rejected such an
      argument in J.L. In that case, the State of Florida and the United States
      argued that “a tip alleging an illegal gun [should] justify a stop and frisk even
      if the accusation would fail standard pre-search reliability testing.” J.L.,
      529 U.S. at 272, 120 S. Ct. at 1379. After recognizing “the serious threat that
      armed criminals pose to public safety[,]” the Supreme Court said:
             Terry’s rule, which permits protective police searches on the
             basis of reasonable suspicion rather than demanding that
             officers meet the higher standard of probable cause, responds to
             this very concern. But an automatic firearm exception to our
             established reliability analysis would rove too far. Such an
             exception would enable any person seeking to harass another to
             set in motion an intrusive, embarrassing police search of the
             targeted person simply by placing an anonymous call falsely
             reporting the target’s unlawful carriage of a gun. Nor could one
             securely confine such an exception to allegations involving
             firearms. Several Courts of Appeals have held it per se
             foreseeable for people carrying significant amounts of illegal
             drugs to be carrying guns as well. If police officers may properly
                                                            (continued . . .)
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ability to identify the informants, none of these other factors are present in

Stanage’s case.

[¶18.]         In each of the foregoing decisions, the stop at issue was upheld either

because of independent observation by law-enforcement officers or because the tip

itself demonstrated the informant’s basis of knowledge for alleging criminal

conduct. In this case, the report Deputy Kriese received “did not articulate any

facts describing illegal conduct or any conduct that would otherwise give rise to an

inference of criminal activity. [Deputy Kriese] did not corroborate the report’s

conclusory assertion by personal observation of [Stanage].” Id. ¶ 13, 864 N.W.2d

at 785 (emphasis added). Thus, under Navarette, Scholl, and the other authorities




________________________
(. . . continued)
               conduct Terry frisks on the basis of bare-boned tips about guns,
               it would be reasonable to maintain under the above-cited
               decisions that the police should similarly have discretion to frisk
               based on bare-boned tips about narcotics. As we clarified when
               we made indicia of reliability critical in Adams and White, the
               Fourth Amendment is not so easily satisfied.
         Id. at 272-73, 120 S. Ct. at 1379-80. As indicated by the Supreme Court,
         Terry’s reasonable-suspicion standard already limits the individual
         protection of the Fourth Amendment by striking a balance between the need
         to protect the public and the need to protect the individual. The foregoing is
         equally applicable to the dissent’s argument in this case. For the reasons
         expressed by the Supreme Court, we must also reject the dissent’s public-
         safety argument.
         Finally, the Supreme Court did not rely on any sort of public-safety exception
         to the Fourth Amendment in its totality-of-the-circumstances analysis in
         Navarette. The dissent does not cite to any Supreme Court decisions on this
         point, let alone one decided after Navarette.

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discussed above, the totality of the circumstances in this case did not provide a

reasonable suspicion of criminal activity. 8

                                       Conclusion

[¶19.]         Deputy Kriese did not have sufficient information regarding Stanage’s

behavior to form his own conclusion that Stanage was intoxicated. Neither did

Deputy Kriese have a particularized and objective basis to ratify the informants’

conclusion that Stanage was intoxicated. Under Navarette, a conclusory allegation

of drunk or reckless driving is insufficient to support a reasonable suspicion of

criminal activity. Therefore, Deputy Kriese did not have a reasonable suspicion of

criminal activity, and any evidence resulting from the stop was the product of an

illegal search. The circuit court erred in denying Stanage’s motion to suppress.

[¶20.]         We reverse.

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

[¶22.]         KERN, Justice, dissents.



KERN, Justice (dissenting).

[¶23.]         I respectfully dissent. Upon examination of the totality of the

circumstances, it is apparent that Deputy Kriese was not acting on an “inarticulate

hunch,” but rather a “particularized and objective” basis providing reasonable



8.       As discussed above, even a conclusory allegation of criminal conduct can
         support a finding of reasonable suspicion under the right circumstances. See
         supra ¶ 11. To avoid situations like this, however, we encourage law-
         enforcement officers simply to ask for details when confronted with a tip like
         the one in this case. Had Hill’s observations been relayed to Deputy Kriese,
         the result of this case likely would be different.

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suspicion to stop Stanage. Debough, the supervisor from Hardee’s, reported that

his employee working at the drive-through window was delaying a driver he

believed to be drunk. The manager remained on the line with dispatch until law

enforcement told him to release the driver because Deputy Kriese had reported he

was at the location. When viewing the evidence from Deputy Kriese’s perspective,

the tip was contemporaneous and reliable, and the unique circumstance of a drive-

through interaction renders the tip sufficient to warrant the stop.

[¶24.]       It is well established that officers may perform a brief investigative

stop based on reasonable suspicion. As attempting to articulate an exact definition

of reasonable suspicion is “not possible,” we use a “common-sense and non-technical

approach” that accounts for “the practical considerations of everyday life.” State v.

Sound Sleeper, 2010 S.D. 71, ¶ 16, 787 N.W.2d 787, 791. “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. “All that is required is that the stop be not

the product of mere whim, caprice, or idle curiosity.” State v. Scholl,

2004 S.D. 85, ¶ 6, 684 N.W.2d 83, 85. The stop must simply be based upon “specific

and articulable facts which taken together with rational inferences from those facts,

reasonably warrant” a brief investigative detention. Id. In determining whether

reasonable suspicion exists, a court must “take[] into account ‘the totality of the

circumstances—the whole picture.’” Navarette v. California, ___ U.S. ___, ___,

134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680 (2014) (quoting United States v. Cortez,

449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)).




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[¶25.]       The majority, citing Navarette, contends that Deputy Kriese lacked

reasonable suspicion because he relied upon a “merely . . . conclusory allegation of

drunk or reckless driving.” Supra ¶ 13. In Navarette, the United States Supreme

Court upheld an officer’s stop of a motorist that was based on an anonymous caller’s

report that a vehicle drove her off the road. ___ U.S. at ___, 134 S. Ct. at 1686. In

that case, the report included “more than a minor traffic infraction and more than a

conclusory allegation of drunk or reckless driving.” Id. at ___, 134 S. Ct. at 1691.

From this language, the majority concludes that—without more than a conclusory

allegation—“the present case falls short of reasonable suspicion.” Supra ¶ 13.

[¶26.]       But the particular circumstances of Navarette distinguish it from the

present facts. As the majority agrees, the tipster in Navarette was an anonymous-

but-identifiable caller. The United States Supreme Court noted that the 911

emergency system used by the tipster “has some features that allow for identifying

and tracing callers, and thus provides some safeguards against making false reports

with immunity.” Id. at ___, 134 S. Ct. 1689 (emphasis added). Thus, given

“technological and regulatory developments,” the United States Supreme Court

noted that “a reasonable officer could conclude that a false tipster would think twice

before using such a system.” Id. at ___, 134 S. Ct. 1690. Here, however, although

dispatch did not convey to Deputy Kriese Debough’s identity or the identity of the

employee at the drive-through window, a reasonable officer under the

circumstances could conclude that their identities were known to law enforcement.

Moreover, Debough and his staff members were available and could be held




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immediately accountable if they gave false information—indeed, much more readily

than tracking down an unidentified-but-potentially-identifiable caller to 911. 9

[¶27.]         The United States Supreme Court in Navarette then examined

whether the conduct alleged suggested that the driver was intoxicated. Id. at ___,

134 S. Ct. at 1690. In cases where a motorist alleges that another vehicle is being

driven by an intoxicated driver, such behavior may very well “be explained by, for

example . . . an unruly child or other distraction.” Id. at ___, 134 S. Ct. at 1691.

Moreover, “not all traffic infractions imply intoxication.” Id. at ___,

134 S. Ct. at 1690. It would be patently unreasonable for officers to stop every

vehicle accused—even if fully believed—of some instance of erratic driving. Thus,

the allegations must “create[] reasonable suspicion that ‘criminal activity may be

afoot.’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1885, 20 L.Ed.2d

889 (1968)). The United States Supreme Court highlighted the critical fact that the

conduct bore “too great a resemblance to paradigmatic manifestations of drunk

driving [that could not] be dismissed as an isolated example of recklessness.” Id. at

___, 134 S. Ct. at 1691. But this does not mean that only manifestations of drunk

driving contained within the report made in Navarette will satisfy the criteria for

reasonable suspicion. “[T]here is more than one way to demonstrate ‘a

particularized and objective basis for suspecting the particular person stopped of




9.       Debough’s information, like that contained in the tip in Adams v. Williams,
         407 U.S. 143, 147, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972), “was
         immediately verifiable at the scene,” and the tipster could be subject to arrest
         for making a false report. This increases the reliability of the tip.


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criminal activity.’” Id. at ___, 134 S. Ct. at 1692 (quoting Cortez, 449 U.S. at 417-

418, 101 S. Ct. at 695).

[¶28.]         Here, the majority faults Debough for not conveying the cashier’s

observations of the driver’s slurred speech, bloodshot eyes, and lack of motor control

to dispatch, and in turn to Deputy Kriese. When analyzing the information received

in a tip, we have said that a “tip’s degree of reliability depends on the quantity and

quality of the tipster’s information.” State v. Burkett, 2014 S.D. 38, ¶ 47,

849 N.W.2d 624, 636. And we have said that “[i]f a tip has a relatively low degree of

reliability, more information will be required to establish the requisite quantum of

suspicion that would be required if the tip were more reliable.” Id. Thus, when a

tip is particularly reliable, less information is needed. 10 See Alabama v. White,

496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). In terms of

reliability, firsthand observations entitle a tip “greater weight than might otherwise

be the case.” Navarette, ___ U.S. at ___, 134 S. Ct. at 1689 (quoting Spinelli v.

United States, 393 U.S. 410, 416, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)). An

anonymous tip—if sufficiently reliable—may alone provide reasonable suspicion to

justify a stop. State v. Lownes, 499 N.W.2d 896, 899 (S.D. 1993) (anonymous tip

detailing the vehicle and route taken by an allegedly intoxicated motorcyclist held

sufficiently predictive to justify a Terry stop); see also White, 496 U.S. 325, 332, 110

S. Ct. at 2417 (anonymous tip with sufficient indicia of reliability may justify

investigative stop).



10.      Provided, of course, that the information suggests ongoing criminal activity.
         Navarette, ___ U.S. at ___, 134 S. Ct. at 1690.

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[¶29.]       So what information did Deputy Kriese have from which to form

reasonable suspicion, which is a minimal standard lower than probable cause? The

recording of the call to dispatch reveals that Debough told law enforcement that

“my cashier” says we have “a drunk driver at [the] window.” Debough gave

dispatch the license plate number of the vehicle and told dispatch that they were

“holding [Stanage] right now.” Debough can be heard conversing back and forth

with employees. Dispatch asked Debough to stay on the line as dispatch relayed

the information to all officers in the area. Deputy Kriese responded and asked,

“What was that traffic stop at Hardee’s?” Deputy Kriese also indicated that he was

“a block away.” Dispatch informed Deputy Kriese that there was a “signal 8

[suspected drunk driver] at Hardee’s, [and] they are holding him at the window.”

At this point, Deputy Kriese told dispatch to “tell [Debough, who was still holding

for dispatch] to turn them loose,” as Deputy Kriese was in the immediate vicinity.

Dispatch relayed this information to Debough. Deputy Kriese observed a vehicle

pull away from the Hardee’s drive-through window and, before performing the stop,

confirmed the license plate number given to him by dispatch.

[¶30.]       Even though Deputy Kriese was unaware that Debough himself did

not observe the suspicious behavior by the individual driving the car, he could make

certain “commonsense inference[s.]” Sound Sleeper, 2010 S.D. 71, ¶ 17,

787 N.W.2d at 792. From the location of the report—a fast-food, drive-through

window—Deputy Kriese could conclude that the cashier had the opportunity and

proximity to form firsthand conclusions. Debough could reasonably infer that the

cashier was actively engaged in verbal communications with the driver, first at the


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ordering stage via speaker and then in a hand-to-hand exchange of payment for food

or beverages at the window. This routine transaction would allow an employee to

assess the driver’s rate and clarity of speech, his facial expressions, his

mannerisms, and his motor skills. And in this case, the observations were so

significant that the employees chose to call law enforcement and delay the driver

until an officer could respond. Additionally, the tip was made in the early morning

hours on a Sunday around 2:00 a.m., which supports the inference of drunk driving.

See Scholl, 2004 S.D. 85, ¶ 14, 684 N.W.2d at 88 (location where observation of

intoxication was made affected the likelihood that alcohol was consumed and thus

of intoxicated driving); People v. Barbarich, 807 N.W.2d 56, 63 (Mich. Ct. App. 2011)

(circumstances such as the fact it was Saint Patrick’s Day and that a large party

was held nearby supported stop of a motorist alleged to have “almost hit” another

car).

[¶31.]       Detaining a customer at a drive-through window is highly unusual,

and going to such lengths to hold a suspect lends credence to the belief that

“criminal activity may be afoot.” Navarette, ___ U.S. at ___, 134 S Ct. at 1690

(quoting Terry, 392 U.S. at 30, 88 S. Ct. at 1885). Further, the fact that the tipster’s

employee was actively engaging with the suspect during the call to dispatch (i.e.,

the tip was made contemporaneous to the illegal conduct) adds additional support to

the tip’s reliability, reducing the need for additional information. See Navarette,

___ U.S. at ___, 134 S. Ct. at 1689-90. Deputy Kriese’s investigatory stop was the

direct result of this call for assistance and cannot be said to have been made on the




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basis of “mere whim, caprice, or idle curiosity.” Scholl, 2004 S.D. 85, ¶ 6,

684 N.W.2d at 85.

[¶32.]       The majority, citing State v. Mohr, 2013 S.D. 94, 841 N.W.2d 440,

distinguishes the present case from one involving an emergency call concerning a

robbery suspect, where the circumstances limited the ability of officers to

investigate further before deciding whether to stop a suspect. Supra ¶ 17.

However, the operation of a vehicle by an intoxicated driver also creates both an

emergency and exigent circumstances. “An erratic and possibly drunk driver poses

an imminent threat to public safety.” United States v. Wheat, 278 F.3d 722, 736

(8th Cir. 2001).

             [W]here an anonymous tip alleges . . . [a] possibly drunk
             driv[er], a responding officer faces a stark choice. . . . [H]e can
             intercept the vehicle immediately and ascertain whether its
             driver is operating under the influence of drugs or alcohol. Or
             he can follow and observe, with three possible outcomes: the
             suspect drives without incident for several miles; the suspect
             drifts harmlessly onto the shoulder, providing corroboration of
             the tip and probable cause for an arrest; or the suspect veers
             into oncoming traffic, or fails to stop at a light, or otherwise
             causes a sudden and potentially devastating accident.

Id. at 736-37. Such circumstances certainly “limit[] the ability of the officers to

investigate.” State v. Walter, 2015 S.D. 37, ¶ 12, 864 N.W.2d 779, 785 (discussing

Mohr, 2013 S.D. 94, ¶¶ 18-23, 841 N.W.2d at 445-47). “Certainly more facts could

have strengthened the officer’s suspicion, but in cases involving tips of erratic

driving of a motor vehicle, fewer facts are necessary to justify an investigative stop.”

Barbarich, 807 N.W.2d at 63.

[¶33.]       As we have previously noted, in the absence of probable cause, “Terry

recognizes that it may be the essence of good police work to adopt an intermediate

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response.” Mohr, 2013 S.D. 94, ¶ 24, 841 N.W.2d at 447. Waiting “to personally

observe [a] defendant engage in dangerous and erratic driving” goes beyond the

minimally necessary “reasonable, articulable suspicion and become[s] probable

cause to seize defendant and issue an appropriate citation.” Barbarich,

807 N.W.2d at 63-64. “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.

[¶34.]       Citing Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254

(2000), the majority concludes there is no “public-safety exception” to the Fourth

Amendment. Supra ¶ 17 n.7. While there is no per se exception, it is well

established that an “exigency can in some circumstances supplement the reliability

of an informant’s tip in order to form the basis for an investigative stop.”

State v. Rutzinski, 623 N.W.2d 516, 524 (Wis. 2001) (citing City of Indianapolis v.

Edmond, 531 U.S. 32, 121 S. Ct. 447, 455, 148 L. Ed. 2d 333 (2000) for the

proposition that the “exigencies of some scenarios likely would outweigh the

individual’s right to be free from an investigative traffic stop[.]”). Further, J.L. is

readily distinguishable from this case. In J.L., an anonymous caller made an

unrecorded call to police from an unknown location reporting that “a young black

male standing at a particular bus stop and wearing a plaid shirt was carrying a

gun.” 529 U.S. at 268, 120 S. Ct. at 1377. Officers stopped J.L. and found him in

possession of a gun. J.L.’s motion to suppress the stop was denied and he was

convicted. Upon review, the United States Supreme Court held that because the


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informant was anonymous, the tip must bear at least “moderate indicia of

reliability” such as that “present in White.” Id. at 271, 120 S. Ct. at 1379. Finding

that “[a]ll police had to go on . . . was the bare report of an unknown, unaccountable

informant who neither explained how he knew about the gun nor supplied any basis

for believing he had inside information about J.L.,” id., the Court concluded that the

stop was unconstitutional. While the Court declined to adopt a “firearm exception”

to standard Terry requirements despite “the serious threat that armed criminals

pose to public safety,” id. at 272, 120 S. Ct. at 1379, it nonetheless indicated that the

danger alleged by a tip is a factor in the analysis, such that “a report of a person

carrying a bomb [might not] need bear the indicia of reliability we demand for a

report of a person carrying a firearm . . . .” Id. at 273-74, 120 S. Ct. at 1380.

[¶35.]       Other courts have examined the sufficiency of tips resulting in

investigatory stops by examining the competing principles of public safety and the

protections of the Fourth Amendment. The Kansas Court of Appeals in State v.

Tucker, 878 P.2d 855, 858 (Kan. Ct. App. 1994) considered a case involving an

anonymous tip of erratic driving in which the caller provided the type of vehicle and

location of travel. Officers located and stopped the car without first making

observations of erratic driving. As the court aptly noted, cases of this nature

involve

             the ever-changing equation used to balance the rights of an
             individual to be free from unwarranted intrusions of his or her
             freedom of movement and right to privacy with the right of the
             public to be protected from unreasonable danger. This equation
             and the balance change with the facts presented. The risk to the
             public in this case was not that an illegal drug or a concealed
             weapon might go undetected. This risk here was a drunk driver


                                           -23-
#27769

             maneuvering a thousand pounds of steel, glass and chrome
             down a public road.

Id. at 858. The court concluded that it is necessary to “consider the risk to the

public of not making an immediate stop against the right of an individual to be free

from such stops. . . . [W]here the danger to the public is clear, urgent, and

immediate, the equation must be weighted in favor of protecting the public and

removing the danger.” Id. at 861. The risk to the public in not immediately

stopping the vehicle was “death and destruction on the highways. This is not a risk

which the Fourth Amendment requires the public to take.” Id. at 862.

[¶36.]       As the Wisconsin Supreme Court in Rutzinski observed, allegations of

erratic driving are distinct because intoxicated motorists “pose[] an imminent threat

to the public’s safety,” as compared to offenses where the defendant is believed to

possess guns or drugs. 623 N.W.2d at 526. The Rutzinski court, in holding a stop

based on an allegation of erratic driving constitutional, analyzed the spectrum of

tips delineated by the holdings in Adams and White. The Wisconsin Supreme Court

described the tip in Adams as one involving circumstances where “police receive a

tip from an informant whom they are reasonably justified in believing to be

truthful[.]” This is in contrast to White, where the tip involved a “a totally

anonymous informant [who] provides the police with a tip which, through

independent police investigation or other corroboration, indicates that the

informant possesses ‘inside information.’” Id. at 522. Examining these cases, the

Wisconsin Supreme Court observed that the stop in J.L. was unconstitutional

because, unlike Adams, the tip relied upon did not come from a known informant

who could be held responsible or whose reputation could be assessed. Moreover, law

                                          -24-
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enforcement failed under White to corroborate the tip with anything more than

“easily obtainable information that tends to identify the suspect.” Id. at 524. The

Rutzinski court also noted that in J.L., the tip did not suggest an imminent threat

to public safety. Id. at 526. Without suggesting that any such threat might

eliminate the requirements of the Fourth Amendment, the Wisconsin Supreme

Court nevertheless concluded that exigency might supplement the reliability of the

tip and further justify an investigatory stop. Id.

[¶37.]       Indeed, this “potential risk of harm to the defendant and the public is

widely acknowledged to be a critical factor in assessing the reasonableness of an

investigatory stop.” State v. Lamb, 720 A.2d 1101, 1104 (Vt. 1998). When

balancing the risk of harm to the public in the present case with the minimal

intrusion necessitated by Deputy Kriese’s investigatory stop, the “scale of justice . . .

must favor the stop; a reasonable officer could not have pursued any other prudent

course.” State v. Boyea, 765 A.2d 862, 868 (Vt. 2000). And Navarette—although

postdating these cases—does not stand for a contrary principle.

[¶38.]       Admittedly, this case involves a close call. But Navarette is factually

distinguishable and does not require suppression. Under these unique

circumstances, where an immediately identifiable informant’s employees are on the

line with dispatch and actively delaying a suspected drunk driver who is positioned

behind the wheel of a car at a drive-through window, Deputy Kriese had a

particularized and objective basis to stop Stanage. Given the totality of the

circumstances and the context in which the tip was made, the court correctly denied

the motion to suppress.


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