#27886-a-GAS

2017 S.D. 13

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

MATTHEW LAMAR HOPKINS,                    Defendant and Appellant.

                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                  HUTCHINSON COUNTY, SOUTH DAKOTA

                                 ****

                     THE HONORABLE PATRICK SMITH
                                Judge

                                 ****


MARTY J. JACKLEY
Attorney General

CULLEN P. MCNEECE
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


KENNETH E. LEHR
Scotland, South Dakota                    Attorney for defendant
                                          and appellant.



                                 ****

                                          CONSIDERED ON BRIEFS
                                          MARCH 22, 2017
                                          OPINION FILED 04/12/17
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SEVERSON, Justice

[¶1.]        Following a court trial, the circuit court found Matthew Hopkins guilty

of driving with .08 percent blood alcohol content. Hopkins also pleaded guilty to a

part II information alleging that this was his second driving under the influence

offense. On appeal, Hopkins asserts that the circuit court erred when it denied a

motion to suppress evidence. We affirm.

                                    Background

[¶2.]        On the evening of September 25, 2015, Officer Wagner was completing

paperwork at the Parkston Police Department when she heard a loud vehicle pass

by. She looked up from her work and observed a white vehicle traveling at a high

rate of speed. She immediately went to her patrol car and tried to use radar to

determine the speed of the vehicle but was unsuccessful. The vehicle turned into a

gas station and Officer Wagner followed. When she arrived, the vehicle was

unoccupied. She entered the gas station and asked the clerk who was driving the

white vehicle. The clerk responded that it was the clerk’s son and that he was in

the bathroom.

[¶3.]        When the driver of the vehicle, Matthew Hopkins, exited the bathroom,

he had his hands in his pants pockets. Officer Wagner asked that Hopkins remove

his hands from his pockets and step outside with her because she had a couple

questions for him. Officer Wagner testified that he initially removed his hands from

his pockets but then placed them back inside the pockets. She asked him twice to

take his hands out of his pockets but he refused. Officer Wagner testified that when

she got outside with Hopkins, she told him, “I’m going to put you in cuffs for my


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safety because you continue to put your hands in your pocket. . . . At this point

you’re just being detained, you’re not under arrest.” She then frisked him and

asked him why he was driving so fast. He responded that he had to get his car to

his mother before she finished work. During this encounter, she could smell

alcohol. While he was still in handcuffs, she asked him if he had been drinking. He

responded that he drank a couple of beers. She then placed him in the back of her

car and took his driver’s license to run a check. “[E]verything came back okay” so

she got him out of the car, took the handcuffs off of him, and asked him to do field

sobriety tests. He did not perform well on several tests. Officer Wagner gave him a

preliminary breath test that showed a .138 percent blood alcohol content. She

placed Hopkins under arrest and read him his Miranda rights. See Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). She also asked if he

would consent to a blood draw, which he refused. After obtaining a warrant, a blood

draw was performed. Hopkins’ blood alcohol content was .162 percent.

[¶4.]        Hopkins was charged with alternative counts of driving under the

influence and driving with .08 percent or more by weight of alcohol in his blood. He

moved to suppress the statements that he made to law enforcement (that he had

been driving and drinking), asserting that he was subject to a custodial

interrogation and entitled to being advised of his Miranda rights. See id. He also

sought to suppress all physical evidence obtained by law enforcement alleging it to

be “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.

Ct. 407, 9 L. Ed. 2d 441 (1963). After a hearing, the circuit court denied Hopkins’

motion to suppress and the case proceeded to a court trial. The court found Hopkins


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guilty of driving with .08 percent or more by weight of alcohol in his blood. Hopkins

pleaded guilty to a part II information alleging a second offense driving while under

the influence. On appeal to this Court, Hopkins alleges that the circuit court erred

when it failed to suppress his statements and the physical evidence obtained by law

enforcement.

                                  Standard of Review

[¶5.]          “A motion to suppress based on an alleged violation of a

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

Rademaker, 2012 S.D. 28, ¶ 7, 813 N.W.2d 174, 176 (quoting State v. Wright, 2010

S.D. 91, ¶ 8, 791 N.W.2d 791, 794). “The trial court’s factual findings are reviewed

under the clearly erroneous standard. Once the facts have been determined,

however, the application of a legal standard to those facts is a question of law

reviewed de novo. This Court will not be restricted by the trial court’s legal

rationale.” Id.

                                        Analysis

[¶6.]          There is no dispute that Hopkins was not advised of his Miranda

rights prior to the officer asking him why he had been driving so fast and whether

he had been drinking. However, only “[i]ndividuals subject to a custodial

interrogation are entitled to Miranda warnings.” State v. McCahren, 2016 S.D. 34,

¶ 30, 878 N.W.2d 586, 599. In this case, Hopkins was subjected to an investigatory

detention, i.e. a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.

2d 889 (1968). In the interest of her safety, Officer Wagner secured Hopkins and




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performed a search for weapons.∗ The United States Supreme Court has indicated

that normally Terry stops will not constitute Miranda custody. It has explained:

             Under the Fourth Amendment, we have held, a policeman who
             lacks probable cause but whose “observations lead him
             reasonably to suspect” that a particular person has committed, is
             committing, or is about to commit a crime, may detain that
             person briefly in order to “investigate the circumstances that
             provoke suspicion.” “[T]he stop and inquiry must be ‘reasonably
             related in scope to the justification for their initiation.’”
             Typically, this means that the officer may ask the detainee a
             moderate number of questions to determine his identity and to
             try to obtain information confirming or dispelling the officer’s
             suspicions. But the detainee is not obliged to respond. And,
             unless the detainee’s answers provide the officer with probable
             cause to arrest him, he must then be released. The
             comparatively nonthreatening character of detentions of this sort
             explains the absence of any suggestion in our opinions that Terry
             stops are subject to the dictates of Miranda.

Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317

(1984) (emphasis added) (footnotes omitted) (citations omitted). The Court has

reiterated that “the temporary and relatively nonthreatening detention involved in

a traffic or Terry stop does not constitute Miranda custody.” Howes v. Fields, 565

U.S. 499, 510, 132 S. Ct. 1181, 1190, 182 L. Ed. 2d 17 (2012) (quoting Maryland v.

Shatzer, 559 U.S. 98, 113, 130 S. Ct. 1213, 1224, 175 L. Ed. 2d 1045 (2010)).

[¶7.]         Nevertheless, in Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct.

3138, 3450, 82 L. Ed. 2d 317 (1984), when the Court addressed whether roadside

questioning during routine traffic stops constituted custodial interrogation, it

compared traffic stops to Terry stops, explaining:

              [T]he safeguards prescribed by Miranda become applicable as
              soon as a suspect’s freedom of action is curtailed to a “degree


∗       Hopkins does not challenge any aspect of the Terry stop.

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             associated with formal arrest.” If a motorist who has been
             detained pursuant to a traffic stop thereafter is subjected to
             treatment that renders him ‘in custody’ for practical purposes,
             he will be entitled to the full panoply of protection prescribed by
             Miranda.

(Citations omitted.). Thus, the Court has indicated that we must still analyze Terry

stops to determine if a detainee was in custody such that Miranda rights were

necessary. See also United States v. Martinez, 462 F.3d 903, 909 (8th Cir. 2006)

(rejecting government’s claim that “so long as [an] encounter remained a Terry stop,

no Miranda warnings were required.”).

[¶8.]        To determine whether an individual was in custody we utilize a two

part test:

             First, what were the circumstances surrounding the
             interrogation; and second, given those circumstances, would a
             reasonable person have felt he or she was not at liberty to
             terminate the interrogation and leave. Once the scene is set and
             the players’ lines and actions are reconstructed, the court must
             apply an objective test to resolve the ultimate inquiry: was there
             a formal arrest or restraint on freedom of movement of the
             degree associated with a formal arrest.

McCahren, 2016 S.D. 34, ¶ 30, 878 N.W.2d at 599 (quoting State v. Wright, 2009

S.D. 51, ¶ 19, 768 N.W.2d 512, 520). The United States Supreme Court has

explained that “[r]elevant factors include the location of the questioning, its

duration, statements made during the interview, the presence or absence of

physical restraints during the questioning, and the release of the interviewee at the

end of the questioning.” Howes, 565 U.S. at 509, 132 S. Ct. at 1189 (citations

omitted). “Determining whether an individual’s freedom of movement was

curtailed, however, is simply the first step in the analysis, not the last. Not all

restraints on freedom of movement amount to custody for purposes of Miranda.” Id.

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“[T]he freedom-of-movement test identifies only a necessary and not a sufficient

condition for Miranda custody.” Id. (quoting Shatzer, 559 U.S. at 112, 130 S. Ct. at

1124).

[¶9.]        Hopkins insists that the sole fact that he was handcuffed during

the initial questioning means that he was in custody at the time of Officer

Wagner’s questions. Courts across the country have handled this issue

differently. Hopkins cites to two cases where handcuffs have been a deciding

factor in determining that a suspect was in custody. See United States v.

Newton, 369 F.3d 659, 676 (2d Cir. 2004) (“Handcuffs are generally

recognized as a hallmark of a formal arrest. . . . Thus, a reasonable person

. . . would ordinarily conclude that his detention would not necessarily be

temporary or brief and that his movements were now totally under the

control of the police[.]”); Wright v. State, 766 N.E.2d 1223, 1230 (Ind. Ct. App.

2002) (“[T]he use of handcuffs would cause the reasonable person to feel that

one was not free to leave, and that one’s freedom of movement was restrained

to the degree associated with a formal arrest.”). Hopkins also refers us to

cases where courts determined that the combination of handcuffs and other

circumstances amounted to a suspect being in custody. See United States v.

Smith, 3 F.3d 1088, 1098 (7th Cir. 1993) (finding suspect was in custody

where he “had not been told whether he was under arrest, he was removed

from the taxicab in which he was riding, separated from his property and his

associates and handcuffed. By the time of his arrest, there were a large

number of officers at the scene. . . . Under these circumstances, there was


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sufficient curtailment of [suspect’s] freedom of action to establish custody for

Miranda purposes.”); State v. Wilson, 169 P.3d 1184, 1194-95 (N.M. Ct. App.

2007)(“The officer used force in order to fully handcuff Defendant, which

caused Defendant to drop to his knees, and then the officer placed Defendant

in the back seat of the officer’s vehicle. . . . [W]e conclude as a matter of law

that a reasonable person in Defendant’s position would believe that he was

restrained to the degree associated with a formal arrest. . . . Defendant was

in Miranda custody.”).

[¶10.]       Those latter cases, which took the handcuffs into account along

with the other circumstances, are consistent with the approach taken by

several other courts that have addressed the question. Those courts have

explicitly determined that the use of restraints is not determinative. In

Dixon v. Commonwealth, 613 S.E.2d 398, 399 (Va. 2005), law enforcement

responded to a motor vehicle accident and detained a suspect at the scene of

the accident. After the suspect was handcuffed, an officer placed the suspect

in the front passenger seat of the officer’s patrol car and locked the door. Id.

The officer told the suspect he was not under arrest but was being detained

for investigative purposes. Id. After verification of the suspects name and

birth date, the officer began questioning the suspect about the accident. Id.

The Virginia Supreme Court determined that under those circumstances, “a

reasonable person in [the suspect’s] position would have understood that his

freedom was being restricted to a degree associated with a formal arrest.” Id.

at 401. The court explained:


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             Our conclusion in this regard is influenced most strongly by the
             combined factors of [the suspect] being restrained in handcuffs
             and being locked in a police patrol car. While the presence of
             either of these factors, in the absence of the other, may not
             result in a curtailment of freedom ordinarily associated with a
             formal arrest, the presence of both factors compels the
             conclusion that a reasonable person subjected to both restraints
             would conclude that he was in police custody.

Id. (emphasis added). Similarly, the Wisconsin Supreme Court has recognized “that

the use of handcuffs does not in all cases render a suspect in custody for Miranda

purposes.” State v. Martin, 816 N.W.2d 270, 280 (Wis. 2012). The Ninth Circuit

has determined the same. See United States v. Booth, 669 F.2d 1231, 1236 (9th Cir.

1981) (citing United States v. Purry, 545 F.2d 217, 220 (D.C. Cir. 1976))

(“Handcuffing a suspect does not necessarily dictate a finding of custody.”).

[¶11.]       Handcuffs certainly restricted Hopkins’ ability to move during Officer

Wagner’s simultaneous pat-down and questioning, but the United States Supreme

Court has also explained that “[d]etermining whether an individual’s freedom of

movement was curtailed, however, is simply the first step in the analysis, not the

last. Not all restraints on freedom of movement amount to custody for purposes of

Miranda.” Howes, 565 U.S. at 509, 132 S. Ct. at 1189. And the Supreme Court’s

expression of relevant factors to consider includes “the presence or absence of

physical restraints during the questioning[,]” which indicates that handcuffs are not

dispositive. See id. Accordingly, we continue to use our previously expressed test

and simply take the handcuffs into consideration when examining the totality of the

circumstances surrounding the questioning.

[¶12.]       Hopkins was not subject to a custodial interrogation. The

encounter took place immediately outside of a gas station, in a public area.

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Officer Wagner was the only law enforcement officer present during the

encounter. When she placed Hopkins in handcuffs, she informed him that he

was not under arrest and that she was securing him for her safety. He

indicated that he understood. She testified that Hopkins was in handcuffs

for probably three minutes during which she frisked him and placed him in

the back of her patrol car while she ran a check on his driver’s license. There

is no indication how long it took her to frisk him, but it would have been less

than those three minutes. It was during that brief frisk that she asked him

general questions about his driving and drinking because she had smelled

alcohol. At that point in time and under these circumstances, we conclude

that a reasonable person would have understood that the detention would be

temporary and brief as the officer checked for weapons to ensure her safety.

[¶13.]       Officer Wagner did eventually place Hopkins in her locked

patrol car while he was still handcuffed. However, we need not determine

whether the additional factor of being in the patrol car would amount to

custody in this case. It does not appear that Officer Wagner asked Hopkins

any questions or that he made any statements while she verified his identity

and ran a check on his driver’s license. After the check was complete, she

released him from the handcuffs and asked that he perform field sobriety

tests. Hopkins does not appear to dispute that at that point in time she had

the authority to perform those tests.

[¶14.]       Because Hopkins’ constitutional rights were not violated in this

case, we need not address his remaining suppression of evidence argument.


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                                     Conclusion

[¶15.]       The totality of circumstances surrounding the encounter between

Hopkins and Officer Wagner did not amount to a custodial interrogation.

Accordingly, the circuit court did not err by denying his motion to suppress any

incriminating statements made during the encounter. We affirm.

[¶16.]       GILBERTSON, Chief Justice, and ZINTER, WILBUR and KERN,

Justices, concur.




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