#26422, #26423-rev & rem-GAS
2013 S.D. 35

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  ****
                                 (#26422)
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellant,

      v.

SHANE H. ERWIN,                             Defendant and Appellee.

__________________________________________________
                       (#26423)
STATE OF SOUTH DAKOTA,          Plaintiff and Appellant,

      v.

RICHARD H. ERWIN                            Defendant and Appellee.
                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                  CODINGTON COUNTY, SOUTH DAKOTA

                                ****
                     THE HONORABLE ROBERT L. TIMM
                                Judge

                                  ****
MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellant.
TERRY J. SUTTON
Watertown, South Dakota                     Attorney for defendant
                                            and appellees.

                                  ****
                                            CONSIDERED ON BRIEFS
                                            ON FEBRUARY 12, 2013

                                            OPINION FILED 05/08/13
#26422, #26423

SEVERSON, Justice.

[¶1.]         On January 3, 2012, Shane Erwin was traveling with his father,

Richard Erwin, through Watertown, South Dakota. While driving on U.S. Highway

212, Shane pulled his vehicle into the left turn lane at the intersection of 29th

Street and signaled his intention to turn south onto 29th Street. While Shane was

waiting for a green left turn arrow, Officer Kirk Ellis of the Watertown Police

Department pulled into the left turn lane directly behind Shane’s vehicle, also

intending to go south on 29th Street.

[¶2.]         Westbound U.S. Highway 212 has four lanes at the intersection with

29th Street: one dedicated left turn lane, one dedicated right turn lane, and two

lanes for westbound movement through the intersection. South of U.S. Highway

212, 29th Street is a two way street with two southbound lanes in the direction of

the Wal-Mart Supercenter and other shopping destinations. The lanes are

separated by pavement marking stripes, which were applied in 2008. Also in 2008,

the State of South Dakota added turning radius markings from the left turn lane of

U.S. Highway 212 through the intersection to the left most southbound lane of 29th

Street to guide left turning traffic.

[¶3.]         When the left turn arrow changed to green, Shane drove through the

intersection onto south 29th Street, making a wide arc and positioning his vehicle in

the right southbound lane of 29th Street, rather than the left southbound lane of

the street. Officer Ellis observed Shane’s turn into the right southbound lane of

29th Street and activated his emergency lights. Officer Ellis followed Shane into




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the Wal-Mart parking lot, approached Shane’s vehicle, and requested that Shane

come back to Officer Ellis’s patrol car.

[¶4.]        While in the patrol car, Officer Ellis wrote Shane a warning citation for

his illegal left turn and engaged in routine traffic stop questioning. Officer Ellis

asked Shane if he had any illegal drugs in his vehicle. Officer Ellis observed that

Shane became nervous when he asked Shane about drugs. Because Officer Ellis is

a canine officer, he had a drug sensing dog with him at the time of the stop. Officer

Ellis walked his dog around Shane’s vehicle and the dog indicated the presence of

drugs. Other officers from the Watertown Police Department arrived at the scene to

assist Officer Ellis. When they searched the vehicle, Officer Ellis and the other

officers found two small plastic containers containing a white powder, a scale with

marijuana residue, and two straws with white powder residue.

[¶5.]        Shane and Richard were arrested. Both were initially charged with

one count each of ingestion, felony possession of cocaine, and felony possession of

methamphetamine. The State eventually dismissed both felony possession charges

against Richard and the felony possession of methamphetamine charge against

Shane.

[¶6.]        The Erwins moved to suppress evidence, alleging an illegal stop. The

trial court held a hearing on the motion and heard testimony from Officer Ellis, Ron

Sherman, Watertown Area Engineer for the South Dakota Department of

Transportation, and Tom Drake, Watertown City Engineer. The trial court granted

the motion to suppress and entered findings of fact and conclusions of law.




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[¶7.]        The State brought an appeal of the intermediate order, arguing that

the trial court erred in granting the motion to suppress because Officer Ellis

observed Shane violating a state traffic law and had reasonable suspicion and

probable cause to stop the Erwins.

                             STANDARD OF REVIEW

[¶8.]        We review “‘a motion to suppress based on an alleged violation of a

constitutionally protected right [as] a question of law examined de novo.’” State v.

Dahl, 2012 S.D. 8, ¶ 4, 809 N.W.2d 844, 845 (quoting State v. Bergee, 2008 S.D. 67,

¶ 9, 753 N.W.2d 911, 913-14). “[W]e review the circuit court’s findings of fact under

the clearly erroneous standard, but we give no deference to its conclusions of law.”

State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622 (citing State v. Haar,

2009 S.D 79, ¶ 12, 772 N.W.2d 157, 162). We review issues of statutory

interpretation “under the de novo standard.” State v. Jucht, 2012 S.D. 66, ¶ 22, 821

N.W.2d 629, 634 (citing State v. Powers, 2008 S.D. 119, ¶ 7, 758 N.W.2d 918, 920).

But “‘[w]hen the language in a statute is clear, certain and unambiguous, there is

no reason for construction, and the Court’s only function is to declare the meaning

of the statute as clearly expressed.’” Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49,

612 N.W.2d 600, 611 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d

14, 17).

                                     DISCUSSION

[¶9.]        When a law enforcement officer stops a vehicle, 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,


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#26422, #26423

792 N.W.2d 551, 554 (quoting Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d at 914). But,

if a law enforcement officer observes a traffic violation, then the officer has

“‘probable cause to stop a vehicle, even if the officer would have ignored the

violation but for a suspicion that greater crimes are afoot.’” State v. Akuba, 2004

S.D. 94, ¶ 16, 686 N.W.2d 406, 414 (quoting United States v. Luna, 368 F.3d 876,

878 (8th Cir. 2004)). “The United States Supreme Court holds that a traffic stop is

constitutional, no matter the officer’s subjective intent, so long as the officer had

probable cause to believe that a traffic violation occurred.” United States v. Gomez

Serena, 368 F.3d 1037, 1041 (8th Cir. 2004) (citing Whren v. United States, 517 U.S.

806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996)).

[¶10.]       South Dakota statutes require that when a driver turns left, the driver

must turn into the left most lane of the road, rather than making a wide arc. SDCL

32-26-18 provides:

             The driver of a vehicle intending to turn left shall approach the
             turn in the extreme left-hand lane lawfully available to traffic
             moving in the direction of travel of the vehicle. If practicable,
             the left turn shall be made to the left of the center of the
             intersection and so as to leave the intersection or other location
             in the extreme left-hand lane lawfully available to traffic moving
             in the same direction as the vehicle on the roadway being
             entered. A violation of this section is a Class 2 misdemeanor.

[¶11.]       We analyze the circumstances in this case under the probable cause

standard because Officer Ellis observed Shane turning left in violation of SDCL 32-

26-18. Officer Ellis saw Shane turning left by making a wide arc into the right lane

of the two southbound lanes on 29th Street. Officer Ellis’s observation of Shane’s

wide turn is documented by a video recording of the incident that is part of the

record. The Erwins argue that the motion to suppress should be upheld because the

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stop was not objectively reasonable. They state that the intersection provides

inadequate notice that southbound 29th Street is a two lane street. Thus, they

argue Officer Ellis’s enforcement of SDCL 32-26-18 is unreasonable.

[¶12.]       The record reflects that southbound 29th Street is a two lane street

with faded, but visible, striping marking the division of the road into two lanes.

Further, South Dakota Department of Transportation Engineer Ron Sherman

testified that in 2008, the State affixed striping or markings on the left side of the

left turn lane through the intersection to guide traffic into the left most lane of

southbound 29th Street. Regardless of the existence of striping through the

intersection or on southbound 29th Street, Shane made a wide left turn into the

right lane, rather than the left lane, of the two southbound lanes. Officer Ellis had

probable cause to stop the Erwins because he witnessed a violation of SDCL 32-26-

18.

[¶13.]       The trial court relied on a number of inapplicable statutes in its

determination that Officer Ellis’s stop of the Erwins was unreasonable. The trial

court concluded that SDCL 32-26-20 is the “operative statute” in this case because

the Department of Transportation modified when vehicles may turn left at the

intersection. At the intersection of U.S. Highway 212 and 29th Street, vehicles in

the left turn lane may only turn left when the arrow is green, rather than during a

solid green light. The trial court concluded that because Shane could only turn left

when the arrow was green, he had the right-of-way to turn onto either southbound

lane of 29th Street. SDCL 32-26-20 requires that the Department of Transportation

post signs if it modifies the method of turning at an intersection—in this case,


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#26422, #26423

turning left only on the green arrow. However, the statute does not modify SDCL

32-26-18’s requirement that a left turning vehicle should turn into the left most

lawfully available lane. Thus, SDCL 32-26-18 continues to apply in this case and

was properly enforced by Officer Ellis.

[¶14.]       In addition, the trial court found that, in order for lane driving traffic

rules to apply, SDCL 32-26-5 requires lanes to be clearly marked. This section

requires that when any roadway is divided into multiple lanes, then SDCL 32-26-6

through SDCL 32-26-10 apply. SDCL 32-26-6 through SDCL 32-26-10 set out

various rules governing state highways, including changing lanes and passing.

These sections have no impact on the applicability of SDCL 32-26-18’s requirement

that left turning vehicles turn into the left most lawfully available lane.

[¶15.]       Further, the trial court found that SDCL 32-28-11 is applicable and

requires notice to enforce SDCL 32-26-18. However, SDCL 32-28-11 applies only to

SDCL chapter 32-28. It does not apply to SDCL chapter 32-26.

                                   CONCLUSION

[¶16.]       Officer Ellis had probable cause to stop the Erwins because he

witnessed a violation of SDCL 32-26-18. We reverse the trial court’s order

suppressing all evidence resulting from the stop and remand the matter to the trial

court.

[¶17.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

WILBUR, Justices, concur.




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