#27218-a-JMK

2015 S.D. 64

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

ARIA M. MEYER,                              Defendant and Appellant.


                                    ****

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

                                    ****

               THE HONORABLE GREGORY J. STOLTENBURG
                              Judge

                                    ****

MARTY J. JACKLEY
Attorney General

ELLIE J. BAILEY
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


DONALD M. MCCARTY of
Helsper, McCarty, Mahlke & Kleinjan, P.C.
Brookings, South Dakota                     Attorneys for defendant
                                            and appellant.

                                    ****

                                            CONSIDERED ON BRIEFS
                                            ON MARCH 23, 2015

                                            OPINION FILED 07/22/15
#27218

KERN, Justice

[¶1.]        South Dakota State University (SDSU) police stopped Defendant Aria

Meyer and several others in a group on suspicion of underage consumption and for

violating South Dakota’s open container law. The State charged Meyer with

underage consumption pursuant to SDCL 35-9-2 and driving under the influence

(DUI) pursuant to SDCL 32-23-1(1). Meyer moved to suppress all evidence

stemming from the stop. After an evidentiary hearing, the magistrate court denied

the motion. Pursuant to a stipulation and agreement, Meyer was found guilty of

DUI but retained the right to appeal the court’s denial of her motion to suppress.

Meyer appealed to the circuit court, and it affirmed. Meyer now appeals to this

Court. We affirm.

                                  BACKGROUND

[¶2.]        Just after midnight on September 15, 2013, SDSU student patrol

officers Jack Dunteman and Brennan Albrecht were on bicycle patrol on SDSU’s

campus. The student officers were wearing gray uniform shirts and black pants.

Dunteman spotted a group of about eight individuals in a parking lot gathered

around an open tailgate of a Ford Escape. The Escape’s taillights were on. As

Dunteman approached, he observed the group walk toward Young Hall, which

primarily houses freshman and sophomore students. According to Dunteman, some

of the individuals appeared to stumble and could not walk in a straight line, but he

could not identify which particular students. Dunteman arrived at the Escape and

smelled the odor of alcohol. Dunteman also peered in the rear driver’s-side window

and saw two open Coors Light cans, one sealed Coors Light can, an open container


                                         -1-
#27218

of Bud Light Straw-Ber-Ritas, and an open bottle of UV Blue Vodka. Dunteman did

not witness any of the group members consume alcohol and did not know their ages.

Dunteman reported his observations to dispatch and requested a sworn officer.

[¶3.]         Dunteman observed a patrol car driving nearby and, when it stopped,

he spoke with SDSU Police Officer Jonathan Anderson. Dunteman told Officer

Anderson that the group that had just crossed the street in front of his patrol car

was the group Dunteman had been watching. By this time, the group members

were standing outside of Young Hall approximately 20 feet from the east entrance

closest to the parking lot. Officer Anderson, who was dressed in a black police

uniform, proceeded to make contact with the group and observed that each

individual appeared to have consumed alcohol. 1 Officer Brandon Schultz arrived on

the scene shortly thereafter to assist Officer Anderson. Together, Officer Anderson

and Officer Schultz reviewed each of the group member’s driver’s licenses and

determined that everyone in the group was under 21 years old. Officer Anderson

asked the student officers to run a license-plate check on the Escape. The vehicle

was registered to Meyer. When asked to identify herself, Meyer raised her hand

and stepped forward.

[¶4.]         Officer Anderson took Meyer to his patrol car and asked her questions.

Meyer told Officer Anderson that she, along with the other group members, had

consumed alcohol that night and that she had driven the vehicle. Officer Anderson


1.      This question of who initiated the stop was contested at the suppression
        hearing. Meyer and several of the group members testified that an officer on
        a bicycle made the stop while Dunteman and Officer Anderson testified that
        Officer Anderson made the stop. The court ultimately determined that
        Officer Anderson made the stop.

                                         -2-
#27218

administered field sobriety tests and a preliminary breath test, both of which Meyer

failed. Officer Anderson then arrested Meyer, read her the DUI advisement card,

and administered a Miranda warning. Meyer waived her Miranda rights and said

that she had consumed Straw-Ber-Ritas. Meyer also said she had driven the

Escape and was under the influence of alcohol. Law enforcement obtained a

warrant to draw her blood, and the blood draw indicated her blood alcohol content

was 0.169%.

[¶5.]         The State charged Meyer with DUI and underage consumption. Meyer

moved the court to suppress all evidence, asserting that law enforcement lacked

reasonable suspicion and probable cause to make the stop. The magistrate court

held an evidentiary hearing on the motion on December 9, 2013. The magistrate

court denied Meyer’s motion to suppress and entered findings of fact and

conclusions of law. The parties entered into a stipulation whereby Meyer agreed to

waive her right to a jury trial and proceed to a court trial. In exchange, the State

agreed to dismiss the underage consumption charge, and the parties agreed Meyer

would preserve the right to appeal the magistrate court’s decision. At the court

trial on April 21, 2014, the court convicted Meyer of DUI. Meyer appealed the

motion to suppress to the circuit court, and it affirmed. Meyer appeals to this

Court.

[¶6.]         Meyer raises one issue in this appeal:

              Whether the magistrate court and the circuit court erred in
              denying the motion to suppress.




                                          -3-
#27218

                          STANDARD OF REVIEW

[¶7.]        “This Court reviews the denial of a motion to suppress alleging a

violation of a constitutionally protected right as a question of law by applying the de

novo standard.” State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622

(quoting State v. Madsen, 2009 S.D. 5, ¶ 11, 760 N.W.2d 370, 374). “Under this

standard, we review the [magistrate] court’s findings of fact under the clearly

erroneous standard, but we give no deference to its conclusions of law.” Id. (quoting

State v. Haar, 2009 S.D. 79, ¶ 12, 772 N.W.2d 157, 162).

                                     ANALYSIS

[¶8.]        “The Fourth Amendment to the United States Constitution and Article

VI, section 11 of the South Dakota Constitution protect individuals from

unreasonable searches and seizures.” State v. Aaberg, 2006 S.D. 58, ¶ 9, 718

N.W.2d 598, 600 (footnote omitted). “Generally, probable cause must exist before

law enforcement is permitted to seize an individual.” Id. (citing Terry v. Ohio, 392

U.S. 1, 15-19, 88 S. Ct. 1868, 1876-78, 20 L. Ed. 2d 889 (1968)). “However, if law

enforcement officers lack the probable cause necessary to effectuate a custodial

arrest, officers may perform a brief, investigative stop based on reasonable

suspicion.” State v. Mohr, 2013 S.D. 94, ¶ 13, 841 N.W.2d 440, 444.

[¶9.]        We have noted that “[a]rticulating a precise definition of reasonable

suspicion is ‘not possible.’” Aaberg, 2006 S.D. 58, ¶ 10, 718 N.W.2d at 600 (quoting

Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911

(1996)). We apply “a common-sense and non-technical approach to determining

reasonable suspicion, one that deals with the practical considerations of everyday


                                          -4-
#27218

life.” Mohr, 2013 S.D. 94, ¶ 14, 841 N.W.2d at 444 (quoting State v. Sound Sleeper,

2010 S.D. 71, ¶ 16, 787 N.W.2d 787, 791). “A reviewing court must look to the

‘totality of the circumstances’ to determine whether the officer had a ‘particularized

and objective basis’ for suspecting criminal activity.” Id. (quoting State v. Johnson,

2011 S.D. 10, ¶ 8, 795 N.W.2d 924, 926). “The factual basis needed to support an

officer’s reasonable suspicion is minimal.” Id. However, an officer’s stop cannot be

“the product of mere whim, caprice, or idle curiosity.” Id. (quoting State v. Satter,

2009 S.D. 35, ¶ 6, 766 N.W.2d 153, 155).

[¶10.]       Meyer first argues that the magistrate court clearly erred when it

found that Officer Anderson effectuated the stop. “In applying the clearly erroneous

standard[,] . . . [t]he question for the appellate court ‘is not whether it would have

made the same findings [as] the [circuit] court did, but whether [upon review of the

entire record the appellate court] is left with a definite and firm conviction that a

mistake has been committed.’” In re Estate of Hobelsberger, 85 S.D. 282, 289, 181

N.W.2d 455, 459 (1970) (quoting Zenith Radio Corp. v. Hazeltine Research Inc., 395

U.S. 100, 123, 89 S. Ct. 1562, 1576, 23 L. Ed. 2d 129 (1969)).

[¶11.]       The magistrate court heard conflicting testimony on who stopped

Meyer and the other members of the group. Colin Holler, one of the group

members, testified that the group was stopped by someone on a bicycle in a police

uniform. Holler further testified that they waited several minutes for a law

enforcement officer to arrive in a vehicle. Another group member, Chaas Delgado,

testified that it was an individual on a bicycle who stopped the group outside of

Young Hall. He testified that after the person on the bicycle stopped the group, a


                                           -5-
#27218

patrol vehicle pulled up. Delgado said he felt compelled to stop. Similarly, group

member Faith Laleman stated that an individual on a bicycle asked the group to

stop. According to Laleman, the student officer approached the group, said he could

smell alcohol, and asked for their IDs. Later, a patrol vehicle arrived at the scene.

Likewise, Meyer testified it was a bicycle officer who stopped the group, and they

waited for an officer in a patrol vehicle to arrive. Delgado, Holler, and Meyer could

not recall the color of the uniform worn by the officer who stopped them. Laleman

said the officer wore an all-black uniform. Holler, Laleman, and Delgado testified

they had been drinking that night, and each received citations for minor in

consumption.

[¶12.]       Student officer Dunteman testified that he did not stop the group, but

rather, that Officer Anderson made the stop. Dunteman further testified that he is

only authorized to stop someone if instructed by law enforcement or if someone’s life

is in danger. Officer Anderson testified that he stopped the group based on the

information provided by Dunteman. After hearing the conflicting testimony,

observing the witnesses, and weighing their credibility and demeanor, the

magistrate court determined Officer Anderson stopped the group. We give

deference to the factfinder “to determine the credibility of witnesses and the weight

to be given to their testimony.” Strong v. Atlas Hydraulics, Inc., 2014 S.D. 69, ¶ 16,

855 N.W.2d 133, 140 (citing Peterson v. Issenhuth, 2014 S.D. 1, ¶ 15, 842 N.W.2d

351, 355). Based upon our review of the record and giving appropriate weight to the

magistrate court’s ability to judge the credibility of the witnesses, we are not left




                                           -6-
#27218

with a definite and firm conviction that a mistake has been made. The

determination that Officer Anderson made the stop is not clearly erroneous.

[¶13.]         Meyer next argues that Officer Anderson lacked reasonable suspicion

to make the stop. He testified that he stopped Meyer and the other members of the

group based solely on what Dunteman relayed to him. “An informant’s tip may

carry sufficient ‘indicia of reliability’ to justify a Terry stop even though it fails to

rise to the level of the probable cause needed for an arrest or search warrant.” State

v. Olhausen, 1998 S.D. 120, ¶ 7, 587 N.W.2d 715, 717-18 (citing Alabama v. White,

496 U.S. 325, 328, 110 S. Ct. 2412, 2415, 110 L. Ed .2d 301 (1990)). “The 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 (quoting

State v. Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d 551, 556).

[¶14.]         Here, Dunteman was an on-duty, student-patrol officer, not just an

anonymous tipster. 2 Officer Anderson, therefore, had reason to trust the report

received from Dunteman. Dunteman witnessed a group of individuals gathered

around an open tailgate of a Ford Escape in an SDSU parking lot just past

midnight. 3 As Dunteman rode his bicycle to investigate, the group started walking

towards Young Hall, a dormitory primarily for freshman and sophomore students.

Dunteman saw several of the group members stumble as they walked. Once




2.       Student patrol officers are charged with keeping the campus safe, preventing
         property damage, and alerting SDSU law enforcement to criminal activity.

3.       The parking lot is a campus lot requiring a parking pass issued by SDSU.

                                            -7-
#27218

Dunteman was near the Escape, he smelled the odor of alcohol and saw containers

of alcohol in the vehicle. Dunteman relayed these details to Officer Anderson.

[¶15.]         Based on the totality of the circumstances presented to Officer

Anderson through student officer Dunteman, Officer Anderson had a reasonable

and objective basis to suspect Meyer was involved in criminal activity. 4 “The

quantum of proof necessary for reasonable suspicion is somewhere above a hunch

but less than probable cause.” Herren, 2010 S.D. 101, ¶ 21, 792 N.W.2d at 557

(citing United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 750, 151 L. Ed. 2d

740 (2002)). Officer Anderson’s stop of Meyer was more than a “hunch” because of

the specific facts relayed to Officer Anderson by a trustworthy source. While

neither Dunteman nor Officer Anderson knew the ages of the group members prior

to obtaining their IDs, it was rational to infer that they were under 21 years old

because the group members were on a college campus near a dormitory housing

mainly freshman and sophomore students. See Mohr, 2013 S.D. 94, ¶ 16, 841

N.W.2d at 445 (“[O]fficers [may] draw on their own experience and specialized

training to make inferences from and deductions about the cumulative information

available to them[.]”). Dunteman’s conclusion that the group members had

consumed alcohol or were intoxicated was logical and based on his observations.

The totality of the circumstances suggests that Meyer was engaged in criminal

activity. Officer Anderson had an articulable and rational basis to briefly stop the

group, including Meyer, and investigate whether criminal activity was afoot.


4.       SDCL 35-9-2 provides in part: “It is a Class 2 misdemeanor for any person
         under the age of twenty-one years to purchase, attempt to purchase, or
         possess or consume alcoholic beverages. . . .”

                                           -8-
#27218

[¶16.]         Lastly, Meyer asserts Officer Anderson did not have a particularized or

individualized suspicion to believe Meyer was involved in criminal activity because

it was impossible to ascertain which group members had potentially violated the

law based on the facts of this case. See City of Indianapolis v. Edmond, 531 U.S. 32,

37, 121 S. Ct. 447, 452, 148 L. Ed. 2d 333 (2000) (“A search or seizure is ordinarily

unreasonable in the absence of individualized suspicion of wrongdoing.”); 5 accord

Mohr, 2013 S.D. 94, ¶ 14, 841 N.W.2d at 444 (requiring officers to have

particularized basis for suspecting criminal activity).

[¶17.]         Meyer cites Commonwealth v. Mistler, 912 A.2d 1265 (Pa. 2006) to

support her argument. In Mistler, undercover officers attended a large, fraternity-

house party where they witnessed suspected under-aged students consuming

alcohol. Id. at 1267-68. The officers observed a bartender at a makeshift bar

handing out drinks to people “youthful in appearance” in the basement of the

fraternity house. Id. at 1268. Once backup arrived, all of the partygoers were

separated into two groups, those over 21 and those under 21. Id. All 56 of the

under-age partygoers were issued citations. Id. After balancing the government’s

interest in crime prevention, the individuals’ liberty interest against unreasonable

searches and seizures, and the public’s interest, the court held that it could “identify


5.       In City of Indianapolis, the city set up a series of checkpoints “to interdict
         unlawful drugs.” 531 U.S. at 35, 121 S. Ct. at 451. The Supreme Court had
         previously carved out limited exceptions to the individualized suspicion
         requirement for sobriety and border checkpoints because of “the magnitude of
         the State’s interest” in safety and policing its borders. Id. at 38-39, 121 S. Ct.
         at 452-53. However, the Supreme Court held that drug checkpoints violated
         the Fourth Amendment “[b]ecause the primary purpose of the Indianapolis
         checkpoint program [was] ultimately indistinguishable from the general
         interest in crime control.” Id. at 48, 121 S. Ct. at 458.

                                             -9-
#27218

no factor that elevates the level of public concern regarding underage drinking

beyond that of ‘a general interest in crime control.’” Id. at 1272. The Pennsylvania

court noted that the United States Supreme Court “has not condoned suspicionless

searches where the program is aimed at uncovering evidence of ordinary criminal

wrongdoing.” Id. at 1272 (citing City of Indianapolis, 531 U.S. at 42-43, 121 S. Ct.

at 455). 6 Thus, the Pennsylvania court held that law enforcement’s actions did “not

comport with constitutional requirements” and all evidence had to be suppressed.

Id. at 1273-74.

[¶18.]         The present case is distinguishable. While it is true that the students

were in a group, Officer Anderson, based on information received from Dunteman,

had an individualized suspicion to stop each member of the group based on the

totality of the circumstances. Dunteman observed each of the eight group members

gathered around the tailgate of the Ford Escape with the taillights illuminated.

Upon investigation, the area behind the tailgate smelled of alcohol, Dunteman saw

multiple opened and unopened alcohol containers in the Ford Escape, and several of

the members stumbled as they walked away. Unlike Mistler, each group member

was observed in the immediate and particular area connected to the suspected

illegality. Furthermore, Meyer’s group remained intact and cohesive until Officer

Anderson conducted the investigatory stop. In Mistler, on the other hand, not every

partygoer had been observed within the immediate and particular area of the

suspected illegality, and the large group did not remain intact or cohesive.


6.       While generalized and suspicionless stops may be appropriate in some
         instances (e.g., border or DUI checkpoints), no such policy existed in the
         Mistler case. 912 A.2d at 1273.

                                           -10-
#27218

[¶19.]       This case did not involve a “suspicionless search” aimed at “general

crime control” or discovering “ordinary criminal wrongdoing.” See id. at 1273. Law

enforcement officials and campus police do not have carte blanche authority to

perform stops or searches en masse wherever a group of individuals is gathered.

Here, the State was able to prove that Officer Anderson stopped Meyer because he

had a reasonable and particularized suspicion to believe that she was involved in

criminal activity. The stop was not “the product of mere whim, caprice, or idle

curiosity.” See Mohr, 2013 S.D. 94, ¶ 13, 841 N.W.2d at 444. Therefore, upon

consideration of the totality of the circumstances, we hold that Officer Anderson

had an individualized, objective, and reasonable basis to believe that Meyer was

engaged in criminal activity. Meyer’s Fourth Amendment rights were not violated

by the stop. We affirm.

[¶20.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




                                        -11-
