#26579-a-DG

2013 S.D. 94

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

JEFFREY SCOTT MOHR,                         Defendant and Appellant.


                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                THE HONORABLE KATHLEEN K. CALDWELL
                            Retired Judge

                                    ****


MARTY J. JACKLEY
Attorney General

BETHANY L. ERICKSON
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


MOLLY QUINN of
Minnehaha County Public Defender’s Office
Sioux Falls, South Dakota                   Attorneys for defendant
                                            and appellant.


                                    ****

                                            ARGUED NOVEMBER 5, 2013
                                            OPINION FILED 12/18/13
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GILBERTSON, Chief Justice

[¶1.]         Defendant Jeffrey Scott Mohr was convicted of possession of a

controlled substance, possession of drug paraphernalia, and obstructing a law

enforcement officer, after being mistakenly identified as a suspected armed robber

and detained by police. Mohr appeals, alleging officers did not have reasonable

suspicion of criminal activity to stop or frisk Mohr. Mohr asserts that evidence

against him was obtained in violation of his Fourth Amendment right against

unreasonable search and seizure and that the trial court erred by denying a motion

to suppress the evidence.

                             Facts and Procedural History

[¶2.]        Mary Griffith was working as a casino attendant at Deuces Casino in

Sioux Falls, South Dakota, on the afternoon of August 3, 2011. Defendant Jeffrey

Scott Mohr entered the casino, wearing sunglasses and a baseball cap. Mohr got

change, snacks, and a drink, and began gambling at the machines. Griffith

immediately became frightened, concerned that Mohr was an unidentified fugitive

who had robbed other casinos in the area and was in the process of “casing the

place” as his next target.

[¶3.]        A number of recent armed robberies in the area had placed casino

owners, employees, and law enforcement on heightened alert. Griffith’s friend, who

worked at another casino in Sioux Falls that had been robbed, told Griffith that the

robber had entered the casino wearing a baseball cap and sunglasses, got a snack, a

drink, and change, and then proceeded to play the machines for some time before

robbing the casino. Griffith’s manager had also placed a “wanted” poster up in


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Deuces Casino for employees to see. The poster was created by another casino in

Sioux Falls and showed three pictures of an armed robbery in progress, taken from

a casino video surveillance camera. The suspect pictured in the photos was a

Caucasian male wearing sunglasses and a baseball cap, holding up a casino at

gunpoint. The manager informed employees not to hesitate to call police if they

believed the person pictured on the poster was in the casino.

[¶4.]        While Mohr was playing a video lottery machine, Griffith

surreptitiously conferred with two regular customers of the casino. After showing

the customers the poster, the customers agreed that Mohr looked like the man

pictured on the poster. Griffith then pushed the casino’s “panic button.” In

response to the panic button, Metro Communications phoned the casino and spoke

with Griffith. The dispatcher informed Griffith that if she did not feel safe talking,

Griffith could answer yes and no questions and pretend that someone else was

calling. A very frightened Griffith was able to relay that “he” was inside the casino

and that she and two customers thought it “certainly looked like him.” Griffith

indicated that she wasn’t able to tell if Mohr was armed, but she was able to relay

to the dispatcher Mohr’s location within the casino. Metro Communications

dispatched law enforcement to the scene while staying on the telephone with

Griffith.

[¶5.]        When officers arrived, Griffith indicated toward Mohr, who was seated

at a video lottery machine. Although it was dark inside the casino, Mohr was still

wearing sunglasses and had his baseball cap pulled down over his face. Mohr was

asked to step outside. Mohr was accompanied outside by Officers Chris Bauman


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and Ryan Sandgren, who asked Mohr for an identification card, his birthdate, and

his address. Mohr complied.

[¶6.]        Meanwhile, inside the casino, Griffith explained to Officers Nick Cook

and Andrew Siebenborn why she had made the call. Griffith then showed the

officers the poster with the photos of the robbery in progress at another casino.

Officer Siebenborn examined the poster and agreed that Mohr appeared to be the

same person depicted on the poster robbing the casino. Knowing that the previous

robberies had involved weapons, Officer Siebenborn went outside to speak with the

other officers and Mohr and ensure that Mohr had been patted down for weapons.

[¶7.]        Once outside, Officer Siebenborn learned that Mohr had not been

patted down. At that time, Officer Siebenborn observed that Mohr seemed “jittery

and somewhat nervous.” He asked Mohr to place his hands against the building

and initiated a frisk of Mohr’s outer clothing. Officer Siebenborn felt a wallet in

Mohr’s pocket, but also a hard object Officer Siebenborn believed to be a weapon—

potentially a penknife or pocket knife.

[¶8.]        As Officer Siebenborn attempted to verify the identity of the item and

look into the pocket, Mohr tensed up and spun around. Mohr was handcuffed and

placed under arrest for obstruction of a law enforcement officer. A subsequent

search of Mohr’s pocket revealed that the object in question was a hypodermic

needle. The search also uncovered a glass pipe with suspected methamphetamine

residue and a small baggie containing a white crystal or powder. Laboratory testing

later confirmed the presence of methamphetamine in the baggie and on the pipe.




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[¶9.]        Mohr cooperated with further police investigation and was cleared of

any connection to the casino robberies. However, Mohr was charged with

Possession of a Controlled Substance (Methamphetamine), in violation of SDCL 22-

42-5 and SDCL 34-20B-16(6), Obstructing Law Enforcement Officer, in violation of

SDCL 22-11-6, and Possession of Drug Paraphernalia, in violation of SDCL 22-42A-

3. Mohr was arraigned on September 14, 2011 and entered a plea of not guilty to all

charges. On February 22, 2012, Mohr moved to suppress all evidence found on his

person as the product of an illegal search and seizure. A hearing on the motion was

held June 28, 2012 in front of the Honorable Peter Lieberman. The court heard

testimony from Griffith and the responding officers. The court denied the motion.

[¶10.]       After the suppression hearing, the case was reassigned to the

Honorable Kathleen K. Caldwell. Mohr appeared in front of Judge Caldwell on

August 13, 2012 and waived his right to a jury trial. A trial by the court was held

October 15, 2012. The court found Mohr guilty on all counts. Mohr was given a

suspended sentence of five years in prison, on the conditions that Mohr serve two

years of formal probation and submit to weekly drug testing for a period of six

months. Mohr appeals his conviction, raising one issue: whether the trial court

erred in denying Mohr’s motion to suppress evidence based on the alleged violation

of Mohr’s Fourth Amendment rights. We affirm.

                              Analysis and Decision

[¶11.]       1.    Whether the trial court erred in denying Mohr’s motion to
                   suppress evidence based on an alleged violation of Mohr’s Fourth
                   Amendment rights.

[¶12.]       Mohr argues that the evidence against him in this case was the

product of an illegal search and seizure, in violation of his Fourth Amendment
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rights. “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. Bonacker, 2013 S.D. 3, ¶ 8, 825 N.W.2d 916, 919 (quoting State

v. Overbey, 2010 S.D. 78, ¶ 11, 790 N.W.2d 35, 40). The trial court’s findings of fact

are reviewed under the clearly erroneous standard, but we give no deference to the

trial court’s conclusions of law. Id. (citation omitted).

[¶13.]       “The Fourth Amendment’s prohibition against unreasonable searches

and seizures requires generally the issuance of a warrant by a neutral judicial

officer based on probable cause prior to the execution of a search or seizure of a

person.” State v. Sound Sleeper, 2010 S.D. 71, ¶ 15, 787 N.W.2d 787, 791 (citations

and internal quotation marks omitted). 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. Id. (citing State v.

DeLaRosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 685-86).

[¶14.]       This Court has noted that it is impossible to articulate a precise

definition of reasonable suspicion. State v. Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d

885, 888 (citing State v. Aaberg, 2006 S.D. 58, ¶ 10, 718 N.W.2d 598, 600). See also

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

(1996) (“Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’

mean is not possible.”). Thus, this Court applies “a common-sense and non-

technical approach to determining reasonable suspicion, one that deals with the

practical considerations of everyday life.” Sound Sleeper, 2010 S.D. 71, ¶ 16, 787

N.W.2d at 791 (citing Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d 885 at 888). A


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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. State v. Johnson, 2011 S.D. 10, ¶ 8, 795 N.W.2d 924, 926 (citation

omitted). 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 (citing State v.

Scholl, 2004 S.D. 85, ¶ 6, 684 N.W.2d 83, 85). “All that is required is that the stop

be not the product of mere whim, caprice, or idle curiosity.” Id. (quoting Scholl,

2004 S.D. 85, ¶ 6, 684 N.W.2d at 85).

[¶15.]       Mohr first argues that the officers in question lacked the reasonable

suspicion necessary to justify even a brief investigatory stop. Mohr points to

language in State v. Haar, where we noted:

             The critical question is, “would the facts available to the officer
             at the moment of the seizure . . . warrant a man of reasonable
             caution in the belief that the action taken was appropriate?
             Anything less would invite intrusions upon constitutionally
             guaranteed rights based on nothing more substantial than
             inarticulate hunches, a result this Court has consistently
             refused to sanction.”

2009 S.D. 79, ¶ 22, 772 N.W.2d 157, 167 (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S.

Ct. 1868, 1873, 20 L. Ed. 2d 889 (1968)). Although Mohr acknowledges that we

analyze the officer’s actions under the totality of the circumstances, he emphasizes

that the facts available to the officers were limited at the time officers seized Mohr.

Mohr asserts that officers only knew that the casino attendant triggered the duress

alarm, 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. He argues that because these facts do


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not indicate any criminal wrongdoing by Mohr, officers could not have had a

reasonable suspicion to subject him to an investigatory detention. We disagree.

[¶16.]       We have previously explained that courts are not to “examine innocent

explanations for the reasonable suspicion facts standing alone, a process which the

Supreme Court described as a ‘divide and conquer’ analysis.” Id. ¶ 23 (quoting

Quartier, 2008 S.D. 62, ¶ 15, 753 N.W.2d at 889). The totality of the circumstances

approach “allows officers to draw on their own experience and specialized training

to make inferences from and deductions about the cumulative information available

to them that ‘might well elude an untrained person.’” Id. (quoting United States v.

Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750-51, 151 L. Ed. 2d 740 (2002)).

[¶17.]       Viewing the totality of the circumstances in this case, including

reasonable inferences and deductions made by the officers, we cannot conclude that

the officers in this case were acting on “an inarticulate hunch,” or that Mohr’s

seizure was the product of “mere whim, caprice, or idle curiosity.” See Haar, 2009

S.D. 79, ¶ 22, 772 N.W.2d at 167; Satter, 2009 S.D. 35, ¶ 6, 766 N.W.2d at 155.

Although the facts listed by Mohr correctly state the information conveyed to the

officers by the dispatcher, those facts alone do not provide a complete picture of the

totality of circumstances at the time of the seizure.

[¶18.]       First, the officers in this case possessed knowledge beyond what had

been relayed to them by Griffith. Law enforcement personnel are allowed to rely

upon information conveyed by one officer to another for determinations of probable

cause and reasonable suspicion through the collective knowledge doctrine. State v.

Richards, 1998 S.D. 128, ¶ 15, 588 N.W.2d 594, 597 (citation omitted). Applying


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this doctrine, “the facts and knowledge of all the officers are viewed collectively.”

Id. ¶ 18 (citing State v. Krebs, 504 N.W.2d 580, 586 (S.D. 1993); State v. Baysinger,

470 N.W.2d 840, 844-45 (S.D. 1991); State v. Czmowski, 393 N.W.2d 72, 73 (S.D.

1986)). None of the officers in this case were directly involved with the

investigations of the prior casino robberies. However, Officer Siebenborn testified

that it was relayed to him, before the events giving rise to this case, that the

suspect in the earlier robberies had entered the casinos wearing a baseball cap and

sunglasses, and spent some time gambling before robbing the casinos with a

weapon. Under the collective knowledge doctrine, we analyze the officers’ actions in

this case in light of these additional facts.

[¶19.]        Equipped with this knowledge of the prior robberies, the officers

responded to an emergency “panic button” call from a casino attendant. When the

officers arrived at the scene, a frightened employee, Griffith, indicated toward

Mohr. Although he did not seem to be presently engaged in any illegal activity,

Mohr was seated at a machine in an ill-lit casino, wearing sunglasses and a baseball

cap “pulled over his eyes substantially.” This behavior and dress may have seemed

only marginally suspicious in isolation, but it corresponded with the officers’

collective knowledge of the dress and habits of the suspect in the prior robberies.

The similarities between Mohr and the suspect, and the broader circumstances of

an emergency call about a potential robbery, support the conclusion that the officers

were acting on more than a “whim, caprice, or idle curiosity” when they seized

Mohr. See Satter, 2009 S.D. 35, ¶ 6, 766 N.W.2d at 155 (citation omitted).




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[¶20.]         The fact that Griffith was an identifiable source of information, rather

than an anonymous tipster, is another factor that supports the officers’ reasonable

suspicion. An informant’s tip may support the reasonable suspicion necessary for

an investigative detention. See Scholl, 2004 S.D. 85, ¶ 6, 684 N.W.2d 83 at 85. The

reliability of an informant’s tip is greater when the informant is known or

identifiable, rather than anonymous, in part because the informant can be held

accountable if the allegations turn out to be fabricated. See Satter, 2009 S.D. 35, ¶¶

9-12, 766 N.W.2d at 155-56. See also SDCL 22-11-9 (classifying false reporting of

an emergency or crime as a Class I misdemeanor). Although Griffith only identified

herself as “Mary” during the emergency call, authorities knew that an employee at

Deuces Casino had pushed the alarm. Griffith was present at the casino when

officers arrived, and pointed Mohr out to the officers. By openly identifying herself

to authorities, Griffith lent at least some measure of reliability to her claim of a

present emergency caused by Mohr’s presence in the casino.

[¶21.]         Mohr attacks the reliability of Griffith as an informant by pointing out

that the “primary determinant of a tipster’s reliability is the basis of [the tipster’s]

knowledge.” Scholl, 2004 S.D. 85, ¶ 10, 684 N.W.2d 83, 87. Because Griffith had

not witnessed Mohr commit any criminal activity, and because Griffith’s knowledge

was only through secondhand accounts and photos from a wanted poster, 1 Mohr



1.       Focusing specifically on the poster in this case, Mohr distinguishes this case
         from both United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d
         604 (1985) and State v. Krebs, 504 N.W.2d 580 (S.D. 1993). In both Hensley
         and Krebs, Terry stops based on reasonable suspicion were upheld where
         officers acted in reliance on police-issued bulletins describing the suspect. In
         both cases, the description or identity of the suspect was known to police at
                                                                (continued . . .)
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argues that Griffith’s “tip” to police could not be reliable enough to supply

reasonable suspicion. This argument again takes an improper “divide and conquer”

approach to the reasonable suspicion analysis.

[¶22.]       If Griffith’s call is classified as a mere “tip” from an informant, and is

viewed in isolation, it might lack the factual basis for police to have a reasonable

suspicion of criminal activity. Mohr correctly points out that Griffith did not relay

any articulable facts of her firsthand observation of a crime in progress. The

emergency call only relayed what Mohr was wearing, where Mohr was in the casino,

and the vague statement that “it sure looks like him.” Even if those facts were

corroborated, Mohr asserts that officers could not connect Mohr’s actions with any

criminal wrongdoing. However, we again must view Griffith’s call as part of the

totality of the circumstances confronting the officers in this case.

[¶23.]       When Griffith contacted police, it was not a simple informant’s tip, on

which the police could act in slow and calculated manner. It was an emergency call,

which often demands swift action, working with less information. When officers

entered the casino, Griffith immediately indicated toward Mohr. Although the

officers did not know exactly what Mohr had done, it was reasonable for the officers

to rely on their training and experience and infer that the emergency call to police

________________________
(. . . continued)
         the time of seizure and police were acting in reliance on those descriptions.
         Mohr is correct that these facts are distinguishable. The officers in this case
         were not familiar with the particular identity or physical description of the
         robbery suspect before seizing Mohr, and the poster in this case was not
         issued by police, nor was it seen by the officers before they seized Mohr.
         However, the officers’ familiarity with the suspect’s physical appearance
         would only be one factor to consider and is not essential to a finding of
         reasonable suspicion in this case.

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and the indication toward Mohr meant that it was likely Mohr had done something

criminal and sufficiently threatening in nature to warrant the call. 2 The overall

tone and nature of the call—an identified, concerned citizen feeling so threatened

that she is unable to speak openly with a dispatcher—further supports the officers’

reasonable suspicion of criminal activity.

[¶24.]         In light of the totality of the circumstances supporting the officers’

reasonable suspicion of criminal activity, we next look at the actions taken by the

officers. Although the officers in this case did not possess the probable cause

necessary for an immediate arrest, we have noted that “Terry recognizes that it may

be the essence of good police work to adopt an intermediate response.” Johnson,

2011 S.D. 10, ¶ 16, 795 N.W.2d 924 at 928 (quoting State v. Boardman, 264 N.W.2d

503, 506 (S.D. 1978)). “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. (quoting Boardman, 264 N.W.2d at 506).

[¶25.]         The intermediate response taken by the officers in this case—asking

Mohr for identification and asking him to step outside the casino for further

questioning—was reasonable. These actions allowed police to momentarily


2.       On similar facts, in State v. Hunter, a Florida appellate court upheld a
         temporary seizure where a gas station clerk could not talk when she called
         911, and thus relayed no facts about the crime or suspected criminal. 615 So.
         2d 727 (Fla. Dist. Ct. App. 1993). When officers arrived minutes after
         receiving the call, the distressed clerk pointed at the defendant. Id. at 730.
         The court held that even though no articulable facts of crime had been
         conveyed during the call, officers had reasonable suspicion because of the call
         and the fact that “retail establishments of this type . . . are popular targets of
         armed robberies.” Id.

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maintain the status quo, especially the safety of Griffith and others in the casino,

while gathering more information to either confirm or dispel concerns of dangerous

criminal activity. The officers were taking the reasonable steps any officer would

have taken under the circumstances. Thus, viewing these actions in light of the

totality of the circumstances, we conclude that the police did not violate Mohr’s

Fourth Amendment rights by temporarily detaining him outside of the casino for

questioning.

[¶26.]         Mohr further argues that the subsequent pat-down of his person was

not justified, even if police had reasonable suspicion to seize him. If an officer

believes that “the persons with whom he is dealing may be armed and presently

dangerous . . . he is entitled for the protection of himself and others in the area to

conduct a carefully limited search of the outer clothing of such persons in an

attempt to discover weapons which might be used to assault him.” Terry, 392 U.S.

at 30, 88 S. Ct. at 1884-85. “The officer need not be absolutely certain that the

individual is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others was

in danger.” State v. Shearer, 1996 S.D. 52, ¶ 18, 548 N.W.2d 792, 796 (citation

omitted).

[¶27.]         Mohr argues that officers were not justified in patting him down,

because the officers observed no weapons and Mohr was not acting in a disorderly or

threatening manner. Mohr notes that “the officers who spent five minutes talking

to Mr. Mohr believed that he was not a threat.” Mohr asserts that a frisk is only

justified “where nothing in the initial stages of the encounter serves to dispel [the


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officer’s] reasonable fear for his own or others’ safety.” Terry, 392 U.S. at 30, 88 S.

Ct. at 1884.

[¶28.]         Although the officers outside with Mohr did not feel immediately

threatened, Officer Siebenborn knew that the dress and behavior exhibited by Mohr

matched that of the armed casino robbery suspect. The similarities between Mohr

and the prior armed robberies were reinforced by information Officer Siebenborn

gained while talking inside with Griffith and looking at the pictures of a prior

robbery in that area. What is learned during the course of an officers’ investigation

should not be ignored. See Speten v. State, 185 P.3d 25, 34 (Wyo. 2008) (“Terry

certainly should not be read so narrowly as to allow a weapons search at the onset,

or not at all.”). See also State v. Faulks, 2001 S.D. 115, ¶ 16, 633 N.W.2d 613, 619

(“We will not fault police officers for failing to pat-search an individual before that

person is a suspect in a crime.”). Upon seeing the photo of the robbery in progress,

Officer Siebenborn was equipped with even greater knowledge of the potential

danger Mohr posed.

[¶29.]         Because Officer Siebenborn knew the prior robberies involved weapons

and he reasonably believed that Mohr may have been the perpetrator of those

robberies, it was reasonable for him to believe that Mohr was armed. Furthermore,

Officer Siebenborn noted that Mohr acted “jittery and excited” when Officer

Siebenborn came out of the casino, adding to a fear that Mohr might be concealing a

weapon. The totality of the circumstances supports Officer Siebenborn’s belief that

a frisk was necessary to ensure the safety of those present, even if the other officers

failed to immediately recognize that threat. Because the stop and frisk of Mohr was


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reasonable, police had probable cause to arrest Mohr for obstructing a law

enforcement officer, and the subsequently discovered evidence is admissible.

                                      Conclusion

[¶30.]          Under the totality of the circumstances, Mohr was not subjected to an

unreasonable search or seizure in violation of his Fourth Amendment rights.

Therefore, we affirm.

[¶31.]          KONENKAMP, ZINTER and SEVERSON, Justices, and BROWN,

Circuit Court Judge, concur.

[¶32.]          BROWN, Circuit Court Judge, sitting for WILBUR, Justice,

disqualified.




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