#25650-a-PER CURIAM

2011 S.D. 10

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                * * * *

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

ROBERT THOMAS JOHNSON,                    Defendant and Appellant.



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

                                * * * *

                     HONORABLE LAWRENCE E. LONG
                                Judge

                                * * * *

MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General                Attorneys for plaintiff
Pierre, South Dakota                      and appellee.

RYAN KOLBECK of
Minneahaha County Public
   Defender’s Office                      Attorneys for defendant
Sioux Falls, South Dakota                 and appellant.

                                * * * *

                                          CONSIDERED ON BRIEFS
                                          ON FEBRUARY 16, 2011

                                          OPINION FILED 03/23/11
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PER CURIAM

[¶1.]          Robert Thomas Johnson (Johnson) appeals his conviction for first

degree robbery. Johnson was convicted of robbing a Sioux Falls casino. Johnson

argues that the evidence obtained from the search of his vehicle should have been

suppressed because the arresting officer did not have reasonable suspicion to

initiate the traffic stop. The trial court denied Johnson’s motion to suppress.

Because the initial stop of Johnson’s vehicle was based on specific, articulable facts

that reasonably supported the initial detention, we affirm.

                                         FACTS

[¶2.]          In the early morning hours of July 31, 2009, Deuces Casino in Sioux

Falls was robbed. An emergency dispatch alerted Sioux Falls Police of a holdup

alarm at Deuces Casino. Within seconds two witnesses called the police reporting

the robbery. The witnesses informed the police that the suspect left the casino on

foot running east. Both callers indicated the robber brandished a handgun during

the robbery.

[¶3.]          While on patrol Officer Trainor (Trainor) received the emergency

dispatch regarding the robbery. Trainor activated his in-car camera and drove

towards the casino. After traveling approximately one block, Trainor received the

information provided by the witnesses. Trainor maneuvered to a position where he

could observe traffic moving north across 37th Street, away from the casino.

Trainor stopped the only northbound vehicle that crossed 37th Street in the few

moments after the robbery. Johnson’s brother drove the vehicle, with Johnson in

the passenger seat. After briefly talking with Johnson, Trainor determined he had


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probable cause for an arrest, and called back-up. A search of the vehicle revealed a

bag of money and a pellet gun.

[¶4.]         Johnson moved to suppress the evidence obtained from the initial stop.

Based on the testimony of Trainor at the suppression hearing, the trial court found

the traffic stop supported by “reasonable suspicion” based on the facts known to

Trainor at the time of the stop. * After Johnson’s suppression motion was denied,


*       The trial court reached an alternative but erroneous conclusion after the
        suppression hearing. While watching the videotape from Trainor’s patrol car,
        the court noticed that one of the brake lights on the vehicle was not
        functioning. When questioned, Trainor admitted he did not observe the non-
        functioning brake light before initiating the stop, but only upon watching the
        videotape. The trial court determined that the non-functioning brake light
        was an alternative basis for the stop.

        In its memorandum decision on the motion to suppress, the trial court
        determined that the non-functioning brake light was “‘observable to the law
        enforcement officer at the time of the [stop]’ and thus would ‘entitle an officer
        of reasonable caution to believe that the action taken . . .’ namely the stop,
        was justified.” (quoting State v. Vento, 1999 S.D. 158, ¶ 8, 604 N.W.2d 468,
        470.) The court also found that Trainor did not observe the non-functioning
        brake light at the time of the stop.

        If the court concluded there was probable cause to stop the vehicle, it is true
        that “a traffic violation, however minor, creates sufficient cause to stop the
        driver of a vehicle.” State v. Chavez, 2003 S.D. 93, ¶ 16, 668 N.W.2d 89, 95.
        But “probable cause must be based on the facts ‘known’ to the officer at
        the time of the search.” Id. ¶ 53 (Konenkamp, J., concurring) (emphasis
        added).

        If the court concluded that articulable suspicion justified the Terry stop, it is
        axiomatic that an officer’s articulable or reasonable suspicion is evaluated
        based on “objective facts.” Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637,
        2640, 61 L. Ed. 2d 357 (1979). But that does not necessarily mean that
        objective facts justify intrusion when unknown to the officer at the time of the
        intrusion. To divorce the officer’s subjective knowledge from the reasonable
        suspicion equation would be to allow police intrusion without “specific
        articulable facts” supporting the intrusion. See, e.g., State v. Satter, 2009
        S.D. 35, ¶ 6, 766 N.W.2d 153, 155 (“it is enough that the stop is based upon
        specific and articulable facts[.]”). To uphold a stop when an officer cannot cite
                                                                     (continued . . . )
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Johnson was convicted of first degree robbery at a court trial. Johnson appeals,

raising only the issue of the validity of the initial traffic stop.

                                ANALYSIS AND DECISION

[¶5.]           “‘[A]s a general matter determinations of reasonable suspicion . . . are

reviewed de novo on appeal,’ [but] a reviewing court ‘should take care . . . to give due

weight to inferences drawn from [historical] facts by resident judges and local law

enforcement officers.’” State v. Quartier, 2008 S.D. 62, ¶ 18, 753 N.W.2d 885, 889-90

(quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L.

Ed. 2d 911 (1996)). “Whether a Fourth Amendment violation occurred ‘turns on an

objective assessment of the officer’s actions in light of the facts and circumstances

confronting [the officer] at the time[.]’” State v. Chavez, 2003 S.D. 93, ¶ 48, 668

N.W.2d 89, 96 (Konenkamp, J., concurring).

[¶6.]           “The Fourth Amendment of the United States Constitution is

implicated when a vehicle is stopped. The action constitutes a seizure even though

the purpose of the stop is limited and the detention is brief.” State v. Krebs, 504

N.W.2d 580, 584 (S.D. 1993) (citation omitted). “A passenger has standing to

challenge the stop of a vehicle because a stop is a seizure of all persons in the

vehicle.” Id.

[¶7.]           “The factual basis needed to support a traffic stop is minimal.” State v.

Satter, 2009 S.D. 35, ¶ 6, 766 N.W.2d 155. “[W]hile a stop may not be the ‘product



______________________
( . . . continued)
          “specific articulable facts” by definition means that the stop was based on
          “mere whim, caprice, or idle curiosity.” See id.

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of mere whim, caprice or idle curiosity, it is enough that the stop is based upon

“specific and articulable facts which taken together with rational inferences from

those facts, reasonably warrant [the] intrusion.”’” State v. Wright, 2010 S.D. 91,

¶ 11, 791 N.W.2d 791, 795 (citations omitted).

[¶8.]        Because the reasonable suspicion determination requires this Court to

“look at the ‘totality of the circumstances’ of each case to see whether the detaining

officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing,” a

review of the salient facts known to Trainor is necessary. State v. Herren, 2010 S.D.

101, ¶ 7, 792 N.W.2d 551, 554 (quoting United States v. Arvizu, 534 U.S. 266, 273-

74, 122 S. Ct. 744, 750-51, 151 L. Ed. 2d 740 (2002)). The facts come from the trial

court’s findings of facts and conclusions of law. Johnson does not take issue with

the findings themselves, but argues that the facts do not support a finding of

reasonable suspicion.

[¶9.]        At the time Trainor received the initial emergency dispatch he was

patrolling in southwest Sioux Falls. Within seconds, Trainor received another call

indicating a handgun had been used and the robber fled east on foot. Given

Trainor’s experience with between forty to fifty robberies, Trainor believed the

suspect likely had a vehicle waiting nearby. Additionally, Trainor believed the

suspect likely to head north through a residential area, rather than attempting to

cross busy 41st Street.

[¶10.]       Trainor maneuvered to position himself north of Deuces Casino in

order to observe vehicles moving away from the casino in this direction. While

driving toward his observation point, Trainor observed two vehicles headed east, in


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the direction of the casino. Trainor did not consider those vehicles suspicious as

their direction would have necessitated driving several blocks around the casino, a

maneuver Trainor did not believe could be accomplished in the time since the

robbery.

[¶11.]         As he reached his observation point, Trainor observed Johnson’s

vehicle. Trainor knew the casino had been robbed moments before. His experience

taught him Johnson’s vehicle was on a logical escape route. He knew the robber

was likely to have entered a vehicle. No other vehicles were driving away from the

casino at that time of night. When observed by Trainor, Johnson’s vehicle was

approximately four blocks away from the casino, which corresponded to the distance

a suspect was likely to travel in the elapsed time since the robbery. Because of

these facts and inferences drawn from the facts, Trainor suspected that the vehicle

traveling away from the casino may carry the suspect. Trainor initiated the traffic

stop approximately two minutes after receiving the emergency dispatch regarding

the robbery.

[¶12.]         Johnson argues that the facts recited above do not justify the initial

stop of the vehicle. Johnson oversimplifies the facts available to Trainor at the time

of the stop. First, Johnson argues that a stop based upon the location of the vehicle

alone violates the Fourth Amendment. While this may be true, the location of the

vehicle cannot be considered in a vacuum. The authority cited by Johnson involves

an initial seizure based solely on the fact that the defendant was stopped in an area

with “a high incidence of drug traffic.” Brown v. Texas, 443 U.S. 47, 49, 99 S. Ct.

2637, 2639, 61 L. Ed. 2d 357 (1979). Had Trainor known nothing more than the


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location of Johnson’s vehicle, the stop likely would have violated the Fourth

Amendment.

[¶13.]       But Trainor also knew that a casino had been robbed seconds ago, that

there were no other vehicles moving away from the casino at this time of night, and

that the location of the vehicle was on a logical escape route. In Brown, the

detaining officers were not aware of any specific criminal activity they planned to

investigate. Id. at 49.

[¶14.]       Johnson also argues that Trainor did not have an accurate description

of Johnson, nor did he personally observe Johnson before making the stop. In State

v. Faulks, this Court upheld a stop even though the defendant did not precisely

match the description provided to the police. 2001 S.D. 115, ¶ 11, 633 N.W.2d 613,

617. But a physical description was provided to the police. Id. ¶ 2. Johnson argues

Faulks stands for the proposition that without any sort of physical description of the

suspect, Trainor could not have had reasonable suspicion to initiate the stop. While

Trainor did not have a physical description of the suspect, he had the benefit of

being on an escape route within moments of the robbery, and observing the only

vehicle moving away from the scene of the crime. Faulks does not require a

physical description of a suspect in order for reasonable suspicion to exist.

[¶15.]       The Eighth Circuit has upheld a stop in a similar situation.

             Here, police officers sought to locate two suspects who had run
             from the scene of the crime. Although the suspects were last
             seen afoot, we think that it was reasonable for police to believe
             that the burglars might use a motor vehicle . . . . Within one
             hour of the crime, police discovered only two vehicles, including
             the one driven by [defendant], and only one or two pedestrians
             in the general downtown area of Vermillion. Under the
             circumstances, we think the police acted reasonably in stopping

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             individuals and autos within the vicinity of the crime for the
             purpose of requesting identification.

Orricer v. Erickson, 471 F.2d 1204, 1207 (8th Cir. 1973).

[¶16.]       This Court upheld an investigatory stop when officers who knew of a

recent burglary stopped a vehicle on a logical escape route. State v. Boardman, 264

N.W.2d 503, 506 (S.D. 1978). The officers knew that the burglary had been

committed by two males, but the vehicle contained three males. Id. Also, the

officers were aware that one of the males in the vehicle had prior run-ins with law

enforcement. Id. In Boardman, the officer specifically watched an escape route

over two miles from the robbed Piggly Wiggly. Id. Affirming admittance of the

evidence this Court quoted the United States Supreme Court:

             The Fourth Amendment does not require a policeman who lacks
             the precise level of information necessary for probable cause to
             arrest to simply shrug his shoulders and allow a crime to occur
             or a criminal to escape. On the contrary, Terry recognizes that
             it may be the essence of good police work to adopt an
             intermediate response. 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 Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612

(1972)).

[¶17.]       The facts known to Trainor at the time, and logical inferences arising

from those facts, support a finding of reasonable suspicion to make the stop. This

stop was “not the product of mere whim, caprice, or idle curiosity.” Denial of the

motion to suppress is affirmed.

[¶18.]       Affirmed.



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

MEIERHENRY, and SEVERSON, Justices, participating.




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