#27765-a-LSW

2016 S.D. 80

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

NICHOLAS R. KLEVEN,                       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

KELLY MARNETTE
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


DONALD M. MCCARTY
JENNIFER GOLDAMMER of
Helsper, McCarty, Rasmussen, PC
Brookings, South Dakota                   Attorneys for defendant
                                          and appellant.

                                  ****

                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 7, 2016

                                          OPINION FILED 11/22/16
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WILBUR, Justice

[¶1.]        After being arrested and charged with driving under the influence,

defendant moved to suppress the evidence. The circuit court denied defendant’s

motion, concluding that an exception to the warrant requirement applied because

the officer acted in his function as a community caretaker. We affirm.

                                    Background

[¶2.]        At approximately 1:00 a.m. on January 21, 2015, Officer Marci Gebers

observed a vehicle parked on the 400 block of Third Street in downtown Brookings,

South Dakota. The vehicle was running, and Officer Gebers observed a man in the

driver’s seat, later identified as Nicholas Kleven. Officer Gebers testified that she

believed the occupant was either looking at his mobile phone or waiting for

someone. Officer Gebers explained that she did not approach the vehicle to make

any further observations.

[¶3.]        At approximately 1:40 a.m., Officer Adam Smith drove past the same

vehicle previously observed by Officer Gebers. Like Officer Gebers, Officer Smith

observed that the vehicle was running and there was a man in the driver’s seat.

Officer Smith believed the occupant may have been looking at his mobile phone.

Officer Smith drove past Kleven’s vehicle, noted the license plate number, and

requested a license plate check. Officer Gebers overheard the request on the radio

and informed Officer Smith that she had observed the same vehicle at 1:00 a.m.

[¶4.]        Officer Smith then parked his patrol vehicle in a parking lot one block

away with a line of sight on Kleven’s vehicle. Shortly after 2:00 a.m., Officer Smith

moved his patrol vehicle directly behind Kleven’s vehicle. He exited his patrol


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vehicle and approached Kleven’s driver’s-side window. He observed Kleven sitting

in the driver’s seat and believed Kleven was either sleeping or passed out. Officer

Smith radioed for another officer to park a patrol vehicle in front of Kleven’s vehicle.

Officer Smith testified that he could not tell if the occupant had the vehicle in drive

or park and made the request out of his concern that he would startle the occupant

and cause the occupant to accidentally accelerate his vehicle.

[¶5.]        After the second officer parked a patrol vehicle in front of Kleven’s

vehicle, Officer Smith knocked on Kleven’s driver’s-side window several times.

Kleven briefly opened his eyes and looked toward the window. Kleven did not

acknowledge Officer Smith. Kleven put his head back down. Officer Smith testified

that he was concerned and opened Kleven’s driver’s-side door. Immediately, Officer

Smith smelled the odor of alcohol. Kleven was subsequently arrested and charged

with driving under the influence.

[¶6.]        On April 7, 2015, Kleven filed a motion to suppress. Kleven asserted

that Officer Smith did not have reasonable suspicion to support the intrusion. The

circuit court held an evidentiary hearing on July 21, 2015. Officers Gebers and

Smith testified. At the conclusion of the hearing, the court issued an oral ruling. It

held that the circumstances justified Officer Smith’s investigation under the

community caretaker exception to the warrant requirement. The court denied

Kleven’s motion to suppress. It issued findings, conclusions, and an order. Kleven

appeals, asserting one issue for our review: whether the circuit court erred when it

denied his motion to suppress on the basis that the community caretaker exception

applied.


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                                Standard of Review

[¶7.]        “We review the circuit court’s grant or denial of a motion to suppress

involving an alleged violation of a constitutionally protected right under the de novo

standard of review.” State v. Smith, 2014 S.D. 50, ¶ 14, 851 N.W.2d 719, 723. We

review the circuit court’s factual findings for clear error. State v. Mohr, 2013 S.D.

94, ¶ 12, 841 N.W.2d 440, 444. Once the facts have been determined, we give no

deference to the court’s application of a legal standard to those facts. State v.

Fierro, 2014 S.D. 62, ¶ 12, 853 N.W.2d 235, 239. Those questions of law are

reviewed de novo. Id.

                                       Analysis

[¶8.]        This case concerns whether the community caretaker exception to the

warrant requirement applies. The United States Supreme Court first recognized

the exception in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706

(1973). It explained that law enforcement officers “frequently investigate vehicle

accidents in which there is no claim of criminal liability and engage in what, for

want of a better term, may be described as community caretaking functions, totally

divorced from the detection, investigation, or acquisition of evidence relating to the

violation of a criminal statute.” Id. at 441, 93 S. Ct. at 2528. We adopted the

community caretaker exception in State v. Rinehart, 2000 S.D. 135, 617 N.W.2d

842. We said that “under appropriate circumstances a law enforcement officer may

be justified in stopping a vehicle to provide assistance, without needing any

reasonable basis to suspect criminal activity.” Id. ¶ 7 (quoting State v. Brown,

509 N.W.2d 69, 71 (N.D. 1993)). The officer must have a “demonstrable reason to


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believe that a driver may be unfit to drive for medical or other reasons” to justify a

temporary stop “for the limited purpose of investigating the person’s well-being.”

Id. The exception “should be cautiously and narrowly applied in order to minimize

the risk that it will be abused or used as a pretext for conducting an investigatory

search for criminal evidence.” Id. ¶ 10 (quoting Commonwealth v. Waters,

456 S.E.2d 527, 530 (Va. Ct. App. 1995)).

[¶9.]        Kleven asserts that the circuit court erred when it concluded that

Officer Smith acted in his community caretaker capacity. He argues that Officer

Smith could not articulate a demonstrable reason to be concerned about Kleven’s

well-being. According to Kleven, Officer Smith relied on the community caretaker

function after the fact, when in reality, Officer Smith detained Kleven and forced an

interaction solely to satisfy Officer Smith’s curiosity as to why Kleven remained

parked. He emphasizes that Officer Smith ran a check on Kleven’s license plate

and blocked Kleven’s vehicle from being able to leave. These circumstances, Kleven

argues, evince that Officer Smith’s check on Kleven’s well-being was not “totally

divorced” from Officer Smith’s role as a law enforcer. To conclude otherwise,

according to Kleven, would “have serious ramifications”—it would allow law

enforcement to justify “every stop by stating that they were acting in their

community caretaker capacity[.]”

[¶10.]       In State v. Deneui, we recognized that, although many courts apply the

community caretaker exception to the warrant requirement, “[n]o single test has

been adopted by a majority of courts.” 2009 S.D. 99, ¶ 36, 775 N.W.2d 221, 237. We

examined the tests applied by other courts and took “the best insights from the


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diverse authorities dealing with this exception[.]” Id. ¶ 41. Those best insights

include: “the purpose of community caretaking must be the objectively reasonable

independent and substantial justification for the intrusion; the police action must

be apart from the detection, investigation, or acquisition of criminal evidence; and

the officer should be able to articulate specific facts that, taken with rational

inferences, reasonably warrant the intrusion.” Id. We noted that “the community

caretaking function is more akin to a health and safety check.” Id.

[¶11.]       Here, the circuit court found that Officer Smith was justified in

stopping near Kleven’s vehicle and making contact with Kleven to determine if

Kleven needed assistance. Based on our review, we conclude that Officer Smith had

an objectively reasonable basis to investigate Kleven’s well-being. We do not

construe Officer Smith’s run of Kleven’s license plate number or his request that a

patrol car park in front of Kleven’s vehicle as proof that Officer Smith did not act in

his role as a community caretaker. To do so would ignore that law enforcement

officers serve multiple functions. “The law does not demand that an alert police

officer must suppress his or her training and investigatory experience in carrying

out the myriad of community caretaking functions society expects police officers to

undertake for its protection.” Commonwealth v. Fisher, 13 N.E.3d 629, 633 (Mass.

Ct. App. 2014). As we recognized in Deneui, “[m]odern society has come to see the

role of police officers as more than basic functionaries enforcing the law. From first

responders to the sick and injured, to interveners in domestic disputes, and myriad

instances too numerous to list, police officers fulfill a vital role where no other

government official can.” 2009 S.D. 99, ¶ 49, 775 N.W.2d at 242; see also State v.


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Kramer, 759 N.W.2d 598, 610 (Wis. 2009); see also Rist v. N.D. Dep’t of Transp., 665

N.W.2d 45, 49 (N.D. 2003).

[¶12.]       Officer Gebers and Officer Smith may not have had a cause for concern

at 1:00 or 1:40 a.m. when they noticed Kleven’s vehicle parked while running.

During both of those observations, it appeared to the officers that Kleven was

looking at his mobile phone. However, at 2:00 a.m., the vehicle was still running,

remained parked in the same spot, and the occupant looked to be sleeping or passed

out. The fact Kleven could have been simply sleeping is of no consequence. See

Deneui, 2009 S.D. 99, ¶ 42, 775 N.W.2d at 239. Officer Smith had reason to walk up

to Kleven’s driver’s-side window and attempt to make contact. Officer Smith

knocked on the driver’s-side window several times. Kleven did not acknowledge

Officer Smith. He looked up for a moment and put his head back down. “These

circumstances presented a crucial moment of judgment for” Officer Smith. See

Deneui, 2009 S.D. 99, ¶ 49, 775 N.W.2d at 242. Should he act to ensure Kleven is

not in need of assistance—conduct a health and safety check? We think so. Under

the circumstances, Officer Smith had sufficient reason to act. The circuit court did

not err when it denied Kleven’s motion to suppress, concluding that the community

caretaker exception to the warrant requirement applied.

[¶13.]       Affirmed.

[¶14.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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