#26232-a-DG
2013 S.D. 3
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ANDREW J. BONACKER, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
…
THE HONORABLE JOSEPH NEILES
Judge
MARTY J. JACKLEY
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
NICOLE J. LAUGHLIN
MICHAEL G. MILLER
Minnehaha County Public Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant and
appellant.
…
ARGUED ON
OCTOBER 3, 2012
OPINION FILED 01/09/13
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GILBERTSON, Chief Justice
[¶1.] Andrew Bonacker appeals his conviction for driving with a revoked
driver’s license. We affirm.
Facts and Procedural History
[¶2.] At approximately 1:00 a.m. on April 3, 2010, South Dakota Highway
Patrol Trooper Isaac Kurtz was traveling west on 60th Street North in the City of
Sioux Falls when he noticed a vehicle traveling east approaching his patrol car with
its headlights at what appeared to be their high-beam setting. Kurtz later testified
that the light was intense, forcing him to look to the side as the vehicle passed by.
Once the vehicle had passed, Kurtz turned his patrol car around and initiated a
traffic stop of the other vehicle.
[¶3.] Trooper Kurtz approached the driver’s window of the stopped vehicle
and explained the reason for the stop to the driver. In response, the driver, later
identified as Bonacker, stated that the lights were on their low-beam setting.
Further, Bonacker’s front seat passenger, who identified herself as the owner of the
vehicle, stated that she had previously had this problem. Bonacker demonstrated
the lights by flashing them against a nearby wall. Following this demonstration,
Kurtz commented, “O.K., they’re really bright, huh?” Kurtz then asked to see
Bonacker’s driver’s license. Bonacker informed Kurtz that he did not have a valid
license and a subsequent check of the license revealed that it was revoked.
Bonacker was then arrested and taken into custody for driving with a revoked
license.
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[¶4.] Bonacker was indicted on May 20, 2010, for driving with a revoked
license. Bonacker moved to suppress the evidence and statements obtained during
the stop of his vehicle on the basis that, under the Fourth Amendment, the stop
should have ended after Trooper Kurtz confirmed that he did not fail to dim his
headlights. The magistrate court conducted a hearing on the motion to suppress
and later entered findings of fact, conclusions of law, and an order denying the
motion.
[¶5.] Bonacker’s court trial was conducted in magistrate court on December
3, 2010. The magistrate court found Bonacker guilty and sentenced him to ninety
days in the county jail with eighty-five days suspended and a fine of $200 plus costs.
Bonacker appealed his conviction to circuit court arguing that the magistrate court
erred in denying his motion to suppress. After briefing, the circuit court entered a
memorandum decision along with findings of fact and conclusions of law affirming
Bonacker’s conviction, including the magistrate court’s decision on Bonacker’s
motion to suppress evidence. Bonacker now appeals to this Court.
Issue
[¶6.] Whether Bonacker’s federal and state constitutional rights
were violated when he was detained by law enforcement after
it was determined that there was no longer any articulable
suspicion of criminal activity.
[¶7.] Bonacker argues that Trooper Kurtz violated the prohibitions against
unreasonable search and seizure in both the United States and South Dakota
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Constitutions1 by continuing to detain him and by requesting his driver’s license
after he demonstrated his headlights and Kurtz knew that no violation had
occurred. Bonacker asserts that once Kurtz knew that no violation had occurred,
his basis for detaining him dissipated and he should have been allowed to leave.
Therefore, Bonacker contends Kurtz’s request for his driver’s license was an
unconstitutional detention that took longer than necessary to effectuate the purpose
of the stop and that it violated his rights under the federal and state constitutions.
Bonacker submits that the evidence from the unlawful detention should have been
suppressed and that, because it was not, his conviction must be reversed.
Standard of Review
[¶8.] This Court outlined the general standards of review applicable to
motions to suppress evidence in a similar case in State v. Overbey:
“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). We review the
trial court’s findings of fact under the clearly erroneous standard
and give no deference to its conclusions of law. Id. (citing State
v. Haar, 2009 S.D. 79, ¶ 12,
772 N.W.2d 157, 162). As this Court
has often noted,
this court’s function under the clearly erroneous standard
is to determine whether the decision of the lower court
lacks the support of substantial evidence, evolves from an
erroneous view of the applicable law or whether,
considering the entire record, we are left with a definite
and firm conviction that a mistake has been made. In
making this determination, we review the evidence in a
light most favorable to the trial court’s decision.
1. See U.S. Const. amend. IV; S.D. Const. art. VI, § 11.
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In re H.L.S., 2009 S.D. 92, ¶ 11,
774 N.W.2d 803, 807-08
(quoting State v. Baysinger, 470 N.W.2d 840, 843 (S.D. 1991)
(internal citations omitted)).
2010 S.D. 78, ¶ 11,
790 N.W.2d 35, 40.
Analysis
[¶9.] The Fourth Amendment generally requires a warrant based upon
probable cause to support the search and seizure of a person. Id. ¶ 16, 790 N.W.2d
at 41. There is an exception to the warrant requirement for investigative
detentions based upon an officer’s “reasonable suspicion” of criminal activity.
Id.
(citing State v. DeLaRosa,
2003 S.D. 18, ¶ 7,
657 N.W.2d 683, 686 (citing Terry v.
Ohio,
392 U.S. 1, 30,
88 S. Ct. 1868, 1884,
20 L. Ed. 2d 889 (1968))). Thus, an
officer must have a ‘“specific and articulable suspicion of a violation’” of law to
support a traffic stop and observation of a minor traffic violation is sufficient. See
Overbey,
2010 S.D. 78, ¶ 16,
790 N.W.2d at 41 (citing DeLaRosa,
2003 S.D. 18, ¶ 8,
657 N.W.2d at 686 (citing State v. Cuny,
534 N.W.2d 52, 53 (S.D. 1995))). In State v.
Littlebrave, this Court further noted that the constitutional reasonableness of an
investigatory detention is judged under Terry and involves a two-part inquiry:
“[f]irst, was the stop ‘justified at its inception. . . . Second, were the officer’s actions
during the stop ‘reasonably related in scope to the circumstances which justified the
interference in the first place.’”
2009 S.D. 104, ¶ 11,
776 N.W.2d 85, 89 (quoting
Terry,
392 U.S. at 19-20,
88 S. Ct. at 1878-79).
[¶10.] As to whether the stop here was justified at inception, the trial court
concluded that Trooper Kurtz clearly had a justifiable, objective reason for stopping
Bonacker’s vehicle because he believed its headlights were on a high-beam setting
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in violation of South Dakota’s motor vehicle laws. See SDCL 32-17-7 (making
failure to dim headlights a Class 2 misdemeanor). See also State v. Akuba, 2004
S.D. 94, ¶ 15,
686 N.W.2d 406, 413 (quoting State v. Chavez,
2003 S.D. 93, ¶ 16,
668
N.W.2d 89, 95) (noting a traffic violation, however minor, creates sufficient cause to
stop the driver of a vehicle). Bonacker does not challenge this determination.
Rather, Bonacker challenges whether Kurtz’s actions were reasonably related in
scope to the circumstances justifying the stop in the first place. In that regard,
Bonacker contests the trial court’s conclusion that Kurtz lawfully requested his
driver’s license following the demonstration of the car’s headlights. Bonacker
argues that Kurtz should have let him go immediately after the demonstration
because it established no headlight violation had occurred.
[¶11.] In support of his argument, Bonacker relies on State v. Hayen,
2008
S.D. 41,
751 N.W.2d 306. In Hayen, a police officer stopped a new pickup truck
because he was unable to see the expiration date on the bottom of its temporary
thirty-day dealer’s license which was properly displayed on the rear driver’s side
window of the vehicle. A box in the back of the pickup obstructed the bottom of the
license and prevented the officer from seeing the expiration date before making the
stop. After the stop, the officer approached the pickup on the driver’s side and
walked by the license without checking the expiration date which could be easily
read at that point. Instead, the officer went directly to the driver’s window and
asked the driver for his driver’s license and proof of insurance. Only after the driver
provided these documents did the officer look at the expiration date on the dealer’s
license and find that it was valid. The officer then returned to his patrol car to run
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a warrant and driver’s license check which revealed an outstanding warrant for the
driver. The officer arrested the driver and a subsequent search of his person and
vehicle revealed methamphetamine residue and drug paraphernalia in the driver’s
coat pocket.
[¶12.] In a subsequent prosecution of the driver in Hayen for controlled
substance violations, the driver moved to suppress the evidence gained from the
search for violation of his federal and state constitutional rights against
unreasonable searches and seizures. The trial court granted the motion to suppress
and the State appealed. This Court affirmed, noting the following pertinent
limitations on investigative detentions:
“[A]n investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop.
Similarly, the investigative methods employed should be the
least intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.” State v. Ballard,
2000 S.D. 134, ¶ 11,
617 N.W.2d 837, 841 (emphasis added)
(quoting Florida v. Royer, 460 U.S. 491, 500,
103 S. Ct. 1319,
1325-26,
75 L. Ed. 2d 229, 238 (1983) (citations omitted)). We
also required that the investigation be ‘“reasonably related in
scope to the circumstances that justified the interference in the
first place.”’ Id. (quoting United States v. Bloomfield,
40 F.3d
910, 915 (8th Cir. 1994) (quoting United States v. Cummins,
920
F.2d 498, 502 (8th Cir. 1990) (quoting Terry v. Ohio,
392 U.S. 1,
20,
88 S. Ct. 1868, 1879,
20 L. Ed. 2d 889 (1968)))). We said
additionally that after the completion of the traffic investigation
“an officer must allow the driver to proceed without further
constraint. . . .”
Hayen, 2008 S.D. 41, ¶ 7,
751 N.W.2d at 308-09 (emphasis original).
[¶13.] Based upon these limitations, we concluded in Hayen that the officer’s
request for the driver’s license and proof of insurance exceeded the limits of a lawful
investigative stop because the officer could have satisfied his suspicions by looking
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at the dealer’s license. Had he done so, it would have been clear that no violation
had occurred or was occurring and that the officer’s reason for detaining the driver
had dissipated. Absent any further articulable suspicion of criminal activity, we
held the officer’s extended detention of the driver violated the driver’s federal and
state constitutional rights. Thus, we concluded the officer’s request for the driver’s
license and proof of insurance was an unconstitutional detention and that the
evidence garnered from that detention was properly suppressed.
[¶14.] Our holding in Hayen was premised upon United States v. McSwain,
29 F.3d 558 (10th Cir. 1994), a similar case from the Tenth Circuit Court of Appeals
involving a temporary registration sticker. McSwain and Hayen are part of a class
of cases collectively analyzed in 4 Wayne R. LaFave & David C. Baum, Search and
Seizure § 9.3(c) n. 95 (4th ed. 2004) where it is noted:
The importance of the violation of law to the authority to run a
check on a license and registration is illustrated by those cases
holding that if there is a stopping on either reasonable suspicion
or probable cause of a traffic violation which is determined
immediately after the stop not to have been a violation at all, the
officer may not continue the detention for a license/registration
check.
Id. (emphasis added).
[¶15.] A review of the cases cited in support of this point in LaFave, supra,
reveals that almost all of them involve a stop for some sort of license plate violation
where the objective information readily available to the officer immediately after
the stop and before the officer even approached the driver dispelled, or should have
dispelled, the reasonable suspicion of a violation of law that provided the basis for
the stop. See United States v. Wilkinson, 633 F.3d 938 (10th Cir. 2011) (where the
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vehicle was stopped because an officer saw its license plate tag unlawfully covered
in plastic and it was argued the officer should have verified the validity of the tag
and let the driver go); United States v. Pena-Montes, 589 F.3d 1048 (10th Cir. 2009)
(where the vehicle was stopped for lack of a license plate, but, after pulling the
vehicle over, the officer observed a dealer tag); United States v. Jenkins,
452 F.3d
207 (2d Cir. 2006) (where the vehicle was stopped for lack of a license plate, but on
approaching the vehicle, the officer noticed a temporary plate on the rear of the
vehicle); United States v. Edgerton,
438 F.3d 1043 (10th Cir. 2006) (where the
vehicle was stopped because it had no rear license plate and the temporary
registration tag could not be read, but as the officer approached the vehicle, he
could see the tag); McSwain,
29 F.3d 558 (where the vehicle was stopped for an
obstructed registration sticker, but, on approach, the officer saw the sticker was
valid); United States v. Horn,
970 F.2d 728 (10th Cir. 1992) (where the vehicle was
stopped for lack of a front license plate, but after the stop the trooper observed a
rear plate from a state where no front plate was required); People v. Redinger,
906
P.2d 81 (Colo. 1995) (where the vehicle was stopped for lack of a license plate, but,
while walking toward the vehicle, the officer observed a valid temporary
registration plate); State v. Diaz,
850 So.2d 435 (Fla. 2003) (where the vehicle was
stopped because the officer could not read its temporary tag, but, on approaching
the vehicle, the officer could see the tag was valid); State v. Chatton,
463 N.E.2d
1237 (Ohio 1984) (where the vehicle was stopped for lack of a license plate, but, on
approaching the vehicle, the officer observed a temporary tag visible through the
rear windshield); State v. Farley,
775 P.2d 835 (Or. 1989) (where the vehicle was
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stopped for lack of a license plate, but, when approaching the vehicle, the officer
noticed a valid temporary permit posted on the windshield).
[¶16.] Even in those cases cited in LaFave, supra, where the stop did not
involve a license plate violation, objective information readily available to the officer
immediately after the stop quickly dispelled the reasonable suspicion of a violation
of law that provided the basis for the stop. See Holly v. State, 918 N.E.2d 323 (Ind.
2009) (where the vehicle was stopped because a license plate check indicated the
registered female owner had a suspended license, but on approaching the vehicle,
the officer observed a male driver); McGaughey v. State,
37 P.3d 130 (Okla. Crim.
App. 2001) (where the vehicle was stopped for having no operational taillights, but
as the officer approached the vehicle he could see louvers over the taillights and
that they were working). See also City of Fairborn v. Orrick,
550 N.E.2d 488 (Ohio
Ct. App. 1988) (where a motorcycle was stopped because the passenger was not
wearing protective eyegear, but the operator was wearing protective eyegear).
[¶17.] One circuit court has described the holding in McSwain and, by
implication, those cases like it above, as “narrow.” United States v. Kirksey,
485
F.3d 955, 957 (7th Cir. 2007). The Seventh Circuit has taken particular note that
“McSwain involved a situation where the suspicion justifying the stop was
immediately dispelled and so there was no need for any additional investigation.”
Id. (emphasis added). The Tenth Circuit has itself subsequently distinguished
McSwain as involving a situation where the officer received a “clear refutation” of
the suspicion justifying the stop. Amundsen v. Jones,
533 F.3d 1192, 1200 (10th
Cir. 2008). In Jenkins,
452 F.3d at 213 n. 7, the Second Circuit specifically noted its
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decision was premised on the assumption that the officers’ initial reasonable
suspicion was dissipated by the time they began to speak to the driver of the
vehicle. State courts have also taken note of this factor. See McGaughey, 37 P.3d at
140 (noting the entire investigation of the basis for the stop was completed before
the trooper ever interacted with the driver).
[¶18.] This is not a case in that narrow category of cases described above
where the investigating officer’s reasonable suspicion was, or should have been,
dissipated immediately after the stop or before ever approaching the driver. There
was nothing during Trooper Kurtz’s approach or even on his first contact with
Bonacker that provided him with objective information immediately dispelling his
reasonable suspicion. Kurtz observed what he reasonably suspected to be a failure
to dim headlights. There could be nothing in his observations as he pulled up
behind Bonacker’s vehicle or approached it on foot that could confirm whether
Bonacker had previously failed to dim his headlights or not. Thus, only his contact
and interaction with Bonacker and further investigation of the matter could dispel
his reasonable suspicion.2
2. In this, we distinguish this case from United States v. Bustillos-Munoz,
235
F.3d 505 (10th Cir. 2000), where a trooper was followed and passed by a
vehicle that he believed failed to dim its headlights. The trooper then
maintained his observation of the vehicle as he pursued and stopped it.
Thus, when the trooper approached the driver and the driver quickly
activated his high beams, the trooper could tell immediately that they had
not been in use and moved on to investigate the adjustment of the lights.
Here, Trooper Kurtz had to turn his patrol car around and pursue Bonacker
after observing the failure to dim. Therefore, Kurtz testified at trial that he
could not tell whether Bonacker had changed his lights before stopping his
(…continued)
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[¶19.] This Court previously set forth the principles governing the scope of
investigative detentions in Littlebrave, 2009 S.D. 104, ¶ 12,
776 N.W.2d at 89-90:
A lawful traffic stop may become unlawful “if it is prolonged
beyond the time reasonably required to complete” its purpose.
Illinois v. Caballes, 543 U.S. 405, 407,
125 S. Ct. 834, 837,
160 L.
Ed. 2d 842 (2005). “[A]n investigative detention must be
temporary and last no longer than is necessary to effectuate the
purpose of the stop. [Further], the investigative methods
employed should be the least intrusive means reasonably
available to verify or dispel the officer’s suspicion in a short
period of time.” State v. Ballard, 2000 SD 134, ¶ 11,
617 N.W.2d
837, 841 (citing Florida v. Royer,
460 U.S. 491, 500,
103 S. Ct.
1319, 1325-26,
75 L. Ed. 2d 229, 238 (1983) (citations omitted)).
However, “[a]n officer does not impermissibly expand the scope
of a traffic stop by asking the driver questions, even if the
subject of the questioning is unrelated to the original purpose of
the stop, as long as the questioning does not unduly extend the
duration of the initial, valid seizure.” State v. Akuba, 2004 S.D.
94, ¶ 20,
686 N.W.2d 406, 415 (citing United States v. Ramos,
42
F.3d 1160, 1165 (8th Cir. 1994) (Beam, J., concurring)); United
States v. Shabazz, 993 F.2d 431, 437 (5th Cir.1993). Further, “a
reasonable investigation of a traffic stop may include”
questioning on “subjects like place of origination, destination,
employment and the purpose of the trip.” Akuba, 2004 S.D. 94, ¶
20, 686 N.W.2d at 415 (citing Ramos,
42 F.3d at 1161). An
“officer’s request to examine a driver’s license and vehicle
registration or rental papers during a traffic stop and to run a
computer check on both ... are [also] within the scope of
investigation attendant to the traffic stop.” United States v.
Brigham, 382 F.3d 500, 508 (5th Cir.2004) (citations omitted).
These questions “may efficiently determine whether a traffic
violation has taken place, and if so, whether a citation or
warning should be issued or an arrest made.” Id. For the same
reasons, “an officer may undertake similar questioning of other
vehicle occupants to verify information provided by the driver.”
United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000) (citation
omitted). “If complications arise during these routine tasks, the
vehicle may reasonably be detained ‘for a longer duration than
___________________
(…continued)
vehicle or whether the lights were the same or different than when Kurtz
first saw the vehicle.
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when a stop is strictly routine.’” United States v. Peralez, 526
F.3d 1115, 1119 (8th Cir. 2008) (citing United States v. Olivera–
Mendez, 484 F.3d 505, 510 (8th Cir.2007)).3
(Emphasis added). Accord State v. Sound Sleeper,
2010 S.D. 71, ¶ 19,
787 N.W.2d
787, 792.
[¶20.] In carrying out his investigation here, Trooper Kurtz approached
Bonacker’s vehicle within forty-one seconds of having turned on his red lights.
Kurtz immediately greeted Bonacker and explained he stopped his vehicle because
Bonacker failed to dim his headlights. Bonacker indicated the lights were on their
low-beam setting. His companion, the owner of the vehicle, volunteered that she
had experienced problems in the past with other drivers flashing their headlights at
her as a signal to dim her lights when they were already at their low-beam setting.
At the same time, Bonacker demonstrated the lights’ high- and low-beam settings
by flashing them against a nearby building. At that point, approximately fifty-four
seconds after the stop, Kurtz commented, “O.K., they’re really bright huh?” Kurtz
then asked Bonacker if he had his driver’s license on him. Bonacker replied fifty-
seven seconds after the stop that he did not have one. Thus, the entire duration of
the stop from Kurtz’s activation of his red lights to Bonacker’s admission that he did
not have a driver’s license was less than one minute.
3. We further noted in Littlebrave that, ‘“[c]omputerized license and registration
checks are an efficient means to investigate the status of a driver and his
auto, but they need not be pursued to the exclusion of, or in particular
sequence with, other efficient means.’” 2009 S.D. 104, ¶ 14 n. 2, 776 N.W2d
at 90 n. 2 (quoting Brigham, 382 F.3d at 511).
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[¶21.] This brief detention reflects nothing but a routine traffic stop and
request for a driver’s license with only those questions, if they are even
denominated such, necessary to follow up on the reason for the stop. The
“questioning” did not amount to a minute in time and clearly did not
“unconstitutionally prolong the detention ‘beyond the time reasonably required to
complete’ its purpose.” Littlebrave, 2009 S.D. 104, ¶ 14,
776 N.W.2d at 90 (quoting
Caballes,
543 U.S. at 407,
125 S. Ct. at 837). Moreover, under the settled law of
this Court as set forth above, the request for the driver’s license was within the
proper ‘“scope of the investigation attendant to the traffic stop.’” Littlebrave,
2009
S.D. 104, ¶ 12,
776 N.W.2d at 89 (quoting Brigham,
382 F.3d at 508). See also
United States v. Hollins,
685 F.3d 703, 706-07 (8th Cir. 2012) (noting the Eighth
Circuit has “consistently held that ‘[a] reasonable investigation following a
justifiable traffic stop may include asking for the driver’s license and registration.’”
(quoting United States v. Clayborn,
339 F.3d 700, 702 (8th Cir. 2003) (quoting
United States v. Allegree,
175 F.3d 648, 650 (8th Cir. 1999))). As recently explained
by the Eighth Circuit Court of Appeals in United States v. Roberts: “Following a
traffic stop, police officers may conduct ‘a number of routine but somewhat time-
consuming tasks related to the traffic violation, such as computerized checks of the
vehicle’s registration and the driver’s license and criminal history, and the writing
up of a citation or warning.’”
687 F.3d 1096, 1099 (8th Cir. 2012) (quoting United
States v. Munoz,
590 F.3d 916, 921 (8th Cir. 2010)).4
4. In this regard, we reject as an improper elevation of form over substance the
(…continued)
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[¶22.] Bonacker relies on Trooper Kurtz’s later testimony during the
suppression hearing and at trial that, by the time he requested Bonacker’s driver’s
license, he was satisfied with Bonacker’s explanation for the headlights and that he
only asked for the license to check its validity. Thus, Bonacker contends under the
authorities previously cited that Kurtz should have let him go and not asked him
for his license. However, “[w]hether 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. Johnson, 2011 S.D. 10,
¶ 5,
795 N.W.2d 924, 926 (quoting State v. Chavez,
2003 S.D. 93, ¶ 48,
668 N.W.2d
89, 102 (Konenkamp, J., concurring)). “[W]e are not bound by a police officer’s
subjective rationale.” Littlebrave,
2009 S.D. 104, ¶ 18,
776 N.W.2d at 92 (quoting
Chavez,
2003 S.D. 93, ¶ 49,
668 N.W.2d at 103 (Konenkamp, J., concurring)). In
___________________
(…continued)
suggestion of Bonacker’s counsel during oral argument that Trooper Kurtz
should have requested the driver’s license first, before any other statement or
question, and that, had he done so, there would be no issue here. As noted,
this Court has stated the license check need not be pursued in a particular
sequence during the investigation. See Littlebrave, 2009 S.D. 104, ¶ 14 n. 2,
776 N.W.2d at 90 n. 2. While we have cautioned that the check may not be
delayed “for the sole purpose of prolonging the detention so as to justify
additional questioning,” that did not occur here where the request for the
license was promptly made in conjunction with the investigation. Id.
Finally, this Court has previously indicated it will not take issue with an
officer’s manner of approaching a vehicle and that an officer, “must be able to
use his judgment to determine the safest manner in which to approach a
stopped vehicle” to ‘“exercise unquestioned command of the situation.”’
Sound Sleeper, 2010 S.D. 71, ¶ 20,
787 N.W.2d at 792 (quoting Brendlin v.
California, 551 U.S. 249, 258,
127 S. Ct. 2400, 2407,
168 L. Ed. 2d 132
(2007)). Trooper Kurtz testified here that it was his usual practice to explain
the reason for the stop at the outset to put the driver at ease as to the reason
for the stop and license request and we find this testimony from a seven year
veteran of the Highway Patrol to be both logical and persuasive.
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this review, we look to the salient facts known to the officer at the time. See
Johnson, 2011 S.D. 10, ¶¶ 8-12,
795 N.W.2d at 926-27. “It is our duty to make our
own legal assessment of the evidence to decide under the Fourth Amendment
whether the officer’s actions were ‘objectively reasonable.’” Littlebrave,
2009 S.D.
104, ¶ 18,
776 N.W.2d at 92 (quoting Chavez,
2003 S.D. 93, ¶ 49,
668 N.W.2d at 103
(Konenkamp, J., concurring)).
[¶23.] Here, at the time he requested Bonacker’s driver’s license, Trooper
Kurtz had seen what he believed was a failure to dim violation by Bonacker, had
received an explanation for the violation from the occupants of the vehicle, had seen
a brief demonstration of the headlights while standing beside the vehicle, and had
made an ambiguous comment that the headlights were, “really bright huh?”5 With
those facts in hand, Bonacker’s investigation might reasonably have followed any
one of several possible paths forward: he might have completely disbelieved the
tendered explanation and demonstration and issued a citation for the violation; he
might have issued a warning ticket for the violation; he might have sought a more
extensive demonstration of the headlights while looking directly at the front of the
vehicle; or he might have accepted the explanation and demonstration already
provided and allowed the vehicle to go on its way. Additionally, Kurtz might have
investigated for a violation of SDCL 32-17-5 prohibiting headlights from projecting
5. We cannot ascertain whether Kurtz’s comment was referring to brightness at
high-beam or low-beam or whether Kurtz was simply responding to the
occupants’ explanation of past problems with the vehicle’s bright headlights.
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a “glaring or dazzling light” and making that offense a Class 2 misdemeanor.6 See
e.g. Bustillos-Munoz, 235 F.3d 505, 513-14 (where after resolving a vehicle stop for
failure to dim headlights the trooper proceeded to investigate the alignment of the
headlights as regulated by a different statute and, during that investigation,
requested the operator’s driver’s license). That Kurtz later testified and denied any
intention to cite Bonacker for a violation of SDCL 32-17-5 makes no difference. See
State v. Vento,
1999 S.D. 158,
604 N.W.2d 468 (upholding on objective grounds an
investigative detention and request for a driver’s license for violation of a statute
governing display of license plates where the arresting officer testified that he
believed the license plate was properly displayed).7 Again, we are not governed by
6. Although Bonacker was stopped for a violation of SDCL 32-17-7 making
failure to dim headlights a Class 2 misdemeanor, SDCL 32-17-5 regulates the
adjustment and brightness of headlights and prohibits them from projecting,
“a glaring or dazzling light to persons in front of such [headlights].” Violation
of this provision is also a Class 2 misdemeanor. Id.
7. In Vento, an officer stopped a vehicle for failure to display a front license
plate. After the stop, the officer saw the license plate lying flat in the front
windshield on the passenger side of the vehicle. Nevertheless, the officer
asked the driver for his driver’s license, learned it was revoked, and arrested
the driver for driving under revocation. During the ensuing prosecution, the
trial court granted a motion to suppress the evidence obtained after the
officer saw the license plate because his reasonable suspicion dissipated at
that point. The State appealed and this Court reversed, holding that despite
testimony from the officer conveying his subjective belief that the license
plate had been properly displayed, the officer was “objectively justified” in
continuing to detain the driver after seeing the plate displayed in a manner
that was in violation of the statute. Vento, 1999 S.D. 158, ¶ 11,
604 N.W.2d
at 470. As authority for our position in Vento, we relied primarily on Whren
v. United States, 517 U.S. 806, 813,
116 S. Ct. 1769, 1774,
135 L. Ed. 2d 89,
98 (1996) holding that, “[s]ubjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.”
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the officer’s subjective rationale. See Littlebrave, 2009 S.D. 104, ¶ 18,
776 N.W.2d
at 92.
[¶24.] Finally, even if Kurtz was subjectively satisfied with the occupants’
explanation and the demonstration of Bonacker’s headlights, he never conveyed
that satisfaction beyond his ambiguous comment that, “they’re really bright huh?”
Certainly he never conveyed to Bonacker at any time prior to requesting his driver’s
license that the investigation was complete and that Bonacker was free to leave. If
he had, we might well be confronted with a different situation here. See, e.g.,
Ballard,
2000 S.D. 134,
617 N.W.2d 837 (holding an officer’s continued detention of
a driver for use of a drug dog after the officer’s issuance of a warning citation and
advisement to the driver that she was “free to leave” was impermissible under the
Fourth Amendment).8 See also Roberts,
687 F.3d at 1099 (noting that, “once the
officer decides to let a routine traffic offender depart with a ticket, a warning or an
all clear – a point in time determined, like other Fourth Amendment inquiries, by
8. Ballard was premised upon State v. Durke,
1999 S.D. 39,
593 N.W.2d 407.
During oral argument, there was a suggestion that affirmance of the
conviction here would necessitate abrogation or modification of Durke. That
is not the case. In Durke, a trooper stopped a group of seven motorcyclists
because, under South Dakota law, the handlebars were too high on four of
the motorcycles. Although the motorcyclists were told they could leave once
their motorcycles were in compliance with South Dakota law, it was not made
clear to the three cyclists whose motorcycles were already in compliance that
they were free to go. Instead, they remained on the scene and were subjected
to a group search that resulted in their prosecution for various controlled
substance and concealed weapon offenses. We ultimately affirmed the trial
court’s suppression of evidence related to the three cyclists, holding they were
detained after the purpose of the investigatory stop had ended as to them.
That is not the case here where Trooper Kurtz had not yet completed the
purpose of the investigatory stop when Bonacker admitted he had no driver’s
license.
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objective indicia of the officer’s intent – then the Fourth Amendment applies to limit
any subsequent detention or search.” (quoting United States v. $404,905.00 in U.S.
Currency, 182 F.3d 643, 648 (8th Cir. 1999))).
Conclusion
[¶25.] We hold that when Trooper Kurtz requested Bonacker’s driver’s
license, Kurtz had not yet completed his investigation of the failure to dim offense
and, therefore, his request for the license was within the scope of the investigation
attendant to the traffic stop. Littlebrave, 2009 S.D. 104, ¶ 12,
776 N.W.2d at 89.
Bonacker’s admission at that point that he did not have a driver’s license provided
reasonable suspicion that he was driving without a valid license. See Sound
Sleeper,
2010 S.D. 71, ¶ 25,
787 N.W.2d at 794. This provided additional reasonable
suspicion to further extend the investigation in order to resolve the issue over the
status of Bonacker’s license. See Littlebrave,
2009 S.D. 104, ¶ 16,
776 N.W.2d at 91.
Thus, “further reasonable suspicion, supported by articulable facts, emerged”
during the stop “making the duration of [the] stop reasonable.”
Id. (quoting
Brigham,
382 F.3d at 507).
[¶26.] Based upon the foregoing, we find no violation of Bonacker’s federal or
state constitutional rights against unreasonable searches and seizures.
Accordingly, suppression of the evidence seized during the stop of Bonacker’s
vehicle was unwarranted and there was no error by the circuit court or magistrate
court in their rulings in this regard.
[¶27.] Affirmed.
[¶28.] ZINTER, SEVERSON, and WILBUR, Justices, concur.
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[¶29.] KONENKAMP, Justice, concurs in result.
KONENKAMP, Justice (concurring in result).
[¶30.] I concur with the Court’s holding that Trooper Kurtz was entitled to
ask Bonacker for his driver’s license, even after the trooper learned from Bonacker
that the original reason for stopping the car was mistaken. To investigate the
headlight violation, the trooper first had to talk with the driver. It should make no
difference if during the stop the trooper had inquired about the headlights either
before or after asking to see Bonacker’s driver’s license. As the Court points out,
during a lawful stop, within a reasonable time, investigating officers are not
required to carry out their procedures in any particular order. To require otherwise
would transform investigative stops into roadside rituals.
[¶31.] Where I differ with the Court is in its speculation about what the
trooper could have done, might have believed, and may have investigated. Our
function restricts us to determining whether a challenged seizure fell within
constitutional and statutory limits. We should abstain from deciding the propriety
of law enforcement actions not before us. Producing a driver’s license is a routine
part of any traffic stop, and drivers are required by law to have it in their
possession and display it on “demand of a . . . peace officer.” SDCL 32-12-39. It is
enough, therefore, to declare that the trooper’s timely request to see a driver’s
license was within the scope of a lawful stop and “‘strictly tied to and justified by’
the circumstances which rendered its initiation permissible.” See Florida v. Royer,
460 U.S. 491, 500,
103 S. Ct. 1319, 1325,
75 L. Ed. 2d 229 (1983) (quoting Terry v.
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Ohio, 392 U.S. 1, 19,
88 S. Ct. 1868, 1877,
20 L. Ed. 2d 889 (1968)) (additional
citation omitted).
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