Graf v. State, Department of Commerce & Regulation

508 N.W.2d 1, 1993 S.D. LEXIS 146, 1993 WL 473699
CourtSouth Dakota Supreme Court
DecidedNovember 17, 1993
Docket18049
StatusPublished
Cited by13 cases

This text of 508 N.W.2d 1 (Graf v. State, Department of Commerce & Regulation) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graf v. State, Department of Commerce & Regulation, 508 N.W.2d 1, 1993 S.D. LEXIS 146, 1993 WL 473699 (S.D. 1993).

Opinions

WUEST, Justice (on reassignment)

Dale William Graf (Graf) appeals from a judgment revoking his driver’s license for one year. We reverse.

FACTS

At 7:00 p.m. on January 17, 1992, Sioux Falls Police Officer Gregory Schmit (Officer Schmit) received a radio dispatch that an anonymous citizen reported a possible drunk driver in a large brown car with license “1E3312” travelling west on 10th Street. The dispatch advised Officer Schmit that a computer check indicated that Graf, who resided at 1608 West 39th Street, was the registered owner of the vehicle.

Officer Schmit proceeded to the area of Grafs residence. After waiting at the corner of 39th Street and Lake for thirty-four minutes, Officer Schmit saw Graf turn in front of him. He followed Grafs vehicle to the Graf residence a half a block away. He did not observe any traffic violations or erratic driving by Graf. Officer Schmit parked his car in a position which blocked Grafs automobile in the driveway. Following sobriety testing Graf was arrested for driving under the influence of alcohol.

The Department of Commerce and Regulation revoked Grafs driver’s license because of his refusal to submit to a chemical analysis. SDCL 32-23-11. Following a trial de novo the circuit court concluded:

Officer Schmit had a reasonable suspicion to stop the vehicle driven by Dale W. Graf because he had received a call from dispatch that the driver may be under the influence, and the stop was not the product of mere whim or idle curiosity, but was the product of specific and articulable facts [2]*2which, when taken together with rational inferences from those facts reasonably warranted the intrusion, State v. Kissner, 390 N.W.2d 58 (S.D.1986).

ISSUE

WHETHER THE INFORMATION PROVIDED BY AN ANONYMOUS CITIZEN WAS SUFFICIENT TO CREATE A REASONABLE SUSPICION TO JUSTIFY THE STOP?

The reasonable suspicion standard was extended to automobile stops in South Dakota in State v. Anderson, 331 N.W.2d 568 (S.D.1983). A police officer must have a specific and articulable suspicion of a violation before a stop will be justified. Id. The factual basis required to support the stop is:

[T]hat the stop be not the product of mere whim, caprice, or idle curiosity It is enough if the stop is based upon “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion[.]”

Anderson, 331 N.W.2d at 570, (quoting People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39, 44 (1975)).

The United States Supreme Court has ruled that reasonable cause for a stop need not be based upon an officer’s personal observations; the factual basis for the stop may be supplied by information acquired from another person. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See also United States v. Aldridge, 719 F.2d 368 (11th Cir.1983), and Marben v. State, Dept. of Public Safety, 294 N.W.2d 697 (Minn.1980). In addition, this court has stated that a stop may be justified even though the officer did not witness any violations. See Anderson, supra; State v. Johnson, 320 N.W.2d 142 (S.D. 1982).

State v. Kissner, 390 N.W.2d 58, 60 (S.D. 1986).

Information provided by an anonymous telephone tip may be sufficiently reliable to justify a vehicle stop. State v. Lownes, 499 N.W.2d 896, 899 (S.D.1993). The United States Supreme Court has cautioned, however:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S. at 147, 32 L.Ed.2d 612, 92 S.Ct. at 1923-24. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality■— are considered in the ‘‘totality of the circumstances — the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be 'required to establish the requisite quantum of suspicion than ivould be required if the tip were more reliable.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990) (emphasis added).

We have examined the question of whether information provided to police by an anonymous private citizen has a sufficient degree of reliability to create a reasonable suspicion of a violation and justify a vehicle stop in Kissner, 390 N.W.2d at 58, State v. Czmowski, 393 N.W.2d 72 (S.D.1986), and Lownes, 499 N.W.2d at 896.

In Kissner, a private citizen reported that the driver of a Chevrolet station wagon with Arizona license plates appeared to be driving in an intoxicated manner. The citizen also reported that the vehicle contained two males and was at a specific gas station in Pierre. A police officer observed the vehicle at the station, watched it drive away, and stopped it [3]*3within three blocks even though the officer did not observe any traffic violations. We held:

In the present case, the officer received specific information from a private citizen about a suspected violation of the law, including a description of the vehicle, its license plates, the number of occupants, and the vehicle’s location. The officer was able to verify this information when he arrived at the location. Under such circumstances, a report from a private citizen is clearly sufficient to create a reasonable suspicion of a violation; it was not neces-r sary for the officer to observe erratic driving or a traffic violation.

Kissner, 390 N.W.2d at 60.

In Czmowski

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Graf v. State, Department of Commerce & Regulation
508 N.W.2d 1 (South Dakota Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
508 N.W.2d 1, 1993 S.D. LEXIS 146, 1993 WL 473699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graf-v-state-department-of-commerce-regulation-sd-1993.