State v. Czmowski

393 N.W.2d 72

Opinions

MORGAN, Justice.

This is an intermediate appeal in a prosecution for driving while under the influence of alcohol. The state appeals from a magistrate’s order granting the defendant’s motion to suppress all evidence obtained by law enforcement officers after they stopped defendant to investigate his driving. We reverse and remand.

Late one September afternoon in 1984 the Meade County/Sturgis, South Dakota, law enforcement dispatcher received a call from an anonymous male caller reporting a possible drunk driver. The caller reported that he was at a Sturgis truck stop and that he had been following an eastbound vehicle on interstate highway 1-90, which goes through Sturgis. He described the vehicle as a white pickup and gave its license number. He stated that it was weaving all over the road and had just gone past Sturgis.

This information was immediately relayed to Trooper Oren Hindman who was also in Sturgis at the time.

Footnotes

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* Hindman radioed the port-of-entry station seven miles east of Sturgis on highway 1-90. He described the suspected vehicle, gave its license number to Harold Dodd, the port-of-entry officer there, and asked him to detain the driver.

Five minutes after Hindman reported the vehicle to Dodd, the vehicle stopped at the port-of-entry to be weighed. Dodd did not notice anything unusual about defendant’s operation of the truck. After the truck was weighed on the scales, Dodd asked defendant to park in back of the building. When defendant entered the building Dodd smelled alcohol on him and asked him to wait there for Trooper Hindman. Dodd did not notice anything else unusual about defendant, who waited until Hindman arrived. When Hindman arrived, Dodd identified defendant as the driver of the vehicle that he had been asked to detain. Hindman had defendant perform several field sobriety tests and arrested him for DUI. Hindman never observed defendant operate the vehicle.

Based on this evidence the magistrate concluded: (1) that the anonymous tip was uncorroborated, (2) that the officers had not observed anything sufficient to create a reasonable suspicion upon which they could justify a stop of defendant’s vehicle, and (3) that the tip was twice removed by hearsay from the officer who made the stop and that it could not support a reasonable suspicion. Thus, the issue is whether the anonymous tip was corroborated by evidence, other than the officers’ observations, sufficient to justify a stop under the United States Constitution, Amendment IV. No question is raised about Dodd’s authority as a law enforcement officer to make the stop. See SDCL 49-28-65 (law enforcement powers of Department of Public Safety inspectors).

An anonymous first hand tip, when it is corroborated by other details, may serve as a sufficient basis on which to uphold a stop. United States v. Aldridge, 719 F.2d 368, 371 (11th Cir.1983), citing United States v. Roper, 702 F.2d 984 (11th Cir.1983); see also United States v. Porter, 738 F.2d 622 (4th Cir.1984), cert. denied — U.S. —, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984); State v. Brock, 426 So.2d 1287 (Fla.Dist.Ct.App.1983). In Aldridge the anonymous tip received by the law enforcement authorities late at night reported “suspicious persons in or around a construction site fooling with vehicles.” The tipster, who claimed to be a tenant near the site, described the vehicle thought to be involved in this suspicious activity. The court held that these details corroborated the tip and gave rise to a reasonable suspicion sufficient to justify a stop.

The officer making a stop on the basis of a corroborated tip is not required to have independent personal knowledge of the facts to justify stopping a vehicle. See State v. Kissner, 390 N.W.2d 58 (S.D.1986). “In assessing police justifications for arrests or intrusions of a type less offensive than full arrests, we take an objective view of all the facts and may evaluate the knowledge of all the officers collectively.” Brewer v. Wolff, 529 F.2d 787, 790 (8th Cir.1976); see also United States v. Merritt, 695 F.2d 1263 (10th Cir.1982) (same principles apply to investigatory stops), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983).

The Supreme Court has rejected efforts to limit investigative stops to situations in which the officer has personally observed suspicious conduct. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Aldridge, 719 F.2d at 371.

Although the tip in this case may have been hearsay from Hindman’s and Dodd’s point of view, our objective view of the knowledge of all the officers collectively, Brewer, supra, permits us to conclude that the tip was not hearsay but was instead a first-hand report to the law enforcement dispatcher. Even if the tip could be considered hearsay, the Supreme Court in Adams, supra, rejected the contention that the hearsay rule of evidence should be used to analyze whether reasonable suspicion for a stop exists. “[T]he subleties of the hearsay rule should not thwart an appropriate police response [in making a stop].” 407 U.S. at 147, 92 S.Ct. at 1924; see also Aldridge, supra, (anonymous tip received by law enforcement agency and radioed to stopping officer). Consequently, the magistrate in this case erroneously concluded that the hearsay nature of the tip prevented it from giving the officers a reasonable suspicion upon which to stop defendant.

Viewed collectively, the anonymous first hand report that a possible drunk driver was “weaving all over the road” was corroborated by the location of the vehicle a very short time after it had been reported in Sturgis; additional corroboration was provided by the vehicle’s description, including its license plate number. These details were similar to the corroborative details reported in Aldridge, supra.

Although Dodd did not have personal knowledge of defendant’s driving, when all the facts were viewed together, they provided a specific and articulable suspicion upon which Dodd could detain defendant and Hindman could further investigate defendant’s ability to operate his vehicle. Thus the magistrate also erred as a matter of law in concluding that the tip was uncorroborated and in assuming that the officers were required to personally observe every fact before they could have reasonable suspicion to stop defendant.

Because the facts supporting the stop are viewed collectively, we find it unnecessary to consider the state’s theory that Dodd was Hindman’s agent for purposes of making the stop.

Finally, we dispose of defendant’s contention that this court should dismiss the appeal as moot because of the death of Trooper Hindman. Defendant fails to cite any authority for his proposition that Hind-man’s death makes this matter moot. This deficiency alone would give us reason to say that defendant waives the issue. State v. Shull, 331 N.W.2d 284, fn. 1 (S.D.1983); see also State v. Grooms, 359 N.W.2d 901 (S.D.1984). Perhaps no authority is cited because this claim is so patently meritless. Although Hindman’s death may present the state with evidentiary difficulties in proving its case at trial, the issues in this action certainly have not become moot.

The magistrate’s order granting the motion to suppress is reversed and the matter is remanded for further proceedings.

FOSHEIM, C.J., and WUEST, J., and HERTZ, Cir.J., acting as a Supreme Court Justice, concur. HENDERSON, J., concurs in part and dissents in part. SABERS, J., not having been a member of the court at the time this action was submitted to the court, did not participate.

We note that Trooper Hindman was the victim of a homicide in May 1985. State v. Aikins, Crim. 85-318 (Eighth Circuit Court, Lawrence County, South Dakota, 1985).