State v. Iversen

#24960-a-PER CURIAM

2009 SD 48

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JAMES MICHAEL IVERSEN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT
LAKE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE TIM D. TUCKER
Judge

* * * *

LAWRENCE E. LONG
Attorney General

SHERRI SUNDEM WALD
Deputy Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

MANUEL J. de CASTRO, JR. Attorney for defendant
Madison, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON MARCH 23, 2009

OPINION FILED 06/24/09
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PER CURIAM

[¶1.] James Iversen appeals his conviction for driving or control of a vehicle

with a prohibited blood alcohol level. We affirm.

FACTS

[¶2.] At approximately 1:30 on the morning of January 5, 2008, a police

officer patrolling in the City of Madison passed by the parking lot of an agricultural

supply store. Behind an old gas station in the parking lot, the officer observed a

Ford pickup parked beside a semi trailer. The lights of the pickup were off and the

engine was running. Because of the early-morning hour and a history of battery

thefts in the area, the officer became concerned and pulled into the parking lot. The

officer then focused his patrol car’s spotlight on the pickup and exited his vehicle to

make contact with the pickup’s driver and passenger.

[¶3.] As the officer approached the pickup, the driver rolled his window

down. The officer immediately smelled the odor of an alcoholic beverage coming

from the pickup and observed that the driver had bloodshot, glassy eyes and that

his face was flushed. When the officer asked the driver what he and his passenger

were doing the driver replied that they were just talking. After some other small

talk, the officer asked the driver for his driver’s license which the driver gave to the

officer. The officer identified the driver as Iversen and, because of the odor of

alcoholic beverages and other indications of consumption, asked Iversen to come

back to his patrol car. The officer eventually had Iversen perform a series of field

sobriety tests and, based upon the results and his earlier observations, placed

Iversen under arrest for driving under the influence of alcohol.
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[¶4.] After the arrest, the officer read Iversen the Miranda warnings and

Iversen agreed to answer questions. Iversen admitted to consuming a number of

beers at a local bar and that after leaving that establishment he and his companion

had driven to the parking lot where the officer found them conversing. After these

admissions, the officer transported Iversen to a local hospital for a blood draw.

Testing later established Iversen’s blood alcohol level was .153% by weight of

alcohol in the blood.

[¶5.] The State charged Iversen with alternative counts of driving or control

of a vehicle with a prohibited blood alcohol level and driving or control of a vehicle

while under the influence of an alcoholic beverage. Before trial, Iversen moved to

suppress the evidence obtained during his encounter with the police officer arguing

it was the product of an unconstitutional stop, seizure and arrest. After an

evidentiary hearing, the trial court entered findings of fact, conclusions of law and

an order denying the motion to suppress. Iversen petitioned for an intermediate

appeal of the order, which this Court denied.

[¶6.] Iversen waived a jury trial and his case was tried to the court on July

3, 2008. During trial, Iversen renewed his evidentiary objections, which were again

overruled. At the close of trial, the court found Iversen guilty of driving or control of

a vehicle with a prohibited blood alcohol level. Iversen was sentenced on July 21,

2008, to thirty days in jail plus fines and costs totaling $500. The jail time was

suspended on various terms and conditions and was stayed for purposes of appeal.

Iversen now appeals to this Court.

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ISSUE

[¶7.] Whether the trial court erred in denying Iversen’s motion to
suppress.

Our review of a motion to suppress based on an alleged
violation of a constitutionally protected right is a question
of law examined de novo. See State v. Hirning, 1999 SD
53, ¶ 9, 592 NW2d 600, 603; Ornelas v. United States, 517
US 690, 699, 116 SCt 1657, 1663, 134 LEd2d 911 (1996)
(standard of review for questions under the Fourth
Amendment); United States v. Khan, 993 F2d 1368, 1375
(9thCir 1993). We review findings of fact under the
clearly erroneous standard. See State v. Almond, 511
NW2d 572, 573-74 (SD 1994). Once the facts have been
determined, however, the application of a legal standard
to those facts is a question of law reviewed de novo.
Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580
NW2d 606, 610.

State v. Sheehy, 2001 SD 130, ¶ 6, 636 NW2d 451, 452.

[¶8.] Iversen argues that the trial court erred in denying his motion to

suppress because the evidence against him was obtained as a result of an

unconstitutional vehicle stop. In support of his argument, Iversen relies on a line of

cases addressing the legality of vehicle stops. See, e.g., State v. Noteboom, 2008 SD

114, ¶ 3, 758 NW2d 457, 458 (police chief approached defendant’s vehicle from

behind and initiated a traffic stop); State v. Bergee, 2008 SD 67, ¶ 5, 753 NW2d 911,

912 (police officer stopped defendant’s vehicle before it could leave a parking lot).

However, as pointed out by the trial court in its analysis of this case, “the

significant issue [here] is that there was no stop, the vehicle was already stopped.”

[¶9.] The trial court’s analysis correctly recognized that not every encounter

between a citizen and the police constitutes a Fourth Amendment seizure. See

Terry v. Ohio, 392 US 1, 19 n16, 88 SCt 1868, 1879, 20 LEd2d 889 (1968)

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(stating that “not all personal intercourse between policemen and citizens involves

‘seizures’ of persons”); United States v. Mendenhall, 446 US 544, 554, 100 SCt 1870,

1877, 64 LEd2d 497 (1980) (plurality) (Stewart, J.)) (stating that “characterizing

every street encounter between a citizen and the police as a ‘seizure’ [would not

enhance] any interest secured by the Fourth Amendment”).

[¶10.] “Only when [an] officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen may [a court conclude]

that a ‘seizure’ has occurred.” See Terry, 392 US at 19 n16, 88 SCt at 1879, 20

LEd2d 889. This standard is met when law enforcement stops a vehicle,

necessitating a reasonable suspicion of criminal activity to support the stop. See

Noteboom, 2008 SD 114, ¶ 6, 758 NW2d at 459 (quoting United States v. Arvizu,

534 US 266, 273-74, 122 SCt 744, 750-51, 151 LEd2d 740 (2002)) (stating that

Fourth Amendment protections extend to brief investigatory stops of vehicles and

that the amendment is satisfied if the officer’s action is supported by a reasonable

suspicion to believe criminal activity is afoot); Bergee, 2008 SD 67, ¶ 10, 753 NW2d

at 914 (stating that brief investigatory traffic stops are permitted when based on an

objectively reasonable and articulable suspicion that criminal activity is occurring).

Here, however, as recognized by the trial court, there was no vehicle stop; the

vehicle was already stopped. The only prior South Dakota case cited by the parties

that addresses the legality of a law enforcement encounter with the driver of a

vehicle already stopped is State v. Sheehy, 2001 SD 130, 636 NW2d 451.

[¶11.] In Sheehy, a conservation officer received an anonymous tip about a

game violation. The tipster provided Sheehy’s location and the license number of

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his vehicle. The officer drove to the location given and found a vehicle registered to

Sheehy parked in a parking lot. Soon, the officer observed a man place some items

into the vehicle. The officer approached the man and learned that he was, in fact,

Sheehy. The officer asked to see Sheehy’s game and Sheehy led the officer into a

nearby restaurant where the game was being kept in some coolers. The ensuing

investigation led to Sheehy’s conviction for a game violation.

[¶12.] On appeal, Sheehy argued that the questioning by the officer in the

parking lot was an impermissible stop because the anonymous tip was not reliable.

This Court held that the initial questioning of Sheehy by the officer was not a

seizure under the Fourth Amendment because Sheehy was never told that he was

not free to leave nor did the officer frisk or “pat-down” Sheehy at any time prior to

arrest. Sheehy, 2001 SD 130, ¶ 8, 636 NW2d at 453. The Court went on to observe

that it is “imperative” for police to conduct routine investigations and question

people in public areas and that investigative questions do not translate into a

constitutional infringement without a threat of police detention. Id. ¶ 9. In support

of its observations, the Court quoted the following analysis from Florida v. Bostick,

501 US 429, 433, 111 SCt 2382, 2385, 115 LEd2d 389, 398 (1991):

Our cases make it clear that a seizure does not occur
simply because a police officer approaches an individual
and asks a few questions. So long as a reasonable person
would feel free “to disregard the police and go about his
business, the encounter is consensual and no reasonable
suspicion is required.” The encounter will not trigger
Fourth Amendment scrutiny unless it loses its consensual
nature. The Court made precisely this point in Terry v.
Ohio, 392 US 1, 19, n16, 88 SCt 1868, 1879, 20 LEd2d
889, n16 (1968): “Obviously, not all personal intercourse
between policemen and citizens involves ‘seizures’ of
persons. Only when the officer, by means of physical force

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or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a ‘seizure’ has
occurred.”

[¶13.] Reasoning similar to that employed in Sheehy has been applied in

cases even more analogous to Iversen’s. In United States v. Barry, 394 F3d 1070

(8thCir 2005), a police officer on patrol at approximately 11:00 p.m. noticed a

parked vehicle’s headlights in an alley behind a shopping mall. Because of the late

hour and a history of crime in the area, the officer drove into the mall’s parking lot

and the parked vehicle’s headlights went out. The officer proceeded into the alley

and parked his marked cruiser fifteen feet to fifteen yards in front of the parked car.

The officer did not activate his emergency lights, but kept his cruiser’s headlights

on. The officer later explained that he took these actions “‘to find out what was

going on’ based on his ‘fear of . . . criminal activity[.]’” Id. at 1072.

[¶14.] When the police officer exited his cruiser, he noticed two individuals

who had been standing outside the parked vehicle get into the vehicle and also saw

its headlights come back on. As the officer approached the vehicle, he shined his

flashlight on his uniform and kept his hand on his holstered gun. The officer twice

knocked on the passenger’s window without receiving a response. At some point the

officer noticed a mist inside the vehicle and, when he knocked on the window for a

third time, the passenger rolled it down. At that time, the officer smelled

marijuana and air freshener. The officer then determined that he had grounds to

detain the occupants, called for backup and asked the occupants to exit their

vehicle. A subsequent investigation and search of the vehicle led to federal charges

against the defendant as a felon in possession of a firearm.

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[¶15.] The district court in Barry suppressed evidence seized from the vehicle

on the basis that the police officer lacked reasonable suspicion for the stop and

because the stop was invalid from its inception. The Eighth Circuit reversed

holding that the initial encounter between the officer and the defendant and his

companion did not constitute a detention implicating the Fourth Amendment. In its

reasoning, the court identified the test for determining when an encounter between

a police officer and a citizen constitutes a Fourth Amendment detention or seizure

as, “‘whether, taking into account all of the circumstances surrounding the

encounter, the police conduct would “have communicated to a reasonable person

that he was not at liberty to ignore the police presence and go about his business.”’”

Barry, 394 F3d at 1074-75 (quoting Bostick, 501 US at 437, 111 SCt at 2387).

[¶16.] Applying Bostick to the facts in Barry, the court concluded that the

defendant was not seized until the officer asked him to exit the vehicle and that, by

that time, the officer had a reasonable suspicion to detain the defendant to

investigate possible wrongdoing. In reaching its conclusion, the court held that the

officer’s conduct in approaching the defendant’s parked vehicle and knocking on the

window was not sufficient to warrant a reasonable belief by the defendant that he

was not at liberty to ignore the officer’s presence and go about his business. The

court further reasoned that, up to the point where the passenger rolled down his

window, all that had occurred was that the officer had driven his marked cruiser

into the alley to see why a vehicle with its headlights on was parked in the alley at

11:18 p.m. when all of the nearby stores were closed. Finally, the court observed:

Up to the point when [the officer] saw a mist inside the
vehicle and smelled marijuana and air freshener, [the

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officer] exhibited no show of authority, that is, he never
raised his voice, he never drew his holstered weapon, he
never activated his emergency lights, and he never
ordered [the defendant] to exit his vehicle. [The officer]
had merely approached a parked vehicle, which the
Fourth Amendment permits. [The defendant] had simply
encountered a police officer in a public place. No
reasonable person would have believed he was seized at
that point.

Barry, 394 F3d at 1075.

[¶17.] There is no factor of significance to distinguish this case from Barry.

As in Barry, at a late-night hour the officer here observed a motor vehicle parked in

the parking lot of a retail store with its engine running. The vehicle was not parked

in a place where the officer would normally expect to see a vehicle parked at that

hour. There was also a history of criminal activity in the area.* Because of the late

hour and concerns over possible criminal activity, the officer pulled into the parking

lot to see who the occupants of the vehicle were and what they were doing. The

officer pulled in close behind the vehicle, within half a car length or so, and

illuminated it with the headlights and spotlight of his patrol car. However, no other

lights, including emergency lights, were activated by the officer. Moreover, despite

the closeness of the patrol car to the other vehicle, there is nothing in the record

showing the patrol car interfered with the other vehicle’s egress so that it could not

be driven away if the driver so desired.

* Iversen makes much of the fact that it had been at least a year since prior
criminal activity in or near the parking lot. In this vein, it is notable that
Barry makes no reference to the time of the prior criminal activity, only that
it had occurred. See Barry, 394 F3d at 1072 (stating, “This general area had
experienced some crime in the past, and several retail stores were
burglarized at night.”).
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[¶18.] The officer exited his patrol car and approached the other vehicle in

uniform. The officer exhibited no other show of authority. There is no evidence that

he raised his voice or drew or even touched his weapon. There is no evidence that

he pointed at his badge. There is no evidence that he informed the occupants of the

other vehicle that they were not free to leave. There is no evidence that he

instructed the occupants to get out of their car. On arriving at the driver’s door of

the other vehicle, the driver quickly rolled his window down without any instruction

from, or repeated knocking by, the officer. When the window was open, the officer

immediately smelled the odor of an alcoholic beverage and made additional

observations of the driver suggesting that he may have been consuming alcoholic

beverages. From that point forward, just as with the odor of marijuana in Barry,

there was a reasonable suspicion for the officer to detain Iversen to investigate

possible wrongdoing.

[¶19.] Based upon the foregoing, the officer’s conduct in approaching

Iversen’s parked vehicle and speaking to Iversen was not sufficient to warrant a

reasonable belief by Iversen that he was not at liberty to ignore the officer’s

presence and go about his business. Up to the point where Iversen rolled down his

window, all that had occurred was that the officer had driven his marked patrol car

into the parking lot to see why a running vehicle with its headlights off was parked

in a business parking lot at 1:30 a.m. The officer merely approached a parked

vehicle, which the Fourth Amendment permits, and Iversen simply encountered a

police officer in a public place. This conclusion is in accord with that reached by

other courts in analyzing similar factual scenarios. See, e.g., People v. Paynter, 955

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P2d 68 (Colo 1998) (finding no Fourth Amendment seizure in an officer’s late-night

encounter with the driver of a vehicle legally parked on a city street over two blocks

from the nearest commercial establishment still open for business); Overig v.

Commissioner of Public Safety, 730 NW2d 789 (MinnCtApp 2007) (finding no

Fourth Amendment seizure in an officer’s encounter with the driver of the only

vehicle parked in a ballroom parking lot in the middle of the night); State v.

Gahner, 554 NW2d 818 (ND 1996) (finding no Fourth Amendment seizure in an

officer’s encounter with the driver of the lone car stopped in the parking lot of a sale

barn in the middle of the night).

[¶20.] It follows from the above reasoning that the trial court did not err in

denying Iversen’s motion to suppress evidence.

[¶21.] Affirmed.

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

MEIERHENRY, Justices, and SABERS, Retired Justice, participating.

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