State v. Noteboom

#24665-a-JKM

2008 SD 114

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

AARON NOTEBOOM, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
DOUGLAS COUNTY, SOUTH DAKOTA

* * * *

HONORABLE BRUCE V. ANDERSON
Judge

* * * *

LAWRENCE E. LONG
Attorney General

GARY CAMPBELL
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

TIMOTHY R. WHALEN Attorney for defendant
Lake Andes, South Dakota and appellant.

* * * *
ARGUED ON SEPTEMBER 30, 2008

OPINION FILED 11/25/08
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MEIERHENRY, Justice

[¶1.] Aaron Noteboom appeals his conviction for Driving under the Influence

of Alcohol. Noteboom claims that the stop of his vehicle violated his right against

unreasonable search and seizure. We affirm.

FACTS

[¶2.] On September 24, 2006, at approximately 2:00 a.m., Deputy Sheriff

Troy Strid and Corsica Chief of Police Marty Banghart were both patrolling at

separate locations on Highway 281 in Corsica, South Dakota. Both police officers

saw automobile headlights appear and then disappear in the distance near 274th

Street on the edge of Corsica. The headlights seemed to disappear near a storage

area located on private property. Without communicating to each other, both

officers drove to the area to investigate.

[¶3.] Arriving first, Deputy Strid saw tire tracks going into the private

property from one of its two driveways. Because of recent rain, Deputy Strid

noticed that the tracks were fresh. Deputy Strid followed the tracks onto the

property. As he turned a corner, he noticed a vehicle parked behind one of the

buildings with its headlights off. Immediately, the headlights came on, and the

vehicle headed to the second driveway to return to 274th Street. The vehicle, driven

by Noteboom, turned onto the street in front of Chief Banghart, who was driving on

274th Street toward the second driveway. When Noteboom pulled onto the street,

Chief Banghart approached Noteboom’s vehicle from behind and initiated the stop.

Both officers testified that Noteboom did not violate any traffic laws or have any

vehicle violations. Deputy Strid testified he “was going to initiate a traffic stop on

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[the vehicle], to see what was going on.” Chief Banghart testified that he made the

stop because “if the vehicle was there for, for a good reason, they would still be in

there doing whatever they were doing.”

[¶4.] After making the stop, Chief Banghart observed that the driver of the

vehicle, Noteboom, was intoxicated. Chief Banghart subsequently arrested

Noteboom for Driving under the Influence of Alcohol. Noteboom moved to suppress

the evidence because the officers did not have reasonable suspicion to stop him. The

circuit court denied Noteboom’s motion and found Noteboom guilty of Driving under

the Influence of Alcohol. Noteboom appeals, raising one issue.

ISSUE

Whether the stop, detention, and subsequent search of
Noteboom and his property violated Noteboom’s constitutional
rights.

ANALYSIS

[¶5.] Noteboom contends that the officers did not have reasonable suspicion

to stop and search his vehicle, and therefore, the stop violated his constitutional

rights. “‘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.’” State v.

Hayen, 2008 SD 41, ¶5, 751 NW2d 306, 308 (quoting State v. Muller, 2005 SD 66,

¶12, 698 NW2d 285, 288). The Fourth Amendment to the United States

Constitution prohibits unreasonable searches and seizures. US Const amend IV;

US Const amend XIV; see also SD Const art VI § XI. The right to be free from

“unreasonable searches and seizures applies when a vehicle is stopped by law

enforcement.” Muller, 2005 SD 66, ¶14, 698 NW2d at 288 (citations omitted). A

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stop will, however, be permitted if the officer has “‘reasonable suspicion to believe

that criminal activity ‘may be afoot.’’” Hayen, 2008 SD 41, ¶5, 751 NW2d at 308

(quoting State v. Kenyon, 2002 SD 111, ¶14, 651 NW2d 269, 273 (citations

omitted)). To justify an automobile stop, the officer must have a “‘specific and

articulable suspicion of a violation[.]’” State v. Vento, 1999 SD 158, ¶8, 604 NW2d

468, 470 (quoting State v. Cuny, 534 NW2d 52, 53 (SD 1995)).

[¶6.] Beginning with Terry v. Ohio, the United States Supreme Court has

directed that reviewing courts should consider the “reasonableness of a particular

search or seizure in light of the particular circumstances.” 392 US 1, 21, 88 SCt

1868, 1880, 20 LEd2d 889 (1968); see United States v. Cortez, 449 US 411, 417, 101

SCt 690, 695, 66 LEd2d 621 (1981) (holding that courts must look to the “totality of

the circumstances” to determine if a stop is justified). In U.S. v. Arvizu, the Court

reiterated the totality of the circumstances analysis as follows:

The Fourth Amendment prohibits “unreasonable searches and
seizures” by the Government, and its protections extend to brief
investigatory stops of persons or vehicles that fall short of traditional
arrest. Terry, 392 US at 9, 88 SCt at 1873; Cortez, 449 US at 417, 101
SCt at 694-95, 66 LEd2d 621 (1981). Because the “balance between
the public interest and the individual’s right to personal security,”
United States v. Brignoni-Ponce, 422 US 873, 878, 95 SCt 2574, 2578-
79, 45 LEd2d 607 (1975), tilts in favor of a standard less than probable
cause in such cases, the Fourth Amendment is satisfied if the officer’s
action is supported by reasonable suspicion to believe that criminal
activity “‘may be afoot,’” United States v. Sokolow, 490 US 1, 7, 109
SCt 1581, 1585, 104 LEd2d 1 (1989) (quoting Terry, 392 US at 30, 88
SCt at 1884-85). See also Cortez, 449 US at 417, 101 SCt at 694-95
(“An investigatory stop must be justified by some objective
manifestation that the person stopped is, or is about to be, engaged in
criminal activity”).
When discussing how reviewing courts should make reasonable-
suspicion determinations, we have said repeatedly that they must look
at the “totality of the circumstances” of each case to see whether the
detaining officer has a “particularized and objective basis” for

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suspecting legal wrongdoing. See, e.g., id., at 417-18, 101 SCt at 694-
95. This process allows officers to draw on their own experience and
specialized training to make inferences from and deductions about the
cumulative information available to them that “might well elude an
untrained person.” Id. at 418, 101 SCt at 695. See also Ornelas v.
United States, 517 US 690, 699, 116 SCt 1657, 1663, 134 LEd2d 911
(1996) (reviewing court must give “due weight” to factual inferences
drawn by resident judges and local law enforcement officers).
Although an officer’s reliance on a mere “‘hunch’” is insufficient to
justify a stop, Terry, 392 US at 27, 88 SCt at 1883, the likelihood of
criminal activity need not rise to the level required for probable cause,
and it falls considerably short of satisfying a preponderance of the
evidence standard, Sokolow, 490 US at 7, 109 SCt at 1585.

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

Nevertheless, “[t]he officer, of course, must be able to articulate something more

than an “inchoate and unparticularized suspicion or ‘hunch.’”” Sokolow, 490 US at

7, 109 SCt at 1585 (citation omitted). “The Fourth Amendment requires ‘some

minimal level of objective justification’ for making the stop.” Id. (quoting INS v.

Delgado, 466 US 210, 217, 104 SCt 1758, 1763, 80 LEd2d 247 (1984)). “‘[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.’” Hayen, 2008 SD 41, ¶7, 751 NW2d at

308-09 (quoting State v. Ballard, 2000 SD 134, ¶11, 617 NW2d 837, 841 (emphasis

added)) (quoting Florida v. Royer, 460 US 491, 500, 103 SCt 1319, 1325-26, 75

LEd2d 229 (1983) (citations omitted)).

[¶7.] We recently upheld a vehicle stop in State v. Bergee under somewhat

similar circumstances. 2008 SD 67, 753 NW2d 911. In Bergee, the police were on a

late-night stakeout watching the area where eight businesses had been burglarized

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in the prior two weeks. Id. ¶¶2-3. The break-ins for six of the burglaries occurred

on the back or side of the buildings. Id. ¶2. As the police watched the area, they

spotted the defendant’s vehicle emerge from behind one of the businesses under

surveillance. Id. ¶4. One of the officers stopped the defendant to determine what

he was doing behind the closed business at that time of night. Id. ¶5. We held in

Bergee that the string of burglaries coupled with the location of the defendant’s

vehicle and the time of night provided reasonable suspicion to make an

investigatory stop. Id. ¶11.

[¶8.] In Bergee, the prior thefts and burglaries entered into the totality of

the circumstances analysis justifying the stop. In the present case, prior thefts

were not a factor even though Chief Banghart claimed he was “keep[ing] an eye on

stuff out there.” Chief Banghart testified that one of the property owners had

commented to him within the last month or two “that pieces were missing off of

vehicles they have out there.” The circuit court discounted Chief Banghart’s

testimony and found that “the officers’ testimony that theft and vandalism had been

reported by the owners of the storage area [was] not supported by the evidence.”

We defer to the circuit court’s credibility determination. Consequently, we look at

the remaining circumstances to determine if the circumstances supported

reasonable suspicion to justify the investigatory stop.

[¶9.] Noteboom argues that the officers admitted that the stop was based on

curiosity, whim or caprice. See State v. Quartier, 2008 SD 62, ¶10, 753 NW2d 885,

888 (citations omitted). Both officers admitted on cross-examination that curiosity

originally led them to investigate what had happened to the distant disappearing

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lights. Their curiosity, however, grew into suspicion when they arrived at the

location. Deputy Strid saw the fresh tracks leading into the private storage area.

He then “saw a white vehicle with no . . . lights on. And as [the vehicle] came

around the corner, the lights came on and the vehicle proceeded to leave.” Deputy

Strid then followed the vehicle as it headed back to 274th Street. He said he was

“going to initiate a traffic stop on it, to see what was going on.” Chief Banghart saw

this unfold and stopped Noteboom for the following reason: “[A]t that point because

[Deputy Strid] was still behind him, still moving, I did make the stop because you

know if, if the vehicle was there for, for a good reason, they would still be in there

doing whatever they were doing.”

[¶10.] Both officers were concerned because the vehicle had entered private

property at 2:00 a.m. for no obvious reason since the buildings on the property were

vacant and only used to restore antique tractors. The officers’ suspicions were

additionally piqued by the subsequent actions of the driver. When they first saw

the vehicle, it was parked by the storage building with its lights off. Then, the

driver suddenly turned on the lights and quickly drove off the property as Deputy

Strid’s patrol car came around the building. Such late night activity was unusual in

the small rural community of Corsica.

[¶11.] In Illinois v. Wardlow, the United States Supreme Court recognized

that flight may be one of the factors leading law enforcement to suspect criminal

activity is afoot. 528 US 119, 124, 120 SCt 673, 676, 145 LEd2d 570 (2000). In

Wardlow, the defendant fled when he saw “police officers patrolling an area known

for heavy narcotics trafficking.” Id. at 121, 120 SCt at 674. The officers ran after

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him, stopped him, and did a protective patdown search. The Court determined

that, in addition to the defendant’s presence in the high-crime area, his

“unprovoked flight upon noticing the police” raised the officers’ suspicions. Id. at

124, 120 SCt at 676. The Court analyzed it as follows:

Headlong flight – wherever it occurs – is the consummate act of
evasion: It is not necessarily indicative of wrongdoing but it is
certainly suggestive of such. In reviewing the propriety of an
officer’s conduct, courts do not have available empirical studies
dealing with inferences drawn from suspicious behaviors, and
we cannot reasonably demand scientific certainty from judges or
law enforcement officers where none exists. Thus, the
determination of reasonable suspicion must be based on
commonsense judgments and inferences about human behavior.

Id. at 124-25, 120 SCt at 676. Even though an individual has “a right to ignore the

police and go about his business,” the Court determined that “unprovoked flight”

was not “going about one’s business.” Id. at 125, 120 SCt at 676 (citations omitted).

The Court explained that officers can detain “individuals to resolve ambiguity.” Id.

at 125, 120 SCt at 677 (citations omitted).

In allowing such detentions, Terry accepts the risk that officers
may stop innocent people. Indeed, the Fourth Amendment
accepts that risk in connection with more drastic police action;
persons arrested and detained on probable cause to believe they
have committed a crime may turn out to be innocent. The Terry
stop is a far more minimal intrusion, simply allowing the officer
to briefly investigate further. If the officer does not learn facts
rising to the level of probable cause, the individual must be
allowed to go on his way.

Id. at 126, 120 SCt at 677.

[¶12.] In Noteboom’s case, the circuit court determined that “in a small rural

community where the officers are charged with the duty to protect people’s property

from theft and vandalism, such activity would require the officer to make further

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inquiry.” This was not a high crime area but, as the circuit court noted, an area

with “little crime and sparse traffic.” This contrasts with courts that have

considered a high crime area as an articulable factor in the totality of the

circumstances analysis. See United States v. Magda, 547 F2d 756 (2dCir 1976);

United States v. Garr, 461 F2d 487 (5thCir 1972); Harris v. United States, 382 A2d

1016 (DC 1978); Com. v. Almeida, 373 Mass 266, 366 NE2d 756 (1977). Although

the circuit court’s inference seems counterintuitive compared with those cases that

recognize a high crime area as a factor, we are compelled to give “due weight to

inferences drawn from those facts by resident judges and local law enforcement

officers.” Ornelas, 517 US at 699, 116 SCt at 1663.

[¶13.] The Fourth Amendment protects against unreasonable search and

seizure and requires objective reasonable suspicion to make an investigatory stop.

The circuit court determined that based on the totality of the circumstances, the

officers could “reasonably believe that criminal activity was afoot.” The circuit court

specifically relied on the following circumstances to justify the stop: 1) that Corsica

was “a small rural town with little criminal activity and sparse traffic in the early

morning hours;” 2) that 2:00 AM traffic seen in the distance would normally have

pulled out onto Highway 281, rather than disappear near a known storage area; 3)

that “in a small rural community where the officers are charged with the duty to

protect people’s property from theft and vandalism, such activity would require the

officer to make further inquiry;” and 4) that when the officers approached the

storage area, the defendant abruptly drove away. Although these circumstances

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constitute a minimal objective justification for an investigatory stop, we determine

they are reasonable under the totality of the circumstances.

[¶14.] We affirm.

[¶15.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

ZINTER, Justices, concur.

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