State v. Short Bull

#28783-a-MES
2019 S.D. 28

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

REAGAN SHORT BULL, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE JEFF W. DAVIS
Judge

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JASON R. RAVNSBORG
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

LINTON T. CLARKE, III of
Office of the Public Defender
for Pennington County
Rapid City, South Dakota Attorneys for defendant
and appellant.

****

CONSIDERED ON BRIEFS
ON APRIL 29, 2019
OPINION FILED 05/15/19
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SALTER, Justice

[¶1.] Reagan Short Bull, Jr. was convicted in magistrate court of driving

under the influence after the magistrate judge denied his motion to suppress

evidence obtained during a vehicle stop. The circuit court affirmed the magistrate’s

denial of his motion to suppress, and Short Bull appeals. We affirm.

Background

[¶2.] At approximately 3:00 a.m. on February 25, 2017, Rapid City 911

dispatch received a call from the night clerk at the Country Inn and Suites hotel in

Rapid City. The clerk relayed that she had received a call from a female in Room

315 asking for help. Believing the call to be a report of a domestic disturbance, the

clerk requested an officer’s assistance to help her investigate. After ending the call,

the clerk called dispatch back a short while later to advise that the female caller

from Room 315 was in the lobby. The female had confirmed that it was a domestic

dispute and relayed that the male was still in the room. The female then left the

hotel.

[¶3.] Officer Richard Holt, a 23-year veteran of the Rapid City Police

Department, was on patrol near the Country Inn and Suites and responded within

moments to the initial dispatch. As he was pulling into the parking lot of the hotel,

dispatch advised that the female had left the hotel and was in the parking lot with

“unknown description of vehicle or direction of travel.” Officer Holt surveyed the

front parking lot in his patrol vehicle, but he did not observe any pedestrian or

traffic movement. However, as he pulled into the rear parking lot, he encountered a

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black SUV leaving the lot. He followed the SUV around to the front parking lot and

activated his lights and siren.

[¶4.] An adult male, later identified as Reagan Short Bull, emerged from the

SUV with his keys in his hand before Officer Holt reached his vehicle. Officer Holt

approached Short Bull and asked what he was doing. Short Bull advised that he

was moving his car from the back lot to the front lot and mentioned he had been in

a fight with his girlfriend, who, it appeared, was not in the vehicle. Officer Holt

observed that Short Bull was stumbling and emitting a strong smell of intoxicants.

Short Bull confirmed to Officer Holt that he was staying in Room 315 and identified

his girlfriend by name. He then told Officer Holt he had to use the restroom, and

Officer Holt accompanied Short Bull back into the hotel.

[¶5.] Officer Britany Vogel arrived to assist Officer Holt and observed Short

Bull leaving the restroom. She noted that Short Bull was “unsteady on his feet and

stumbling” with “red blood shot eyes, slurred speech, and a strong odor of an

alcoholic beverage coming from his person.” Short Bull told Officer Vogel that he

could not complete field sobriety tests because he was intoxicated. Officer Vogel

placed Short Bull under arrest, handcuffed him, and searched him. She then

transported him to the Pennington County Jail. Short Bull consented to a blood

draw, which yielded a result of 0.264 percent alcohol by weight. He was charged

with alternative counts of driving while under the influence. See SDCL 32-23-1(1)

to (2).

[¶6.] Short Bull moved the magistrate court to suppress all evidence and

statements obtained during the stop. He claimed the stop was unreasonable under

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the Fourth Amendment because Officer Holt lacked reasonable and articulable

suspicion to initiate the stop. At the hearing on Short Bull’s motion to suppress,

Officer Holt testified that when he entered the hotel parking lot, he was “looking for

a female, possible victim or a female in distress that . . . dispatch said [had] left

the . . . building and went into the parking lot.” Officer Holt further explained that

there were no people or vehicles moving in the parking lot except the black SUV,

and he could not see inside the SUV’s tinted windows to determine if there was a

person in distress in the vehicle. Officer Holt acknowledged that he did not know

whether a crime or injury had occurred in Room 315 to cause the woman to request

help from the front desk—just that there was a disturbance. He also acknowledged

that he did not observe Short Bull driving erratically or committing traffic

violations during the short time he followed Short Bull in the hotel parking lot.

[¶7.] In its post-hearing brief, the State argued that Officer Holt had

reasonable suspicion of criminal activity to stop Short Bull’s vehicle. It also

contended the stop was justified under the community caretaker exception to the

Fourth Amendment’s warrant requirement. The magistrate judge agreed and

denied Short Bull’s motion to suppress, finding the existence of “reasonable,

articulable suspicion to detain the vehicle.” The magistrate judge also determined

that the stop was justified as a law enforcement community caretaking function and

exigent circumstances.

[¶8.] Following a bench trial on July 11, 2018, the magistrate court

convicted Short Bull of driving under the influence-first offense and sentenced him

to 90 days in jail with 90 days suspended, revoked his driver’s license for 30 days,

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and assessed court costs. See SDCL 32-23-2. Short Bull appealed his conviction to

circuit court, arguing, among other things, that Officer Holt lacked reasonable

suspicion of criminal activity and that the community caretaking exception did not

apply because the basis for the stop was “not totally divorced from the detection,

investigation, or acquisition of evidence[.]” The circuit court affirmed the

magistrate judge’s denial of Short Bull’s motion to suppress and his conviction,

stating in its oral decision that

when [Officer Holt is] aware that there’s a possible domestic
disturbance . . . in the parking lot [at] that time of morning
[when] no one else is moving other than the vehicle that Mr.
Short Bull ended up driving, I think he had a reasonable
articulable suspicion to stop that vehicle and determine if a lady
was present or not or there was something going on that
required law enforcement intervention.

[¶9.] On appeal to this court, Short Bull again challenges the denial of his

motion to suppress, but confines his argument solely to the claim that Officer Holt

lacked reasonable suspicion of criminal activity.

Analysis

[¶10.] “We review the circuit court’s grant or denial of a motion to suppress

involving an alleged violation of a constitutionally protected right under the de novo

standard of review.” State v. Kleven, 2016 S.D. 80, ¶ 7, 887 N.W.2d 740, 742

(quoting State v. Smith, 2014 S.D. 50, ¶ 14, 851 N.W.2d 719, 723). “The court’s

findings of fact are reviewed under the clearly erroneous standard, but we give no

deference to the court’s conclusions of law.” State v. Fischer, 2016 S.D. 12, ¶ 10, 875

N.W.2d 40, 44 (quoting State v. Fierro, 2014 S.D. 62, ¶ 12, 853 N.W.2d 235, 239).

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Community Caretaker Exception

[¶11.] “The Fourth Amendment to the United States Constitution and Article

VI, § 11 of the South Dakota Constitution protect individuals from unreasonable

searches and seizures.” State v. Chase, 2018 S.D. 70, ¶ 6, 919 N.W.2d 207, 209

(quoting State v. Walter, 2015 S.D. 37, ¶ 7, 864 N.W.2d 779, 782). The Fourth

Amendment’s textual reference to the issuance of “[w]arrants” has been interpreted

to state a general principle that police officers “must, whenever practicable, obtain

advance judicial approval of searches and seizures through the warrant

procedure[.]” Walter, 2015 S.D. 37, ¶ 7, 864 N.W.2d at 782 (quoting Terry v. Ohio,

392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968)). Despite this “strong

preference” for a warrant, certain exceptional warrantless searches and seizures

are, nevertheless, reasonable. See id., 2015 S.D. 37, ¶ 6, 864 N.W.2d at 781

(quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L.

Ed. 2d 911 (1996)).

[¶12.] For instance, a warrant is not required to effect a temporary seizure of

a vehicle by means of a traffic stop. State v. Bowers, 2018 S.D. 50, ¶ 10, 915 N.W.2d

161, 164 (citing State v. Burkett, 2014 S.D. 38, ¶ 45, 849 N.W.2d 624, 635). Indeed,

“the factual basis needed to support a traffic stop is minimal.” State v. Chavez, 2003

S.D. 93, ¶ 15, 668 N.W.2d 89, 95. “All that is required is that the police officer has

‘a reasonable suspicion to stop an automobile.’” Id. (quoting State v. Barton, 2001

S.D. 52, ¶ 13, 625 N.W.2d 275, 279). “While the stop may not be the product of

mere whim, caprice or idle curiosity, it is enough that the stop is based upon

‘specific and articulable facts, which taken together with rational inferences from

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those facts, reasonably warrant [the] intrusion.’” Id. ¶ 16, 668 N.W.2d at 95

(quoting State v. Herrboldt, 1999 S.D. 55, ¶ 7, 593 N.W.2d 805, 808).

[¶13.] Although this “specific and articulable facts” standard has most often

been applied in the context of criminal investigations, its use has not been

exclusively connected with the detection of criminal activity. We have held that

police officers may undertake a warrantless search or seizure when they are acting

within their roles as “community caretakers” and are able to “articulate specific

facts that, taken with rational inferences, reasonably warrant the intrusion.”

Kleven, 2016 S.D. 80, ¶ 10, 887 N.W.2d at 743 (quoting State v. Deneui, 2009 S.D.

99, ¶ 41, 775 N.W.2d 221, 239).

[¶14.] The community caretaker concept traces its genesis to the United

States Supreme Court’s decision in Cady v. Dombrowski, and the recognition that

local law enforcement officers often exercise “community caretaking functions,

totally divorced from the detection, investigation, or acquisition of evidence relating

to the violation of a criminal statute.” 413 U.S. 433, 441, 93 S. Ct. 2523, 2528,

37 L. Ed. 2d 706 (1973). We have described the realities associated with law

enforcement’s community caretaking role in the following terms:

Modern society has come to see the role of police officers as more
than basic functionaries enforcing the law. From first
responders to the sick and injured, to interveners in domestic
disputes, and myriad instances too numerous to list, police
officers fulfill a vital role where no other government official can.
Lives often depend upon their quick exercise of pragmatic
wisdom.

Deneui, 2009 S.D. 99, ¶ 49, 775 N.W.2d at 242.

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[¶15.] Because the potential exists for police officers to chance upon evidence

of criminal activity while acting as community caretakers, “the community

caretaking exception should be cautiously and narrowly applied in order to

minimize the risk that it will be abused or used as a pretext for conducting an

investigatory search for criminal evidence.” State v. Rinehart, 2000 S.D. 135, ¶ 10,

617 N.W.2d 842, 844 (quoting Commonwealth v. Waters, 456 S.E.2d 527, 530 (Va.

Ct. App. 1995)). Within the guidance of this admonition, we have upheld a

warrantless stop or temporary seizure of a vehicle under the community caretaker

exception in two decisions.

[¶16.] In Rinehart, we held that a police officer’s decision to stop a vehicle

traveling at an “excessively slow speed” was justified by reasonable concerns about

“a medical emergency or an automotive malfunction.” 2000 S.D. 135, ¶¶ 8-9, 617

N.W.2d at 844. We concluded that the community caretaker exception permitted

the stop to “provide assistance, without needing any basis to suspect criminal

activity.” Id. ¶ 7, 617 N.W.2d at 844 (quoting State v. Brown, 509 N.W.2d 69, 71

(N.D. 1993)).

[¶17.] Similar caretaking reasons supported the reasonableness of an officer’s

intervention with a man in the driver’s seat of a parked car in Kleven, 2016 S.D. 80,

¶¶ 2-5, 887 N.W.2d at 741. Officers had observed the man awake and in no

apparent distress sitting in the parked car with the engine running at 1:00 a.m. and

1:40 a.m. Id. When they observed him at 2:00 a.m., however, the man in the still-

running parked car appeared to be “sleeping or passed out[,]” prompting the police

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officer to undertake a health and safety check. Id. We held that the officer “had

sufficient reason to act.” Id.

[¶18.] Applying these principles here, we conclude that Officer Holt was

acting in his community caretaking role when he stopped Short Bull’s vehicle in the

hotel parking lot. The information relayed to him described a potentially dangerous

situation. The dispatcher advised Officer Holt of a “disturbance” at the hotel, which

he could reasonably infer was a domestic disturbance involving a couple. Domestic

disputes can, in some instances, escalate into violent confrontations involving injury

or death to one or both parties. See United States v. Rodriguez, 601 F.3d 402, 408

(5th Cir. 2010) (“[D]omestic disputes often involve high emotions and can quickly

escalate to violence”).

[¶19.] Officer Holt was nearby when he heard the dispatch call of a

disturbance and arrived in a few moments only to learn that the “female half” of the

dispute had left the hotel. The dispatcher advised that the female was in the

parking lot, but her “vehicle and direction [were] unknown.” Officer Holt drove

through the front and rear hotel parking lots and discovered no pedestrians and

only one vehicle leaving the area. The vehicle, which turned out to be Short Bull’s,

had dark, tinted windows, and it was reasonable for Officer Holt to infer that the

woman who had been a party to the disturbance may be in the vehicle and in need

of assistance. At the suppression hearing, Officer Holt described the decision to

stop the SUV:

[State]: [W]hen you witnessed this black SUV when you were
pulling into the parking lot, what about it made you think that
there was a connection between the call you were investigating
with the young woman who needed help?

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[Officer Holt]: It was reported to me that the female had left
the building into the parking lot. It was apparent she was not in
the front parking lot. When I pulled around to the back the only
person back there was the black SUV that was moving and there
was no one else in the parking lot so it was reasonable to me to
believe that the vehicle’s involved in the disturbance[,] and so I
stopped the vehicle to check her welfare.
[State]: So you believed that the . . . female who reportedly was
leaving might have been in that vehicle . . .
[Officer Holt]: That’s when I came into contact with the
vehicle and stopped the vehicle.

[¶20.] Officer Holt did not stop Short Bull’s vehicle to investigate a criminal

offense or to gather evidence. He had no facts that would lead him to believe the

driver was impaired. He was operating solely within his community caretaker role

to determine if the woman needed assistance. Under the circumstances, we believe

that Officer Holt provided specific and articulable facts supporting his decision to

stop Short Bull’s vehicle. Therefore, the circuit court correctly affirmed the

magistrate judge’s denial of Short Bull’s motion to suppress.

[¶21.] As indicated above, the magistrate judge’s decision relied not only

upon the community caretaker exception to the warrant requirement, but also upon

a determination that Officer Holt possessed reasonable suspicion of criminal

activity and was acting under exigent circumstances, apparently offering all as

alternative conclusions. For its part, the circuit court affirmed the magistrate judge

on the basis that Officer Holt “had a reasonable articulable suspicion to stop that

vehicle and determine if a lady was present or not or there was something going on

that required law enforcement intervention.” We interpret this rationale, at least in

part, to rest correctly upon the conclusion that it was reasonable for Officer Holt to

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determine if a woman was inside of the SUV and whether she had been the victim

of a domestic assault and in need of assistance.

[¶22.] Despite the prominence of the community caretaker exception, Short

Bull limits his appellate argument solely to a challenge to the magistrate judge’s

determination that Officer Holt had sufficient reasonable suspicion of criminal

activity. He does not include any argument or discussion relating to the community

caretaker exception in his principal brief. The State argued in its responsive brief,

as it had in the magistrate and circuit courts, that Officer Holt was acting in his

community caretaking role, but Short Bull did not submit a reply brief. Therefore,

even if Short Bull were correct in his contention that Officer Holt lacked reasonable

suspicion of criminal activity, he does not further argue that the magistrate judge

erred by concluding the stop was justified under the community caretaker

exception. In our view, this judicial determination was correct and disposes of the

issue presented in this appeal, making it unnecessary to consider the alternate

bases on which the magistrate judge relied to deny Short Bull’s motion to suppress.

[¶23.] We affirm.

[¶24.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, and

WILBUR, Retired Justice, concur.

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