The South Dakota Supreme Court issued two rulings Wednesday hinging on the rules police must follow in traffic stops. In both cases, stops for minor violations of motor vehicle laws led to arrests for larger crimes, specifically illegal drug use and DUI. In both cases, judges named Tim(m) threw out evidence based on defendants' arguments that the police had gone too far in their searches. In both cases, the State appealed. And in both cases, our law-and-order Court sided with the State and law enforcement over technicality-minded defendants.
The more straightforward case brought Attorney General Marty Jackley before the court to get after father-and-son coke- and meth-heads Shane and Richard Erwin. On January 2, 2012, the Erwins were driving west through Watertown on US 212. They turned left (south) onto 29th Street, the road to Walmart. 29th Street has two southbound lanes. Shane turned into the far lane, not the near lane as prescribed by SDCL 32-26-18. Shane executed this illegal yet oh-so-common maneuver with Watertown PD's Kirk Ellis right on his tail. Officer Ellis flashes the cherries, pulls the Erwins over, and writes Shane a ticket.
As they're sitting in the police car, Officer Ellis asks Shane if he's transporting any illegal drugs. Apparently either a bad actor or an idiot, Shane acts nervous. (Arrrggh! If you plan to break the law, you practice your poker face, right? Think ahead, people!) Officer Ellis takes his drug dog for a walk around the Erwins' vehicle. The dog says you betcha, boss! Officer Ellis finds little containers of white powder and a scale with traces of pot. Busted: charges of ingestion and possession of cocaine and meth.
The Erwins contended Officer Ellis stopped them illegally because "the intersection provides inadequate notice that southbound 29th Street is a two lane street." Judge Robert L. Timm bought that and threw out the evidence from Officer Ellis's search of the Erwins' car.
Our Supremes disagreed. The state laid stripes at the 212–29th Street intersection in 2008, and they're still there, faded but visible. (Watertown drivers, I welcome your photos of the intersection to show just how faded those stripes might be.) Judge Timm ruled in favor of the Erwins because Shane turned left on a green arrow, which meant he had full right of way. But the Supremes said that even that green arrow doesn't change the rule that when you turn left, you must turn into the nearest, leftmost lane. The Erwins thus go back to circuit court, which gets to look at the drugs Officer Ellis found.
Lesson #1: when you turn left, keep it tight. Lesson #2: don't do coke and meth!
The second case is trickier. Jerauld County Deputy Sheriff Shane Mentzer was working the night beat in Wessington Springs on September 11, 2011. Wessington Springs had a beat that night, as folks were out celebrating Patriot Day—er, actually, the Bull Bash Rodeo. At 3:25 a.m., Deputy Mentzer saw a black pickup with no rear license plate. Cherries, stop, walk to the car. Someone in the open box of the pickup sits up for a moment, then ducks down again.
Whoa—I want to talk to the guy/gal hiding from the officer's flashlight... but he/she doesn't make the credits in this drama. Deputy Mentzer is more interested in the open beer container he sees in the back seat through the open rear passenger window of the club cab. (Again, idiots! You see cherries, you get the beer out of sight!) Deputy Mentzer jumps from license plate search to DUI investigation. He recognizes the driver, student pilot Brian Dennis Amick, and asks if he's been drinking. Amick admits having "a couple." Deputy Mentzer later notices a temporary license permit in the window, but his main order of business is to arrest Amick for DUI. (We still don't get to find out who was in the back of the truck with how many beers. Nuts!)
Amick went to court and said hold on: Deputy Mentzer stopped him for a violating a traffic rule that he wasn't violating. The stop was for no license plate. If the deputy had looked, he'd have seen the new-purchase permit in the window. At that point, the stop and search should have ended.
Deputy Mentzer said he saw the new Vern Eide license plate bracket when he stopped the truck. He knew that was a sign the truck was a new purchase. He didn't first look with his stoplight. He said the people (plural! Aren't we breaking a law yet?) in the truck bed may have blocked his view of the license, as may have the tinted glass of the rear window. But Brian and his dad Dennis went out and re-enacted the stop, with photos, to show that the temporary license would have been perfectly visible to someone approaching from behind. The State didn't like that, but Judge Tim Tucker did. He said Deputy Mentzer should have focused first on investigating the cause of his stop, should have seen that "readily visible" temporary license, and "[a]t that point the officer simply returns to his vehicle and the other vehicle's free to go."
Now I'll admit, at this point, I was kind of rooting for Amick. I'll have no truck with drinking and driving, but even when police are nailing drunk drivers, they have to play by the Fourth Amendment.
But our Supremes disagree with me and with His Honor Judge Tucker. The justices agree with Judge Tucker's assessment that the bobbing heads in the back of the truck would not have obstructed Deputy Mentzer's view of the temporary license. But citing precendent, they say that even if Deputy Mentzer had spotted the license, he was still authorized (and perhaps obligated by courtesy) to approach the driver and explain his mistake. With the initial concern motivating the stop dispelled, the officer couldn't ask for license and registration or conduct any other investigation unless "new reasonable suspicion of criminal activity immediately arises that justifies further detention"... and an open beer bottle in the backseat counts as "new reasonable suspicion."
Amick could have avoided that DUI if he had just rolled that rear window up before Deputy Mentzer reached the side of his big truck. Then again, he could also have avoided it by not drinking and driving the party wagon.