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#26422, #26423-rev & rem-GAS
2013 S.D. 35
IN THE SUPREME COURT
STATE OF SOUTH DAKOTA
STATE OF SOUTH DAKOTA,
Plaintiff and Appellant,
SHANE H. ERWIN,
Defendant and Appellee.
STATE OF SOUTH DAKOTA,
Plaintiff and Appellant,
RICHARD H. ERWIN
Defendant and Appellee.
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE ROBERT L. TIMM
MARTY J. JACKLEY
CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota
Attorneys for plaintiff
TERRY J. SUTTON
Watertown, South Dakota
Attorney for defendant
CONSIDERED ON BRIEFS
ON FEBRUARY 12, 2013
OPINION FILED 05/08/13
On January 3, 2012, Shane Erwin was traveling with his father,
Richard Erwin, through Watertown, South Dakota. While driving on U.S. Highway
212, Shane pulled his vehicle into the left turn lane at the intersection of 29th
Street and signaled his intention to turn south onto 29th Street. While Shane was
waiting for a green left turn arrow, Officer Kirk Ellis of the Watertown Police
Department pulled into the left turn lane directly behind Shane’s vehicle, also
intending to go south on 29th Street.
Westbound U.S. Highway 212 has four lanes at the intersection with
29th Street: one dedicated left turn lane, one dedicated right turn lane, and two
lanes for westbound movement through the intersection. South of U.S. Highway
212, 29th Street is a two way street with two southbound lanes in the direction of
the Wal-Mart Supercenter and other shopping destinations. The lanes are
separated by pavement marking stripes, which were applied in 2008. Also in 2008,
the State of South Dakota added turning radius markings from the left turn lane of
U.S. Highway 212 through the intersection to the left most southbound lane of 29th
Street to guide left turning traffic.
When the left turn arrow changed to green, Shane drove through the
intersection onto south 29th Street, making a wide arc and positioning his vehicle in
the right southbound lane of 29th Street, rather than the left southbound lane of
the street. Officer Ellis observed Shane’s turn into the right southbound lane of
29th Street and activated his emergency lights. Officer Ellis followed Shane into
the Wal-Mart parking lot, approached Shane’s vehicle, and requested that Shane
come back to Officer Ellis’s patrol car.
While in the patrol car, Officer Ellis wrote Shane a warning citation for
his illegal left turn and engaged in routine traffic stop questioning. Officer Ellis
asked Shane if he had any illegal drugs in his vehicle. Officer Ellis observed that
Shane became nervous when he asked Shane about drugs. Because Officer Ellis is
a canine officer, he had a drug sensing dog with him at the time of the stop. Officer
Ellis walked his dog around Shane’s vehicle and the dog indicated the presence of
drugs. Other officers from the Watertown Police Department arrived at the scene to
assist Officer Ellis. When they searched the vehicle, Officer Ellis and the other
officers found two small plastic containers containing a white powder, a scale with
marijuana residue, and two straws with white powder residue.
Shane and Richard were arrested. Both were initially charged with
one count each of ingestion, felony possession of cocaine, and felony possession of
methamphetamine. The State eventually dismissed both felony possession charges
against Richard and the felony possession of methamphetamine charge against
The Erwins moved to suppress evidence, alleging an illegal stop. The
trial court held a hearing on the motion and heard testimony from Officer Ellis, Ron
Sherman, Watertown Area Engineer for the South Dakota Department of
Transportation, and Tom Drake, Watertown City Engineer. The trial court granted
the motion to suppress and entered findings of fact and conclusions of law.
The State brought an appeal of the intermediate order, arguing that
the trial court erred in granting the motion to suppress because Officer Ellis
observed Shane violating a state traffic law and had reasonable suspicion and
probable cause to stop the Erwins.
STANDARD OF REVIEW
We review “‘a motion to suppress based on an alleged violation of a
constitutionally protected right [as] a question of law examined de novo.’” State v.
Dahl, 2012 S.D. 8, ¶ 4, 809 N.W.2d 844, 845 (quoting State v. Bergee, 2008 S.D. 67,
¶ 9, 753 N.W.2d 911, 913-14). “[W]e review the circuit court’s findings of fact under
the clearly erroneous standard, but we give no deference to its conclusions of law.”
State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622 (citing State v. Haar,
2009 S.D 79, ¶ 12, 772 N.W.2d 157, 162). We review issues of statutory
interpretation “under the de novo standard.” State v. Jucht, 2012 S.D. 66, ¶ 22, 821
N.W.2d 629, 634 (citing State v. Powers, 2008 S.D. 119, ¶ 7, 758 N.W.2d 918, 920).
But “‘[w]hen the language in a statute is clear, certain and unambiguous, there is
no reason for construction, and the Court’s only function is to declare the meaning
of the statute as clearly expressed.’” Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49,
612 N.W.2d 600, 611 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d
When a law enforcement officer stops a vehicle, an “investigatory
traffic stop must be ‘based on objectively reasonable and articulable suspicion that
criminal activity has occurred or is occurring.’” State v. Herren, 2010 S.D. 101, ¶ 7,
792 N.W.2d 551, 554 (quoting Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d at 914). But,
if a law enforcement officer observes a traffic violation, then the officer has
“‘probable cause to stop a vehicle, even if the officer would have ignored the
violation but for a suspicion that greater crimes are afoot.’” State v. Akuba, 2004
S.D. 94, ¶ 16, 686 N.W.2d 406, 414 (quoting United States v. Luna, 368 F.3d 876,
878 (8th Cir. 2004)). “The United States Supreme Court holds that a traffic stop is
constitutional, no matter the officer’s subjective intent, so long as the officer had
probable cause to believe that a traffic violation occurred.” United States v. Gomez
Serena, 368 F.3d 1037, 1041 (8th Cir. 2004) (citing Whren v. United States, 517 U.S.
806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996)).
South Dakota statutes require that when a driver turns left, the driver
must turn into the left most lane of the road, rather than making a wide arc. SDCL
The driver of a vehicle intending to turn left shall approach the
turn in the extreme left-hand lane lawfully available to traffic
moving in the direction of travel of the vehicle. If practicable,
the left turn shall be made to the left of the center of the
intersection and so as to leave the intersection or other location
in the extreme left-hand lane lawfully available to traffic moving
in the same direction as the vehicle on the roadway being
entered. A violation of this section is a Class 2 misdemeanor.
We analyze the circumstances in this case under the probable cause
standard because Officer Ellis observed Shane turning left in violation of SDCL 3226-18. Officer Ellis saw Shane turning left by making a wide arc into the right lane
of the two southbound lanes on 29th Street. Officer Ellis’s observation of Shane’s
wide turn is documented by a video recording of the incident that is part of the
record. The Erwins argue that the motion to suppress should be upheld because the
stop was not objectively reasonable. They state that the intersection provides
inadequate notice that southbound 29th Street is a two lane street. Thus, they
argue Officer Ellis’s enforcement of SDCL 32-26-18 is unreasonable.
The record reflects that southbound 29th Street is a two lane street
with faded, but visible, striping marking the division of the road into two lanes.
Further, South Dakota Department of Transportation Engineer Ron Sherman
testified that in 2008, the State affixed striping or markings on the left side of the
left turn lane through the intersection to guide traffic into the left most lane of
southbound 29th Street. Regardless of the existence of striping through the
intersection or on southbound 29th Street, Shane made a wide left turn into the
right lane, rather than the left lane, of the two southbound lanes. Officer Ellis had
probable cause to stop the Erwins because he witnessed a violation of SDCL 32-2618.
The trial court relied on a number of inapplicable statutes in its
determination that Officer Ellis’s stop of the Erwins was unreasonable. The trial
court concluded that SDCL 32-26-20 is the “operative statute” in this case because
the Department of Transportation modified when vehicles may turn left at the
intersection. At the intersection of U.S. Highway 212 and 29th Street, vehicles in
the left turn lane may only turn left when the arrow is green, rather than during a
solid green light. The trial court concluded that because Shane could only turn left
when the arrow was green, he had the right-of-way to turn onto either southbound
lane of 29th Street. SDCL 32-26-20 requires that the Department of Transportation
post signs if it modifies the method of turning at an intersection—in this case,
turning left only on the green arrow. However, the statute does not modify SDCL
32-26-18’s requirement that a left turning vehicle should turn into the left most
lawfully available lane. Thus, SDCL 32-26-18 continues to apply in this case and
was properly enforced by Officer Ellis.
In addition, the trial court found that, in order for lane driving traffic
rules to apply, SDCL 32-26-5 requires lanes to be clearly marked. This section
requires that when any roadway is divided into multiple lanes, then SDCL 32-26-6
through SDCL 32-26-10 apply. SDCL 32-26-6 through SDCL 32-26-10 set out
various rules governing state highways, including changing lanes and passing.
These sections have no impact on the applicability of SDCL 32-26-18’s requirement
that left turning vehicles turn into the left most lawfully available lane.
Further, the trial court found that SDCL 32-28-11 is applicable and
requires notice to enforce SDCL 32-26-18. However, SDCL 32-28-11 applies only to
SDCL chapter 32-28. It does not apply to SDCL chapter 32-26.
Officer Ellis had probable cause to stop the Erwins because he
witnessed a violation of SDCL 32-26-18. We reverse the trial court’s order
suppressing all evidence resulting from the stop and remand the matter to the trial
GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
WILBUR, Justices, concur.
A law enforcement officer stopped a vehicle driven by Shane Erwin for making an illegal left turn. After engaging in routine traffic stop questioning, the officer became suspicious and walked his drug-sensing dog around Defendant's vehicle. Drugs and drug paraphernalia were later found in the vehicle. Shane and his father, Richard Erwin, who was traveling in the vehicle, were both arrested. The Erwins moved to suppress evidence, alleging an illegal stop. The trial court granted the motion. The Supreme Court reversed, holding that the officer had probable cause to stop the Erwins because he witnessed a violation of S.D. Codified Laws 32-26-18, which requires that a left turning vehicle turn into the left most lawfully available lane. Remanded.Receive FREE Daily Opinion Summaries by Email