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State v. Sleep2/10/1999
South Dakota Supreme Court Appeal from the Eighth Judicial Circuit, Meade County, SD Hon. Scott C. Moses, Judge
Affirmed
Considered on Briefs Dec 3, 1998; Reassigned Dec 31, 1998 Opinion Filed Feb 10, 1999
[ ] In this appeal, we must decide if once a suspect surrenders a weapon to investigating officers, may the officers continue a patdown search when they still observe suspicious bulges which might be concealed weapons. The trial court upheld the search which ultimately revealed illegal drugs. We affirm because if officers reasonably suspect more weapons may be concealed, they may continue their patdown search.
FACTS
[ ] On August 7, 1997 at approximately 3:30 am, Troopers Deuter and Lentz were patrolling on Highway 34 east of Sturgis, South Dakota, when they received a radio message from Trooper Noteboom warning of a white Toyota pickup speeding and driving erratically toward Sturgis. Noteboom was engaged in another traffic stop and was unable to pursue the truck. He did not report a license number, a description of the driver or relate whether any passengers were aboard.
[ ] Before long, Troopers Deuter and Lentz spotted a white Toyota pickup coming toward them. As they turned and followed it, the truck traveled in the inner lane of the four-lane highway. Although it never crossed into the oncoming lanes, at one point the truck straddled the line between the inner and outer lanes for the equivalent of one block. While the officers followed, the pickup swerved to the fog line, then to the center of the lane and back to the fog line. After observing this, the officers stopped the truck on suspicion of driving under the influence . When he approached the vehicle, Trooper Deuter asked the driver, James Dale Sleep, to produce his license, registration, and proof of insurance. Deuter could detect no odor of alcohol or marijuana. He asked Sleep to accompany him to his patrol car and Sleep followed without swaying or staggering. The officer delineated a fine line between being belligerent and mouthy, but assessed Sleep's deportment as definitely mouthy.
[ ] As they walked toward the patrol car, Deuter saw a bulge in Sleep's right front pants pocket. When asked if he had any weapons, Sleep replied that he had a knife. Deuter requested it and Sleep handed it to him. Deuter then asked if he had any other weapons, but Sleep denied it. Deuter saw two bulges in Sleep's left front pants pocket and asked him what they were. Sleep did not respond. The officer patted the pocket and determined that the bulges "could possibly be pocket knives." Again, Deuter asked what was in his pocket. Sleep "reached in and he fished around in his pocket for a little bit and he came out and he held out his hand with nothing in it." The bulges were still there. Deuter had Sleep empty that pocket. Sleep removed two cigarette lighters, a "wad" of cash, a small drug sniffing device known as a "bullet," and a sticker that read, "My other bike is up my nose." Trooper Lentz handcuffed Sleep and the officers then searched his clothing. Lentz found a baggie containing methamphetamine and a snort tube in Sleep's left pocket.
[ ] Sleep moved to suppress the evidence taken during the search, asserting that (1) the traffic stop was merely pretextual; (2) he was unlawfully detained absent any reasonable circumstances to show the commission of an offense; (3) the officers performed a patdown search without an indication of a present danger to the safety of the officers; (4) the search was performed without consent or a warrant; and (5) the seizure of the methamphetamine violated his state and federal constitutional rights. His motion was denied and he was
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