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State v. Herrboldt4/28/1999
State v. Herrboldt, 1999 SD 55
South Dakota Supreme Court Appeal from the First Judicial Circuit, Yankton County, SD Hon. Mary Dell Cody, Magistrate Judge
Reversed
Argued Feb 23, 1999; Opinion Filed Apr 28, 1999
[ ] State appeals the suppression of Todd Herrboldt's arrest for driving under the influence and resisting arrest. We reverse and remand.
FACTS
[ ] The magistrate Judge granted the motion to suppress relying on a stipulation of facts by Herrboldt and State. The stipulation states:
"On March 5, 1998 several officers of the Yankton Police Department and Yankton County Sheriff were investigating an armed robbery of the Casey's convenience store located at 1000 Whiting Drive, Yankton, South Dakota. At about 11:00 P.M., a few minutes after the robbery took place, the officers were at the scene standing in front of the store. At that time defendant [Herrboldt] drove by on Whiting Drive heading east, and as he passed the officers he honked his horn gaining the attention of the officers. It is not clear the number of times the horn was honked. "Upon seeing the pickup and hearing the horn[,] the scene supervisor instructed fficer Michael D. Burgeson to stop the vehicle. Officer Burgeson stopped the vehicle to determine if the driver had information about the robbery or involved therein. Officer Burgeson then proceeded to follow defendant to 1200 East 13th, Yankton, South Dakota, where he was arrested for driving while under the influence. "None of the officers recognized defendant or his pickup before they followed him, and officer Burgeson could not say whether his driver's side window was up or down. There was nothing unusual about the way defendant was driving his vehicle, nor was there any reason to believe there was anything wrong with said vehicle. The only reason he was stopped was because he honked his horn as he drove by the investigation scene, and the officers had no reason to believe defendant had been drinking until he was stopped." (Emphasis added).
[ ] Officer Burgeson testified at the preliminary hearing that Herrboldt parked his vehicle in his driveway and exited as he approached him. Herrboldt was uncooperative when asked whether he had any information about the robbery or had been following a possible suspect. Officer Burgeson could smell "an extreme odor of alcoholic beverage on his breath" and observed Herrboldt stagger and sway. Officer Burgeson asked Herrboldt to perform sobriety tests. He refused and attempted to walk away. Based on his observation, Officer Burgeson placed Herrboldt under arrest for driving under the influence . Herrboldt attempted several times to walk away from Officer Burgeson and additional officers were needed to secure him.
[ ] Herrboldt was charged with driving under the influence and resisting arrest. At the Conclusion of the preliminary hearing, the magistrate Judge found probable cause to support the charges. Herrboldt made a motion to suppress the arrest and fruits thereof claiming the stop was improper. He told the magistrate Judge that he wanted an opportunity to brief the issue and did not want another hearing on the motion. Briefs and the stipulation of facts were submitted. The magistrate Judge granted the motion to suppress finding that "the stop of Defendant's vehicle ... was without authority, and in violation of his rights[.]" State appeals.
STANDARD OF REVIEW
[ ] The trial court made its decision based on a stipulation of facts. Therefore, we review under a de novo standard. Muhlenkort v. Union County Land Trust, 530 NW2d 658, 660 (SD 1995) (citing Zacher v. Homestake Min. Co. of Cal., 514 NW2d 394, 395 (
Page 1 2 South Dakota DUI Attorneys
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