Consider this search-and-seizure scenario:
So a 14-year-old girl calls the cops around 7 p.m. to report her mom for drunk driving. Daughter isn’t with mom; daughter is calling from Custer and says mom is in Spearfish. Daughter says she spoke to mom on the phone, but daughter doesn’t specify when the phone call happened. Daughter says mom “sounded drink but I couldn’t tell.” Daughter says mom left home at 5 a.m., had been at the Spearfish Dollar Tree, and was planning to leave soon. Daughter says mom has a history of disappearing and drinking. Daughter says mom is driving a white van with a design on the side. Daughter gives her own name, phone number, address, and birthdate.
Cop goes to Dollar Tree, sees the white van, runs the plates, finds—sure enough!—it’s mom’s van. Nobody is in the van. Cop stakes out the van from across the way. Ten minutes later, woman walks out of Dollar Tree, gets in the van, and drives out of the parking lot. Cop sees no sign of intoxication in the woman’s walking or driving. Cop calls partner, both follow her to Walmart across the street. Neither sees any erratic driving or other traffic violation.
Can the cops pull the woman over? Can the state use any evidence found in this stop against the woman in court?
Yes and yes, say four of South Dakota’s five Supreme Court justices, who this week affirmed Malia Ann Rosa’s DUI and open container conviction. Writing for the majority, Chief Justice Steven Jensen said the information provided by Rosa’s daughter (A.R.) gave Spearfish police officers Jacob Westover and Steven Hoffman “reasonable suspicion” to stop Rosa’s van:
Officer Westover and Sergeant Hofmann were told by dispatch that A.R. had identified Rosa as her mother, had explained that she “sounded intoxicated” on the phone, and had noted that Rosa was at Dollar Tree. Although A.R. expressed some uncertainty about her mother’s condition, A.R. added that Rosa had a history of disappearing for hours, as she had that day, and returning after consuming alcohol. Risking liability for making a false report, A.R. also cast aside anonymity and provided dispatch with specific, personal information.
A.R. also provided dispatch with the description of the van Rosa was driving and stated that it would be located in the Dollar Tree parking lot. The officers identified the van in the parking lot roughly 20 minutes after the call. See Stanage, 2017 S.D. 12, ¶ 12, 893 N.W.2d at 527 (noting that the reliability of a tip hinges predominantly on the assertion of illegality but that “[a]n accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense” (citation omitted)). Additionally, A.R. reported that her mother may be leaving the Dollar Tree soon. Shortly thereafter, both officers observed Rosa leave the store, get into her vehicle, and drive away. This discovery confirmed for the officers that A.R. had spoken with Rosa and supported a reasonable inference that the observations about her condition were made near the time that A.R. called law enforcement [Chief Justice Steven Jensen, majority opinion, State of South Dakota v. Malia Ann Rosa, 2022.12.14, pp. 9–10].
Chief Stevens finds the information provided by the daughter’s tip and the officers’ common sense and experience added up to reasonable suspicion to justify the stop.
But nuts to that, says sole dissenting Justice Scott Myren:
A.R. told dispatch that during the phone call, her mother “sounded drunk but I couldn’t tell.” She did not specify when the phone call had occurred. A.R. said that Rosa had a history of drinking and disappearing. Additionally, she said that Rosa had been at Dollar Tree for several hours and had a white van. She did not claim any knowledge that Rosa had been driving while intoxicated. None of these statements describe Rosa engaging in any criminal activity. “When an officer is not given an ‘explicit and detailed description of alleged wrongdoing,’ the officer must have some other reason to believe the informant’s conclusion is correct” [Justice Scott Myren, dissent from majority opinion, State v. Rosa, 2022.12.14, p. 14].
Myren cites a 2017 case (State v. Stanage) in which the South Dakota Supreme Court threw out evidence from a search predicated on a tipster’s more direct, face-to-face interaction with a tipsy individual because the arresting officer, like the Spearfish police in Rosa’s case, “did not independently observe any suspicious behavior.” The particulars were arguably weaker in this case, but the majority affirmed the cops’ decision to stop Rosa on the basis of one phone call from her daughter:
A.R.’s report to dispatch was a conclusory allegation of intoxication. Officer Westover testified that he did not know whether A.R. had ever observed Rosa while intoxicated or whether A.R. had any other specialized training or experience to identify signs of intoxication of any person, including Rosa. Although they had the opportunity, the officers deliberately chose not to contact A.R. to confirm the basis or motivation for her report. Nevertheless, based on the mother/daughter relationship, the majority concludes that law enforcement could reasonably infer that A.R. had previously observed her mother intoxicated and could reliably identify the state of her mother’s intoxication during a telephone call. Moreover, based on the mother/daughter relationship, the majority assumes a good- faith motivation for her report. I respectfully disagree because neither the inference nor the assumption is reasonable based on the information known to the officers. These officers did not have reasonable suspicion of criminal activity as required by the Fourth Amendment to the U.S. Constitution and Article VI, § 11 of the South Dakota Constitution [Myren, 2022.12.14, pp 15–16].
But Myren is the minority here. On a 4–1 ruling, Rosa’s conviction stands.