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Daughter Tells Cops Mom May Be Drunk; Court Says Tip Justifies Search and Seizure

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.


  1. e platypus onion 2022-12-18 09:01

    bcb’s comment(s) here will be interesting, to say the least.

  2. Loren 2022-12-18 09:36

    Quite evident, here, that Rosa has no political ties in Pierre or any law school classmates at the local prosecuting attorney’s office. ;-)

  3. John 2022-12-18 10:13

    Bad facts, bad cases, make bad law.
    With a wee bit more work the officers could have, should have developed / affirmed a reasonable suspicion of a crime. There were no exigent circumstances or immediate public threat of life or limb precluding a bit more investigative observation.
    Justice Myren is no wild-eyed liberal violet — but his caution moves to protect us from vengeful tattle-tails making spurious allegations, whether or not they involve family relations.

  4. All Mammal 2022-12-18 10:14

    If the whole point of having cops is for the public’s safety, why did they allow a presumed drunk person to drive and endanger the public? So they could make an arrest and collect a fee. The law forgets their number one purpose. To them, it clearly is not about safety and service. It is about fining and incarceration. Only because we allow it by feeding the fat beast.

  5. Nix 2022-12-18 10:17

    Call Gary Cammack.
    He knows how to skirt the system and
    bury a DWI like a champ.
    Service Master Cammack.
    Like it never happened.

  6. Mark Anderson 2022-12-18 12:06

    You should all feel good in South Dakota. The state is watching your every move. It will be fun to call, Ian will be furious.

  7. Donald Pay 2022-12-18 12:22

    The whole scenario is horrible. The teenager left alone for at least whole day, maybe the night, too, if they held her overnight. Sure, some teens probably can handle it, but it sounds as if this happened a lot, and who knows what a lifetime of being abandoned does to a kid.

    Second, drinking and driving is a serious offense. It’s more important to get the person off the road until they sober up than worrying about how that is done. That’s my opinion, which probably is worth nothing.

    Third, why not just do all the tests and demonstrate probable cause, and then do the search?

  8. bearcreekbat 2022-12-18 12:30

    Greetings e platypus onion. I commented on an earlier thread that I agreed with Justice Myren (but I mis-spelled his name), and pointed out that Myren is a Noem appointee which seems to confirm John’s observation that “Justice Myren is no wild-eyed liberal violet.” In response to your comment I will add these thoughts.

    As I read the reports about this case even Justice Myren makes a serious mistake in his characterization of the objective facts. First, Cory reports that Myren wrote:

    A.R. told dispatch that during the phone call, her mother “sounded drunk but I couldn’t tell.”

    As I read this quote (which is an objective fact about what A.R. actually said), A.R. said she “couldn’t tell” whether her mother actually sounded drunk, but only seemed to have a hunch that mom might be toasted. From my recollection most courts have consistently held that a mere “hunch” that someone is engaged in a criminal act is not enough to justify a warrantless stop.

    In Terry v. Ohio 392 U.S. 1 (1968), . . . The Court held that to determine whether the police officer acted reasonably in the stop, a court should not look at whether he has a hunch, but rather “to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (my emphasis)

    Yet, Justice Myren reportedly described A.R.’s statement as an allegation of intoxication rather than a statement that A.R. couldn’t tell:

    A.R.’s report to dispatch was a conclusory allegation of intoxication.

    This just seems factually incorrect and a completely unjustified inference. I simply cannot see how A.R.’s reported statement can be considered any thing other than a mere hunch that her mother had been drinking, let alone intoxicated. At least one case I am personally familiar with which I will describe below seems to suggest that even if the daughter had not added the caveat “I couldn’t tell” there still was not enough to establish the grounds for a warrantless stop.

    Otherwise, I pretty much agree with the rest of Myren’s dissent and am again surprised by the position adopted by the four majority justices in this case, just as I was in the Amendment A case. I have to admit, however, the direction that the Court has taken certainly undermines my own ability to correctly analyze and predict the outcome of both criminal and civil appeals. Good thing I don’t handicap sports betting – I would not have predicted the recent 33 point deficit comeback of the Vikings.

    Incidentally, I notice another detail that I found quite troubling about the majority opinion. In setting forth the facts of the case the majority reported:

    A.R. identified herself by name and provided dispatch with her phone number, address, and birthdate, indicating she was 14 years old at the time.

    Later the majority attempts to bolster its unusual ruling with this statement:

    Risking liability for making a false report, A.R. also cast aside anonymity and provided dispatch with specific, personal information.

    The suggestion that a14 year old child would be aware of some risk of liability for making a false report seems a bit unrealistic, which to me indicates a significant lack of confidence by the majority in its own analysis of the case. It seems to be a reaching for straws to bolster an uncomfortable and somewhat questionable decision.

    Incidently I was personally involved in a similar case that happened in Rapid City in the 1990’s. A mother and daughter quarreled and the mother left the daughter’s apartment. The daughter then called the police and reportedly told them that her mother had been drinking and would be driving a car, which the daughter described. The police spotted this car and followed it for several blocks before deciding to finally pull it over, even though they had seen no traffic violations or erratic driving. The mother was driving and quite angry at being stopped. She reportedly refused to cooperate in any manner with police, as she would not get out of the car, she used foul language, she refused to do sobriety tests, etc. The police later did a forcible blood draw that showed a BAC level over the limit. If following and stopping the mother based on the daughter’s phone call didn’t violate the 4th Amendment the mother had no defense.

    At that time the Pennington County States Attorney typically did not use a grand jury for DUI charges, instead relying on a magistrate judge to make a finding whether there was probable cause for the case to move forward to trial. In probable cause hearings a magistrate judge typically must base the decision on only the state’s evidence, discarding any exculpatory evidence offered by the defendant, saving that for a jury to hear if the case goes to trial. The magistrate will apply the law to whatever facts the prosecution presents, even if these facts are disputed ot contradicted by defense evidence, which is a similar standard to the grand jury’s determination.

    The magistrate in this case determined the State failed to establish probable cause for the initial stop because according to the State’s evidence police relied only upon the daughter’s report, which was insufficient to provide a reasonable basis to stop the mother under the 4th Amendment. The magistrate’s decision was fully supported by both the factual record and existing precedent so the State did not appeal.

    The contrasting decisions in these two cases is unsettling but clarifies that there is never a “sure thing” for the State, the accused, the plaintiff or the defendant, in any criminal or civil case that goes to court. The only way for any party to control the outcome of a case is by plea agreement or negotiated settlement, otherwise anything can happen.

  9. All Mammal 2022-12-18 13:58

    If the cops were truly worried about the safety of others, they would not have let her drive in the first place. They would have approached her in the parking lot and asked her to sober up before she got behind the wheel. That would be what caring officers of the peace would do. Officers of the law have a malicious intent.

  10. e platypus onion 2022-12-18 14:05

    bcb, you see these cases with a trained eye that most of the rest cannot comprehend. That is why I was waiting for your comments. Thank you,Sir. Magnificently done.

  11. ROSA A STRATMAN 2022-12-18 23:35

    An absurd attitude of the policemen. If they suspected that the adolescent’s complaint was true, they should have confirmed the accusation. Did they confirm the suspicions? Did they do alcohol or drug tests? Will the word of a befuddled teenager be enough?

  12. M 2022-12-19 06:26

    Someone should have done a “safety check” on the daughter at her home. I do take children seriously when they make complaints however this is a strange situation. How do the police know if she was alone at home and did this out of spite or if someone else had her do it? Maybe she wanted her mummy out of the way for a while.

    When the D.A.R.E. program use to go to schools, they would hand out business cards and tell kids to call the cops if they suspected their parents or siblings were taking tokes or drinking too much. I had a real hard time with that one.

    Odd that children complain about sexual abuse and nothing is done yet another child makes a phone call about a possible DUI and there you go, another arrest. They sure helped that family out as taxpayer funded peace officers. Now let Social Services, DOC and the courts take over their lives.

    Sounds to me like the cops in that town don’t have anything to do.

  13. Jake 2022-12-19 08:49

    And, then there was the incident of ” rape of ones own child by a GOP Senate candidate!” (for years)- (and his potential ‘white-wash’ by the legal system.

    Let’s compare the results as they come down, eh?

  14. e platypus onion 2022-12-19 09:23

    Cops need ‘RAS’. reasonable, articulable suspicion that a person is committing a crime, about to commit a crime or has committed a crime to stop them or ask for i.d. It might be a violation of the suspect’s civil rights otherwise.

  15. Ben Cerwinske 2022-12-19 10:51

    Did they make the wrong call? Possibly. However, given the fact that 4 justices, along with the always reasonable Donald Pay, suggests they might have made the right one, I’m going to err on them making a reasonable decision. I don’t think I know Officer Westover, but have worked with Sergeant Hoffman as a substitute multiple times when he was a D.A.R.E. officer. I was notably impressed with him. Does that close the case? No, but I have no reason to believe the officers acted with ill intent as some commentors are alleging.

  16. All Mammal 2022-12-19 13:55

    The officers could have been there to help, not make arrests. What is wrong with preventing a possible crime? They could have saved a family a whole lot of grief and actually helped save a teen from becoming a ward of the state. Would they have felt any responsibility if the woman caused an accident because they sat by and were only concerned with an arrest, not the protection of people and property? They have their priorities skewed.

  17. e platypus onion 2022-12-19 13:57

    You might be surprised at how many LEOS are clueless about the laws they are entrusted to uphold, especially when it comes to 1st, 4rh and 14th amendment rights. Might as well toss in 5th amendment rights.

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