Sturgis, SD - Criminal Defense Attorney, possession of controlled substances, marijuana, paraphernalia, and a loaded firearm while intoxicated

[¶2.] The Sturgis Motorcycle Rally, which is held during the first full week

of August, brings hundreds of thousands of tourists to the City of Sturgis (the City).

In order to deal with the influx of visitors, the City hires additional police officers to

assist in keeping the peace and enforcing the law. In 2018, the City hired Officer

Jerod Hahn, a Nebraska Deputy Sherriff, to assist the Sturgis Police Department.

[¶3.] Just past 2:00 a.m. on the morning of August 11, 2018, when the bars

were closing for the evening and many intoxicated patrons were leaving the area,

Officer Hahn and his partner, Officer Martin Spencer, were on foot patrol. This

duty involves providing a constant police presence to keep the peace in the

downtown area of the City where many of the visitors congregate during the rally.

The officers were near Main Street and Harley Davidson Way when they observed a

man, later identified as Williams, and a woman walking by the Oasis Bar toward an

alley. The officers witnessed Williams slow down and drop slightly behind the

woman walking with him. The officers watched him reach for something near his

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right hip. As he reached for the item, Officer Hahn saw a red laser light coming

from Williams’s direction and onto a windowless wall of the Oasis Bar.

[¶4.] Officer Hahn was familiar with weapons, including handguns with

laser sights attached, due to his service as an armorer in the Navy and his training

as a firearms instructor. Based on this experience, he believed Williams was

removing a gun from a holster on his right hip and replacing it in the holster. The

officers set off at a quick pace toward Williams. When they caught up to him, they

announced that they were police officers. Officer Hahn saw that Williams’s hands

were empty, but found a gun holstered on his hip, which he removed from

Williams’s possession.

[¶5.] During this initial contact, Officer Hahn noticed that Williams’s eyes

were glossy, watery, and bloodshot. He also observed that Williams was slow to

respond to commands and had slurred speech. When questioned regarding whether

he had consumed alcohol, Williams admitted drinking two margaritas and three

beers throughout the day.

[¶6.] Officer Spencer conducted a protective patdown search for additional

weapons and discovered marijuana in Williams’s pocket. Williams explained that

he was from California and had “a medical marijuana license.” Officer Spencer also

found a folding knife in the right side of his vest and a small envelope with a

tetrahydrocannabinol edible inside. Officers transported Williams to jail where,

during the booking process, a baggie containing what was later determined to be

methamphetamine was discovered on his person.

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[¶7.] The State charged Williams with two counts of possession of a

controlled substance (methamphetamine and tetrahydrocannabinol), possession of

marijuana (less than two ounces), possession of a loaded firearm while intoxicated,

and possession of drug paraphernalia. Prior to trial, Williams moved the circuit

court to suppress the evidence obtained from the stop on the basis that it violated

the Fourth Amendment of the United States Constitution and Article VI § 11 of the

South Dakota Constitution, which protect against unreasonable searches and

seizures. The circuit court held a suppression hearing at which it considered the

audio and partial video recording of the encounter and testimony from Officer Hahn

and Williams. It took the matter under advisement and later issued findings of

fact, conclusions of law, and an order denying the motion.

[¶8.] In its conclusions of law, the court determined that the officers had

reasonable suspicion to stop Williams based on their observations and Officer

Hahn’s experience and familiarity with firearms. The court, relying on State v.

Sleep, 1999 S.D. 19, 590 N.W.2d 235, and State v. Chase, 2018 S.D. 70, 919 N.W.2d

207, held that the officers were justified in performing a protective patdown search

of Williams’s person, which led to the discovery of the evidence on his person and

later in his clothing when he was searched at the jail. The court denied the motion

to suppress, concluding the search was “done in accordance with Terry and its

progeny.” See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

[¶9.] The parties tried the case to the court on March 7, 2019. At the

conclusion of the bench trial, the court found Williams guilty of possession of a

controlled substance (methamphetamine), possession of marijuana, and possession

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of drug paraphernalia and acquitted him of the remaining charges. The court

granted Williams suspended impositions of sentence on all three counts and placed

him on unsupervised probation for one year under certain terms and conditions.

Williams appeals, alleging the circuit court erred by denying his motion to suppress

the evidence seized.

Standard of Review

[¶10.] Our standard of review when assessing whether a circuit court erred in

denying a motion to suppress evidence is well established. State v. Haar, 2009 S.D.

79, ¶ 12, 772 N.W.2d 157, 162. We review de novo “the circuit court’s decision to

grant or deny the motion.” Id. Findings of fact are reviewed under the clearly

erroneous standard, with “no deference [given] to its conclusions of law.” State v.

Condon, 2007 S.D. 124, ¶ 15, 742 N.W.2d 861, 866.

Analysis and Decision

[¶11.] “The Fourth Amendment protects a person from ‘unreasonable

searches and seizures.’” State v. Stanage, 2017 S.D. 12, ¶ 7, 893 N.W.2d 522, 525

(quoting U.S. Const. amend. IV).1 Therefore, citizens are guaranteed the “right to



1. Williams makes the unsupported assertion that the South Dakota

Constitution provides more protection against searches and seizures than the

Fourth Amendment to the United States Constitution. It is well established

that “this Court may interpret the South Dakota Constitution as providing

greater protection to citizens of this state than is provided [to] them under

the federal Constitution as interpreted by the United States Supreme Court.”

State v. Schwartz, 2004 S.D. 123, ¶ 15, 689 N.W.2d 430, 435. However,

“[c]ounsel advocating a separate constitutional interpretation must

demonstrate that the text, history, or purpose of a South Dakota

constitutional provision supports a different interpretation from the

corresponding federal provision.” State v. Kottman, 2005 S.D. 116, ¶ 13, 707

N.W.2d 114, 120 (quoting Schwartz, 2004 S.D. 123, ¶ 34, 689 N.W.2d at 438).

(continued . . .)

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personal security free from arbitrary law enforcement interference.” State v.

Ramirez, 535 N.W.2d 847, 849 (S.D. 1995). Because it is undisputed that a

warrantless search and seizure occurred in this case, we must determine whether

the officers’ decision to stop and subsequently search Williams was reasonable

under our established Fourth Amendment jurisprudence.

[¶12.] “[T]here is no ready test for determining reasonableness other than by

balancing the need to search (or seize) against the invasion which the search (or

seizure) entails.” Terry, 392 U.S. at 21, 88 S. Ct. at 1879. We assess the totality of

the circumstances to determine the constitutionality of the officer’s conduct. State

v. Herren, 2010 S.D. 101, ¶ 7, 792 N.W.2d 551, 554. “The factual basis needed to

support an officer’s reasonable suspicion is minimal.” State v. Meyer, 2015 S.D. 64,

¶ 9, 868 N.W.2d 561, 565 (quoting State v. Mohr, 2013 S.D. 94, ¶ 14, 841 N.W.2d

440, 444). An officer must “point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that

intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880. However, the stop must be

something more than an “inchoate and unparticularized suspicion or hunch.” Id. at

27, 88 S. Ct. at 1883.

[¶13.] When reviewing an officer’s decision to make an investigative stop, we

apply “a common-sense and non-technical approach to determining reasonable

suspicion, one that deals with the practical considerations of everyday life.” Mohr,

2013 S.D. 94, ¶ 14, 841 N.W.2d at 440 (quoting State v. Sound Sleeper, 2010 S.D.

________________________

(. . . continued)

Because no such showing has been made here, we decline to engage in such

an analysis.

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71, ¶16, 787 N.W.2d 787, 791). To do so, we consider the officer’s experiences when

assessing the existence of reasonable suspicion. Herren, 2010 S.D. 101, ¶ 7, 792

N.W.2d at 554. An officer’s training and expertise do not, however, override our

objective standard when reviewing the stop. State v. Hodges, 2001 S.D. 93, ¶ 16,

631 N.W.2d 206, 210-11.

[¶14.] In its conclusions of law, the court determined that the officers had

reasonable suspicion to stop Williams based on their observations and Officer

Hahn’s experience and familiarity with firearms. Relying on Sleep, the court also

held that the officers were justified in performing a protective patdown search of

Williams’s person. 1999 S.D. 19, 590 N.W.2d 235. The court noted that “[p]olice

need not be certain that a subject is armed; they must only have a reasonable belief

that the individual is carrying a weapon and is potentially dangerous” to justify a

further search. Id. ¶ 11, 590 N.W.2d 235, 239. Citing Chase, the court also

considered the officers’ response when faced with a threat to public safety. The

court observed that the officers’ “interest in detaining the suspect as quickly as

possible may ‘outweigh the individual’s interest to be free of a stop and detention

that is no more extensive than permissible in the investigation’ of the crime.”

Chase, 2018 S.D. 70, ¶ 13, 919 N.W.2d at 211 (quoting United States v. Hensley, 469

U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604 (1985)). The court held that

based on the circumstances, Officer Hahn’s “protective sweep was done in

accordance with Terry and its progeny.”

[¶15.] Williams’s challenge of the court’s holding revolves, in part, around his

argument that the court erroneously applied our decisions in Sleep and Chase.

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However, Williams offers only cursory factual distinctions between his case and

Sleep and Chase. These distinctions do not impact the underlying Fourth

Amendment principles implicated by Terry stops which may arise in a wide variety

of factual situations.

[¶16.] The officers’ decision to stop Williams, when viewed objectively and in

light of the totality of the circumstances, demonstrates that reasonable suspicion

existed in this case. Officer Hahn testified that he was aware that on occasion,

altercations have started in downtown businesses and patrons take the arguments

to some other location to finish their disputes. When he saw the laser, he had no

way of knowing Williams’s true intentions in drawing his weapon. Therefore,

Officer Hahn stopped him, as he testified at the motions hearing, not out of idle

curiosity, but to “prevent anything from happening, any sort of crime, assault, [or]

robbery.” This observation, when considered together with the time of the

encounter (2:00 a.m.) and the location (near bars closing on Main Street during the

Sturgis Motorcycle Rally), justified the stop.

[¶17.] Following Williams’s detention, the officers were likewise justified in

conducting a search to secure their safety and the safety of others because they

knew Williams had at least one weapon on his person. See Terry, 392 U.S. at 27, 88

S. Ct. at 1883. “[P]rotective patdown searches occurring as part of investigatory

stops are justified when officers have grounds to believe that their safety or the

safety of others may be compromised by concealed weapons.” Sleep, 1999 S.D. 19,

¶ 9, 590 N.W.2d at 238; see, e.g., Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.

Ct. 2130, 2136, 124 L. Ed. 2d 334 (1993). The officers’ decision to continue to pat

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Williams down following the removal of his handgun did not exceed the bounds of

the Terry decision because, based on Williams’s decision to draw his gun, the

officers had a reasonable belief that Williams was potentially dangerous.2 See

Sleep, 1999 S.D. 19, ¶ 10, 590 N.W.2d at 239. Moreover, he appeared to be

intoxicated and was in possession of a weapon in violation of the law which provided

further justification for his detention.3

[¶18.] As a final matter, we take up Williams’s challenge to the court’s

finding that he was “brandishing” a firearm as unsupported by the evidence. Citing

a dictionary definition of brandishing as “to shake or wave (something, such as a

weapon) menacingly,” Williams argues that the court’s findings constitute a “clearly

erroneous description of the facts.” See Brandish, Merriam-Webster Dictionary

(Online ed. 2019).4 In conclusion of law number 15, the circuit court rendered the

following mix of findings and conclusions:

On August 11, 2018, Officer Hahn was working as Foot Patrol

on Main Street, in Sturgis, Meade County, South Dakota during

the Rally. At 2:00 a.m. that morning, Rally attendees were

generally leaving the downtown area. Defendant was walking

down the street with a firearm with a sight laser attached to it,

in a holster, on his side. Officer Hahn observed the activated

laser sight, then Defendant’s body movements. He believed,



2. The mere fact that Williams may have lawfully possessed the handgun does

not remove it from the realm of potentially dangerous facts which may, in

individual cases, support an officer’s reasonable belief that his or her safety

may be compromised.

3. See SDCL 22-14-7(3) (defining possession of a loaded firearm while

intoxicated as a class 1 misdemeanor).

4. Likewise, Cambridge Dictionary defines “brandish” as the act of “wav[ing]

something in the air in a threatening or excited way.” Brandish, Cambridge

Dictionary (Online ed. 2020).

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reasonably (and correctly, as it turned out), based on his

training and experience, that he was observing someone remove

and re-holster a weapon. These observations, with the officer’s

additional observations of possible impairment once contact was

initiated, provided Officer Hahn with reasonable suspicion to

stop defendant and determine if criminal activity was afoot.

Instead of arresting Defendant immediately for brandishing a

firearm downtown during the Rally, the officers detained him.

(Emphasis added.)

[¶19.] The court’s detailed findings of fact illustrate that it fully considered

the nature of Williams’s movements when characterizing his handling of his gun.

More specifically, when explaining the events that transpired that evening, the

circuit court stated:

Officer Hahn observed the male slow down and reach over with

his right hand and left hand to his right hip area. The male was

approximately 100 yards or less from the officers. He was facing

away from officers, but they could see a red laser coming from

his person and shining onto the wall of the Oasis. Officer Hahn

believed the red light was consistent with the laser sight

attached to a gun.

Neither this finding nor the court’s chosen terminology in its

conclusion of law leaves us “with a definite and firm conviction that a mistake has

been made.” State v. Bonacker, 2013 S.D. 3, ¶ 8, 825 N.W.2d 916, 919. Based on

our review of the record, this description is entirely consistent with the testimony

presented to the court considering the time of day and location of the incident.

Even if use of the word “brandishing” was erroneous, it is of little consequence in

light of our holding that the officers had reasonable suspicion to stop Williams

under the totality of the circumstances. The circuit court did not err by denying

Williams’s motion to suppress.