#28448-a-SLZ
2018 S.D. 70

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

NATHAN D. CHASE,                            Defendant and Appellant.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                  THE HONORABLE MATTHEW M. BROWN
                               Judge

                                   ****

MARTY J. JACKLEY
Attorney General

MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


ELLERY GREY
Grey & Eisenbraun Law                       Attorneys for defendant
Rapid City, South Dakota                    and appellant.

                                   ****

                                            CONSIDERED ON BRIEFS ON
                                            AUGUST 27, 2018
                                            OPINION FILED 10/03/18
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ZINTER, Justice

[¶1.]        Nathan Chase was convicted of second-degree murder. He appeals the

circuit court’s denial of his motion to suppress evidence obtained as a result of an

investigatory stop. We affirm.

                            Facts and Procedural History

[¶2.]        On January 23, 2017, at about 7:50 p.m., law enforcement responded

to a call from a Rapid City motel regarding an assault. Officers discovered the body

of Jeremy Little in the entrance to one of the motel rooms. He had been fatally

stabbed in the face and neck, and there was substantial blood at the scene. Captain

Tony Harrison of the Pennington County Sheriff’s Office reviewed security footage

of the hallway outside the room in which Little was found. He observed six people

entering and leaving the room that night. Five of the individuals were identified

and excluded as suspects. The sixth, an unidentified man, became the murder

suspect. From the footage, Harrison observed that the suspect was a male of

average weight and height wearing a black stocking cap, dark pants, dark shoes,

and a tan Carhartt jacket over a black hooded sweatshirt.

[¶3.]        After completing the initial investigation around 2:00 a.m., Harrison

returned to the motel to search nearby dumpsters for the murder weapon. At about

3:15 a.m., he observed a man walking on the sidewalk about two blocks from the

motel. Harrison believed the man resembled the suspect from the security footage

based on height and weight. Harrison also noticed he was wearing a tan Carhartt

jacket similar to the coat worn by the suspect. Yet, in contrast, the pedestrian wore

his jacket over a white hooded sweatshirt rather than a black one. Additionally, his


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shoes were white rather than dark, and he had on different colored pants than those

worn by the suspect in the security footage. It was a cold evening and no one else

was moving on the streets.

[¶4.]        Based on the man’s similar appearance—primarily his build and the

Carhartt jacket—and his proximity to the crime scene, Harrison decided to

investigate. He activated his emergency lights and stopped his unmarked vehicle

next to the man, later identified as Nathan Chase. Harrison exited the car,

introduced himself as a law enforcement officer, and informed Chase that he

wanted to ask about an “event” at the motel. Chase agreed to a search of his

person, and Harrison found a bloody knife in Chase’s pocket. Chase was taken into

custody and questioned. The blood on the knife was later matched to Little’s DNA.

[¶5.]        Chase was indicted for second-degree murder. Prior to trial, he moved

to suppress the evidence obtained as a result of the stop. The circuit court denied

the motion, ruling that Harrison had reasonable suspicion to initiate the

investigatory stop. A jury found Chase guilty. He appeals the circuit court’s

decision. He does not challenge the circuit court’s findings of fact. He only

challenges the court’s legal conclusion that Harrison had reasonable suspicion for

the stop.

                                       Decision

[¶6.]        “The Fourth Amendment of the United States Constitution and Article

VI, § 11 of the South Dakota Constitution protect individuals from unreasonable




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searches and seizures.”1 State v. Walter, 2015 S.D. 37, ¶ 7, 864 N.W.2d 779, 782.

Although it is preferable for law enforcement to obtain a warrant before conducting

a search or seizure, a warrant is not necessary for less invasive intrusions, such as

an investigatory stop. Id. (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879,

20 L. Ed. 2d 889 (1968)). “[W]hen a person is subject to an ‘investigative detention’

rather than a full-blown custodial arrest, the officer need only have reasonable

suspicion for the detention rather than the probable cause typically required.” Id.

(quoting State v. De La Rosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 686). That is

because “[a] brief stop of a suspicious individual, in order to determine his identity

or to maintain the status quo momentarily while obtaining more information, may

be most reasonable in light of the facts known to the officer at the time.” State v.

Stanley, 2017 S.D. 32, ¶ 13, 896 N.W.2d 669, 675 (quoting Adams v. Williams,

407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972)). Thus, “if police

have a reasonable suspicion, grounded in specific and articulable facts, that a

person they encounter was involved in or is wanted in connection with a completed

felony, then a Terry stop may be made to investigate that suspicion.” United States

v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604 (1985). The

question whether an officer has reasonable suspicion is viewed under the totality of

the circumstances. Stanley, 2017 S.D. 32, ¶ 13, 896 N.W.2d at 675.

[¶7.]         Chase argues Harrison only had a “sixth sense” about Chase being the

perpetrator. He contends Harrison’s testimony at the suppression hearing confirms




1.      The State does not dispute that the stop was a “seizure” within the meaning
        of the Fourth Amendment. See U.S. Const. amend IV.
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the stop was based on a mere “hunch.” However, Harrison’s testimony shows he

relied on his twenty years of experience as a law enforcement officer in determining

whether to stop an individual based upon all the information known to him at the

time. It is well settled that law enforcement “officers [may] draw on their own

experience and specialized training to make inferences from and deductions about

the cumulative information available to them that ‘might well elude an untrained

person.’” State v. Mohr, 2013 S.D. 94, ¶ 16, 841 N.W.2d 440, 445 (quoting State v.

Haar, 2009 S.D. 79, ¶ 23, 772 N.W.2d 157, 167).

[¶8.]        Moreover, “[a]lthough a mere ‘hunch’ does not create reasonable

suspicion, the level of suspicion the standard requires is ‘considerably less than

proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is

necessary for probable cause.” Navarette v. California, 572 U.S. 393, 397, 134 S. Ct.

1683, 1687, 188 L. Ed. 2d 680 (2014) (first quoting Terry, 392 U.S. at 27, 88 S. Ct. at

1883; then quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585,

104 L. Ed. 2d 1 (1989)). Here, Harrison’s suspicion was not grounded on a mere

hunch. He identified specific and articulable facts supporting his decision to stop

Harrison.

[¶9.]        Chase next argues that even if the stop was not based on a mere

hunch, Harrison’s articulated facts did not support the quantum of suspicion

necessary to initiate an investigatory stop. He contends Harrison’s information was

stale because over seven hours had elapsed between the crime and the stop. He

also contends the description of the suspected perpetrator was too general because

the security footage only disclosed an individual of average height wearing a


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Carhartt-style jacket. Further, he claims that even if it was a good description,

Chase and his clothing did not match the suspect exactly. Chase also identifies

non-incriminating inferences or explanations for the incriminating facts and

circumstances Harrison relied upon for the investigative stop.

[¶10.]         We acknowledge Chase’s point that seven and a half hours had elapsed

between the crime and the stop. We also recognize that Chase’s clothes were not

identical to those worn by the unidentified male in the security footage and

Harrison could not observe more specific physical attributes from the security

footage.2 But these facts alone do not foreclose reasonable suspicion. Rather, the

determination whether reasonable suspicion existed must consider all facts

available to Harrison at the time of the stop, viewed under the totality of the

circumstances. See Stanley, 2017 S.D. 32, ¶ 13, 896 N.W.2d at 675.

[¶11.]         “Because the reasonable suspicion determination requires this Court to

‘look at the “totality of the circumstances” of each case to see whether the detaining

officer has a “particularized and objective basis” for suspecting legal wrongdoing,’ a

review of the salient facts known to [the officer] is necessary.” State v. Johnson,

2011 S.D. 10, ¶ 8, 795 N.W.2d 924, 926 (quoting State v. Herren, 2010 S.D. 101, ¶ 7,

792 N.W.2d 551, 554). The record reveals that Harrison observed firsthand the

suspect depicted in the motel’s security footage. He testified that the Carhartt



2.       Chase claims that Captain Harrison’s observation of a suspect’s physical
         attributes via a security footage should be scrutinized in the same way as a
         physical description provided by an informant. See, e.g., United States v.
         Brown, 448 F.3d 239, 250–51 (3d Cir. 2006). We disagree. A physical
         description relayed by a third party is wholly different than observations
         made firsthand by an officer. Harrison was relying entirely on his own
         observations when he stopped Chase, not a tip with questionable reliability.
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jacket particularly stood out to him in the footage. He further explained that he

observed an individual with the same build and jacket as the suspect walking alone

at three in the morning only two blocks from the crime scene during a “frigidly cold”

night. While he acknowledged Chase wore different colored clothing than shown in

the footage, Harrison explained that quickly verifying the man was “not our guy”

would have taken ten seconds and the man could be on his way. This was

reasonable because “[i]t is quite possible that mutable characteristics of a suspect,

such as attire . . . may vary significantly during a flight from apprehension.” State

v. Faulks, 2001 S.D. 115, ¶ 11, 633 N.W.2d 613, 617.

[¶12.]       Ultimately, Chase’s arguments require isolating the facts from the

totality of the circumstances. However, Chase’s type of “divide-and-conquer”

analysis is not utilized in assessing reasonable suspicion. Haar, 2009 S.D. 79, ¶ 23,

772 N.W.2d at 167; accord District of Columbia v. Wesby, ___ U.S. ___, ___, 138 S.

Ct. 577, 588, 199 L. Ed. 2d 453 (2018) (“The totality-of-the-circumstances test

‘precludes [a] divide-and-conquer analysis.’”). Moreover, “[t]he Fourth Amendment

does not require a policeman who lacks the precise level of information necessary

for probable cause to arrest to simply shrug his shoulders and allow . . . a criminal

to escape.” Adams, 407 U.S. at 145, 92 S. Ct. at 1923.

[¶13.]       Indeed, an unapprehended murder suspect poses a serious threat to

public safety, and here, the circuit court found that law enforcement had no leads at

the time of the stop. When a crime involves a threat to public safety, law

enforcement’s 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


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extensive than permissible in the investigation” of the crime. Hensley, 469 U.S.

at 229, 105 S. Ct. at 680. Considering the totality of the circumstances, the

substantial public safety interest in apprehending the homicide suspect that

remained at large, and the minimal intrusion created by Harrison’s stop, we

conclude that the investigatory stop was based on reasonable suspicion within the

meaning of the Fourth Amendment.

[¶14.]       Affirmed.

[¶15.]       GILBERTSON, Chief Justice, KERN, JENSEN, and SALTER,

Justices, concur.




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