#27765-a-LSW

2016 S.D. 80

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

NICHOLAS R. KLEVEN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

BROOKINGS COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE GREGORY J. STOLTENBURG

Judge

* * * *

MARTY J. JACKLEY

Attorney General

KELLY MARNETTE

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

DONALD M. MCCARTY

JENNIFER GOLDAMMER of

Helsper, McCarty, Rasmussen, PC

Brookings, South Dakota Attorneys for defendant 

and appellant.

* * * *

CONSIDERED ON BRIEFS 

ON NOVEMBER 7, 2016

OPINION FILED 11/22/16
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WILBUR, Justice

[¶1.] After being arrested and charged with driving under the influence, 

defendant moved to suppress the evidence. The circuit court denied defendant’s 

motion, concluding that an exception to the warrant requirement applied because

the officer acted in his function as a community caretaker. We affirm.

Background

[¶2.] At approximately 1:00 a.m. on January 21, 2015, Officer Marci Gebers 

observed a vehicle parked on the 400 block of Third Street in downtown Brookings, 

South Dakota. The vehicle was running, and Officer Gebers observed a man in the 

driver’s seat, later identified as Nicholas Kleven. Officer Gebers testified that she 

believed the occupant was either looking at his mobile phone or waiting for 

someone. Officer Gebers explained that she did not approach the vehicle to make 

any further observations.

[¶3.] At approximately 1:40 a.m., Officer Adam Smith drove past the same 

vehicle previously observed by Officer Gebers. Like Officer Gebers, Officer Smith 

observed that the vehicle was running and there was a man in the driver’s seat. 

Officer Smith believed the occupant may have been looking at his mobile phone. 

Officer Smith drove past Kleven’s vehicle, noted the license plate number, and 

requested a license plate check. Officer Gebers overheard the request on the radio 

and informed Officer Smith that she had observed the same vehicle at 1:00 a.m. 

[¶4.] Officer Smith then parked his patrol vehicle in a parking lot one block 

away with a line of sight on Kleven’s vehicle. Shortly after 2:00 a.m., Officer Smith 

moved his patrol vehicle directly behind Kleven’s vehicle. He exited his patrol 
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vehicle and approached Kleven’s driver’s-side window. He observed Kleven sitting 

in the driver’s seat and believed Kleven was either sleeping or passed out. Officer 

Smith radioed for another officer to park a patrol vehicle in front of Kleven’s vehicle. 

Officer Smith testified that he could not tell if the occupant had the vehicle in drive 

or park and made the request out of his concern that he would startle the occupant 

and cause the occupant to accidentally accelerate his vehicle. 

[¶5.] After the second officer parked a patrol vehicle in front of Kleven’s 

vehicle, Officer Smith knocked on Kleven’s driver’s-side window several times. 

Kleven briefly opened his eyes and looked toward the window. Kleven did not 

acknowledge Officer Smith. Kleven put his head back down. Officer Smith testified 

that he was concerned and opened Kleven’s driver’s-side door. Immediately, Officer 

Smith smelled the odor of alcohol. Kleven was subsequently arrested and charged 

with driving under the influence. 

[¶6.] On April 7, 2015, Kleven filed a motion to suppress. Kleven asserted 

that Officer Smith did not have reasonable suspicion to support the intrusion. The 

circuit court held an evidentiary hearing on July 21, 2015. Officers Gebers and 

Smith testified. At the conclusion of the hearing, the court issued an oral ruling. It 

held that the circumstances justified Officer Smith’s investigation under the 

community caretaker exception to the warrant requirement. The court denied 

Kleven’s motion to suppress. It issued findings, conclusions, and an order. Kleven 

appeals, asserting one issue for our review: whether the circuit court erred when it 

denied his motion to suppress on the basis that the community caretaker exception 

applied.
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Standard of Review

[¶7.] “We review the circuit court’s grant or denial of a motion to suppress 

involving an alleged violation of a constitutionally protected right under the de novo 

standard of review.” State v. Smith, 2014 S.D. 50, ¶ 14, 851 N.W.2d 719, 723. We 

review the circuit court’s factual findings for clear error. State v. Mohr, 2013 S.D. 

94, ¶ 12, 841 N.W.2d 440, 444. Once the facts have been determined, we give no 

deference to the court’s application of a legal standard to those facts. State v. 

Fierro, 2014 S.D. 62, ¶ 12, 853 N.W.2d 235, 239. Those questions of law are 

reviewed de novo. Id.

Analysis 

[¶8.] This case concerns whether the community caretaker exception to the 

warrant requirement applies. The United States Supreme Court first recognized 

the exception in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 

(1973). It explained that law enforcement officers “frequently investigate vehicle 

accidents in which there is no claim of criminal liability and engage in what, for 

want of a better term, may be described as community caretaking functions, totally 

divorced from the detection, investigation, or acquisition of evidence relating to the 

violation of a criminal statute.” Id. at 441, 93 S. Ct. at 2528. We adopted the 

community caretaker exception in State v. Rinehart, 2000 S.D. 135, 617 N.W.2d 

842. We said that “under appropriate circumstances a law enforcement officer may 

be justified in stopping a vehicle to provide assistance, without needing any 

reasonable basis to suspect criminal activity.” Id. ¶ 7 (quoting State v. Brown, 

509 N.W.2d 69, 71 (N.D. 1993)). The officer must have a “demonstrable reason to 
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believe that a driver may be unfit to drive for medical or other reasons” to justify a 

temporary stop “for the limited purpose of investigating the person’s well-being.” 

Id. The exception “should be cautiously and narrowly applied in order to minimize 

the risk that it will be abused or used as a pretext for conducting an investigatory 

search for criminal evidence.” Id. ¶ 10 (quoting Commonwealth v. Waters, 

456 S.E.2d 527, 530 (Va. Ct. App. 1995)).

[¶9.] Kleven asserts that the circuit court erred when it concluded that 

Officer Smith acted in his community caretaker capacity. He argues that Officer 

Smith could not articulate a demonstrable reason to be concerned about Kleven’s 

well-being. According to Kleven, Officer Smith relied on the community caretaker 

function after the fact, when in reality, Officer Smith detained Kleven and forced an 

interaction solely to satisfy Officer Smith’s curiosity as to why Kleven remained 

parked. He emphasizes that Officer Smith ran a check on Kleven’s license plate 

and blocked Kleven’s vehicle from being able to leave. These circumstances, Kleven 

argues, evince that Officer Smith’s check on Kleven’s well-being was not “totally 

divorced” from Officer Smith’s role as a law enforcer. To conclude otherwise, 

according to Kleven, would “have serious ramifications”—it would allow law 

enforcement to justify “every stop by stating that they were acting in their 

community caretaker capacity[.]” 

[¶10.] In State v. Deneui, we recognized that, although many courts apply the 

community caretaker exception to the warrant requirement, “[n]o single test has 

been adopted by a majority of courts.” 2009 S.D. 99, ¶ 36, 775 N.W.2d 221, 237. We 

examined the tests applied by other courts and took “the best insights from the 
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diverse authorities dealing with this exception[.]” Id. ¶ 41. Those best insights 

include: “the purpose of community caretaking must be the objectively reasonable 

independent and substantial justification for the intrusion; the police action must 

be apart from the detection, investigation, or acquisition of criminal evidence; and 

the officer should be able to articulate specific facts that, taken with rational 

inferences, reasonably warrant the intrusion.” Id. We noted that “the community 

caretaking function is more akin to a health and safety check.” Id. 

[¶11.] Here, the circuit court found that Officer Smith was justified in 

stopping near Kleven’s vehicle and making contact with Kleven to determine if 

Kleven needed assistance. Based on our review, we conclude that Officer Smith had 

an objectively reasonable basis to investigate Kleven’s well-being. We do not 

construe Officer Smith’s run of Kleven’s license plate number or his request that a 

patrol car park in front of Kleven’s vehicle as proof that Officer Smith did not act in 

his role as a community caretaker. To do so would ignore that law enforcement 

officers serve multiple functions. “The law does not demand that an alert police 

officer must suppress his or her training and investigatory experience in carrying 

out the myriad of community caretaking functions society expects police officers to 

undertake for its protection.” Commonwealth v. Fisher, 13 N.E.3d 629, 633 (Mass. 

Ct. App. 2014). As we recognized in Deneui, “[m]odern society has come to see the 

role of police officers as more than basic functionaries enforcing the law. From first 

responders to the sick and injured, to interveners in domestic disputes, and myriad 

instances too numerous to list, police officers fulfill a vital role where no other 

government official can.” 2009 S.D. 99, ¶ 49, 775 N.W.2d at 242; see also State v. 
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Kramer, 759 N.W.2d 598, 610 (Wis. 2009); see also Rist v. N.D. Dep’t of Transp., 665 

N.W.2d 45, 49 (N.D. 2003). 

[¶12.] Officer Gebers and Officer Smith may not have had a cause for concern 

at 1:00 or 1:40 a.m. when they noticed Kleven’s vehicle parked while running. 

During both of those observations, it appeared to the officers that Kleven was 

looking at his mobile phone. However, at 2:00 a.m., the vehicle was still running, 

remained parked in the same spot, and the occupant looked to be sleeping or passed 

out. The fact Kleven could have been simply sleeping is of no consequence. See 

Deneui, 2009 S.D. 99, ¶ 42, 775 N.W.2d at 239. Officer Smith had reason to walk up 

to Kleven’s driver’s-side window and attempt to make contact. Officer Smith 

knocked on the driver’s-side window several times. Kleven did not acknowledge 

Officer Smith. He looked up for a moment and put his head back down. “These 

circumstances presented a crucial moment of judgment for” Officer Smith. See 

Deneui, 2009 S.D. 99, ¶ 49, 775 N.W.2d at 242. Should he act to ensure Kleven is 

not in need of assistance—conduct a health and safety check? We think so. Under 

the circumstances, Officer Smith had sufficient reason to act. The circuit court did 

not err when it denied Kleven’s motion to suppress, concluding that the community 

caretaker exception to the warrant requirement applied.

[¶13.] Affirmed.

[¶14.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, 

Justices, concur.