STATE of South Dakota, Plaintiff and Appellee. v. Gregory Jay THILL, Defendant and Appellant, 474 N.W.2d 86

WUEST, Justice. On October 21, 1989, at approximately 1:00 a.m., the Sioux Falls Police Department set up a sobriety roadblock for southbound traffic on Minnesota Avenue in Sioux Falls, South Dakota. At the point of the roadblock, a patrol car was stationed with its red lights flashing. Another patrol car with its amber lights flashing was parked approximately 350 feet north of the roadblock. Traffic cones were set in the street to direct the southbound traffic through the roadblock.

Officer Persing (Persing) was on duty and assigned to check cars at the roadblock when he observed Gregory Thill’s (Thill) car make a left hand turn into a driveway at approximately the location of the patrol car with the flashing amber lights. Pers-ing watched as Thill stopped in the driveway, backed out into the street and proceeded northbound, in the direction from whence he came. Persing immediately got into his patrol car and followed Thill. Thill turned left approximately two blocks north of the roadblock and turned left again approximately two blocks later.

Persing then stopped Thill, after his car was again heading in the direction of the roadblock. Pursuant to the stop, Persing observed Thill’s physical appearance and administered field sobriety tests. Based upon his observations, Persing placed Thill under arrest. After questioning Thill, Persing transported him to the Public Safety Building, where Thill agreed to take an intoxilizer test. He was then charged with DWI. Before trial, Thill moved to suppress his arrest and the evidence obtained pursuant to it, arguing that Officer Persing had no reasonable basis to stop him.

Persing’s sole reason for stopping Thill’s vehicle was the fact he had turned prior to going through the roadblock. Persing observed no moving violations or erratic driving by Thill. The trial court denied the motion to suppress and the case proceeded to trial. The magistrate judge found Thill guilty of DWI. Thill appealed his conviction to circuit court, which affirmed the judgment of the magistrate. Thill appeals to this court and raises a single issue: whether Officer Persing had sufficient cause to stop Thill’s automobile.

Stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of the Fourth and Fourteenth Amendments of the United States Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979). At a minimum, then, law enforcement must have an articu-lable and reasonable suspicion that the motorist is subject to seizure for violation of the law before the stop occurs. Id. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673. See also United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In State v.

Anderson, 331 N.W.2d 568 (S.D.1983), we extended the reasonable suspicion standard to automobile stops in this state. It is well settled that in accordance with the Fourth Amendment of the United States Constitution a police officer may not stop a vehicle without a reasonable basis for doing so. Consistent with the principles set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officer must have a specific and articulable suspicion of a violation before the stop will be justified. Id. at 570 (citing Marben v.

State, Dept. of Public Safety, 294 N.W.2d 697, 699 (Minn.1980) (emphasis added)). We more precisely defined the reasonable suspicion standard: It should be emphasized that the factual basis required to support a stop for a “routine traffic check” is minimal.... All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion[.]” Anderson, 331 N.W.2d at 570 (citing People v.

Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 74, 330 N.E.2d 39, 44 (1975)). Accord State v. Anderson, 359 N.W.2d 887 (S.D.1984). Whether the avoidance of a roadblock constitutes reasonable suspicion to stop a motorist is an issue which has been addressed in several jurisdictions, with mixed results. At least five jurisdictions hold that a driver’s effort to avoid a roadblock is alone sufficient to raise an articulable and reasonable suspicion of criminal wrongdoing, supporting an investigatory stop. See Synder v. State, 538 N.E.2d 961 (Ind.App. 4th Dist.1989); Stroud v.

Commonwealth, 6 Va.App. 633, 370 S.E.2d 721 (1988); Boches v. State, 506 So.2d 254 (Miss.1987); Smith v. State, 515 So.2d 149 (Ala.Crim.App.1987); Coffman v. State, 26 Ark.App. 45, 759 S.W.2d 573 (1988). However, at least two jurisdictions have explicitly rejected this position. State v. Talbot, 792 P.2d 489 (Utah App.1990); Pooler v. Motor Vehicles Div., 88 Or.App. 475, 746 P.2d 716 (1987), aff'd 306 Or. 47, 755 P.2d 701 (1988). In Talbot, 792 P.2d at 493-94, the Utah Court of Appeals examined this issue in the context of avoiding confrontation with the police.

The court acknowledged the majority rule that the mere act of avoiding confrontation with the police does not create an articulable suspicion supporting a stop. The court reasoned that if a person may avoid or ignore an officer when approached on the street, a person should also be able to avoid a confrontation at a roadblock. Id. at 494. Notwithstanding the general freedom to avoid police confrontation, we find the avoidance of the police roadblock in this instance was sufficient to create an articu-lable and reasonable suspicion of criminal activity.

Automobiles and their use on state roads are the subject of significant state regulation (e.g. licensing, registration). This fact distinguishes the cases relied upon in Talbot, the majority of which involved pedestrians. And while people are not shorn of their Fourth Amendment protection when they step from the sidewalks into their automobiles, Prouse, 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673, their actions on the road become subject to increased state regulation and restriction.

Consequently, actions taken on the road, the character of which would be innocent in another context, may well give rise to an articulable and reasonable suspicion of a violation of the law respecting the use or ownership of an automobile. Thill’s turnabout at the entrance of the roadblock and his subsequent circuitous route constituted a reasonable suspicion that Thill was in violation of the law respecting the use or ownership of an automobile. The subsequent stop of Thill’s vehicle was therefore lawful. Such a conclusion is consonant with the majority of jurisdictions which have addressed this issue.

We affirm. MILLER, C.J., and AMUNDSON, J., concur. HENDERSON and SABERS, JJ., dissent. The court cited the following authority: People v. Thomas, 660 P.2d 1272, 1276 (Colo. 1983) (en banc) (“[A]n effort to avoid police contact, by itself, is insufficient to support a stop."), overruling People v. Waits, 196 Colo. 35, 580 P.2d 391, 393 (1978) (en banc); In re D.J., 532 A.2d 138, 141 (D.C.1987) (Defendant "merely attempted to walk away, behavior indicative simply of a desire not to talk to police. No adverse inference may be drawn from such a desire.”); McClain v.

State, 408 So.2d 721, 1X1 (Fla.Dist.Ct.App.1982) (Defendant's “behavior which, taken for its most insidious implications, indicated only that he wanted to avoid police, could not give rise to a reasonable suspicion that he was engaged in criminal activity.”); People v. Fox, 97 Ill. App.3d 58, 52 Ill.Dec. 219, 223, 421 N.E.2d 1082, 1086 (1981) (”[T]he mere fact that the vehicle drove away at the approach of a squad car does not serve as a justifiable basis for conducting a Terry stop.”); ... People v.

Sha-baz, 424 Mich. 42, 378 N.W.2d 451, 460 (1985) (Flight "does not alone supply the particularized, reasoned, articulable basis to conclude that criminal activity [is] afoot.”). But see United States v. Pope, 561 F.2d 663, 669 (6th Cir.1977) (flight "may furnish sufficient ground for a limited investigative stop”). Talbot, 792 P.2d at 494.