GILBERTSON, Chief Justice, and ZINTER, Justice.
[¶ 1.]
[¶ 2.]
[¶ 3.] Joseph Burkett appeals his conviction for third offense driving under the influence (DUI). We affirm.
[¶ 4.] On January 26, 2013, Joseph Burkett visited a Napa Auto Parts store near Deadwood, South Dakota. Burkett entered the store around 11:00 a.m., where he was assisted by one of the store's clerks, Steve Henderson. Burkett left the store without purchasing anything, but returned later in the day. Henderson testified that he could smell alcohol on Burkett when Burkett entered the store the second time.
[¶ 5.] Around 3:30 p.m., Burkett entered the Napa store a third time. Henderson testified that he detected a "strong alcohol odor" emanating from Burkett. According to Henderson, Burkett was "incoherent" and was "slurring" his words. Henderson testified that Burkett began to leave the store on several occasions, but would reenter the store to request various "oddball" items. Henderson stated that he felt uncomfortable placing the orders for Burkett because he suspected Burkett would not return to purchase the items in his condition.
[¶ 6.] Upon exiting the store Burkett entered into his light blue Dodge van. Henderson observed that Burkett revved his engine and appeared to have trouble shifting the van into reverse. Henderson testified that as Burkett left the Napa parking lot, Burkett's tires "chirped" as he reversed, and then "screeched" out of the parking lot.
[¶ 7.] Henderson called 911 to report seeing a driver "under the influence" leaving the store and headed toward Deadwood. He provided dispatch with a description of Burkett's van and the license plate number. Henderson identified himself by name and included his personal phone number and home address. However, Henderson requested that the tip remain anonymous. Dispatch passed along Henderson's concerns of the possibility of an impaired driver, but did not disclose Henderson's name to the officers.
[¶ 8.] Officer Justin Lux was on patrol when dispatch notified him of a possible impaired driver. Officer Lux saw a van meeting Henderson's description and matching the reported license plate number driving through Deadwood toward the address registered to the vehicle. The officer turned his patrol car around and began following the van. Officer Lux testified that when he finally reached the van, it was stopped in the middle of a residential street and revving its engine for no apparent reason. The van resumed driving forward for one block and turned right into a residential driveway. Officer Lux stated that the van's right, rear wheel drove over the curb and that once the van reached the driveway the van's driver "hit the brakes hard and the vehicle skidded forward a short distance before stopping."
[¶ 9.] Officer Lux activated his emergency lights and pulled in front of the driveway where Burkett's vehicle was parked. Burkett was exiting from the vehicle when the officer approached him. Although Officer Lux's patrol car video system was active, his car was parked in such a manner that only the audio recording
[¶ 10.] Officer Lux questioned Burkett about why he stopped in the middle of the road. Burkett claimed that his carburetor was malfunctioning. When asked if he had been drinking, Burkett paused, and stated he had not. Officer Lux testified that Burkett "slurred" his words, "swayed" where he stood, was "nervous," "belligerent," "uncooperative," "evasive," "confused," and smelled like alcohol. Burkett declined a preliminary breath test and declined to participate in field sobriety tests. Nevertheless, Officer Lux concluded that based on his observations Burkett had been driving under the influence, and he placed Burkett under arrest.
[¶ 11.] Following his arrest, Burkett was formally charged with DUI. Because Burkett had two prior DUI convictions within ten years of the current offense, the State sought to enhance Burkett's charge to a third offense DUI under SDCL 32-23-4. Burkett moved to suppress the evidence against him. He challenged both the admissibility of the blood alcohol concentration (BAC) test and whether Officer Lux unlawfully stopped him. The circuit court suppressed the BAC test; however, the court determined that Officer Lux's stop was lawful. Burkett also sought to strike the first of his two prior DUI convictions. The court denied Burkett's motion to strike his predicate convictions. At trial, Burkett moved for an acquittal based on the insufficiency of the State's evidence. The circuit court denied this motion, and the jury found Burkett guilty of DUI. Based on the two prior DUI convictions Burkett was sentenced to a Class 6 felony.
[¶ 12.] Burkett appeals his conviction, raising the following issues:
[¶ 13.] 1. Whether the use of Burkett's prior DUI convictions for sentencing enhancement purposes violated his right to due process.
[¶ 14.] Burkett argues that the use of his prior DUI convictions for sentencing enhancement purposes violated his right to due process. He alleges that his March 2003 plea was constitutionally infirm under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In response, the State contends that even if Burkett's March 2003 plea was constitutionally infirm, Burkett's ability to challenge the validity of that plea is procedurally waived because he admitted to the March 2003 plea when he pleaded guilty to a different DUI offense in August 2003.
[¶ 15.] In State v. King, 383 N.W.2d 854, 856 (S.D.1986), this Court held that "a
[¶ 16.] In asking us to limit Burkett's ability to raise this King challenge, the State leads us to question the very nature of these kinds of collateral attacks in South Dakota. Burkett frames the denial of his King challenge as a violation of his due process rights. Although we initially permitted King challenges based on due process considerations, that justification is no longer valid under federal constitutional standards.
[¶ 17.] When this Court first outlined the remedy of a King challenge, it did not rely on statutory interpretation of South Dakota law. See King, 383 N.W.2d at 856. Nor did this Court point to the common law as recognizing such a remedy. See id. Instead, this Court adopted a blanket rule from California that this special type of collateral attack was required by due process. Id. (citing Rogers, 169 Cal.Rptr. 222, 619 P.2d at 417).
[¶ 18.] However, since our holding in King the United States Supreme Court has defined what protections are afforded to a defendant who seeks to challenge a predicate conviction used for sentencing enhancement. See Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). In Custis, the defendant challenged the use of prior convictions to enhance sentencing on federal drug and firearm charges brought against him. Id. at 488, 114 S.Ct. at 1734. Like Burkett, Custis alleged that one of his predicate convictions was the result of a guilty plea that was not entered knowingly
[¶ 19.] On appeal to the United States Supreme Court, Custis argued that the United States Constitution required some procedural avenue to challenge the constitutionality of his prior convictions when used for sentence enhancement. Id. at 493, 114 S.Ct. at 1737. The United States Supreme Court explicitly rejected this argument, holding that only the "unique constitutional defect" of failure to appoint counsel would allow for a collateral challenge of a predicate conviction in a sentence enhancement setting. Id. at 496, 114 S.Ct. at 1738.
[¶ 20.] In reaching its decision, the Supreme Court reasoned:
Id. at 497, 114 S.Ct. at 1739 (alterations in original).
[¶ 21.] In King, the State, citing Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), argued that "only convictions resulting from uncounseled guilty pleas are constitutionally infirm for enhancement purposes." 383 N.W.2d at 857. This Court, citing Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), rejected the State's position. King, 383 N.W.2d at 857. We stated that "[w]hen the proper use of the constitutionally infirm conviction depends upon the reliability rather than the mere fact of conviction, the use of that conviction to support guilt or enhance punishment is unconstitutional." Id. (quoting Santillanes v. U.S. Parole Comm'n, 754 F.2d 887, 889 (10th Cir.1985)).
[¶ 22.] However, in Custis, the United States Supreme Court clarified Lewis. The Court stated that "Lewis ... supports the conclusion that prior convictions used for sentence enhancement purposes under [18 U.S.C.] § 924(e) are not subject to collateral attack in the sentence proceeding." Custis, 511 U.S. at 492, 114 S.Ct. at 1736. The Supreme Court thereby explained that even if a prior conviction clearly suffered from constitutional infirmity other than deprivation of right to counsel,
[¶ 23.] Burkett's King challenge also fails to find support in our codified law. Our penalty enhancement statutes impose no greater statutory burden of proving the validity of a prior conviction than the federal law at issue in Custis or Lewis.
[¶ 24.] Further, in setting the standard for King challenges we have stated that "[o]ur review of a collateral attack of a predicate conviction is limited to jurisdictional errors." State v. Jensen, 2011 S.D. 32, ¶ 11, 800 N.W.2d 359, 364 (emphasis added) (citations omitted); see also Smith, 2013 S.D. 79, ¶ 6, 840 N.W.2d at 119. Under this standard, we have allowed defendants to move to strike a predicate conviction when it was obtained in violation of Boykin because such a violation constituted a "jurisdictional error." See Smith, 2013 S.D. 79, ¶ 6, 840 N.W.2d at 119. Seemingly, we borrowed this definition of jurisdictional error from our habeas line of cases. See King, 383 N.W.2d at 856 (citing Garritsen, 376 N.W.2d at 578). In habeas proceedings, we have embraced the "fiction" that constitutional violations in criminal cases are jurisdictional errors. See Goodroad v. Solem, 406 N.W.2d 141, 143 (S.D.1987) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Therefore, under South Dakota law, defendants have been able to raise Boykin violations through a petition for habeas relief because a Boykin violation has been defined as a "jurisdictional error." See Monette v. Weber, 2009 S.D. 77, 771 N.W.2d 920.
[¶ 25.] However, habeas is a statutory remedy in South Dakota, which has been virtually unchanged since its inception. See generally SDCL 21-27-16. By contrast, King challenges are supported by neither statute nor common law. Instead, a King challenge is a relatively new judicial construct that has become virtually unrestrained and fraught with inconsistencies.
[¶ 27.] While we have not yet considered the implications of Custis on King challenges in this state, other states have followed the constitutional analysis and policy considerations in Custis. Many states have recognized that constitutional considerations do not require courts to entertain collateral attacks on prior convictions used for enhancement purposes unless the defendant claims the predicate conviction was uncounseled. See State v. Johnson, 38 A.3d 1270, 1278 (Me.2012); Camp v. State, 364 Ark. 459, 221 S.W.3d 365, 369-70 (2006); State v. Weber, 140 Idaho 89, 90 P.3d 314, 319-20 (2004); State v. Veikoso, 102 Haw. 219, 74 P.3d 575, 582-83 (2003); State v. Hahn, 238 Wis.2d 889, 618 N.W.2d 528, 535 (2000); State v. Louthan, 257 Neb. 174, 595 N.W.2d 917, 926-27 (1999); State v. Mund, 593 N.W.2d 760, 761-62 (N.D.1999); State v. Weeks, 141 N.H. 248, 681 A.2d 86, 89-90 (1996); State v. Delacruz, 258 Kan. 129, 899 P.2d 1042, 1049 (1995); McGuire v. Commonwealth, 885 S.W.2d 931, 937 (Ky.1994), People v. Carpentier, 446 Mich. 19, 521 N.W.2d 195, 199-200 (1994). In contrast, a smaller number of states have examined Custis and explicitly declined to adopt the reasoning based on an interpretation that the state's constitution offers greater protection than that afforded by the United States Constitution. See, e.g., State v. Maine, 360 Mont. 182, 255 P.3d 64, 73 (2011) (allowing collateral attacks under interpretation of the Montana constitution); Paschall v. State, 116 Nev. 911, 8 P.3d 851, 852 n. 2 (2000) (declining to bar collateral attack because Custis "merely established the floor for federal constitutional purposes").
[¶ 28.] Although we acknowledge that this Court has the ability to grant greater protection under the South Dakota Constitution than is afforded under the United States Constitution, we have stated that to do so is a "significant undertaking." Gilbert v. Flandreau Santee Sioux Tribe, 2006 S.D. 109, ¶ 23, 725 N.W.2d 249, 258 (citation omitted). It has been noted that "[a]uthoritative and neutral analysis of South Dakota's Constitution cannot advance from episodic and reactionary borrowing of results from other state courts." State v. Schwartz, 2004 S.D. 123, ¶ 57, 689 N.W.2d 430, 445 (Konenkamp, J., concurring). "[W]e cannot simply assume that our Constitution mandates greater protections than those available under the Federal Constitution." Id. at ¶ 31, 689 N.W.2d at 438. (Konenkamp, J., concurring).
[¶ 30.] Given Custis and the overwhelming body of case law rejecting the position we outlined in King, we must reconsider whether Burkett's King challenge is still an appropriate avenue for relief. Like the defendant in Custis, Burkett has already been afforded due process of law. Burkett seeks to invalidate a conviction that is nearly ten years old. He had the opportunity to challenge the constitutional validity of his prior conviction on direct appeal. SDCL 23A-32-2. Yet now, many years after the timeframe contemplated by the Legislature within which to bring statutorily-recognized challenges, Burkett seeks for the first time to challenge his March 2003 plea through the mechanism offered by King.
[¶ 31.] In addition to the fact that Burkett's King challenge is not guaranteed by statute or due process as discussed above, these types of challenges also erode the deeply-rooted interest in the finality of criminal judgments. We have stated that "[o]ne of the law's very objects is the finality of its judgments. Neither innocence nor just punishment can be vindicated until the final judgment is known. Without finality, the criminal law is deprived of much of its deterrent effect." State v. Moeller, 511 N.W.2d 803, 808 (S.D. 1994) (quoting McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517, 542 (1991)) (internal quotation marks omitted). "Moreover, in addition to undermining confidence in the integrity of court procedures, these inroads on finality increase the volume of judicial work, inevitably delaying and impairing the orderly administration of justice, ... which directly contravenes one of the ends of Boykin, to wit: to `forestall the spin-off of collateral proceedings that seek to probe murky
[¶ 32.] Compounding this problem is that we have defined claims like Burkett's as "jurisdictional errors." As discussed above, while this has long been a recognized exception in habeas, we have not explicitly embraced this fiction for a King challenge. Instead, we have simply treated King challenges as similar form of collateral attack without further explanation. Burkett's case, however, underscores the problem of embracing the expansive definition of jurisdictional error that the United States Supreme Court specifically rejected in the context of a collateral attack on a predicate conviction.
[¶ 33.] Prior to being charged with DUI in 2013, Burkett no longer had the ability to raise his Boykin claim against his 2003 conviction by direct appeal or a petition for habeas relief. In addition, Burkett could not have raised his alleged Boykin violation by a writ of coram nobis. Garcia v. State, 2014 S.D. 5, ¶ 11, 843 N.W.2d 345, 349. In fact, Garcia explicitly rejected the notion that an alleged Boykin violation constitutes a "fundamental jurisdictional error." Id. Therefore, unless a new fact emerged, Burkett was no longer able to challenge his 2003 convictions prior to being charged with DUI in 2013.
[¶ 34.] However, once Burkett was charged with DUI in 2013 and a part II information was attached to that charge, Burkett's ability to assert a Boykin violation against his 2003 conviction was resurrected, because unlike in coram nobis, Burkett's claim is once again defined as a jurisdictional error. Further, Burkett is not required to assert prejudice or actual innocence to get his Boykin claim through the door.
[¶ 35.] As outlined above, the judicial system in South Dakota provides ample opportunity to raise the alleged Boykin violation that Burkett asserts. In rejecting a form of relief similar to this type of King challenge, other states have recognized that "[a] rational system of criminal justice necessarily favors a process in which criminal cases are completed in a predictable and timely manner." Johnson, 38 A.3d at 1277; see also State v. Boskind, 174 Vt. 184, 807 A.2d 358, 365 (2002) ("[E]arly challenges to convictions ought to be encouraged."). In addition, the United States Supreme Court has stated:
Daniels v. United States, 532 U.S. 374, 383, 121 S.Ct. 1578, 1584, 149 L.Ed.2d 590 (2001) (internal quotation marks omitted) (citations omitted). Given the ample statutory remedies available to Burkett and other similarly situated defendants, Burkett's King challenge is not required under due process or South Dakota codified law. Defendants like Burkett are not entitled to "another bite at the apple" merely because their prior convictions now have more force under our sentence-enhancement statutes. They cannot be rewarded for withholding potential claims until they are faced with a heightened sentence. Permitting such a result would undermine the State's valid interest in punishing habitual offenders. See Parke v. Raley, 506 U.S. 20, 27-28, 113 S.Ct. 517, 522, 121 L.Ed.2d 391 (1992).
[¶ 36.] In light of the intervening developments in the law since our decision in King, we should hold that a King challenge is no longer available for an alleged Boykin violation. Accordingly, we affirm the circuit court's denial of Burkett's motion to strike his predicate conviction.
[¶ 37.] 2. Whether there was sufficient evidence to support a conviction of driving under the influence.
[¶ 38.] Burkett next challenges the validity of his present conviction. Burkett argues that the circuit court erred by denying his motion for a judgment of acquittal. "We review the denial of a motion for judgment of acquittal as a question of law under the de novo standard." State v. Riley, 2013 S.D. 95, ¶ 14, 841 N.W.2d 431, 436 (quoting State v. Danielson, 2012 S.D. 36, ¶ 8, 814 N.W.2d 401, 405). "On appeal, the question before this Court is whether the evidence was sufficient to sustain the conviction." Id. (citation omitted). "In measuring the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (citation omitted). "[W]e will not resolve conflicts in the evidence, assess the credibility of witnesses, or reevaluate the weight of the evidence." Id. (quoting State v. Hauge, 2013 S.D. 26, ¶ 12, 829 N.W.2d 145, 149).
[¶ 39.] At Burkett's trial, the State offered the testimony of Officer Lux and Henderson. Both individuals testified that Burkett appeared to be under the influence of alcohol. In addition to that testimony, the State presented the recording from Officer Lux's patrol car. No other evidence was admitted at trial as the BAC evidence had been suppressed. Burkett asserts that the State's evidence was insufficient to establish a conviction under SDCL 32-23-1(2).
[¶ 40.] At the outset, the State notes that blood alcohol evidence is not required to sustain a conviction under SDCL 32-23-1(2). In support of its position, the State relies on State v. Huettl, 379 N.W.2d 298 (S.D.1985), where we upheld a DUI conviction under SDCL 32-23-1(2) even though blood alcohol evidence was not submitted at trial. In addition to Huettl, we stated in two later cases that the statutory presumption of being under
Motzko, 2006 S.D. 13, ¶ 8, 710 N.W.2d at 437 (quoting Hullinger, 2002 S.D. 83, ¶ 14, 649 N.W.2d at 259). Therefore, "any abnormal mental or physical condition that deprives an individual of the clearness of intellect and self control that they would otherwise possess will suffice" to establish a violation of SDCL 32-23-1(2). Id.
[¶ 41.] In the present case, the evidence was sufficient to support Burkett's conviction for driving under the influence. Both Henderson and Officer Lux testified that Burkett smelled of alcohol, slurred his speech, and that he was incoherent, confused, belligerent, and driving erratically. Additionally, Officer Lux stated that based on his training and experience, Burkett's physical appearance and behavior indicated that Burkett lacked "the clearness of intellect to operate a motor vehicle." In deciding whether the evidence is sufficient to sustain a verdict beyond a reasonable doubt we have stated that our review is limited to whether "there is a rational theory that supports the jury's verdict." Id. ¶ 12, 710 N.W.2d at 439 (citation omitted). Given the testimony of both Henderson and Officer Lux, the evidence was sufficient to sustain the jury's verdict.
[¶ 42.] 3. Whether the circuit court erred in denying Burkett's motion to suppress based on Officer Lux's stop of Burkett.
[¶ 43.] Lastly, Burkett argues the circuit court erred in denying his motion to suppress the evidence against him because Officer Lux did not have reasonable suspicion to justify stopping Burkett's car. "A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo." State v. Rademaker, 2012 S.D. 28, ¶ 7, 813 N.W.2d 174, 176 (quoting State v. Wright, 2010 S.D. 91, ¶ 8, 791 N.W.2d 791, 794).
[¶ 44.] The Fourth Amendment of the United States Constitution and Article VI, § 11 of the South Dakota Constitution protect individuals from unreasonable searches and seizures. Id. ¶ 8, 813 N.W.2d at 176. "[T]he Fourth Amendment's prohibition against unreasonable searches and seizures applies when a car is stopped by law enforcement." Id. (citation omitted).
[¶ 45.] A police "officer may stop a car, without obtaining a warrant, if there is `reasonable suspicion that criminal activity may be afoot.'" Id. ¶ 9 (quoting Wright, 2010 S.D. 91, ¶ 10, 791 N.W.2d at 794). "Reasonable suspicion to stop must be based on `specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion.'" State v. Herren, 2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554 (quoting State v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d 406, 413). "The stop may not be the product of mere whim, caprice or idle curiosity." Id. (citation omitted). To determine whether an officer had reasonable suspicion to make an investigatory stop,
[¶ 46.] The State argues that Officer Lux's investigatory stop of Burkett was reasonable because of the combination of the tip from Henderson and Burkett's "erratic driving." Burkett contends that Officer Lux did not have reasonable suspicion to make a stop because Henderson's tip was anonymous to Officer Lux, and Officer Lux did not observe Burkett doing anything to independently justify a stop. For purposes of our analysis we assume that Officer Lux was acting on an anonymous tip.
[¶ 47.] "The degree to which law enforcement can rely on an anonymous tip depends on the tip's degree of reliability." Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d at 556 (citing State v. Scholl, 2004 S.D. 85, ¶ 9, 684 N.W.2d 83, 86). "The tip's degree of reliability depends on the quantity and quality of the tipster's information." Id. (citation omitted). "If a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id. (citation omitted).
[¶ 48.] During the pendency of this case, the United States Supreme Court decided Navarette v. California, 572 U.S. ___, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), which considered the sufficiency of an anonymous tip to conduct a traffic stop. In Navarette, 911 dispatch in Mendocino County, California received a call from dispatch in neighboring Humboldt County. 572 U.S. at ___, 134 S.Ct. at 1686. Humboldt County dispatch relayed that they had received a tip from a 911 call that was recorded as follows: "Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8-David-94925. Ran the reporting party off the roadway and was last seen approximately five minutes ago." Id. at ___, 134 S.Ct. at 1686-87. That information was broadcast to highway patrol officers. Id. at ___, 134 S.Ct. at 1687. About thirteen minutes after Mendocino County dispatch broadcast the information, a highway patrol officer, heading northbound toward the reported vehicle, passed a pickup matching the caller's description. After making a U-turn, the officer stopped the vehicle. The officer did not observe the pickup violate any traffic laws prior to making the stop. When officers approached the truck, they detected the smell of marijuana. Officers subsequently searched the vehicle and discovered 30 pounds of marijuana. The defendants, Lorenzo Prado Navarette and José Prado Navarette, were arrested. Id.
[¶ 49.] The defendants moved to suppress the marijuana evidence, arguing that the traffic stop violated the Fourth Amendment because the officers did not have reasonable suspicion of criminal activity.
[¶ 50.] In reaching its conclusion that the officers had reasonable suspicion to stop the vehicle, the United States Supreme Court first considered whether the anonymous 911 call was "sufficiently reliable." Id. at 1688. The Court noted that a "basis of knowledge lends significant support to the tip's reliability." Id. at 1689. The Court reasoned, "[b]y reporting that she had been run off the road by a specific vehicle — a silver Ford F-150 pickup, license plate 8D94925 — the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving." Id. The reliability of the call was further supported by the fact that "[a] driver's claim that another vehicle ran her off the road ... necessarily implies that the informant knows the other car was driven dangerously." Id. Additionally, the Court observed that the timeline of events suggested there was reason to believe the caller was telling the truth. Id. Roughly 18 minutes after receiving the call, police observed a vehicle, traveling south, matching the caller's description and located 19 miles south of the location identified by the caller. Id. Finally, the Court stated that the use of the 911 emergency system also supported the tip's veracity as a 911 call may have "some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity." Id. (citation omitted).
[¶ 51.] After analyzing the reliability of the call, the Court next considered whether the tip created a reasonable suspicion that "criminal activity may be afoot." Id. at 1690. The 911 caller reported that the suspected vehicle ran her off the roadway. Id. The Court concluded that this behavior, "viewed from the standpoint of an objectively reasonable police officer, amount[ed] to reasonable suspicion of drunk driving." Id. (citation omitted) (internal quotation marks omitted). Notably, the allegations made by the 911 caller were "more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving." Id. at 1691. The Court concluded that although the officer did not observe any additional suspicious conduct upon following the vehicle, it did not dispel a reasonable suspicion of drunk driving as the officer only briefly followed the vehicle. Id.
[¶ 52.] In the instant case, dispatch conveyed to Officer Lux that an individual driving an older, light blue van was potentially under the influence. Dispatch informed Officer Lux that the individual had left the Napa store and would be driving into Deadwood. In addition, dispatch provided Officer Lux with the license plate number and registered address for the vehicle. Almost immediately after receiving the tip from dispatch, Officer Lux observed a van meeting dispatch's description driving in Deadwood. Officer Lux turned his patrol car around and headed in the direction the van was traveling. At this point, the van was mostly out of sight, but Officer Lux continued in the direction of the registered address. When Officer Lux finally reached the van, he noticed it was stopped in the middle of a residential street and the driver was revving the van's engine. The van resumed driving and then turned right into a driveway.
[¶ 53.] Officer Lux's stated reason for stopping the van was a combination of both Burkett's "erratic" driving and the tip he received about a suspected driver under the influence. Based on the totality of the circumstances, Officer Lux had reasonable suspicion to stop Burkett, as "[t]he quantum of proof necessary for reasonable suspicion is somewhere above a hunch but less than probable cause." Herren, 2010
[¶ 54.] That Officer Lux had reasonable suspicion to stop Burkett is also supported by our case law involving anonymous tips of drivers under the influence. See Herren, 2010 S.D. 101, ¶ 22, 792 N.W.2d at 557; Scholl, 2004 S.D. 85, ¶ 14, 684 N.W.2d at 88. In Scholl, we upheld a stop of a suspected drunk driver even though the officer did not observe any violations of the law or erratic driving. 2004 S.D. 85, ¶ 17, 684 N.W.2d at 89. The tipster in Scholl provided officers with a personal observation that the suspected drunken driver was leaving a bar; and the tipster further described the vehicle's make, model, color, and unique Nebraska license number. Id. We determined that the tip was reliable enough to yield a reasonable suspicion that the driver was under the influence. Id. Meanwhile in Herren, we upheld a stop of a suspected drunk driver based on the combination of an anonymous tip and the driver's lengthy stop at a stop sign. 2010 S.D. 101, ¶ 22, 792 N.W.2d at 557. We concluded that the officer had reasonable suspicion to stop the driver based on the totality of the circumstances even though the tipster did not provide a license plate number or an accurate description of the make and color of the vehicle. Id.
[¶ 55.] While the information conveyed by dispatch to Officer Lux was less in quantity than that in Scholl, we note that unlike Herren, Officer Lux was given an accurate description of the vehicle and a license plate number. This information, paired with Burkett's stopping and revving his engine in the middle of a residential road gave Officer Lux "more than a hunch of legal wrongdoing." See Herren, 2010 S.D. 101, ¶ 22, 792 N.W.2d at 557 (citation omitted).
[¶ 56.] Taken individually, the information relayed to Officer Lux may have been minimal, almost conclusory in nature; and Officer Lux's corroboration of the tip involved only a brief observation of erratic driving. But when viewed in totality, the information and observation provided Officer Lux with the reasonable suspicion necessary to make a stop. In balancing an individual's interest to remain free from government intrusion with the government's substantial interest in intercepting vehicles driven by individuals under the influence, we conclude that Officer Lux's decision to stop Burkett was reasonable. See United States v. Wheat, 278 F.3d 722, 736-37 (8th Cir.2001).
[¶ 57.] We affirm the circuit court's decision.
[¶ 58.] SEVERSON, Justice, concurs.
[¶ 59.] KONENKAMP, ZINTER, and WILBUR, Justices, concur on Issue 2 and Issue 3.
[¶ 60.] ZINTER, Justice, writing for the Court as to Issue 1.
ZINTER, Justice (concurring in part and concurring in result in part).
[¶ 61.] I concur on issues two and three. On issue one, I concur in result. I cannot join the lead opinion's sua sponte reversal of more than twenty-five years of our jurisprudence relating to collateral attacks on predicate convictions used for sentencing enhancement. We should simply address the issue briefed and argued on appeal: whether the circuit court sufficiently canvassed Burkett about his Boykin
[¶ 62.] "Boykin requires that before a defendant pleads guilty, he `be advised of his [federal constitutional] rights relating to self-incrimination, trial by jury, and confrontation,' and `that [he] intentionally relinquish or abandon known rights.'" State v. Bilben, 2014 S.D. 24, ¶ 5, 846 N.W.2d 336, 338 (alterations in original) (quoting State v. Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d 117, 120). Burkett contends that the March 2003 circuit court failed to adequately advise him of his Boykin rights. He also contends that the court failed to advise him that he would waive those rights by pleading guilty.
[¶ 63.] At Burkett's March 2003 arraignment, the circuit court simultaneously advised all defendants present of their rights, including their Boykin rights. The court then advised that a guilty plea would "give up [their] right to a jury trial and all rights that accompany a jury trial." (Emphasis added.) The court also spoke with Burkett and his attorney to ensure Burkett understood those rights and that his guilty plea was voluntary.
[¶ 64.] The record reflects that the March 2003 circuit court fully advised Burkett of his Boykin rights. It also reflects that the court fully advised Burkett about the waiver effect of a guilty plea. In fact, the waiver advisement given to Burkett is the same advisement we approved in Bilben. See 2014 S.D. 24, ¶ 7, 846 N.W.2d at 338 (approving a general waiver advisement indicating that by pleading guilty, the defendant would "give up his right to a jury trial and all rights that accompany a jury trial"). Thus, like the defendant in Bilben, Burkett "was advised that a guilty plea would waive all previously enumerated rights associated with a trial, which included all three Boykin rights." See id. ¶ 10. The circuit court did not err in denying Burkett's motion to strike his March 2003 conviction.
[¶ 65.] The lead opinion presents thought-provoking arguments for reexamining the statutory and constitutional underpinnings that govern collateral attacks on predicate convictions in light of Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). But, as the lead opinion notes, "we have not yet considered the implications of Custis on King challenges in this state[.]" We must wait for another day to consider this matter. The lead opinion's argument was neither presented below nor briefed on appeal. Therefore, it would be imprudent for us to adopt it sua sponte.
[¶ 66.] This country's judicial system is grounded on an adversarial process in which opposing sides have notice and an opportunity to be heard before a decision is made. Bypassing the adversarial process today could result in just as significant an oversight as the lead opinion argues occurred in State v. King, 383 N.W.2d 854
[¶ 67.] KONENKAMP and WILBUR, Justices, concur.
Id. (alterations in original) (citations omitted).