preponderance of the evidence standard in South Dakota

2008Although an officer’s reliance on a mere “ ‘hunch’ ” is insufficient to justify a stop, Terry, 392 U.S. at 27 , 88 S.Ct. at 1883 , the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, 490 U.S. at 7 , 109 S.Ct. at 1585 . *460 Arvizu, 534 U.S. 266, 273-74 , 122 S.Ct. 744, 750-51 , 151 L.Ed.2d 740 (2002).

2008Although an officer’s reliance on a mere “ ‘hunch’ ” is insufficient to justify a stop, Terry, 392 U.S. at 27 , 88 S.Ct. at 1883 , the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, 490 U.S. at 7 , 109 S.Ct. at 1585 . *460 Arvizu, 534 U.S. 266, 273-74 , 122 S.Ct. 744, 750-51 , 151 L.Ed.2d 740 (2002).

2022“Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” State v. Olson, 2016 S.D. -6- #29832 25, ¶ 5, 877 N.W.2d 593, 595 (quoting Herren, 2010 S.D. 101, ¶ 7 , 792 N.W.2d at 554 ). [¶18.] “Investigatory stops may be based on information provided by informants.

2022“Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” State v. Olson, 2016 S.D. -6- #29832 25, ¶ 5, 877 N.W.2d 593, 595 (quoting Herren, 2010 S.D. 101, ¶ 7 , 792 N.W.2d at 554 ). [¶18.] “Investigatory stops may be based on information provided by informants.

2016Id. ¶ 7 (quoting Arvizu, 534 U.S. at 273-74 , 122 S.Ct. at 750-51 ). [¶6.] We have previously determined that, on its own, a delayed stop at a stop sign, even for 40 seconds, does not rise to the level of reasonable suspicion.

2012Id. (quoting United States v. Arvizu, 534 U.S. 266, 273-74 , 122 S.Ct. 744, 750 , 151 L.Ed.2d 740 (2002)). [T6.] "Recognizing that the term 'reasonable suspicion' cannot be precisely defined, we have said that it "is a common sense and non-technical concept dealing with the practical considerations of everyday life"" Id. ¶ 8 (quoting State v. Quartier, 2008 S.D. 62 , ¶ 10, 753 N.W.2d 885, 888 ).

1984Had this court opted in State v. Thundershield, supra, to adopt the less stringent preponderance-of-the-evidence test later sanctioned as a matter of federal constitutional law by the United States Supreme Court in Lego v. Twomey, 404 U.S. 477 , 92 S.Ct. 619 , 30 L.Ed.2d 618 (1972), I might very well have joined in the majority opinion.

1984Had this court opted in State v. Thundershield, supra, to adopt the less stringent preponderance-of-the-evidence test later sanctioned as a matter of federal constitutional law by the United States Supreme Court in Lego v. Twomey, 404 U.S. 477 , 92 S.Ct. 619 , 30 L.Ed.2d 618 (1972), I might very well have joined in the majority opinion.

1982We recognize that "the Constitution neither prohibits nor requires retrospective effect." Linkletter v. Walker, 381 U.S. 618, 629 , 85 S.Ct. 1731, 1737 , 14 L.Ed.2d 601, 608 (1965); State v. One 1966 Pontiac Auto., Etc., 270 N.W.2d 362 (S.D.1978).

1982We recognize that “the Constitution neither prohibits nor requires retrospective effect.” Linkletter v. Walker, 381 U.S. 618, 629 , 85 S.Ct. 1731, 1737 , 14 L.Ed.2d 601, 608 (1965); State v. One 1966 Pontiac Auto., Etc., 270 N.W.2d 362 (S.D.1978).

1982Appellant’s contention is based upon the United States Supreme Court’s March 24, 1982, decision in Santosky v. Kramer, - U.S. -, 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982), which held that before a state may terminate parental rights it must support its allegations by at least clear and convincing evidence, a holding that renders constitutionally deficient the preponderance of the evidence standard of SDCL 26-8-22.10 and our decisions based thereon.

1982Appellant’s contention is based upon the United States Supreme Court’s March 24, 1982, decision in Santosky v. Kramer, - U.S. -, 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982), which held that before a state may terminate parental rights it must support its allegations by at least clear and convincing evidence, a holding that renders constitutionally deficient the preponderance of the evidence standard of SDCL 26-8-22.10 and our decisions based thereon.

1981This Court has previously held that the preponderance of the evidence standard is constitutional, Matter of N.J.W., supra, and we see no reason to deviate from that position.

1981W., supra, and we see no reason to deviate from that position.

2026While the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and this Court in Saathoff v. Kuhlman, 2009 S.D. 17 , 763 N.W.2d 800 , applied a burden of proof at the summary judgment stage, both are libel cases involving public figures.

2026While the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and this Court in Saathoff v. Kuhlman, 2009 S.D. 17 , 763 N.W.2d 800 , applied a burden of proof at the summary judgment stage, both are libel cases involving public figures.

2022However, ‘[t]he requirement that an officer have reasonable suspicion prior to a stop is not abrogated simply because a third-party informant is convinced a crime occurred.’” State v. Sharpfish, 2019 S.D. 49, ¶ 26 , 933 N.W.2d 1 , 10 (alteration in original) (quoting Stanage, 2017 S.D. 12, ¶ 10 , 893 N.W.2d at 526 ). “‘The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability[]”’ based upon the totality of the circumstances.” Id. ¶ 25, 933 N.W.2d at 10 (quoting Navarette, 572 U.S. at 397 , 13

2022However, ‘[t]he requirement that an officer have reasonable suspicion prior to a stop is not abrogated simply because a third-party informant is convinced a crime occurred.’” State v. Sharpfish, 2019 S.D. 49, ¶ 26 , 933 N.W.2d 1 , 10 (alteration in original) (quoting Stanage, 2017 S.D. 12, ¶ 10 , 893 N.W.2d at 526 ). “‘The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability[]”’ based upon the totality of the circumstances.” Id. ¶ 25, 933 N.W.2d at 10 (quoting Navarette, 572 U.S. at 397 , 13

2022However, ‘[t]he requirement that an officer have reasonable suspicion prior to a stop is not abrogated simply because a third-party informant is convinced a crime occurred.’” State v. Sharpfish, 2019 S.D. 49, ¶ 26 , 933 N.W.2d 1 , 10 (alteration in original) (quoting Stanage, 2017 S.D. 12, ¶ 10 , 893 N.W.2d at 526 ). “‘The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability[]”’ based upon the totality of the circumstances.” Id. ¶ 25, 933 N.W.2d at 10 (quoting Navarette, 572 U.S. at 397 , 13

2022However, ‘[t]he requirement that an officer have reasonable suspicion prior to a stop is not abrogated simply because a third-party informant is convinced a crime occurred.’” State v. Sharpfish, 2019 S.D. 49, ¶ 26 , 933 N.W.2d 1 , 10 (alteration in original) (quoting Stanage, 2017 S.D. 12, ¶ 10 , 893 N.W.2d at 526 ). “‘The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability[]”’ based upon the totality of the circumstances.” Id. ¶ 25, 933 N.W.2d at 10 (quoting Navarette, 572 U.S. at 397 , 13

2008Although an officer’s reliance on a mere “ ‘hunch’ ” is insufficient to justify a stop, Terry, 392 U.S. at 27 , 88 S.Ct. at 1883 , the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, 490 U.S. at 7 , 109 S.Ct. at 1585 . *460 Arvizu, 534 U.S. 266, 273-74 , 122 S.Ct. 744, 750-51 , 151 L.Ed.2d 740 (2002).

2008Although an officer’s reliance on a mere “ ‘hunch’ ” is insufficient to justify a stop, Terry, 392 U.S. at 27 , 88 S.Ct. at 1883 , the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, 490 U.S. at 7 , 109 S.Ct. at 1585 . *460 Arvizu, 534 U.S. 266, 273-74 , 122 S.Ct. 744, 750-51 , 151 L.Ed.2d 740 (2002).

2004State v. Akuba, 2004 SD 94 , 686 N.W.2d 406 ; see also United States v. Matlock, 415 U.S. 164, 177-78 , 94 S.Ct. 988, 996 , 39 L.Ed.2d 242 n14 (1974) (burden on prosecution to show voluntariness of consent to search).

2004State v. Akuba, 2004 SD 94 , 686 N.W.2d 406 ; see also United States v. Matlock, 415 U.S. 164, 177-78 , 94 S.Ct. 988, 996 , 39 L.Ed.2d 242 n14 (1974) (burden on prosecution to show voluntariness of consent to search).

1996Did the trial court err in refusing to instruct the jury on the clear and convincing burden of proof standard? [¶ 21] Jones invites this Court to reexamine the issue we decided in Flockhart v. Wyant, 467 N.W.2d 473 (S.D.1991), and require that the jury apply a clear and convincing standard of proof in determining punitive damage awards rather than the preponderance of the evidence standard.

1991We distinguish the preponderance of the evidence standard in Dickens from the beyond a reasonable doubt standard implied in State v. Garritsen, 421 N.W.2d 499 (S.D.1988).

1989It not only involves necessarily disgrace and humiliation, but it means the end of [his or her] professional career." Schramm, 414 N.W.2d at 35 .

1981(Emphasis supplied.) In Commercial Credit Equipment Corporation v. Johnson, 87 S.D. 411 , 209 N.W.2d 548 (1973), we undertook to blend the preponderance of the evidence rule with a clear and convincing standard: Fraud must be proved by a preponderance of the evidence, but that evidence must be clear, satisfactory and convincing.

1981(Emphasis supplied.) In Commercial Credit Equipment Corporation v. Johnson, 87 S.D. 411 , 209 N.W.2d 548 (1973), we undertook to blend the preponderance of the evidence rule with a clear and convincing standard: Fraud must be proved by a preponderance of the evidence, but that evidence must be clear, satisfactory and convincing.

1975The evidence supports the trial court’s finding that testatrix intentionally omitted to provide for Carolyn Schalk, whether we apply the clear and convincing evidence test, of which nothing is said in In Re Swenson’s Estate, supra, nor to which is the decision in Mahan v. Mahan, 80 S.D. 211 , 121 N.W.2d 367 , applicable, or the preponderance of the evidence test.

1975The evidence supports the trial court’s finding that testatrix intentionally omitted to provide for Carolyn Schalk, whether we apply the clear and convincing evidence test, of which nothing is said in In Re Swenson’s Estate, supra, nor to which is the decision in Mahan v. Mahan, 80 S.D. 211 , 121 N.W.2d 367 , applicable, or the preponderance of the evidence test.