State v. Rolfe ( 2018 )

#28569-a-DG
2018 S.D. 86
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
TOBY ROLFE, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE ROBERT A. MANDEL
Judge
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MARTY J. JACKLEY
Attorney General
ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ELLERY GREY of
Grey & Eisenbraun Law
Rapid City, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 5, 2018
OPINION FILED 12/19/18
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GILBERTSON, Chief Justice
[¶1.] Toby Rolfe appeals his judgment of conviction and sentence for third-
degree rape. He asserts that the circuit court erred in denying his motion to
suppress all evidence obtained from a warrantless search of his garage. Rolfe
claims that he was unreasonably seized by police deputies before the search took
place and that any consent given to search the garage after the seizure was invalid.
We affirm.
Facts and Procedural History
[¶2.] Around 4:00 a.m. on September 28, 2016, an anonymous source in Box
Elder placed a 911 call reporting she had witnessed an unconscious female being
raped five minutes earlier. The caller informed the dispatcher that the female
victim had dark hair, was between 20 and 30 years old, and had possibly been
drugged. She described the two perpetrators as white males in their 30s wearing
gray or black shirts. She specifically named Rolfe as one of the assailants. The
caller claimed that the incident occurred inside a detached garage on Rolfe’s
property, which was across the street from her current location.
[¶3.] Pennington County Sheriff’s Deputies Jon Edwards and Josh Kunde
were dispatched to Rolfe’s home in Box Elder. When they arrived at the residence,
the deputies observed that Rolfe’s vehicle was parked on the premises, that the
lights were dark in the house, and that lights and music were coming from the
garage. Deputy Edwards approached the walk-through door of the garage and
Deputy Kunde approached the roll-up door.
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[¶4.] Both doors were closed, so each deputy knocked on the respective
doors. Deputy Edwards stated, “This is the Sheriff’s Office,” and Deputy Kunde
stated both that he was with the Sheriff’s Office and that he was a fictional
neighbor named Wayne. Deputy Kunde’s deception was an attempt to get someone
to come to the door. During this time, the deputies could hear two males speaking
to each other inside, and heard them say “Go away,” and “Fuck off.” The deputies
reported they had difficulty communicating with the garage occupants through the
doors and were unsure whether the occupants knew they were law enforcement
officers.
[¶5.] The deputies continued knocking on the doors for several minutes
before anyone in the garage came to the door. When the occupants approached the
door, Deputy Edwards spoke with them through the closed door. He identified
himself as a deputy with the Pennington County Sheriff’s Office and explained that
they had received a report of an assault. At the end of the conversation, Marvin
Payne, Rolfe’s friend, opened the door while Rolfe stood behind him. Payne and
Rolfe matched the description of the assailants given by the 911 caller. Deputy
Edwards asked, “So can I come in and make sure there’s not anyone who’s like
injured? Is that okay?” Payne immediately replied “Yeah, yeah, yeah” while Rolfe
affirmatively nodded his head up and down. Before the deputies entered, Payne
stated that there was a girl inside the garage who was passed out.
[¶6.] The deputies entered the garage. Inside, Deputy Edwards observed
two legs sticking out from underneath an air hockey table. He soon discovered an
unconscious female underneath the table that matched the description of the victim
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he received from dispatch. The female was naked from the abdomen down. Deputy
Edwards could not feel the woman’s pulse, and she remained unconscious despite
the efforts of both deputies to wake her up. Deputy Edwards called for an
ambulance and the woman was transported to the hospital for medical care.
[¶7.] Both Rolfe and Payne were placed under arrest. During a search
incident to the arrests, Deputy Kunde found a cell phone in Payne’s front pocket. A
search of the cell phone made pursuant to a warrant uncovered pictures of the
apparently unconscious female being sexually penetrated. On October 12, 2016, a
Pennington County grand jury indicted Rolfe on one count of third-degree rape in
violation of SDCL 22-22-1(3).
[¶8.] Rolfe filed several pre-trial motions, including a motion to suppress
evidence of the cell phone pictures and the observations of the deputies. Rolfe
argued he was unreasonably seized when the deputies were pounding on the garage
door and stating “Sheriff’s Office, open the door,” and that any evidence obtained as
a result of the unreasonable seizure should be suppressed. The State argued Rolfe
and Payne were not seized, and that both Payne and Rolfe had given valid consent
to enter the garage and search the premises without a warrant. At a hearing on
May 12, 2017, the circuit court orally denied Rolfe’s motion. The court held that
Rolfe and Payne were not seized when they first encountered the deputies and had
validly consented to the deputies’ entrance into the garage. The court entered a
written order denying Rolfe’s motion to suppress on June 13, 2017. Rolfe filed a
motion to reconsider the motion to suppress, but the court again denied the motion
on the same bases.
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[¶9.] Rolfe waived his right to a jury trial and agreed to a bench trial based
on stipulated facts. The circuit court convicted Rolfe of third-degree rape. The
State dismissed the part II information as well as an unrelated petty theft charge.
The circuit court sentenced Rolfe to 25 years in prison with 17 years suspended.
Rolfe appeals his conviction and sentence and asks this Court to determine whether
the circuit court erred in denying his motion to suppress evidence.
Standard of Review
[¶10.] “We review the denial of a motion to suppress based on the alleged
violation of a constitutionally protected right as a question of law by applying the de
novo standard of review.” State v. Bowers, 2018 S.D. 50, ¶ 9, 915 N.W.2d 161, 164
(quoting State v. Doap Deng Chuol, 2014 S.D. 33, ¶ 19, 849 N.W.2d 255, 261). “We
review the circuit court’s factual findings for clear error. Once the facts have been
determined, we give no deference to the court’s application of a legal standard to
those facts. Those questions of law are reviewed de novo.” State v. Kleven,
2016 S.D. 80, ¶ 7, 887 N.W.2d 740, 742 (citations omitted).
Analysis & Decision
[¶11.] At the hearing on Rolfe’s motion to suppress evidence, the State
argued that the deputies’ entry into Rolfe’s garage was justified because Rolfe and
Payne were not seized before opening the garage door, and because Payne, an
overnight guest of Rolfe’s, voluntarily consented to open the garage door and let the
deputies into the garage. The circuit court agreed with the State and denied the
motion to suppress. Rolfe argues that the facts of this case establish that Rolfe and
Payne were unlawfully seized for purposes of the Fourth Amendment as soon as the
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deputies began pounding on the garage doors and windows and commanding,
“Sheriff’s Office, open the door.” Because this unlawful seizure occurred before the
deputies asked to enter the garage, Rolfe claims that the entry could not have been
based on voluntary consent. Rolfe therefore asserts that any evidence seized as a
result of Payne’s consent should be suppressed.
[¶12.] The right to be free from unreasonable searches and seizures is
guaranteed by the United States Constitution and the South Dakota Constitution.
U.S. Const. amend. IV; S.D. Const. art. VI, § 11. “The Fourth Amendment’s
prohibition against unreasonable searches and seizures requires generally the
issuance of a warrant by a neutral judicial officer based on probable cause prior to
the execution of a search or seizure of a person.” State v. Fierro, 2014 S.D. 62, ¶ 15,
853 N.W.2d 235, 240 (quoting State v. Smith, 2014 S.D. 50, ¶ 15, 851 N.W.2d 719,
724). “Warrantless searches are per se unreasonable, apart from a few, well-
delineated exceptions.” Id. (quoting Smith, 2014 S.D. 50, ¶ 15, 851 N.W.2d at 724).
“[I]t is the State’s burden to prove that the search at issue falls within a well-
delineated exception to the warrant requirement.” Id.
Whether Rolfe and Payne Were Seized
[¶13.] We first address Rolfe’s assertion that he and Payne were
unreasonably seized well before Payne gave police consent to enter Rolfe’s garage.
“[N]ot every encounter between a citizen and the police constitutes a Fourth
Amendment seizure.” State v. Iversen, 2009 S.D. 48, ¶ 9, 768 N.W.2d 534, 536.
“Only when an officer, by means of physical force or show of authority, has in some
way restrained the liberty of a citizen may a court conclude that a ‘seizure’ has
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occurred.” Id. ¶ 10, 768 N.W.2d at 536-37 (quoting Terry v. Ohio, 392 U.S. 1,
19 n.16, 88 S. Ct. 1868, 1879 n.16, 20 L. Ed. 2d 889 (1968)). This Court has adopted
the reasoning of the United States Supreme Court in saying that:
a seizure does not occur simply because a police officer
approaches an individual and asks a few questions. So long as a
reasonable person would feel free to disregard the police and go
about his business, the encounter is consensual and no
reasonable suspicion is required. The encounter will not trigger
Fourth Amendment scrutiny unless it loses its consensual
nature.
See id. ¶ 12, 768 N.W.2d at 537 (quoting Florida v. Bostick, 501 U.S. 429, 433,
111 S. Ct. 2382, 2385, 115 L. Ed. 2d 389 (1991)).
[¶14.] Rolfe cites two cases in support of his proposition that he and Payne
were seized as soon as the deputies began pounding on the doors and windows and
commanding them to open the door. See United States v. Reeves, 524 F.3d 1161,
1164-69 (10th Cir. 2008) (holding defendant was unlawfully seized under the
Fourth Amendment when he opened his motel room door after police had yelled and
knocked on the doors and windows of the room with metal police flashlights for 20
minutes); United States v. Jerez, 108 F.3d 684, 691-93 (7th Cir. 1997). (holding
defendant was seized after opening his door after police knocked on his door for
three minutes and window for two minutes, identified themselves as officers, and
shined a flashlight in the window). Similar to these cases, Rolfe argues that the
actions of the deputies in knocking on the garage doors and windows and
commanding Rolfe and Payne to open them for about five minutes constituted an
unreasonable seizure. Rolfe also claims that, under the totality of the
circumstances, no reasonable person in Rolfe and Payne’s position would have
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believed that they could disregard the deputies’ commands and go about their
business.
[¶15.] Here, the circuit court made several key findings as to Rolfe and
Payne’s encounter with the deputies. The court found that
[i]nitially, the deputies had a difficult time communicating with
the individuals inside the garage. While knocking, Deputy
Edwards stated, “This is the Sheriff’s Office,” while Deputy
Kunde stated both that he was with the Sheriff’s Office and that
he was a fictional neighbor named “Wayne” in an effort to get
someone to answer the door. During this time, the deputies
could hear two males speaking to each other inside and could
hear them say, “Go away,” and “Fuck off” while knocking. Due
to the difficulty communicating with each other through the
garage door and walls while loud music was playing, the
deputies were unsure whether the individuals inside the garage
knew they were law enforcement officers.
The court also found that
[w]hen the occupants of the garage came closer to the door
where Deputy Edwards was standing, communication became
easier. As Deputy Edward explained, ‘Once they came to the
door and we were able to communicate . . . through the closed
door, that we were the Sheriff’s Office and that we were there to
look for the victim of an assault, then . . . we just had a normal
conversation.’
Finally, the circuit court found that shortly after speaking with the deputies
through the door, Payne opened the door and had a “cordial” encounter with the
deputies, who remained outside. At that point, Payne told the officers they could
enter.
[¶16.] A review of the record, especially the audio of the encounter taken
from the deputies’ dash cams, shows that the circuit court’s findings were free of
clear error. It appears, as the circuit court surmised, that the deputies heard voices
inside of the garage almost immediately after their arrival, but were having
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difficulty communicating with those inside. This communication was further
complicated by Deputy Kunde’s deceptive tactic of announcing himself as being a
neighbor named “Wayne.” Thereafter, the deputies continued knocking and
announcing themselves as being with the Sheriff’s Office. Contrary to Rolfe’s
claims, the period of time from when the first knock on the garage can be heard, to
when Deputy Edwards can be heard beginning a strained conversation with an
occupant inside the garage, was less than two minutes. The difficulty in
communicating and the very short timeframe between the first knock and the
consensual conversation through the garage’s walk-through door distinguishes this
case from both Reeves, 524 F.3d at 1164-69, and Jerez, 108 F.3d at 691-93. We
conclude that the deputies’ actions were reasonable and that Rolfe and Payne were
not seized as soon as the encounter began.
Whether Rolfe and Payne Voluntarily Consented to Entry
[¶17.] Because we conclude that Rolfe and Payne were not seized, we proceed
to review the State’s contention that there was voluntary consent to enter the
garage. The State asserts that Rolfe and Payne were not seized and that Payne’s
words and actions when he allowed the deputies into Rolfe’s garage constituted
voluntary consent.
[¶18.] Consent is an exception to the warrant requirement. See State v.
Hemminger, 2017 S.D. 77, ¶ 23, 904 N.W.2d 746, 754. “Whether a valid consent to
search exists is generally a question of fact for the trial court.” Id. ¶ 16, 904 N.W.2d
at 752 (quoting State v. Akuba, 2004 S.D. 94, ¶ 25, 686 N.W.2d 406, 417).
For consent to be valid, the State must prove by a
preponderance of the evidence that it was voluntarily given.
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The voluntariness of consent is a factual question based on the
totality of the circumstances. The totality of the circumstances
includes the conditions wherein the consent was obtained, the
officer’s conduct, and the duration, location, and time of the
event as well as the accused’s age, maturity, education,
intelligence, and experience.
Id. ¶ 23, 686 N.W.2d at 754. “Whether the accused knew that he possessed a right
to refuse consent also is relevant to determining the voluntariness of the consent.”
Id. (quoting State v. Castleberry, 2004 S.D. 95, ¶ 9, 686 N.W.2d 384, 387). “But the
State need not prove that defendant knew of the right to refuse consent to show
that the consent was voluntary.” Id. (quoting Castleberry, 2004 S.D. 95, ¶ 9,
686 N.W.2d at 387). “[C]onsent need not be explicit—it can be inferred from words,
gestures, and other conduct.” Id. ¶ 24. “The standard for assessing whether
consent was coerced or voluntary is one of objective reasonableness.” Id. ¶ 23.
[¶19.] Here, the record shows that Payne engaged in a consensual
conversation with the deputies through the closed walk-through garage door
minutes after their arrival. When Deputy Edwards explained the situation, Payne
voluntarily opened the walk-through door. As the door opened, Deputy Edwards
observed Payne and saw Rolfe standing behind and to the right of Payne. Deputy
Edwards asked Payne if he could enter the garage and look for a victim of alleged
assault. Payne replied “Yeah, yeah, yeah,” and Rolfe simultaneously nodded his
head affirmatively.
[¶20.] Deputy Edwards testified that the entire encounter at the doorway
was cordial, and that no physical force was used to gain entry to the garage. The
encounter lasted for a brief time before Payne and Rolfe allowed the deputies to
enter. As to Rolfe, consent to enter the garage could be inferred from his gesture of
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nodding affirmatively when Payne gave the deputies permission to enter. Rolfe’s
age and experience with law enforcement supports his ability to consent. At the
time of the encounter, he was 43 years old and had previous experience with law
enforcement, having been convicted of four prior DUIs. Based on the totality of the
circumstances, Rolfe’s consent to search the garage was voluntary.
Conclusion
[¶21.] Because both Rolfe and Payne were not seized for purposes of the
Fourth Amendment at the beginning of their encounter with the deputies, and
because both Payne and Rolfe’s consent to search the garage was voluntary, the
circuit court did not err in denying Rolfe’s motion to suppress evidence.
[¶22.] KERN, JENSEN and SALTER, Justices, concur.
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