State v. Lee , 2017 S.D. LEXIS 60 ( 2017 )

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2017 S.D. 28IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
ASHLEY LEE, Defendant and Appellee.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE WALLY EKLUND
Retired Judge
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MARTY J. JACKLEY
Attorney General
GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellant.
JOANNA LAWLER
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant and
appellee.
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CONSIDERED ON BRIEFS
ON APRIL 24, 2017
OPINION FILED 05/17/17
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SEVERSON, Justice
[¶1.] An asset protection associate at a Walmart placed Ashley Lee under
citizen’s arrest for theft. The associate contacted law enforcement, who took Lee
into custody and searched her purse, finding a pipe with methamphetamine
residue. Lee moved to suppress all evidence from the search, alleging that law
enforcement had no authority to arrest her and thus the search was illegal. The
circuit court agreed with Lee and suppressed all evidence obtained from the search.
On intermediate appeal, the State alleges that the search was a proper search
incident to an arrest. We reverse the circuit court’s order granting Lee’s motion to
suppress evidence.
Background
[¶2.] On May 16, 2015, Lee was shopping at a Walmart in Rapid City when
an asset protection associate, Aaron Miller, noticed her concealing items in her
purse. She paid for other items at the store, but failed to pay for those that she had
placed in her purse. After she passed all points of sale, Miller apprehended her. He
recovered the items stolen (totaling a value of $36.63), reported the incident to the
police, and detained her until an officer arrived. Miller described the incident in a
“Citizen’s Arrest Report.” Officer Duane Baker with the Rapid City Police
Department responded to the report of the theft. He performed a warrantless
search of her purse and found a glass pipe. Residue on the pipe tested positive for
methamphetamine.
[¶3.] A complaint was filed on May 20, 2015, charging Lee with petty theft
and possession of a controlled substance. On July 8, 2015, she was charged by an
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information with possession of a controlled substance. A part II information alleged
that she was convicted of two felonies in 2014. Lee moved to suppress the evidence
obtained as a result of the search, claiming that law enforcement arrested her
without a warrant for a Class 2 misdemeanor committed outside an officer’s
presence, in violation of SDCL 23A-3-2. Therefore, according to Lee, there was no
authority to search her incident to an arrest.
[¶4.] On July 28, 2016, the circuit court filed findings of fact and conclusions
of law directing suppression of the evidence. It concluded that a citizen’s arrest
“merely permits detention of a suspect until he [or she] may be taken before a
magistrate or delivered to the nearest available law enforcement officer. A citizen’s
arrest does not entitle a police officer to make a custodial arrest when he otherwise
would not have that authority.” The State asserts that the circuit court erred and
that law enforcement may validly search, without a warrant, a person incident to a
citizen’s arrest.
Analysis
[¶5.] “A motion to suppress for an alleged violation of a constitutionally
protected right raises a question of law, requiring de novo review.” State v. Hess,
2004 S.D. 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Herrmann, 2002 S.D. 119,
¶ 9, 652 N.W.2d 725, 728). Pursuant to SDCL 23A-3-3,
Any person may arrest another:
(1) For a public offense, other than a petty offense, committed or
attempted in his presence; or
(2) For a felony which has been in fact committed although not
in his presence, if he has probable cause to believe the person
to be arrested committed it.
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Similarly, law enforcement may arrest citizens without a warrant pursuant to
SDCL 23A-3-2, which provides:
A law enforcement officer may, without a warrant, arrest a
person:
(1) For a public offense, other than a petty offense, committed or
attempted in his presence; or
(2) Upon probable cause that a felony or Class 1 misdemeanor
has been committed and the person arrested committed it,
although not in the officer’s presence.
Lee concedes that she is not challenging the validity of her citizen’s arrest under
SDCL 23A-3-3. 1 There is also no dispute that petty theft is a Class 2 misdemeanor;
that the theft occurred outside Officer Baker’s presence; and therefore Officer Baker
did not have authority under SDCL 23A-3-2 to arrest Lee. The only issue is Officer
Baker’s authority to take Lee into custody after she had been placed under citizen’s
arrest by the Walmart associate and to perform a search of her incident to the
citizen’s arrest. See State v. Bonrud, 393 N.W.2d 785, 787 (S.D. 1986) (explaining
warrantless searches are unconstitutional unless the search falls within a
recognized exception to the general rule requiring a search warrant); State v.
Smith, 2014 S.D. 50, ¶ 15, 851 N.W.2d 719, 724 (“Search incident to lawful arrest is
one of the well-delineated exceptions to the warrant requirement.”).
[¶6.] We have previously upheld a search of a defendant by a sheriff after
the defendant was placed under citizen’s arrest. In State v. Bonrud, two men stole
1. The State notes that petty theft is not a petty offense based on our case law.
See State v. Lundeman, 2010 S.D. 9, ¶ 21, 778 N.W.2d 618, 624 (“Generally,
if the defendant is subject to jail time . . . an offense is not petty[.]”)
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a money box from a person “distributing religious pamphlets and putting any
money donations he received from their sale” in the box. 393 N.W.2d at 786. A
citizen who saw the men grab the box chased the men down and detained them
until the sheriff arrived. The sheriff searched the vehicle that defendant was riding
in and gathered the money and box from the vehicle. Defendant challenged the
validity of the citizen’s arrest and claimed that any evidence seized after the
allegedly illegal citizen’s arrest should be suppressed. Id.
[¶7.] We upheld the citizen’s arrest and also addressed the constitutionality
of the search. Id. at 787. We cited the United States Supreme Court decision New
York v. Belton, which held that “when a policeman has made a lawful custodial
arrest of the occupant of an automobile, he may, as a contemporaneous incident of
that arrest, search the passenger compartment of that automobile.” 453 U.S. 454,
460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981), abrogation recognized by Davis
v. United States, 564 U.S. 229, 234, 131 S. Ct. 2419, 2425, 180 L. Ed. 2d 285 (2011)
(explaining that an automobile search incident to recent occupant’s arrest is
constitutional if the arrestee is within reaching distance of the vehicle during the
search or the police have reason to believe that the vehicle contains evidence
relevant to the arrest). We noted that “[t]he record [did] not specifically reflect that
the sheriff, on his own part arrested [defendant], but it clearly shows that he took
him into custody.” Bonrud, 393 N.W.2d at 787. And we determined that Belton
applied, holding:
In any event, [defendant] was validly arrested and in custody
when the sheriff searched the vehicle. We recognize that the
Belton decision speaks specifically to the situation where a
policeman makes a lawful arrest and conducts a
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contemporaneous search. We find no important distinction that
would prevent us from applying Belton to the situation here
where the citizen makes the lawful arrest and the sheriff
conducts a contemporaneous search. We therefore determine
that the sheriff made a valid search of [defendant’s] vehicle and
the trial court correctly denied suppression of the evidence.
Id. at 787-88 (emphasis added) (citing Moll v. United States, 413 F.2d 1233 (5th Cir.
1969)).
[¶8.] Our Bonrud decision remains consistent with our statutes today. Lee
asserts that the Bonrud decision is distinguishable from this case because the
Sheriff in Bonrud had the authority to independently arrest the defendant under
SDCL 23A-3-2, whereas here there is no such authority. Nevertheless, we did not
condition our holding on the Sheriff having independent authority to arrest. We
recognized that it was unclear whether he had arrested the defendant “on his own
part.” But we explicitly rejected the notion that the search’s validity rested on the
individual performing the search. Id. at 788. SDCL 23A-3-1 contains a single
definition of arrest that applies to both a citizen’s arrest and an arrest by law
enforcement. Arrest is defined as “the taking of a person into custody so that he
may be held to answer for the alleged commission of a public offense.” SDCL 23A-3-
1. Thus, a search need not be incident to an arrest by law enforcement because a
citizen is empowered to make the same arrest. 2
2. Without providing authority for her proposition, Lee asks this Court to
determine that this citizen’s arrest was a “non-custodial arrest.” This Court
has only once before used the term non-custodial arrest. See State v.
Brassfield, 2000 S.D. 110, ¶ 11, 615 N.W.2d 628, 631. We cited with approval
a Colorado Supreme Court decision that held:
A “custodial” arrest is made for the purpose of taking the arrestee to
the stationhouse for booking procedures and in order to file criminal
(continued . . .)
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[¶9.] Further indication that law enforcement does not need independent
grounds to make a warrantless arrest under SDCL 23A-3-2 before taking the
arrestee into custody and performing a search is found in SDCL 23A-4-1 (Rule 5(a))
and SDCL 22-30A-19.2. SDCL 23A-4-1 (Rule 5(a)) directs that once a citizen has
made that arrest, he or she must “take the arrested person before the nearest
available committing magistrate or deliver him to the nearest available law
enforcement officer.” SDCL 22-30A-19.2 states:
Any owner or seller of merchandise, who has reasonable grounds
to believe that a person has committed retail theft pursuant to §
22-30A-19.1, may detain such person, on or off the premises of a
retail mercantile establishment, in a reasonable manner and for
a reasonable length of time:
(1) To request identification;
(2) To verify such identification;
(3) To make reasonable inquiry as to whether such person
has in his or her possession unpurchased merchandise
and, to make reasonable investigation of the ownership of
such merchandise;
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(. . . continued)
charges. A “non-custodial” arrest, however, involves only a temporary
detention for the purpose of issuing a notice or summons to the
arrestee.
Id. (quoting People v. Bland, 884 P.2d 312, 316 n.6 (Colo. 1994)). Lee offers
no argument or authority that a citizen has the power to issue a notice or
summons to the arrestee. And a determination that a citizen’s arrest is non-
custodial would be contrary to the definition of arrest in SDCL 23A-3-1. It
would also prevent a citizen from delivering the person into the custody of
law enforcement or bringing the arrestee before a committing magistrate in
accordance with SDCL 23A-4-1 (Rule 5(a)). SDCL 23A-4-1 (Rule 5(a)) states
in relevant part:
Any person, other than a law enforcement officer, making an arrest
shall, without unnecessary delay, take the arrested person before the
nearest available committing magistrate or deliver him to the nearest
available law enforcement officer.
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(4) To inform a law enforcement officer of the detention of
the person and surrender that person to the custody of a
law enforcement officer; and
(5) In the case of a minor, to inform a law enforcement
officer, a parent, guardian, or other private person.
SDCL 22-30A-19.2 (emphasis added). Thus, these statutes explicitly contemplate
law enforcement taking an individual into custody without the officer having been
present to personally observe the public offense.
Conclusion
[¶10.] Neither South Dakota’s statutes concerning a citizen’s arrest nor our
precedent support the conclusion that a law enforcement officer must have
independent authority to arrest under SDCL 23A-3-2 before taking a person placed
under citizen’s arrest into custody and performing a search incident to that arrest.
Here, Lee was validly placed under citizen’s arrest, and the responding law
enforcement officer who took her into custody properly performed a search incident
to that arrest. Accordingly, the circuit court erred when it suppressed evidence
obtained from the search of Lee.
[¶11.] Reversed.
[¶12.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,
Justices, concur.
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