State v. Tillman ( 2012 )

#26102-aff in pt, rev in pt & rem-JKK
2012 S.D. 57IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
TYLER TILLMAN,
VINCENT ROSSI, and
JESSICA WALLACE, Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
****
THE HONORABLE WARREN G. JOHNSON
Judge
****
MARTY J. JACKLEY
Attorney General
TIMOTHY J. BARNAUD
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellant.
MATTHEW J. KINNEY
Spearfish, South Dakota Attorney for defendant
and appellee Rossi.
BRADLEY T. BORGE
Rapid City, South Dakota Attorney for defendant
and appellee Wallace.
DAVID L. CLAGGETT
Spearfish, South Dakota Attorney for defendant
and appellee Tillman.
****
ARGUED ON APRIL 18, 2012
OPINION FILED 07/11/12
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KONENKAMP, Justice
[¶1.] A neighbor’s complaint about marijuana directed Spearfish police
officers to an apartment unit, where the officers smelled the odor of burnt
marijuana outside the door. One tenant let the officers inside, but when the officers
observed raw marijuana in plain view, another tenant demanded that the officers
obtain a search warrant before they conducted any search. While the officers
sought a warrant, they secured the apartment and detained all the tenants at the
police station. On a motion to suppress, the circuit court found that the officers had
probable cause to arrest two of the three tenants and search their apartment, but
the detention at the station was unreasonable and violated their constitutional
rights. The court suppressed all evidence. We granted an intermediate appeal to
review the suppression order.
Background
[¶2.] On September 13, 2010, the Spearfish Police Department dispatched
Corporal Verla Little and Officer Patrick Johnson to an apartment house at 740
University Street in response to a neighbor’s complaint about the smell of burning
marijuana from Unit 4. When the officers entered the house, they went upstairs
toward Unit 4, where they too could smell burnt marijuana. They knocked, and
Vincent Rossi opened the door. Rossi permitted the officers to enter. They asked
Rossi if there was anyone else in the apartment. He went back and got Jessica
Wallace. The officers then asked Wallace and Rossi if anyone else lived in the
apartment. Wallace told the officers that her boyfriend, Tyler Tillman, also lived
there, but was not home at the time.
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[¶3.] While the officers were inside the apartment, Corporal Little observed
a rolled up towel by the entry door on the floor, which she knew to be commonly
used to keep the smell of marijuana from drifting out of a room. She also observed a
small amount of raw marijuana on a dresser and what she suspected to be burnt
marijuana residue. Corporal Little noticed several bottles of air freshener, which
she knew from her training and experience were used to mask the odor of burning
marijuana. Officer Johnson also made several observations, namely, some rolling
papers next to the television. Rossi claimed that he rolled his own cigarettes, but
could not produce smoking tobacco when asked. Officer Johnson saw a package of
commercial cigarettes on the table.
[¶4.] Corporal Little and Officer Johnson advised Rossi and Wallace that
they received a complaint that someone smelled the odor of burnt marijuana. Both
denied using any illegal substance. Officer Johnson asked Rossi if there were any
drugs in the apartment and requested a consent to search. Wallace, as the
leaseholder, asked that the officers obtain a search warrant. After Wallace refused
consent, the officers chose to detain Rossi and Wallace and secure the scene while
they obtained a warrant. Neither one was formally arrested. But the officers
searched them for weapons, handcuffed them, and placed them in the back of the
patrol cars. To secure the scene, Officer Candi Birk stayed outside the apartment
unit to prevent anyone from entering.
[¶5.] At 1:45 p.m., Officer Johnson and Corporal Little transported Wallace
and Rossi to the police station and placed them in individual holding rooms. Officer
Johnson began the process of obtaining a search warrant. This was his first time
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preparing a warrant affidavit. Special Agent Steven Ardis and Detective Jason
Deneui helped Officer Johnson by reviewing the affidavit after it was prepared.
Although much of the language he used was boilerplate, Officer Johnson took three
hours and nine minutes to fax a completed warrant affidavit and other documents
to Magistrate Judge Michelle Percy. Wallace and Rossi remained detained at the
station. At 4:17 p.m., Tillman was detained when he returned to the apartment,
and he too was taken to a holding room at the station.
[¶6.] Judge Percy granted the warrant request, and, at 5:45 p.m., the
warrant was executed. In addition to marijuana, the officers found psilocybin
mushrooms and prescription drugs. Following the search, Agent Ardis returned to
the station to interview Rossi, but first a urine sample was taken from him. The
interview began at 6:30 p.m. Agent Ardis read Rossi his Miranda rights, and Rossi
agreed to answer questions. He made several incriminating statements about the
evidence in the apartment.
[¶7.] Shortly after he concluded his interview with Rossi, Agent Ardis was
told that the warrant did not include psilocybin mushrooms, prescription drugs, or
cell phones. He recommended that those items be added to the search warrant as a
precaution, after which, Officer Johnson called Judge Percy and made an oral
amendment request. At 8:00 p.m., Judge Percy orally granted the amendment. The
officers concluded the search of the apartment at 8:15 p.m.
[¶8.] Around 8:00 p.m., Agent Ardis interviewed Tillman. Tillman waived
his Miranda rights. He spoke with Agent Ardis and made incriminating statements
about the evidence found in the apartment. He also provided a urine sample. The
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interview concluded at 9:30 p.m. Agent Ardis then attempted to question Wallace.
She declined to speak. All three were released at 10:00 p.m.
[¶9.] Rossi and Tillman were indicted for possession of a controlled drug or
substance in violation of SDCL 22-42-5 and SDCL 22-3-3, and possession of
marijuana (less than two ounces) in violation of SDCL 22-42-6. Wallace was
indicted for possession of a controlled drug or substance with intent to distribute in
violation of SDCL 22-42-2, and two counts of possession of a controlled drug or
substance in violation of SDCL 22-42-5. Rossi, Tillman, and Wallace moved to
suppress the evidence. At the hearing, the defendants collectively argued that the
seizure of their persons and apartment violated their constitutional right against
unreasonable searches and seizures. They relied on Illinois v. McArthur, in which
the United States Supreme Court assessed the reasonableness of a home seizure
pending the application for a search warrant. See 531 U.S. 326, 121 S. Ct. 946, 148
L. Ed. 2d 838 (2001).
[¶10.] The circuit court issued a memorandum decision, findings of fact and
conclusions of law, and an order. In assessing the reasonableness of the officers’
actions, the court applied the four-part test endorsed in McArthur. That test asks
the following questions:
1. Did law enforcement officers have probable cause to believe
that the apartment “contained evidence of a crime and
contraband, namely, unlawful drugs”?
2. Did the officers have “good reason to fear that, unless
restrained, [the defendants] would destroy the drugs before [the
officers] could return with a warrant”?
3. Did the officers make “reasonable efforts to reconcile their law
enforcement needs with the demands of personal privacy”?
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4. Given the nature of the intrusion, did the officers impose a
restraint for a period of time “no longer than reasonably
necessary for the police, acting with diligence, to obtain the
warrant”?
Id. at 331-33, 121 S. Ct. at 950-51.
[¶11.] The circuit court found that the first two elements were “clearly
satisfied in this case.” But the last two were “much more difficult.” On the third
element, the court faulted the officers for removing the defendants from their
apartment without formally arresting them. It opined that a lesser restraint would
have been simply to prevent them from entering the apartment, as was done in
McArthur. Because the court found the intrusion to be excessive, it ruled that the
officers did not make reasonable efforts to reconcile their needs with the demands of
personal privacy.
[¶12.] On the fourth element, the court noted that “the State did not provide
any authority supporting a detention at a police station for at least five hours while
police obtained a search warrant.” Thus, it ruled that the officers failed to “act with
the requisite diligence in obtaining the search warrant for the apartment[.]” The
court held that the detention was unreasonable and that “[t]he seizure of these
defendants violated their constitutional rights.” Accordingly, the court suppressed
“any evidence discovered and seized by law enforcement or any statements made by
the defendants after Rossi and Wallace were initially detained by Corporal Little
and Officer Johnson[.]”
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Analysis and Decision
[¶13.] We granted the State’s petition for intermediate appeal to consider
whether the circuit court erred as a matter of law when it suppressed defendants’
statements and the evidence seized under the search warrant.* We address each of
the defendants’ cases separately, as their circumstances differ. Rossi and Wallace
were detained for eight hours, and Tillman, for five and one half hours. The officers
questioned Rossi and Tillman while they were detained, but did not question
Wallace because she refused to answer questions. Tillman was not at the
apartment when the officers smelled the odor of burnt marijuana and saw
marijuana in plain view.
1. Jessica Wallace
[¶14.] The circuit court suppressed all evidence pertaining to Wallace seized
after she was initially detained. She made no statement after she was detained, so
there was no statement to suppress. Therefore, we review only whether the court
erred when it suppressed the evidence discovered during the search of the
apartment after Wallace was detained. On that point, McArthur controls.
[¶15.] In McArthur, the defendant moved to suppress evidence taken from his
trailer as the “fruit” of an unlawful seizure. On a tip that his home contained
* “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 (citations omitted)); State v. Tofani, 2006 S.D. 63, ¶
24, 719 N.W.2d 391, 398. Findings of fact are reviewed under the clearly
erroneous standard. Tofani, 2006 S.D. 63, ¶ 24, 719 N.W.2d at 398; State v.
Stevens, 2007 S.D. 54, ¶ 5, 734 N.W.2d 344, 346.
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contraband, police officers prevented McArthur from entering his trailer
unaccompanied while the officers were obtaining a search warrant. McArthur, 531
U.S. at 328-29, 121 S. Ct. at 948-49. It was undisputed that preventing McArthur
from entering his trailer was a seizure of property under the Fourth Amendment,
and therefore, the Court assessed whether the restriction was reasonable. After
applying its four-part test, the Court concluded that the restraint was reasonable
and not in violation of McArthur’s Fourth Amendment rights. Id. at 337, 121 S. Ct.
951.
[¶16.] Applying the four-part McArthur test here, we likewise conclude that
the seizure was reasonable and constitutional. First, Officer Johnson and Corporal
Little had probable cause to believe that the apartment contained evidence of a
crime. Corporal Little spotted raw marijuana on a dresser in plain view. Both
officers smelled the odor of burnt marijuana. Second, the officers had good reason
to fear that unless they prevented Wallace from remaining in the apartment, she
would destroy the evidence before the officers could return with a warrant. As the
circuit court recognized, “[d]rugs and drug paraphernalia can easily be discarded or
destroyed.”
[¶17.] Third, although at first impression it might seem that the officers did
not make reasonable efforts to reconcile their law enforcement needs (keep Wallace
out of the apartment) with the general demands of personal privacy (right not to be
de facto arrested and kept in a holding room at the police station), the
circumstances of Wallace’s detention did not implicate general privacy rights.
Indeed, at the time the officers detained Wallace, they had probable cause to arrest
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her based on their observation of an illegal substance in plain view. This is in
contrast to McArthur, 531 U.S. at 329, 121 S. Ct. at 949, United States v. Christie,
570 F. Supp. 2d 657, 668-69 (D. N.J. 2008), and United States v. Nguyen, 2008 W.L.
346114 (D. Mass.) (unpublished), where the courts found compelling the fact that
the officers did not physically restrain the defendants, but merely prevented them
from accessing the property.
[¶18.] Here, on the other hand, we must account for the fact that the officers
had probable cause to arrest Wallace, even if they did not effect a formal arrest. See
State v. Nguyen, 1997 S.D. 47, ¶ 22, 563 N.W.2d 120, 125; State v. Davidson, 479
N.W.2d 513, 516 (S.D. 1992) (failure to formally arrest “does not vitiate the legal
effect of a de facto arrest where the officer takes the suspect into his physical
custody and control at the scene”). Moreover, Wallace’s detention did not become
unreasonable simply because the officers could have, as the circuit court declared,
“easily imposed a restraint similar to that used in McArthur by removing [Wallace]
from the apartment and not allowing [her] reentry until after the premises had
been searched.” Wallace’s detention at the police station for eight hours in a room
alone where she was not questioned was not unreasonable in light of her de facto
arrest.
[¶19.] Finally, given the nature of the intrusion, the officers’ restraint of
Wallace was no longer than reasonably necessary for the officers, acting with
diligence, to obtain a warrant. While the circuit court found that the officers did not
act diligently, that conclusion related not to the fact that it took Officer Johnson
approximately three hours to draft the warrant request, but to the court’s finding
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that the officers acted unreasonably when they detained Wallace at the police
station. But as we recognized, that the officers could have restricted Wallace’s
access to the apartment as in McArthur does not make Wallace’s restraint
unreasonable. The nature of the intrusion must be viewed in light of the fact that
the officers had probable cause to arrest her. Given these circumstances, the
seizure was no longer than reasonably necessary.
[¶20.] In conclusion, because the officers (1) had probable cause to believe the
apartment contained evidence of a crime, (2) reasonably feared that Wallace, if
unrestricted, would destroy the evidence, (3) balanced their needs against Wallace’s
privacy rights, and (4) imposed a restraint that was not unreasonable given the
circumstances, the seizure of the apartment did not violate Wallace’s Fourth
Amendment right against unreasonable searches and seizures. The court’s order
suppressing the evidence seized from the apartment as it relates to Wallace is
reversed.
2. Vincent Rossi
[¶21.] As in Wallace’s case, probable cause existed to arrest Rossi when the
officers seized the apartment and obtained the search warrant. Therefore, our
analysis of the McArthur elements applied to Rossi are the same: the officers (1)
had probable cause to believe the apartment contained evidence of a crime, (2)
reasonably feared that Rossi, if unrestricted, would destroy the evidence, (3)
balanced their needs against Rossi’s privacy rights, and (4) imposed a restraint that
was not unreasonable given the circumstances. The seizure of the apartment and
ultimate search did not violate Rossi’s Fourth Amendment right against
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unreasonable searches and seizures, and the court’s suppression of the evidence
seized during the search of the apartment is reversed.
[¶22.] Unlike Wallace, Rossi made incriminating statements while detained
and gave a urine sample. Therefore, we must review the court’s suppression of
those statements and the urinalysis. It is undisputed that the officers had probable
cause to arrest Rossi for the marijuana in plain view and the odor of burnt
marijuana. Because the officers had probable cause to arrest Rossi, their detention
of him at the police station was reasonable. See Nguyen, 1997 S.D. 47, ¶ 22, 563
N.W.2d at 125; Davidson, 479 N.W.2d at 516 (failure to formally arrest “does not
vitiate the legal effect of a de facto arrest”). Under South Dakota law, Rossi was
entitled to a probable cause determination within 48 hours. See State v. Larson,
2009 S.D. 107, ¶ 11, 776 N.W.2d 254, 258. He was released after eight hours. His
detention was not illegal. Moreover, Rossi’s statements were made after he
voluntarily waived his Miranda rights. Because his statements and urinalysis were
not the product of an illegal detention, we reverse the court’s suppression order.
3. Tyler Tillman
[¶23.] The officers detained Tillman after he arrived at the apartment while
it was being secured pending a search warrant. Tillman was denied access to the
apartment, handcuffed, and brought to the police station. After several hours,
Agent Ardis read Tillman his Miranda rights, obtained his waiver, and questioned
him about the evidence found in the apartment. Tillman gave incriminating
statements and provided a urine sample, and was released after five and one half
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hours. The court suppressed Tillman’s statements and the results of the urinalysis,
as well as the evidence seized from search of the apartment.
[¶24.] Unlike Wallace and Rossi, Tillman was not at the apartment when the
officers observed marijuana in plain view and smelled the odor of burnt marijuana.
Moreover, at the time the officers detained Tillman, the warrant had yet to be
issued. Therefore, the officers did not have probable cause to arrest Tillman. The
only support the State offered for detaining Tillman was its need for officer safety
and to secure the apartment.
[¶25.] Tillman’s detention at the police station for five and one half hours
while the officers obtained a warrant was unreasonable and unconstitutional. The
officers had no probable cause to arrest him and no articulable suspicion to justify
detaining him. See United States v. Escobar, 389 F.3d 781, 784 (8th Cir. 2004);
State v. Haar, 2009 S.D. 79, ¶ 22, 772 N.W.2d 157, 167. Because the statements
made by Tillman and the results of the urine sample were the product of his illegal
detention, the court properly suppressed those statements and the urinalysis. It is
of no legal consequence that Tillman voluntarily waived his Miranda rights, or that
a valid search warrant authorized the seizure of his urine. “Under the doctrine of
Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the
exclusionary rule generally makes inadmissible, evidence that is the product of an
unconstitutional arrest.” State v. Spotted Horse, 462 N.W.2d 463, 469 (S.D. 1990);
see also State v. Ludemann, 2010 S.D. 9, ¶ 18, 778 N.W.2d 618, 623. “Once the
exclusionary rule is triggered, ‘indirect as well as direct evidence; physical tangible
materials obtained either during or as a direct result of an unlawful invasion, come
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at by exploitation of the illegal search; and testimony of matters observed during an
unlawful invasion’ are excluded.” Ludemann, 2010 S.D. 9, ¶ 18, 778 N.W.2d at 623(quoting Spotted Horse, 462 N.W.2d at 469). Tillman’s incriminatory statements
were a direct product of his illegal detention. Additionally, despite the fact that a
valid warrant authorized Tillman’s urinalysis, the results obtained were also the
product of his illegal detention.
[¶26.] The circuit court also suppressed the evidence seized as a result of the
search of the apartment. McArthur controls because the apartment was seized and
Tillman was detained without a warrant. See 531 U.S. at 330-31, 121 S. Ct. at 949-
50. The first element asks: Did law enforcement officers have probable cause to
believe that the apartment contained illegal substances? This is easily answered in
the affirmative. Second, did the officers have good reason to fear that Tillman, if
left unrestrained, would destroy the evidence before they could return with a
warrant? The answer again is yes: if the officers would have allowed Tillman to
enter the apartment, Tillman would have had unbridled access to the illegal
substances throughout the apartment and the ability to destroy the evidence before
the warrant could be executed.
[¶27.] The next two McArthur elements are more problematic. Law
enforcement officers must make “reasonable efforts to reconcile their law
enforcement needs with the demands of personal privacy.” 531 U.S. at 332, 121 S.
Ct. at 950. Here, the officers did not need to detain Tillman to keep the evidence in
the apartment secure. They could have simply denied him access to the apartment.
See id. at 329, 121 S. Ct. at 949 (did not arrest defendant, but merely prevented
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unaccompanied access); United States v. Legette, 260 F. App’x 247, 251 (11th Cir.
2008) (detention in home for four hours, although probable cause existed for an
arrest, found reasonable). Moreover, because there was no probable cause to arrest
Tillman, detaining him at the police station was a significant intrusion of his
privacy rights. On this element, the circuit court was correct in concluding that the
officers failed to balance their need to keep the apartment secure against Tillman’s
right to be free from unreasonable seizures. Similarly, on the fourth element, given
the nature of the intrusion — de facto arrest — the officers’ detention and seizure of
Tillman for five and one half hours was longer than reasonably necessary for the
officers to obtain a warrant. Thus, the officers violated Tillman’s Fourth
Amendment rights under McArthur. See 531 U.S. at 337, 121 S. Ct. at 953.
[¶28.] Nonetheless, the remedy does not demand suppression of the evidence
seized as a result of the search of the apartment. The officers searched the
apartment under a valid search warrant, a fact Tillman does not dispute. Also, the
information used to secure the warrant did not come from either Tillman’s illegal
detention or the illegal seizure of the apartment as it relates to Tillman. Rather,
Officer Johnson secured the warrant based on information learned during his and
Corporal Little’s first encounter with Rossi and Wallace — the raw marijuana in
plain view and the odor of burnt marijuana detected when they arrived at the
apartment.
[¶29.] In Segura v. United States, police officers illegally entered an
apartment, conducted a protective search, and stayed in the apartment until a
warrant could be obtained. 468 U.S. 796, 801, 104 S. Ct. 3380, 3383, 82 L. Ed. 2d
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599 (1984). A warrant was ultimately issued and evidence seized. Although the
warrant was deemed valid, the evidence seized with the warrant was suppressed as
“fruit” of the illegal initial entry. On appeal, the Supreme Court reviewed the
limited question “whether drugs and the other items not observed during the initial
entry and first discovered by the agents the day after the entry, under an
admittedly valid search warrant, should have been suppressed.” Id. at 804, 104 S.
Ct. at 3385. Recognizing that evidence discovered as a direct result of an
unconstitutional search or seizure “is plainly subject to exclusion,” the Court
explained that “[i]t has been well established for more than 60 years that evidence
is not to be excluded if the connection between the illegal police conduct and the
discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint[.]’”
Id. at 805, 104 S. Ct. at 3385 (quoting Nardone v. United States, 308 U.S. 338, 341,
60 S. Ct. 266, 268, 84 L. Ed. 307 (1939)).
[¶30.] A home is sacrosanct “not primarily because of the occupants’
possessory interests in the premises, but because of their privacy interests in the
activities that take place within.” Id. at 810, 104 S. Ct. at 3388. Indeed, “the
Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S.
347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967). Moreover, “a seizure affects
only possessory interests, not privacy interests. Therefore, the heightened
protection we accord privacy interests is simply not implicated where a seizure of
premises, not a search, is at issue.” Segura, 468 U.S. at 810, 104 S. Ct. at 3388.
[¶31.] Here, the search is not at issue, as it was indisputably based on a valid
warrant. Further, none of the information Officer Johnson used to secure the
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warrant related in any way to the seizure of the apartment. Had the officers never
seized the apartment, “but instead conducted a perimeter stakeout to prevent
anyone from entering the apartment and destroying evidence, the contraband now
challenged would have been discovered and seized precisely as it was here.” See id.
at 814, 104 S. Ct. at 3390. The evidence seized was not the “fruit of the poisonous
tree.”
[¶32.] Tillman argues that the evidence must be suppressed “as a direct
result of the constitutional violation.” See United States v. Song Ja Cha, 597 F.3d
995, 1003 (9th Cir. 2010). In Song Ja Cha, although supported by a valid warrant,
the evidence seized was suppressed because the police conduct was deliberate,
systematic, and culpable. Id. at 1004-06. The court emphasized that the police
conduct must be sufficiently deliberate that it can be deterred, and such review is
based on an objective standard. Unlike the officers in Song Ja Cha, who denied the
defendant access to his house for 26.5 hours while they nonchalantly delayed their
application for a warrant, the conduct of the officers here was not “sufficiently
culpable that . . . deterrence is worth the price paid by the justice system.” See id.
at 1004 (quoting Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 702,
172 L. Ed. 2d 496 (2009)).
Conclusion
[¶33.] We reverse (1) the order suppressing the evidence seized in the search
of the apartment as against Wallace, Rossi, and Tillman and (2) the suppression of
Rossi’s statements and his urinalysis. We affirm the suppression of Tillman’s
statements and the results of the analysis of his urine.
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[¶34.] Affirmed in part, reversed in part, and remanded.
[¶35.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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