State v. Tenold ( 2019 )

#28725-r-PJD
2019 S.D. 66IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CURTIS DEAN TENOLD, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
****
THE HONORABLE MICHELLE K. COMER
Judge
****
ERIC T. DAVIS
NATHANIEL F. NELSON of
Nelson Law
Sturgis, South Dakota Attorney for defendant
and appellant.
JASON R. RAVNSBORG
Attorney General
SARAH L. LARSON
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
****
ARGUED ON
AUGUST 27, 2019
OPINION FILED 12/18/19
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DEVANEY, Justice
[¶1.] A Deadwood police officer initiated a traffic stop of the defendant’s
vehicle because the officer observed a brake light emit a white light. A consent
search of the vehicle did not produce any evidence of unlawful drugs; however, the
officer later found a foil ball under the passenger seat of the officer’s vehicle where
the defendant had been seated. A presumptive test of a substance in the foil ball
was positive for methamphetamine, and the defendant was arrested. Thereafter,
law enforcement seized evidence from the defendant’s hotel room pursuant to a
search warrant, and the defendant was indicted for possession and ingestion of an
unauthorized controlled substance. The defendant filed a motion to suppress,
arguing that the officer did not have reasonable suspicion to stop his vehicle
because it had two properly working brake lights. The circuit court denied the
motion, and a jury found the defendant guilty on both counts. The defendant
appeals. We reverse and remand.
Factual and Procedural Background
[¶2.] On February 2, 2017, at 2:35 a.m., Officer Braxton McKeon noticed
what he believed to be Curtis Tenold’s vehicle leaving the Deadwood Mountain
Grand. He decided to follow the vehicle because he had previously received
information from Officer James Olson that Tenold and Lana Gravatt were
suspected of dealing methamphetamine out of their hotel room at the Deadwood
Mountain Grand. Officer McKeon did not immediately initiate a traffic stop
because, according to Officer McKeon’s later testimony, the claim of
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methamphetamine dealing “had not been substantiated enough” to seek out Tenold
and Gravatt on those allegations.
[¶3.] While following Tenold’s vehicle, Officer McKeon believed he had
reasonable suspicion to initiate a traffic stop when he observed what he later
described as “one” taillight “emitting a white light when the brakes were applied.”
According to Officer McKeon, the brake light in the rear back window of the vehicle
emitted white light, while the two taillights on the left and right sides of the vehicle
emitted red light. Officer McKeon acknowledged that a vehicle needs only two
working brake lights, but he believed that Tenold was committing a traffic violation
nonetheless because his third brake light emitted white light.
[¶4.] After stopping the vehicle, Officer McKeon explained to Tenold that he
had a broken taillight and would receive a warning ticket for the light. Officer
McKeon also asked for and obtained consent from Tenold to search the vehicle.
Another officer arrived at the scene, so Officer McKeon had Tenold’s passenger,
Gravatt, sit in that officer’s vehicle during the search. Tenold sat in the front
passenger seat of Officer McKeon’s patrol vehicle. The search produced no evidence
of illegal drug activity. Officer McKeon told Tenold and Gravatt that they were free
to leave, and Tenold drove away.
[¶5.] After Officer McKeon returned to the police department, he performed
a routine search of his vehicle for items that may have been left by the last
occupant. The search revealed a small foil ball under the front passenger seat
where Tenold had been sitting during the stop. Officer McKeon believed the ball
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contained a white crystalline substance. His field test of the substance produced a
presumptive positive result for methamphetamine.
[¶6.] Concluding that the foil ball belonged to Tenold, Officer McKeon
located Tenold at a nearby casino and placed him under arrest. He searched
Tenold’s person and found a small amount of marijuana. Thereafter, Officer
McKeon prepared an affidavit in support of a request for a warrant to search Tenold
and Gravatt’s hotel room. In the affidavit, Officer McKeon included additional
information he had obtained from Officer Olson regarding Tenold’s and Gravatt’s
suspected drug activity. Officer McKeon also included information regarding his
discovery of the foil ball after the stop and the marijuana found on Tenold’s person
upon his arrest.
[¶7.] A judge issued the warrant, and a search of the hotel room produced
marijuana, drug paraphernalia, and a small amount of methamphetamine. Tenold
was indicted by a grand jury and was charged in a superseding indictment with one
count of unauthorized possession of a controlled substance or drug and one count of
unauthorized ingestion of a controlled substance. Tenold pled not guilty.
[¶8.] Before trial, Tenold filed a motion to suppress. He argued that Officer
McKeon did not have reasonable suspicion to initiate a stop of Tenold’s vehicle
because no law requires that all brake lights emit only red light upon actuation. He
further claimed it was unreasonable for Officer McKeon to believe that the emission
of white light from one of Tenold’s three brake lights violated any law. Finally,
according to Tenold, all evidence obtained after the stop should be suppressed as
fruit of the poisonous tree because the evidence was obtained as a result of the stop.
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[¶9.] After two hearings, the circuit court denied Tenold’s motion to
suppress. A jury later found Tenold guilty of unauthorized possession of a
controlled substance and unauthorized ingestion of a controlled substance. Tenold
appeals, asserting the circuit court erred when it denied his motion to suppress. He
also asks this Court to modify existing law to prohibit pretextual stops as
unconstitutional, an issue we need not address because of our disposition on the
first issue.
Analysis and Decision
Legality of the Stop
[¶10.] Tenold contends the circuit court erred when it interpreted SDCL 32-
17-8.1 to mean that only red light may display from all stop lamps upon actuation.
The plain language of the statute, Tenold claims, does not prohibit the emission of
white light from a third brake light when two brake lights meet the display and
actuation requirements of SDCL 32-17-8.1. Therefore, in Tenold’s view, Officer
McKeon did not have reasonable suspicion to initiate the traffic stop. We review de
novo the issue whether an officer had reasonable suspicion to initiate a traffic stop
given the facts and circumstances known to, or observed by, the officer at the time
of the stop. State v. Lerma, 2016 S.D. 58, ¶ 6, 884 N.W.2d 749, 751.
[¶11.] When Tenold was arrested, SDCL 32-17-8.1 provided in relevant part
that:
[E]very motor vehicle, trailer, semitrailer, and pole trailer shall
be equipped with two or more stop lamps . . . . The stop lamp
shall be mounted on the rear of the vehicle at a height of no
more than seventy inches nor less than fifteen inches. The stop
lamp shall display a red light visible from a distance of not less
than three hundred feet to the rear in normal sunlight, except
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for a moped, which distance shall be not less than one hundred
fifty feet. The stop lamp shall be actuated upon application of
the service (foot) brake which may be incorporated with one or
more rear lamps. A violation of this section is a petty offense.[1]
Prior to Tenold’s arrest, we specifically construed the language of this statute and
held “that all originally equipped brake lights need not display red light and need
not be actuated by the brake pedal[.]” See Lerma, 2016 S.D. 58, ¶ 10, 884 N.W.2d at
752. In so holding, we concluded that “the most reasonable interpretation is that
the Legislature intended the display and actuation requirements to apply only to
the two required brake lights.” Id. ¶ 7, 884 N.W.2d at 751.
[¶12.] Here, the circuit court’s decision—that “SDCL 32-17-8.1 requires that
all vehicle[] stop lights be red in color only”—directly conflicts with our decision in
Lerma and is erroneous. It is undisputed that Tenold’s vehicle had two brake lights
that met the display and actuation requirements as stated in SDCL 32-17-8.1.
Therefore, the circuit court erred when it concluded that “Officer McKeon had
probable cause that a traffic offense had occurred when he activated his red lights
and stopped the car.”
[¶13.] The State nonetheless contends it was objectively reasonable for
Officer McKeon to believe that a brake light displaying white light violated SDCL
32-17-8.1. The State relies in part on the fact Lerma acknowledged that the statute
was confusing, and thus claims that “SDCL 32-17-8.1 is not definite and certain, but
rather unclear and ‘open to differing and equally reasonable interpretations[.]’” The
1. This statute was amended in 2017, after the stop at issue.
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State cites previous judicial interpretations of SDCL 32-17-8.1, as well as our
reference to SDCL 32-21-27 in Lerma as an alternative basis for the stop.
[¶14.] “The Fourth Amendment tolerates only reasonable mistakes, and those
mistakes—whether of fact or law—must be objectively reasonable.” Heien v. North
Carolina, 574 U.S. 54, 66, 135 S. Ct. 530, 539, 190 L. Ed. 2d 475 (2014); accord
Lerma, 2016 S.D. 58, ¶ 11 n.2, 884 N.W.2d at 752 n.2. In examining the officer’s
objective reasonableness in Heien, the Court considered that North Carolina’s
appellate courts had yet to construe the confusing law at issue in that case. 574
U.S. at 68, 135 S. Ct. at 540. Similarly, in State v. Wright, we noted that “previous
judicial interpretations” are a relevant factor in determining the reasonableness of
an officer’s mistake of law. 2010 S.D. 91, ¶ 16, 791 N.W.2d 791, 797 (quoting United
States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005)).2
[¶15.] From our review of the facts here, Officer McKeon’s mistake of law was
not objectively reasonable for three reasons. First, Lerma specifically construed
both the display and actuation requirements in SDCL 32-17-8.1 prior to the date of
the stop in question, and an objectively reasonable officer would have had actual
legal authority dispelling confusion over this statute’s interpretation. Indeed, in
Lerma, we prefaced our holding with a caveat, i.e., that an officer’s belief that the
2. In Wright, we referenced other factors considered by the Eighth Circuit Court
of Appeals, including “drafting history; prior enforcement; police training;
previous judicial interpretations; and, state customs.” 2010 S.D. 91, ¶ 16, 791
N.W.2d at 797 (citing Martin, 411 F.3d at 1001). However, to the extent any
of these factors relate to the officer’s subjective view, a footnote in Lerma
suggests a consideration of such factors would be improper given the
Supreme Court’s holding in Heien that an officer’s subjective understanding
is irrelevant. 2016 S.D. 58, ¶ 11 n.2, 884 N.W.2d at 752 n.2.
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statute meant all stop lamps must comply with the display and actuation
requirements was objectively reasonable “[u]ntil today[.]” 2016 S.D. 58, ¶ 8, 884
N.W.2d at 751 (emphasis added). Therefore, Officer McKeon was not free to rely on
his subjective view of how this law should be interpreted. See id. ¶ 9, 884 N.W.2d at
752 (“A reasonably objective officer is bound by such unqualified statements of
law.”).
[¶16.] Second, decisions from other courts did not provide justification for the
stop here. Those decisions, many of which are factually distinguished from the case
at hand, predate Lerma. See, e.g., Martin, 411 F.3d 998; United States v. Johns, 410
Fed. Appx. 519 (3d Cir. 2011). As the United States Supreme Court explained in
Heien, “an officer can gain no Fourth Amendment advantage through a sloppy study
of the laws he is duty-bound to enforce.” 574 U.S. at 67, 135 S. Ct. at 539–40.
Moreover, “an objectively reasonable mistake of law cannot be so unmoored from
actual legal authority.” United States v. Washington, 455 F.3d 824, 828 (8th Cir.
2006); accord Wright, 2010 S.D. 91, ¶ 17, 791 N.W.2d at 798.
[¶17.] Third, although in Lerma we considered SDCL 32-21-27 as an
alternative basis for upholding the stop in question, this nonspecific statute makes
it unlawful to drive a vehicle on a highway “unless the equipment upon the vehicle
is in good working order[.]” SDCL 32-21-27; see Lerma, 2016 S.D. 58, ¶ 11, 884
N.W.2d at 753. Unlike the scenario in Lerma, SDCL 32-21-27 does not provide an
independent basis for the stop here because all the brake lights on Tenold’s vehicle
were operational. Notably, Officer McKeon’s testimony was vague as to the precise
condition of Tenold’s third brake light. This brake light was on the inside, center of
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the back window of Tenold’s vehicle, and Officer McKeon could not recall why this
brake light emitted a white light. He testified that he did not know if it was broken
or whether it was sun damaged. While questioning Officer McKeon at the
suppression hearing, the State characterized Tenold’s third brake light as a “white
light in one of the red lights on the rear of the vehicle.” In contrast, in both Lerma,
2016 S.D. 58, ¶ 2, 884 N.W.2d at 750 and State v. Anderson, 359 N.W.2d 887, 889
(S.D. 1984), the brake lights at issue failed to illuminate upon actuation. Thus, this
case is distinguishable from those in which a brake light was not operational.
[¶18.] Although we conclude that Officer McKeon did not have an objectively
reasonable basis to believe that Tenold’s brake light violated SDCL 32-17-8.1, our
review does not end there. The State further claims we should uphold Officer
McKeon’s stop based on a review of the totality of the circumstances, arguing that
“Officer McKeon undoubtedly knew there was reason to suspect criminal activity
when he initiated the traffic stop.” In particular, the State offers the following
additional information in support of its argument: Officer McKeon was aware that
Tenold was suspected of dealing drugs; “Tenold was driving between his hotel and
casinos at 2:39 a.m.”; and after the stop, drugs were located on Tenold’s person and
paraphernalia was found in his hotel room.
[¶19.] “The Fourth Amendment permits brief investigative stops . . . when a
law enforcement officer has ‘a particularized and objective basis for suspecting the
particular person stopped of criminal activity.’” Navarette v. California, 572 U.S.
393, 396, 134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680 (2014) (quoting United States v.
Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). “The
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stop may not be the product of mere whim, caprice or idle curiosity.” State v.
Herren, 2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554 (citation omitted). However, “it is
enough that the stop is based upon ‘specific and articulable facts which taken
together with rational inferences from those facts, reasonably warrant the
intrusion.’” State v. Starkey, 2011 S.D. 92, ¶ 6, 807 N.W.2d 125, 128 (quoting State
v. Lockstedt, 2005 S.D. 47, ¶ 17, 695 N.W.2d 718, 722). To determine whether there
existed a particularized and objective basis for believing that criminal activity is
afoot, we review the totality of the circumstances at the time the stop was
effectuated. State v. Stanage, 2017 S.D. 12, ¶ 7, 893 N.W.2d 522, 525.
[¶20.] Here, the facts available to Officer McKeon at the time of the stop
(minus the mistaken belief that a traffic violation occurred) included: (1) Tenold was
suspected of dealing drugs out of his hotel room at the Deadwood Mountain Grand,
and (2) Tenold left the hotel parking garage in his vehicle at 2:39 a.m. We do not,
contrary to the State’s assertion, consider that drugs were later located on Tenold’s
person and in his hotel room because these facts were not available to Officer
McKeon at the time of the stop. After reviewing the facts available at the time of
the stop in their totality, we conclude that Officer McKeon lacked a particularized
and objective basis for believing that Tenold and Gravatt were currently engaging
in drug activity.
[¶21.] First, at the time of the stop, Officer McKeon did not have specific or
articulable facts related to Tenold’s suspected drug activity. Rather, based upon our
review of his narrative report and suppression hearing testimony, the only
information Officer McKeon had at that time was a vehicle description and photos
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of Tenold and Gravatt who “were identified as possible dealers of
methamphetamine out of rented rooms at the Deadwood Mountain Grand.”
Moreover, this information came from Officer Olson, and lacked any details about
the underlying source of the information. In fact, Officer McKeon explained in his
narrative report that Officer Olson had informed the other officers that they should
“develop [their] own [r]easonable [s]uspicion for a stop and investigate.” Second, the
reported drug activity was alleged to have occurred at the hotel, not in Tenold’s
vehicle. Finally, and most importantly, because there was no timeframe associated
with the reported drug activity, Officer McKeon had no information alleging that
Tenold or Gravatt were—as they drove from the Deadwood Mountain Grand at 2:39
a.m.—committing a crime. The State’s purported basis for reasonable suspicion can
thus be summarized as a general suspicion, accompanied by otherwise innocuous
behavior.
[¶22.] In Herren, we recognized that a tip alleging criminal wrongdoing “can
at least be considered as part of the totality of the circumstances” even though the
tip may not independently support a stop. 2010 S.D. 101, ¶ 20, 792 N.W.2d at 557.
We have also indicated that the time of day or night and the location of the
suspected person are relevant factors in determining whether reasonable suspicion
exists. See, e.g., State v. Rademaker, 2012 S.D. 28, ¶ 13, 813 N.W.2d 174, 177; State
v. Bergee, 2008 S.D. 67, ¶ 11, 753 N.W.2d 911, 914. Here, however, when Officer
McKeon stopped Tenold’s vehicle, he had no information alleging that criminal
wrongdoing was afoot. Other than observing the vehicle described as belonging to
Tenold leave the Deadwood Mountain Grand at 2:39 a.m., Officer McKeon did not
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personally observe any additional specific or articulable behavior that would allow
him to conclude that a crime was presently occurring or about to occur. Because
Officer McKeon did not have reasonable suspicion or probable cause to stop Tenold’s
vehicle, the stop was unjustified at its inception.
Exclusionary Rule
[¶23.] Evidence obtained because of an unlawful seizure ordinarily must be
suppressed under the exclusionary rule. State v. Heney, 2013 S.D. 77, ¶ 9, 839
N.W.2d 558, 562 (quoting State v. Boll, 2002 S.D. 114, ¶ 19, 651 N.W.2d 710, 716).
“[T]he exclusionary rule reaches not only primary evidence obtained as a direct
result of an illegal search or seizure, but also evidence later discovered and found to
be derivative of an illegality or ‘fruit of the poisonous tree.’” Id. (quoting Segura v.
United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 3385, 82 L. Ed. 2d 599 (1984)).
However, “the progenitor of the ‘fruit of the poisonous tree’ doctrine”—Wong Sun—
“recognized that original lawless conduct would not taint all evidence forever.”
Satter v. Solem, 458 N.W.2d 762, 768 (S.D. 1990). “The question becomes whether
‘the connection between the lawless conduct of the police and the discovery of the
challenged evidence has “become so attenuated as to dissipate the taint.”’” Id.(quoting United States v. Ceccolini, 435 U.S. 268, 273–74, 98 S. Ct. 1054, 1059, 55 L.
Ed. 2d 268 (1978)).
[¶24.] Tenold, as the party seeking to suppress the evidence, has the burden
“to establish that such evidence was illegally seized.” See Heney, 2013 S.D. 77, ¶ 11,
839 N.W.2d at 562 (citation omitted). Once Tenold “has carried the burden of
proving that the challenged evidence is the fruit of the poisonous tree, the burden
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again shifts to the government to ultimately ‘show that its evidence is untainted.’”
See id. ¶ 11 n.2 (quoting Alderman v. United States, 394 U.S. 165, 183, 89 S. Ct.
961, 972, 22 L. Ed. 2d 176 (1969)).
[¶25.] Tenold argues that all evidence obtained after the stop—even that
obtained pursuant to the search warrant—must be suppressed as fruit of the illegal
stop. We agree that the foil ball found in the officer’s vehicle after the stop (which
at the time had tested positive for methamphetamine) and the marijuana found on
Tenold’s person were discovered solely because of Officer McKeon’s unlawful stop of
Tenold’s vehicle and his subsequent arrest. Therefore, that evidence was fruit of
the illegal stop and subject to the exclusionary rule.
[¶26.] However, the State contends that Tenold has failed to show that but
for the traffic stop, the drugs and paraphernalia in the hotel room would not have
been discovered. In the State’s view, the information possessed by law enforcement
prior to and independent of the traffic stop provided probable cause for the warrant
to issue. The State points to the information in the search warrant affidavit derived
from Officer Olson relating Tenold’s and Gravatt’s suspected drug activity at the
hotel. In response, Tenold claims that the tip alone was insufficient to establish
probable cause.
[¶27.] “[W]hen a search warrant is based partially on tainted evidence and
partially on evidence arising from independent sources, ‘[if] the lawfully obtained
information amounts to probable cause and would have justified issuance of the
warrant apart from the tainted information, the evidence seized pursuant to the
warrant is admitted.’” State v. Habbena, 372 N.W.2d 450, 455 (S.D. 1985) (second
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alteration in original) (quoting United States v. Williams, 633 F.2d 742, 745 (8th
Cir. 1980)). “[T]he question is whether ‘the remaining information presented to the
magistrate, after the tainted evidence is excluded, contains adequate facts from
which the magistrate could have concluded that probable cause existed for the
issuance of the search warrant.’” Boll, 2002 S.D. 114, ¶ 35, 651 N.W.2d at 720
(quoting State v. Revenaugh, 992 P.2d 769, 774 (Idaho 1999)).
[¶28.] As Justice Konenkamp recognized in his special concurrence in Boll,
“[i]n the usual case, we review challenges to the sufficiency of a warrant by looking
at the totality of the circumstances to decide if there was at least a ‘substantial
basis’ for the issuing judge’s finding of probable cause.” Id. ¶ 44, 651 N.W.2d at 721
(Konenkamp, J., concurring specially). Here, however, the issuing judge never
considered the affidavit free of the tainted information. Nevertheless, because the
magistrate judge issued the warrant on a facial review of the information contained
within the affidavit, we employ our traditional rules of review to determine whether
the information in this hypothetical, redacted affidavit would have been sufficient
for an issuing judge to find probable cause for a warrant.
[¶29.] Indeed, even when an affidavit contains no tainted information, our
review of “a judge’s probable cause determination,” is limited to the evidence that
“was before the judge at the time the application was made.” State v. Jackson, 2000
S.D. 113, ¶ 11, 616 N.W.2d 412, 416. This is because the existence of probable
cause “must rise or fall on the affidavit itself which was the only evidence presented
to the magistrate for his determination of probable cause.” Id. (quoting State v.
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Smith, 281 N.W.2d 430, 433 (S.D. 1979)). However, “[r]easonable inferences may be
drawn from the information in the affidavit.” Id.[¶30.] In State v. Helland, we reiterated the standard for determining
whether probable cause exists sufficient to support the issuance of a warrant. 2005
S.D. 121, ¶ 16, 707 N.W.2d 262, 269. There must be “a showing of probability of
criminal activity.” Id. (emphasis omitted) (quoting State v. Kaseman, 273 N.W.2d
716, 723 (S.D. 1978)). As opposed to evaluating a traffic stop and whether there
was reasonable suspicion (i.e., something more than a whim or caprice) to warrant
further investigation of a crime, the higher probable cause standard must be met
when determining the validity of a search of one’s property. For a search warrant to
issue, the judge must be able “to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before [the judge], including the
‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is
a fair probability that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L.
Ed. 2d 527 (1983). And on review, this Court must find that the affidavit provided
the judge “with a substantial basis for determining the existence of probable
cause[.]” Id. at 239, 103 S. Ct. at 2332.
[¶31.] After excising the tainted information, the remaining pertinent
portions of the affidavit contained the following information:
On January 21, 2017, at approximately 2200 hours, Officer
James Olson was contacted by Special Agent Brandon Snyder of
the South Dakota Commission on Gaming. Agent Snyder stated
that he had some information pertaining to possible drug
activity by guests of the Deadwood Mountain Grand.
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Agent Snyder arrived at the Deadwood Police Department and
began to tell Officer Olson the information he had received from
Mike Gurich, Security Manager of Deadwood Mountain Grand.
Agent Snyder provided a list of names compiled by Gurich.
Gurich had informed Agent Snyder that at different times
throughout the month, rooms had been rented by a Curtis
Tenold and Lana Gravatt. When these rooms are rented there is
a considerable amount of foot traffic in and out of the rooms at
all hours of the night. Gurich had compiled a list of names
based off of security footage and players club information.
Gurich states these other subjects frequently enter the rooms
and leave within a short time frame.
On January 28, 2017 at approximately 1700 hours, Officer Olson
again met with Agent Snyder at the Deadwood Police
Department. Agent Snyder stated he met again with Gurich.
Gurich informed Agent Snyder that he had received information
from other staff stating that Lana Gravatt had approached a
customer and asked him if he needed any meth. The Subject
reportedly stated no. Gravatt then asked the subject if he had
any money she could borrow. The subject again stated no and
she replied by saying, “I could do something for you.” The
subject told the employee about the encounter with Gravatt and
that he assumed she was offering sex in exchange for money.
The subject reportedly told the employee he was tired of being
harassed by Gravatt and Tenold.
At approximately 1700 hours on 31 January, 2017 Officer Olson
provided me with a vehicle description for [Tenold’s vehicle].
Officer Olson stated that the occupants of that vehicle were
suspected of dealing methamphetamine out of a room at the
Deadwood Mountain Grand. Officer Olson stated that I should
be on the lookout for that vehicle, and to develop my own
reasonable suspicion to stop. Officer Olson stated that Curtis
Tenold and Lana Gravatt were the suspected methamphetamine
dealers.
[¶32.] The information concerning Tenold’s suspected drug activity, as
reported by Officer McKeon in the affidavit, is based solely on information given by
Gurich to Agent Snyder and then related from Agent Snyder to Officer Olson.
Notably, while the affidavit relates what appears to be information derived from a
casino customer, it does not identify the customer by name (or as a confidential
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informant). More importantly, the affidavit refers only to thirdhand information
reported to an unidentified casino employee, who then passed the information on to
Gurich.
[¶33.] We recognize that Officer Olson provided additional information at the
suppression hearing regarding the informants (Gurich and the complaining
customer). But this information was not presented in the search warrant affidavit
and was therefore unknown to the issuing judge who had before him only the
affidavit prepared by Officer McKeon. We must likewise confine our review to that
information. See Helland, 2005 S.D. 121, ¶ 28, 707 N.W.2d at 272.
[¶34.] The pertinent information in the affidavit can be condensed into two
components:
1. A report from the hotel security manager that there had
been frequent foot traffic in and out of the room rented by
Gravatt and Tenold at all hours of the night, and that he
had compiled a list of names of casino customers
frequenting this room by watching security footage; and
2. A tip from an unidentified informant about a solicitation
of money by Gravatt in exchange for either drugs or
possibly sex, along with the informant’s general comment
about being “harassed” by both Gravatt and Tenold.
“When the affidavit is based substantially on information provided by an informant,
evidence of the informant’s reliability, veracity, and basis of knowledge is highly
relevant to the probable cause determination[.]” United States v. Ketzeback, 358
F.3d 987, 991 (8th Cir. 2004) (citing Gates, 462 U.S. at 230, 103 S. Ct. at 2328). As
such, we have recognized two inquiries crucial to a probable cause determination
when an informant’s tip is involved. State v. Raveydts, 2004 S.D. 134, ¶¶ 11–12,
691 N.W.2d 290, 295. “First, an ‘explicit and detailed description of alleged
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wrongdoing, along with a statement that the event was observed firsthand, entitles
[the informant’s] tip to greater weight than might otherwise be the case.’” Id. ¶ 11
(quoting Gates, 462 U.S. at 234, 103 S. Ct. at 2330). “Second, the extent to which
the tip is corroborated by the officer’s own investigation is important.” Id. ¶ 12.
[¶35.] Neither crucial inquiry—when evaluated separately or when combined
and considered in totality—supports a finding of probable cause here. First, the
affidavit related only that Gurich had observed considerable foot traffic to and from
Tenold and Gravatt’s hotel room. There was no indication that he observed any
unlawful drug activity on the casino security footage. See, e.g., State v. Ford, 323
S.E.2d 358, 361 (N.C. Ct. App. 1984) (observing that “[u]nusual traffic at a
residence may not, in itself, constitute probable cause to justify the issuance of a
warrant authorizing a search of that residence for drugs”). Further, while Gurich
compiled a list of names of casino guests frequenting the hotel room, the affidavit
does not relate that he or any officer investigated whether any of these persons are
known drug users or known to be associated with unlawful drug activity. Moreover,
there was no report that any witness actually saw Gravatt or Tenold, or anyone else
frequenting their hotel room, with what appeared to be unlawful drugs.
[¶36.] Second, while the affidavit purported to relate a firsthand account of a
solicitation (as opposed to an actual) drug transaction, this account did not include
any detailed information regarding the time, date, and location of the customer’s
purported encounter with Gravatt, or when the customer’s information was initially
provided to the unidentified casino employee. Therefore, there was no way to
determine the time interval between the alleged solicitation and the request for the
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search warrant. Similarly, the affidavit only generally described the informant as a
casino “customer” and did not relate any evidence of corroboration of this
unidentified customer’s claims or any other basis upon which the customer’s
veracity or reliability could be assessed. In essence, the affidavit merely relates a
tip of “possible drug activity” (aptly described by the officer in the first paragraph of
the affidavit) communicated through three other parties (casino employee to Gurich
to Agent Snyder) before being provided to law enforcement.3
[¶37.] In contrast to the affidavit here, the affidavit we upheld in Raveydts,
provided considerably more detail related to the anonymous tips. See 2004 S.D.
134, ¶ 10, 691 N.W.2d at 294. In Raveydts, the first informant related that he
resided in the same apartment building as the defendant, and in addition to a
general description of frequent traffic in and out of the defendant’s apartment, the
informant gave a physical description of a particular visitor who left the apartment
“with something small and plastic clutched in her hand.” Id. This informant also
provided a list of license plate numbers he had observed in the last few days at the
apartment, and the investigating officer verified that some of these license plate
numbers belonged to persons arrested for possession of marijuana or were identified
in debriefs with law enforcement as persons known to have been involved in illegal
3. Contra United States v. Salsberry, 771 Fed. Appx. 710, 710–11 (8th Cir. 2019)
(affidavit indicated hotel room was rented by a known drug user, informant
twice told officer that defendant was selling drugs in the area, and hotel staff
had discovered items related to the use and distribution of drugs); United
States v. Good, No. 8:18CR49, 2018 WL 3543910, at *1–3 (D. Neb. June 29,
2018) (affidavit indicated informant told officer within 72 hours that
informant had observed defendant in possession of a firearm, cash, and drugs
at a specific location; and the officer related his familiarity with the
informant in the affidavit).
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drug trafficking activity. Id.; accord State v. Gilmore, 2009 S.D. 11, ¶ 15, 762
N.W.2d 637, 643 (finding sufficient corroboration where law enforcement
corroborated a confidential informant’s tip by verifying that the individuals with
whom Gilmore was previously and currently associating were known to be drug
users or distributors).
[¶38.] The second anonymous informant in Raveydts relayed personal
experience with illicit drugs and reported that the odor of marijuana could be
detected from the defendant’s apartment. The informant also reported a
transaction on a specific date where a male known to the informant as a drug dealer
arrived at the apartment, after which several vehicles arrived and left shortly
thereafter. Raveydts, 2004 S.D. 134, ¶ 10, 691 N.W.2d at 294.
[¶39.] Notably, in Raveydts, we looked to People v. Titus, 880 P.2d 148, 151–
52 (Colo. 1994), as an example of a scenario in which an anonymous informant’s
information was insufficiently corroborated to support a finding of probable cause.
2004 S.D. 134, ¶ 13, 691 N.W.2d at 295. The informant in Titus had provided a list
of license plate numbers of alleged drug buyers who frequented a suspect’s home.
Titus, 880 P.2d at 151. The police in Titus corroborated only the fact that the
license plate numbers on the list matched the description of the vehicles given by
the informant. Id. This was insufficient, the court explained, because “there must
be something more than the mere fact that people are coming and going in order to
support the belief that criminal activity is occurring.” Id.
[¶40.] Similarly, here, Gurich only provided information relating that he
observed individuals frequent Tenold and Gravatt’s hotel room and that he
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identified those individuals from “players club information.” Officer McKeon’s
affidavit did not relate any investigative attempts to corroborate the suggestion that
the individuals on the list were engaging in drug transactions. Notably, Officer
Olson candidly admitted at the suppression hearing that he did not “progress any
further in [his] investigation of it” because he “had a lot to confirm of what [the
informant] was saying.” As we noted in Raveydts, “[a]bsent any additional
corroboration—for example, that the owners of the vehicles were involved in illegal
activity—[the affidavit] was insufficient to support a finding of probable cause.”
2004 S.D. 134, ¶ 13, 691 N.W.2d at 295 (quoting Titus, 880 P.2d at 152).
[¶41.] Because the hypothetical, redacted affidavit in this case lacks
sufficient independent corroboration of the purported statements by the
unidentified casino customer, there would be no way for an issuing judge to
evaluate the reliability or veracity of this thirdhand information. The redacted
affidavit thus fails to make the requisite showing of probability that evidence of
unlawful drug activity would be found in Tenold’s hotel room. Upholding the
warrant would condone, contrary to Gates, the issuance of a warrant on “a mere
ratification of the bare conclusions of others.” See 462 U.S. at 239, 103 S. Ct. at
2333. Once the information derived from the unlawful traffic stop is excluded from
the search warrant affidavit, it lacks a substantial basis upon which probable cause
could be found. Therefore, the exclusionary rule applies here, and the evidence
seized pursuant to the search warrant must be suppressed.
[¶42.] Reversed and remanded.
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[¶43.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER,
Justices, concur.
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