State v. Walter

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2015 S.D. 37IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DAVID A. WALTER, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE CRAIG A. PFEIFLE
Judge
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MARTY J. JACKLEY
Attorney General
JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
BRYAN T. ANDERSEN
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant and
appellant.
****
CONSIDERED ON BRIEFS ON
MARCH 23, 2015
OPINION FILED 05/27/15
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GILBERTSON, Chief Justice
[¶1.] David A. Walter appeals from a final judgment of conviction for
possession of a controlled substance (methamphetamine). Walter asserts the circuit
court erred in denying his motion to suppress drug evidence obtained during a “stop
and frisk” initiated by a Rapid City police officer. According to Walter, the officer
lacked a reasonable basis to conclude Walter had committed a crime. We reverse.
Facts and Procedural History
[¶2.] The parties stipulated the relevant facts of this appeal. On October 1,
2013, at approximately 6:15 p.m., Rapid City Police Officer Dale Ackland was
dispatched to Roosevelt Park to investigate reports of a panhandler near the ice
arena. 1 Officer Ackland received a detailed description of the alleged panhandler,
including his clothing and direction of travel. After Officer Ackland arrived at the
described location, he immediately identified Walter as matching the provided
description. Walter stood alone on a sidewalk to the north of the arena.
[¶3.] After making contact with Walter, Officer Ackland noticed a bulge in
Walter’s front left pocket. Concerned that Walter might have a weapon, Officer
Ackland informed Walter that he intended to pat him down. Before Officer Ackland
conducted the frisk, Walter said, “You can’t frisk me. I have needles on me.” 2
1. The reliability of the tip is not disputed.
2. In ruling on Walter’s motion to suppress evidence gathered by Officer
Ackland in his search of Walter’s person, the circuit court found that “Officer
Ackland testified . . . that Defendant said ‘you can’t frisk me, I have needles
on me’ while Ackland was patting him down.” (Emphasis added.) A review of
Officer Ackland’s testimony reveals no such statement. Even if Officer
Ackland had so testified at the motion hearing, however, the parties
(continued . . .)
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During the frisk, Officer Ackland observed an open bottle of liquor in one of Walter’s
pockets. When Officer Ackland grabbed the bottle, he felt Walter pull away and
attempt to manipulate an object out of another pocket. A red box fell to the ground,
which contained two syringes. Officer Ackland performed a field test, and one of the
syringes tested positive for methamphetamine. 3 Thereafter, Officer Ackland
administered a preliminary breath test and arrested Walter for consuming alcohol
in public.
[¶4.] On October 2, 2013, Walter was charged with one count of possession
of a controlled drug or substance in violation of SDCL 22-42-5 and one count of
consuming alcohol in public in violation of SDCL 35-1-5.3. Walter was indicted and
later arraigned on April 10, 2014. 4 The State also filed—but later dismissed—a
habitual criminal information alleging Walter had a prior conviction in Wyoming
for larceny in 2013. Walter moved to suppress the methamphetamine evidence,
alleging Officer Ackland “did not have a reasonable suspicion of criminal activity to
warrant the investigatory stop and frisk[.]” The circuit court denied the motion,
________________________
(. . . continued)
stipulated for trial “[t]hat Officer Ackland informed the Defendant that he
was going to quickly pat him down for weapons, due to officer safety.”
(Emphasis added.) The parties also stipulated “[t]hat the Defendant
responded ‘you can’t frisk me because I have needles on me.’” (Emphasis
added.) Therefore, the parties do not dispute that Officer Ackland’s
statement of intent to search Walter preceded Walter’s announcement that
he had needles on his person.
3. Subsequent testing by Richard Wold, a forensic examiner with the Rapid City
Police Department, confirmed both syringes contained methamphetamine
residue.
4. Walter failed to appear at his first arraignment on November 14, 2013.
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and the parties proceeded with a court trial on June 9, 2014. Among other things,
Walter stipulated that he had syringes on his person containing methamphetamine
when Officer Ackland conducted the frisk. The circuit court found beyond a
reasonable doubt that Walter was guilty of possessing methamphetamine in
violation of SDCL 22-42-5 and sentenced him to three years imprisonment.
However, the court suspended all three years on the condition that Walter
successfully complete probation and abide by other restrictions.
[¶5.] Walter appeals, raising one issue: Whether Officer Ackland had a
reasonable suspicion to stop and frisk Walter.
Standard of Review
[¶6.] “We traditionally review a [circuit] court’s decision to suppress
evidence under an abuse of discretion standard.” State v. Muller, 2005 S.D. 66,
¶ 12, 698 N.W.2d 285, 288. However, “[t]he Fourth Amendment demonstrates a
‘strong preference for searches conducted pursuant to a warrant[.]’” Ornelas v.
United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996)
(quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527(1983)). Because “the police are more likely to use the warrant process if the
scrutiny applied to a magistrate’s probable-cause determination to issue a warrant
is less than that for warrantless searches[,]” id., we review a motion to suppress
evidence obtained in the absence of a warrant de novo, see State v. Stanga, 2000
S.D. 129, ¶ 8, 617 N.W.2d 486, 488 (citing Ornelas, 517 U.S. at 699, 116 S. Ct. at
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1663). 5 Thus, we review the circuit court’s factual findings for clear error but “give
no deference to the circuit court’s conclusions of law[.]” Gartner v. Temple, 2014
S.D. 74, ¶ 8, 855 N.W.2d 846, 850.
Analysis and Decision
[¶7.] “The Fourth Amendment of the United States Constitution and Article
VI, § 11 of the South Dakota Constitution protect individuals from unreasonable
searches and seizures.” State v. Burkett, 2014 S.D. 38, ¶ 44, 849 N.W.2d 624, 635.
This protection generally requires “that the police must, whenever practicable,
obtain advance judicial approval of searches and seizures through the warrant
procedure[.]” Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889(1968). However, “when a person is subject to an ‘investigative detention’ rather
than a full-blown custodial arrest, the officer need only have reasonable suspicion
for the detention rather than the probable cause typically required.” State v. De La
Rosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 686 (citing Terry, 392 U.S. at 30, 88 S. Ct.
at 1884-85). Although “[t]he factual basis needed to support an officer’s reasonable
5. In State v. Stanga, we cited Ornelas v. United States for the general
proposition that “[o]ur review of a motion to suppress based on an alleged
violation of a constitutionally protected right is a question of law examined de
novo.” Stanga, 2000 S.D. 129, ¶ 8, 617 N.W.2d at 488 (citing Ornelas, 517
U.S. at 699, 116 S. Ct. at 1663). We have often invoked this standard since
Stanga. In Ornelas, however, the United States Supreme Court did not
speak so broadly—it held only “that as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on
appeal.” 517 U.S. at 699, 116 S. Ct. at 1663. The United States Court of
Appeals for the Eighth Circuit has interpreted this statement to indicate,
generally, that “warrantless searches . . . are reviewed de novo, and cases in
which a search is conducted pursuant to a warrant . . . are given deference.”
United States v. Oropesa, 316 F.3d 762, 766 n.3 (8th Cir. 2003).
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suspicion is minimal[,]” State v. Mohr, 2013 S.D. 94, ¶ 14, 841 N.W.2d 440, 444, an
investigatory stop is justified only if the totality of the circumstances reveals “some
objective manifestation that the person stopped is, or is about to be, engaged in
criminal activity[,]” United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690,
695, 66 L. Ed. 2d 621 (1981), quoted in Navarette v. California, ___ U.S. ___, 134 S.
Ct. 1683, 1690, 188 L. Ed. 2d 680 (2014), or “if there are reasonable grounds to
believe that person is wanted for past criminal conduct[,]” Cortez, 449 U.S. at 417
n.2, 101 S. Ct. at 695 n.2.
[¶8.] Walter asserts the circuit court erred in denying his motion to
suppress the methamphetamine evidence because “no evidence presented support[s]
a reasonable inference . . . that a crime was taking place or about to take place[.]”
In response, the State asserts the investigative detention was warranted because it
“was based on a complaint that Defendant was panhandling” and Walter fit the
description given to Officer Ackland. The parties did stipulate that “Officer Dale
Ackland was dispatched to a call . . . in regard to a panhandler in Roosevelt park.”
However, “panhandling” is not necessarily a crime under either South Dakota law
or the Rapid City municipal code. On the contrary, soliciting 6 is generally
permitted in Rapid City—a fact the State readily asserts Officer Ackland knew 7—it
6. In this context, soliciting is defined as: “Asking for money or objects of value,
with the intention that the money or object be transferred at that time, and
at that place.” Rapid City, S.D., Mun. Code § 9.08.020(A)(2) (2015).
7. The State does not assert that Officer Ackland committed a good faith
mistake of law.
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is only prohibited under certain circumstances. 8 While the parties also stipulated
that the call included a detailed description of Walter, the report did not include
8. Rapid City prohibits soliciting under the following circumstances:
1. No person shall solicit in an aggressive manner in any public
place.
2. No person shall solicit on private or residential property
without having first obtained permission from the owner or
other person lawfully in possession of the property.
3. No person shall solicit within 20 feet of any entrance or exit
of any financial institution or 20 feet of any automated teller
machine without the consent of the owner of the property or
another person legally in possession of the facilities.
4. No person shall solicit an operator or other occupant of a
motor vehicle.
5. No person shall solicit any operator or occupant of a motor
vehicle on a public street in exchange for blocking, occupying or
reserving a public parking space, or directing the operator or
occupant to a public parking space.
6. No person shall solicit while under the influence of alcohol or
a controlled substance.
7. No person shall solicit by stating that funds are needed to
meet a specific need, when the solicitor has the funds to meet
that need, does not intend to use funds to meet that need, or
does not have that need.
8. No person shall solicit in any public transportation vehicle or
at any bus stop or in any public parking lot or structure.
9. No person shall solicit within 6 feet of an entrance to a
building.
10. No person shall solicit within 20 feet of any pay telephone,
provided that when a pay telephone is located within a
telephone booth or other facility, the distance shall be measured
from the entrance or exit of the telephone booth or facility.
11. No person shall solicit anytime before sunrise or anytime
after sunset.
12. No person shall solicit within 20 feet of any public restroom
facility.
Rapid City, S.D., Mun. Code § 9.08.020(B) (2015).
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any information regarding the manner in which the alleged panhandling was
conducted. Furthermore, the State has not asserted that Officer Ackland personally
witnessed Walter exhibit any suspicious behavior. Officer Ackland testified that
Walter was standing alone, on a sidewalk, not near any entrance to a public
building. In essence, the State asks us to uphold the seizure and search of an
individual based only on an accurate description of the “suspect’s” appearance and
the statement that he is engaged in activity that might be criminal under certain
conditions, but without any claim that those conditions are actually present or any
other statement of alleged fact enabling the detaining officer to infer that those
conditions might be present.
[¶9.] The United States Supreme Court’s Fourth Amendment jurisprudence,
as well as our own, suggests the information given to Officer Ackland was not
sufficient to create a reasonable suspicion of criminal activity. We have previously
had occasion to discuss the Supreme Court’s Navarette decision in Burkett, 2014
S.D. 38, ¶¶ 48-51, 849 N.W.2d at 636-37, and again find it relevant to the present
case. In Navarette, the Supreme Court “considered the sufficiency of an anonymous
tip to conduct a traffic stop.” Burkett, 2014 S.D. 38, ¶ 48, 849 N.W.2d at 636. The
911 report stated: “Showing southbound Highway 1 at mile marker 88, Silver Ford
150 pickup. Plate of 8–David–94925. Ran the reporting party off the roadway and
was last seen approximately five minutes ago.” Navarette, ___ U.S. at ___, 134 S.
Ct. at 1686-87 (internal quotation marks omitted). Based on this tip alone,
California Highway Patrol officers located and—without observing any suspicious
activity—stopped the described vehicle. While approaching the vehicle, the officers
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detected the odor of marijuana, and a subsequent search of the vehicle yielded 30
pounds of the drug. Id. at ___, 134 S. Ct. at 1687. In upholding the traffic stop, the
Supreme Court said:
The 911 caller in this case reported more than a minor traffic
infraction and more than a conclusory allegation of drunk or
reckless driving. Instead, she alleged a specific and dangerous
result of the driver’s conduct: running another car off the
highway. That conduct bears too great a resemblance to
paradigmatic manifestations of drunk driving to be dismissed as
an isolated example of recklessness.
Id. at ___, 134 S. Ct. at 1691. In contrast, the report Officer Ackland received did
not even assert a minor infraction of Rapid City’s solicitation ordinance. 9 To borrow
the Supreme Court’s language, the mere report of a panhandler is not a description
of “conduct bear[ing] too great a resemblance to paradigmatic manifestations of
[prohibited solicitation] to be dismissed[.]” Cf. id.[¶10.] Our own decisions also support the conclusion that Officer Ackland did
not have a reasonable suspicion of criminal activity. In Graf v. South Dakota
Department of Commerce & Regulation, 508 N.W.2d 1 (S.D. 1993), we reviewed the
9. There is a useful analogy between panhandling and driving. While both are
generally permitted, either act may be unlawful if conducted under particular
circumstances—e.g., for panhandling: aggressively soliciting in public,
soliciting after sunset and before sunrise, soliciting within six feet of a public
building’s entrance, etc.; e.g., for driving: driving at a speed in excess of the
posted limit, driving under the influence of an intoxicant, ignoring traffic
signals, etc. To decide that a report of “panhandling” alone is sufficient to
give rise to a reasonable suspicion of prohibited solicitation would be akin to
deciding a report of simply “driving” is sufficient to give rise to a reasonable
suspicion of drunk driving—a conclusion clearly contrary to the Fourth
Amendment. See Navarette, ___ U.S. at ___, 134 S. Ct. at 1691 (indicating
even some reports of actual driving infractions like “driving without a
seatbelt or slightly over the speed limit” might be insufficient to form a
reasonable suspicion of drunk driving).
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sufficiency of a tip to conduct a traffic stop. The tip provided the make, model, and
license plate number of the defendant’s vehicle, as well as a statement “that the
driver was ‘possibly’ intoxicated.” Id. at 3-4. However, “[t]he caller described no
erratic driving[,]” nor did the officer “observe any erratic driving on [the
defendant’s] part.” Id. at 3. We recognized the case was unlike other “cases
where . . . callers described specific facts concerning driving conduct and gave
detailed information which substantiated the tip and gave it greater reliability.” Id.
(citing Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)).
Thus, because the tip only asserted a conclusory allegation of drunk driving, and
because the officer did not observe any suspicious behavior, we held “[t]he
requirement of specific and articulable facts was simply not met.” Id. at 4.
[¶11.] Similarly, in State v. Burkett, we reviewed a traffic stop that resulted,
in part, from a tip that provided the color, type, and license plate number of the
defendant’s vehicle, as well as a statement that the driver was possibly intoxicated.
2014 S.D. 38, ¶ 46 n.11, 849 N.W.2d at 636 n.11. Like Graf, we said the tip upon
which the officer acted was “minimal, almost conclusory in nature[.]” Burkett, 2014
S.D. 38, ¶ 56, 849 N.W.2d at 638. However, prior to initiating the stop, the
detaining officer observed the defendant stop his vehicle “in the middle of a
residential street and rev[] its engine for no apparent reason.” Id. ¶ 8, 849 N.W.2d
at 626. Under the totality of the circumstances, the officer’s corroboration of the tip
by “a brief observation of erratic driving[,]” id. ¶ 56, 849 N.W.2d at 638,
compensated for an otherwise anemic tip. If we consider a tip alleging necessarily
criminal conduct (drunk driving) to be minimal and conclusory, then a tip alleging
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generally lawful activity (panhandling) must also be considered minimal and
conclusory—if not held in even less regard.
[¶12.] In State v. Mohr, we reviewed the detention and search of a defendant
after a casino attendant triggered a duress alarm. 2013 S.D. 94, ¶ 4, 841 N.W.2d at
443. The only additional information conveyed by dispatch to the responding
officers was “that the casino attendant believed the suspect from earlier robberies
was in the casino, that Mohr was wearing a hat and sunglasses, and that Mohr was
playing video lottery when officers arrived.” Id. ¶ 15, 841 N.W.2d at 445. We
agreed with the defendant that the attendant’s phone call “did not relay any
articulable facts of her firsthand observation of a crime in progress” and recognized
that, “viewed in isolation, [the call] might lack the factual basis for police to have a
reasonable suspicion of criminal activity.” Id. ¶ 22, 841 N.W.2d at 447. However,
as in Burkett, we upheld the detention and search because the officers were familiar
with the circumstances of the prior robberies, the attendant was an identifiable
source, and the nature of an emergency call limited the ability of the officers to
investigate. Id. ¶¶ 18-23, 841 N.W.2d at 445-47. None of these factors are present
in Walter’s case.
[¶13.] The foregoing decisions make clear that a conclusory statement of
lawful activity does not provide a reasonable suspicion of criminal activity without a
particularized description of conduct suggesting the otherwise lawful activity is
being performed in an unlawful manner. Here, the report Officer Ackland received
did not articulate any facts describing illegal conduct or any conduct that would
otherwise give rise to an inference of criminal activity. Officer Ackland did not
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corroborate the report’s conclusory assertion by personal observation of Walter. The
State has not asserted Officer Ackland had any preexisting knowledge regarding
Walter’s particular brand of panhandling or that the area in which Officer Ackland
found Walter generally suffered from prohibited solicitation. Here, unlike
Navarette, Burkett, and Mohr, the totality of the circumstances upon which to find
reasonable suspicion is therefore limited to the simple and conclusory report given
to Officer Ackland by the dispatcher. Rather, as in Graf, “[t]he requirement of
specific and articulable facts was simply not met.” 508 N.W.2d at 4.
Conclusion
[¶14.] Officer Ackland did not have a reasonable suspicion of criminal
activity; therefore, the methamphetamine evidence was the product of an illegal
search. The circuit court erred in denying Walter’s motion to suppress. We reverse.
[¶15.] ZINTER, SEVERSON, WILBUR and KERN, Justices, concur.
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