State v. Fischer

• Citation: 873 N.W.2d 681
• Decision Date: 06 January 2016
• Docket Number: No. 27062.,27062.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Bryon James FISCHER, Defendant and Appellant.
• Court: Supreme Court of South Dakota

873 N.W.2d 681

STATE of South Dakota, Plaintiff and Appellee,

v.Bryon James FISCHER, Defendant and Appellant.

No. 27062.

Supreme Court of South Dakota.

Considered on Briefs Aug. 31, 2015.

Decided Jan. 06, 2016.

Craig M. Eichstadt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Kenneth M. Tschetter of Nicholson, Tschetter, Adams & Nicholson, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Bryon Fischer appeals his conviction by a jury of possession of methamphetamine, possession of two ounces or less of marijuana, and possession of drug paraphernalia. He asserts the evidence of methamphetamine presented to the jury was the product of an illegal search and that the circuit court erred when it denied his motion to suppress the same. He also asserts the jury was not presented with sufficient evidence to conclude beyond a reasonable doubt that he knowingly possessed methamphetamine and that the circuit court erred when it denied his motion for a judgment of acquittal. We conclude that the circuit court did not err by denying Fischer's motion to suppress and that the evidence presented at trial was sufficient to sustain Fischer's conviction for the knowing possession of methamphetamine. Therefore, we affirm.

Facts and Procedural History

[¶ 2.] On November 16, 2011, at approximately 7 p.m., Sioux Falls Police Officer Pat Mertes observed an automobile parked on Spring Avenue, between 10th and 11th Streets, in Sioux Falls, South Dakota. The vehicle was parked under a sign that read: "No Parking on This Side of the Street." Fischer sat in the driver's seat of the vehicle, and an unidentified woman sat in the front passenger's seat. Officer Mertes decided to initiate a traffic stop because of the placement of the vehicle in the no-parking zone. Upon approaching the vehicle, Officer Mertes saw an open can of beer on the floor between the front driver's and passenger's seats. Officer Mertes asked Fischer to accompany him to his patrol car, and Fischer complied.

[¶ 3.] Officer Mertes and Fischer both sat in the front seat of Officer Mertes's patrol car. Fischer produced a South Dakota driver's license and vehicle registration. The registration revealed that Fischer was not the owner of the vehicle,¹ and Officer Mertes learned that Fischer's license had been revoked. Officer Mertes placed Fischer under arrest, placed him in handcuffs, and conducted a search of his person. The resulting search produced a wooden box containing what Officer Mertes recognized to be a marijuana pipe. The pipe contained burnt marijuana.

[¶ 4.] Upon discovery of the pipe, Officer Mertes asked Officer Chris Bauman, who had arrived at the scene during Officer Mertes's questioning of Fischer, to conduct a search of the vehicle. Officer Bauman discovered a collectible tin box underneath the front passenger's seat containing hollowed-out lightbulbs, hollow pen tubes, tweezers, a bottle cap, and some paper towels. Officer Bauman also noticed residue on several of the items, indicating the possible presence of a controlled substance.²

[¶ 5.] The State charged Fischer with possession of methamphetamine, two ounces or less of marijuana, and drug paraphernalia. Fischer moved the circuit court to suppress all evidence produced from the search of the vehicle, and the circuit court denied the motion. At trial, after the State concluded its case-in-chief, Fischer asked the circuit court to enter a judgment of acquittal, and the circuit court also denied that motion. After the trial concluded, a jury found Fischer guilty of all three charges. The circuit court sentenced Fischer to ten years for possession of methamphetamine with three years suspended, one year to be served concurrently for possession of two ounces or less of marijuana, and thirty days to be served concurrently for possession of drug paraphernalia.

[¶ 6.] Fischer now appeals to this Court, raising the following issues:

1. Whether the circuit court erred by denying Fischer's motion to suppress evidence obtained from the search of the vehicle.

2. Whether the circuit court erred by denying Fischer's motion for judgment of acquittal.

Analysis and Decision

[¶ 7.] Fischer asserts Officer Mertes did not have probable cause to arrest him for driving with a revoked license. According to Fischer, Officer Mertes did not observe him—and Fischer did not admit to—operating the vehicle. Thus, Fischer reasons, any search conducted subsequent to that arrest was invalid. Additionally, Fischer asserts that the subsequent search of the vehicle was improper under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), because he had already been placed under arrest, because "[i]t would not be reasonable to believe the vehicle contained any evidence of [driving with a revoked license,]" and because "it was not reasonable to believe that there would be further evidence of possession of marijuana in his vehicle." Additionally, Fischer asserts "the record is lacking evidence which, if believed, could be sufficient to sustain a finding of guilt beyond a reasonable doubt as to Possession of Controlled Substance." According to Fischer, the State did not prove that he knowingly possessed methamphetamine.

[¶ 8.] 1. Whether the circuit court erred by denying Fischer's motion to suppress evidence obtained from the search of the vehicle.

[¶ 9.] Although "[w]e traditionally review a circuit court's decision to suppress evidence under an abuse of discretion standard[,] ... we review a motion to suppress evidence obtained in the absence of a warrant de novo [.]" State v. Medicine, 2015 S.D. 45, ¶ 5, 865 N.W.2d 492, 495 (quoting State v. Walter, 2015 S.D. 37, ¶ 6, 864 N.W.2d 779, 781–82 ). "Thus, we review the circuit court's factual findings for clear error but ‘give no deference to the circuit court's conclusions of law.’ " Id. (quoting Walter, 2015 S.D. 37, ¶ 6, 864 N.W.2d at 782 ).

[¶ 10.] Fischer first asserts that Officer Mertes did not have probable cause to arrest him for driving with a revoked license. The State argues that Fischer is precluded from challenging "either the propriety of his arrest or the resulting search of his person" because he failed to raise these issues below. Although Fischer asserts his challenge was preserved below, he further asserts that the circuit court's decision is reviewable as plain error. We agree with the State that Fischer did not preserve his argument challenging the validity of the arrest itself, and we disagree with Fischer that the circuit court plainly erred by admitting evidence gathered in the searches subsequent to the arrest.

[¶ 11.] a. Whether Fischer may directly challenge his arrest on appeal.

[¶ 12.] Fischer asserts the language included in his motion to suppress was "broad enough to include a challenge to the propriety of his arrest and the resulting search of his person." "Ordinarily an issue not raised before the trial court will not be reviewed at the appellate level."

Lindblom v. Sun Aviation, Inc., 2015 S.D. 20, ¶ 8 n. 2, 862 N.W.2d 549, 552 n. 2 (quoting Ronan v. Sanford Health, 2012 S.D. 6, ¶ 14, 809 N.W.2d 834, 837 ). "To preserve issues for appellate review litigants must make known to trial courts the actions they seek to achieve or object to the actions of the court, giving their reasons. " State v. Dufault, 2001 S.D. 66, ¶ 7, 628 N.W.2d 755, 757 (quoting State v. Nelson, 1998 S.D. 124, ¶ 7, 587 N.W.2d 439, 443 ) (emphasis added). Consequently, even if the language of Fischer's motion is broad enough to constitute a challenge to the arrest itself, the scope of the motion is necessarily limited by the argument offered to support the motion. Therefore, we consider not only the request made but also Fischer's stated reasons for it.

[¶ 13.] In his motion to suppress, Fischer asked the circuit court to exclude the following items:

all physical evidence, whether tangible or intangible; any statements or admissions of the Defendant; any and all observations of law enforcement officers and any other tangible or intangible evidence obtained during, or directly or indirectly derived from, the stop of the vehicle Mr. Fischer was riding in on or about November 26, 2011, in Sioux Falls, Minnehaha County, South Dakota[.]

(Emphasis added.) Standing alone, a challenge to the effect of an arrest—e.g., the result of an incidental search—might be sufficiently broad to be viewed as a challenge of the arrest itself. Regardless, Fischer's rationale provides essential context. According to Fischer, the circuit court should have granted his motion for the following reason:

[T]he vehicle was searched in violation of Arizona v. Gant ... as after placing Mr. Fischer under arrest for driving while revoked and possibly open container, the officers [sic] further search of the vehicle is invalid as they could not expect to find offense-related evidence under the front passenger seat of this vehicle given the offense for which the defendant was arrested. See State v. [Overbey, 2010 S.D. 78, 790 N.W.2d 35 ]....

(Emphasis added.) Not once does this statement assert that the arrest was invalid; the only mention of the arrest is made to establish a temporal frame of reference for the search. Further, Gant and Overbey dealt with challenges to the scope of a search incidental to arrest, not challenges to the arrests themselves. See Gant, 556 U.S. at 336–37, 129 S.Ct. at 1715 ; Overbey, 2010 S.D. 78, ¶ 15, 790 N.W.2d at 40–41. Thus, while Fischer's motion to suppress preserved his right to challenge the validity of the vehicle search under Gant and Overbey, Fischer did not preserve his arguments regarding the validity of his arrest and the subsequent search of his person.

[¶ 14.] b. Whether the circuit court plainly erred by not excluding all evidence obtained incident to Fischer's arrest.

[¶ 15.] Nevertheless, Fischer asserts that our review of his arrest is still proper under the plain error rule. Under SDCL...