In re H.L.S., 24998.

Citation774 N.W.2d 803,2009 SD 92
Decision Date28 October 2009
Docket NumberNo. 24998.,24998.
PartiesIn the Matter of H.L.S., Alleged Delinquent Child.
CourtSupreme Court of South Dakota

Marty J. Jackley, Attorney General, Meghan N. Dilges, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee, State of South Dakota.

Patrick T. Pardy of Mumford, Protsch and Pardy, LLP, Madison, South Dakota, Attorneys for appellant, H.L.S.

GILBERTSON, Chief Justice.

[¶ 1.] H.L.S. appeals the denial of her motion to suppress a urine sample obtained after she was arrested without a warrant on suspicion of possession and ingestion of marijuana. We reverse.

FACTS

[¶ 2.] On April 14, 2008, the South Dakota Division of Criminal Investigation (DCI) and other law enforcement executed a valid search warrant on an apartment in Huron, South Dakota. The apartment was at that time rented to Amelia Wipf (Wipf). The search warrant permitted the premises to be searched, a search of both Wipf and Kunta Miles, and collection of urine samples from both individuals. At the time the warrant was executed, law enforcement found six individuals in the apartment. Among those six individuals was H.L.S., age seventeen.

[¶ 3.] DCI Agent Josh Bobzien was a part of the law enforcement team that executed the search warrant. Due to a previous injury, he was wearing a boot cast and was unable to enter the premises until after the entry team had secured it. When he entered the living room, he noted H.L.S. was seated and handcuffed along with the other five individuals in the living room.

[¶ 4.] Bobzien was informed by other law enforcement officers that marijuana stems and seeds had been found in plain view on an end table in the living room, and that additional flakes were found elsewhere in the living room. In addition, officers located a paper bag in the living room, also in plain view, in which marijuana stems, seeds, and the tobacco remains of a hollowed-out cigar were found, which indicated a cigar had been used as a blunt (a cigar in which the tobacco has been removed and replaced with marijuana). Bobzien asked a general question of all six individuals present, including H.L.S., as to who was the owner of the marijuana. None of the six claimed ownership, and none volunteered the identity of the owner.

[¶ 5.] Bobzien arrested H.L.S. along with the other five individuals present. H.L.S. was transported to the Huron Regional Correction Center where she was compelled to give a urine sample. H.L.S.'s urine tested positive for tetrahydrocannabinol (THC), the essential active component in marijuana. H.L.S. was charged with one count of possessing two ounces or less of marijuana in violation of SDCL 22-42-6, and one count of ingesting a substance for purposes of becoming intoxicated in violation of SDCL 22-42-15.

[¶ 6.] H.L.S. moved to suppress the results of the urine analysis. At the suppression hearing, the parties stipulated that the urine analysis was not compelled under the terms of the search warrant. Instead, both parties stipulated that the theory under which law enforcement compelled H.L.S. to provide a urine sample was based on her presence at the apartment in which the marijuana stems, seeds, and flakes were found in plain view, and on the basis of the contents of the paper bag found in the living room.

[¶ 7.] At the hearing, Bobzien was the only law enforcement officer to testify who had been present at the scene. Bobzien was not asked and he did not testify as to where H.L.S. was in relation to the marijuana and paper bag at the time the entry team entered the apartment. Nor was Bobzien asked whether H.L.S. was in the living room when the entry team entered the apartment to execute the warrant. Bobzien was asked but was unable to testify as to how long H.L.S. had been in the apartment before the search warrant was executed. All that Bobzien could testify to was that when he entered the apartment he observed H.L.S. seated in the living room and in handcuffs and that at that time she was sitting approximately where the contraband had been found in plain view. Bobzien testified that he did not ask H.L.S. individually whether she knew to whom the marijuana belonged.

[¶ 8.] Bobzien's testimony with regard to H.L.S.'s physical location during the execution of the search warrant was as follows:

Q. And when did you first encounter H.L.S.?

A. She was at the residence [where the search was conducted].

. . .

Q. And so specifically, where and when did you encounter H.L.S.?

A. I believe when I—At the time, I had a walking boot. I was physically handicapped. The entry team made entry into the residence, and once the residence was secured I entered into the apartment, and I believe she was sitting in the living room when I was there.

Q. And what, if any, evidence of a drug-related nature was found in the area where H.L.S. was?

A. During the search, officers located a paper bag with marijuana stems and marijuana flakes in the paper bag, and also in the bag was tobacco, and it appeared that they took tobacco out of a cigar and placed it in there. There [were] also marijuana stems and seeds in the living room on the end table, and marijuana flakes also located in the living room, and that was the evidence that was located in the living room approximately where she was sitting.

. . .

Q. and as a result of the drug-related items found near H.L.S, what did you do?

A. Nobody wanted to claim the drugs, so I placed everybody under arrest for possession.

[¶ 9.] The circuit court denied H.L.S.'s motion. In its findings of fact, the circuit court noted that "Bobzien, relying on his training and experience as a law enforcement officer, determined that the marijuana found at the apartment combined with the Defendant's close proximity to that marijuana, made it probable that the Defendant smoked marijuana." It also concluded that Bobzien's experience as an officer, his sensory observations of H.L.S. in the common area where the drugs were found, and her proximity to the marijuana and the paraphernalia, established probable cause to believe that there had been drugs used by H.L.S., as well as the other individuals present at the time the search warrant was executed. The circuit court denied H.L.S.'s motion to suppress.

[¶ 10.] H.L.S. appeals raising one issue:

Whether the circuit court erred in finding there was probable cause for the arrest of H.L.S.1

STANDARD OF REVIEW

[¶ 11.] We apply the de novo standard of review when a defendant claims the circuit court erroneously denied a motion to suppress evidence based on an alleged violation of a constitutionally protected right. State v. Wendling, 2008 SD 77, ¶ 8, 754 N.W.2d 837, 839 (quoting State v. Labine, 2007 SD 48, ¶ 12, 733 N.W.2d 265, 268-69). Under the de novo standard, "we review the circuit court's findings of fact under the clearly erroneous standard, [and] we give no deference to its conclusions of law [.]" Id. (quoting State v. Condon, 2007 SD 124, ¶ 15, 742 N.W.2d 861, 866). "Similarly, a trial court's finding concerning probable cause for a warrantless arrest will not be overturned unless clearly erroneous." State v. Hanson, 1999 SD 9, ¶ 10, 588 N.W.2d 885, 889 (citing United States v. Woolbright, 831 F.2d 1390 (8th Cir.1987); United States v. McGlynn, 671 F.2d 1140 (8th Cir.1982)). As this Court has often noted:

This court's function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. State v. Corder, 460 N.W.2d 733 (S.D.1990). In making this determination, we review the evidence in a light most favorable to the trial court's decision. Id.

State v. Baysinger, 470 N.W.2d 840, 843 (S.D.1991).

ANALYSIS AND DECISION

[¶ 12.] H.L.S. argues on appeal that she was arrested without probable cause and that the search incident to her arrest, that is the urine sample, was obtained in violation of her Fourth Amendment rights. H.L.S. argues the arrest was not valid under either SDCL 23A-3-2(1) or -2(2).2 H.L.S. argues that under SDCL 23A-3-2(1) Bobzien did not observe H.L.S. commit an offense. Under SDCL 23A-3-2(2), H.L.S. argues Bobzien did not have sufficient probable cause to believe H.L.S. had committed a crime. H.L.S. argues she was arrested "because she was present at a residence in which the agent was serving a search warrant." H.L.S. further argues that under this Court's holding in Baysinger, 470 N.W.2d 840, her proximity to others "independently suspected of criminal activity does not, without more, give rise to probable cause to arrest that person."3

[¶ 13.] The State argues that Bobzien had sufficient probable cause to arrest H.L.S. under SDCL 23A-3-2(2) based on the presence of the marijuana stems and seeds found on an end table in the living room where the six occupants were seated, the flakes found elsewhere in the living room, and evidence of a blunt used to smoke marijuana found in the paper sack in the living room. The State contends that H.L.S. was not arrested due to her proximity to other persons "independently" suspected of criminal activity, but rather H.L.S. was suspected of criminal activity due to her proximity to and ability to exercise control over the marijuana that was present in the room at the time the search warrant was executed.

[¶ 14.] The text of the Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. "This prohibition against unreasonable searches requires generally the...

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