State v. Almond, No. 18225

• Court: Supreme Court of South Dakota
• Writing for the Court: WUEST; MILLER
• Citation: 511 N.W.2d 572
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. James Allen ALMOND, Defendant and Appellee. . Considered on Briefs
• Decision Date: 02 December 1993
• Docket Number: No. 18225

Page 572

511 N.W.2d 572 STATE of South Dakota, Plaintiff and Appellant,
v.
James Allen ALMOND, Defendant and Appellee. No. 18225. Supreme Court of South Dakota. Considered on Briefs Dec. 2, 1993.
Decided Jan. 26, 1994.

Mark Barnett, Atty. Gen., Craig M. Eichstadt, Deputy Atty. Gen., Pierre, for plaintiff and appellant.

David R. Gienapp and Chris S. Giles of Arneson, Issenhuth, Gienapp and Blair, Madison, for defendant and appellee.

WUEST, Justice.

This is an intermediate appeal from a circuit court's order suppressing evidence seized in a search of the defendant James Almond (Almond). We affirm.

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FACTS

On July 9, 1992, South Dakota State Trooper Michael Shafer (Shafer) stopped Almond for speeding in Beadle County. Shafer detained Almond in the patrol car for the period of time it took to complete the ticketing process, approximately fifteen minutes. Shafer issued Almond a citation for speeding and a warning ticket for no present proof of insurance. Shafer testified that during the ticketing process, Almond seemed very nervous. Shafer also noticed a bulge in Almond's front left pocket. When the ticketing process was completed, Almond left the patrol car and started to walk back to his motorcycle. About the same time, Shafer also exited the patrol car, and verbally confronted Almond near the front of the patrol car. Shafer began to question Almond about the contents of his pocket, and whether Almond used drugs or was transporting drugs. Almond replied that he did not use, nor was he transporting drugs, and that his pocket contained keys, and perhaps some other items such as a lighter, pocketknife and wrench. Almond testified that Shafer stated, "Good, then empty them on the hood" or words to that effect. Shafer testified that he asked Almond if he could see what was in the pocket and Almond replied, "Sure," and then began to empty his pocket. As Almond pulled his hand out of his pocket Shafer observed a plastic bag that he believed to contain marijuana as well as a pipe used to smoke marijuana. Shafer then placed Almond under arrest and read him his Miranda rights. Shafer transported Almond to jail where a complete search of Almond's person revealed a bag containing five bindles of cocaine. The State charged Almond with possession of the marijuana, cocaine and drug paraphernalia. ¹ Almond moved to suppress all evidence, stating that it was seized without a search warrant and pursuant to an illegal search and seizure contrary to the Fourth Amendment of the U.S. Constitution and contrary to Article VI, Section 11 of the Constitution of the State of South Dakota. Hearing on the motion was held on December 2, 1992. The circuit court, after hearing testimony from both Shafer and Almond, issued its memorandum opinion, findings of fact, conclusions of law, and order suppressing all evidence arising out of the search of Almond. It is from this order that the State brings an intermediate appeal.

STANDARD OF REVIEW

We have recently discussed consent to search and our standard of review in that regard:

For consent to a search to be valid, the totality of the circumstances must indicate that it was voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854, 875 (1973); State v. Woods, 374 N.W.2d 92, 100 (S.D.1985). The presence or absence of consent to search is a question of fact. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed.2d at 875; State v. Nemeti, 472 N.W.2d 477, 478 (S.D.1991); [State v.] Zachodni, 466 N.W.2d at 628. The state bears the burden of demonstrating consent. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed.2d at 875; Woods, 374 N.W.2d at 100.

Our standard of review concerning consent to search is as follows: "Because the presence or absence of consent to search is a question of fact, the trial court's resolution of that question will be upheld unless our examination of the evidence, construed in a light most favorable to the trial court's findings, convinces us that the finding was clearly erroneous." Nemeti, 472 N.W.2d at 478.

State v. Krebs, 504 N.W.2d 580, 587 (S.D.1993). See also United States v. Barahona, 990 F.2d 412, 417 (8th Cir.1993) ("We review the lower court's determination of whether a voluntary consent to search was given under the clearly erroneous standard."); United States v. Washington, 957 F.2d 559, 562 (8th Cir.1992) ("The [U.S.] Supreme Court has explicitly stated that the voluntariness of a person's consent to a search, which involves that person's subjective understanding, is a

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question of fact to be reviewed under the clearly erroneous standard."). "A finding is 'clearly erroneous' when after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake was made." Selle v. Pierce, 494 N.W.2d 634, 636 (S.D.1993) (citations omitted). The burden is on the State to "establish voluntariness by clear and convincing evidence that the search was the result of free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied." Nemeti, 472 N.W.2d at 478 (citing State v. Cody, 293 N.W.2d 440, 450 (S.D.1980)).

Applying the law to the facts is a question of law whereby we apply the abuse of discretion standard. " '[A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.' " State v. Lodermeier, 481 N.W.2d 614, 621 (S.D.1992) (quoting State v. Pfaff, 456 N.W.2d 558, 560-61 (S.D.1990); State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987)). Discussing the meaning of an abuse of discretion standard, we have stated that, " 'Under the abuse of discretion standard, we do not determine whether we would have made a like decision, only...