State v. Ashley

• Decision Date: 24 May 1990
• Docket Number: No. 16944,16944
• Citation: 459 N.W.2d 828
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Gary ASHLEY, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 828

459 N.W.2d 828

STATE of South Dakota, Plaintiff and Appellee, v. Gary ASHLEY, Defendant and Appellant.

No. 16944.

Supreme Court of South Dakota.

Considered on Briefs May 24, 1990.

Decided Aug. 1, 1990.

Rehearing Denied Sept. 7, 1990.

Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Steven R. Smith of Andera, Rabuck & Smith, Chamberlain, for defendant and appellant.

WUEST, Chief Justice.

Gary Ashley (Ashley), appeals from a judgment of conviction for Third Degree Burglary. We affirm.

On May 5, 1989, at approximately 7:30 in the morning, Lester Plank (Plank), Deputy Sheriff for Lyman County, received a telephone call from the Chamberlain Police Department advising him a burglary had been committed at the Farmer's Union Oil Company in Reliance, South Dakota. Plank arrived at the scene of the burglary shortly thereafter. He discovered a window on the south side of the Farmer's Union Oil Company building had been broken out. He also discovered a string of black leather which had been caught on the broken glass of this window. Plank subsequently searched the building and found several cash drawers had been pried open. His investigation revealed approximately eighty-five hundred dollars ($8500) in cash had been stolen from the building. Also missing was a Novar security system.

On the very same day this burglary had been reported to the police, Bill Hamilton (Hamilton), a parole agent, contacted the Mitchell Police Department and requested their assistance in finding Ashley. Hamilton was the supervising parole agent of Ashley. He had been attempting to contact Ashley at his home for several days but was unsuccessful. Hamilton was informed by the police he would be contacted immediately if the police ascertained the whereabouts of Ashley. The record also reveals about this time, Hamilton was informed by the police they suspected Ashley was involved in stealing guns in neighboring counties.

Five days later Hamilton was contacted by the Mitchell Police Dispatcher at approximately 5:00 a.m. and advised Ashley's vehicle had been seen parked outside Ashley's apartment. Upon receiving this information, Hamilton asked if a police officer would accompany him to Ashley's apartment as he wanted to verify that Ashley was complying with the terms of his parole. Pursuant to this request, Detective Mark McCray (McCray) agreed to accompany Hamilton to Ashley's residence.

At approximately 6:00 a.m., Hamilton and McCray arrived at Ashley's residence. Upon meeting Ashley, Hamilton inquired as to whether he could conduct a search of Ashley's apartment. Ashley responded, "Go ahead." Hamilton then began to search Ashley's apartment. McCray, though present, did not conduct any part of the search. During his search, Hamilton found two money wrappers in a cupboard located on the east wall of Ashley's apartment. The wrappers were marked "1000." The initials "R.A." were written on one wrapper along with the date April 28, 1989. The same initials were written on the other wrapper along with the date May 1, 1989. Hamilton found it strange that Ashley would have these money wrappers since he was unemployed at the time. As a result, Hamilton gave the wrappers to McCray who placed them in a bag and tagged them for identification. When asked what he was doing with the wrappers, Ashley said his wife must have brought them home from work.

After searching Ashley's apartment, Hamilton conducted a search of Ashley's automobile. Through this search, Hamilton discovered a black leather coat. He found a stun gun in the pocket of this coat. According to the terms of Ashley's parole, Ashley was prohibited from possessing guns or dangerous weapons. Considering this, Hamilton placed the black coat on the boulevard next to the automobile. McCray then noticed this coat, and particularly the black leather strings that hung from the sleeves of this coat. Knowing that a black leather string was found in the broken window at the Farmer's Union Oil Company, McCray suggested that Hamilton seize the coat. Hamilton did so. Shortly thereafter, Hamilton concluded his search.

After the search, the evidence found at Ashley's apartment was evaluated. The State Crime Laboratory examined Ashley's black leather coat and the black leather string found at the scene of the crime. Doctor Ilya Zeldes, who conducted this examination, concluded that due to the preponderance of matching characteristics and lack of discrepancies, the black leather string originated from the left sleeve cuff of Ashley's coat.

An investigation of the money wrappers revealed the initials contained on the wrappers were those of Rhonda Augspurger, an employee of the Tri-County State Bank in Chamberlain, South Dakota. Augspurger stated she wrote the dates on these wrappers (April 28, 1989 and May 1, 1989) and explained these dates represented when the wrappers and their contents were placed in the bank vault. Further investigation revealed these wrappers were similar to those which had been given to Connie Surat (Surat), a bookkeeper at the Farmer's Union Oil Company, on May 4, 1984. Surat stated she had gone to the Tri-County State Bank on May 4, 1989, to cash several checks. She returned to work that afternoon with approximately thirty-six hundred dollars ($3600) in cash.

On the basis of all this information, Ashley was subsequently charged with Third Degree Burglary in violation of SDCL 22-32-8. Ashley waived a jury trial on this matter and therefore a trial was scheduled to be held before the circuit court on November 29, 1989. Prior to trial, Ashley moved the trial court to suppress the coat seized at his apartment on the grounds it was seized in violation of his Fourth Amendment rights. The trial court held the seizure was proper and, as a result, Ashley's motion to suppress was denied.

A trial was held to the court. At the end of the State's case, Ashley moved for a judgment of acquittal. This was denied. After the trial was completed, Ashley was found guilty of Third Degree Burglary and a judgment of conviction was entered. Ashley now appeals from this judgment alleging the trial court erred in two respects. First, he contends his black leather coat should not have been admitted into evidence because it was seized in violation of his Fourth Amendment rights. Secondly, he contends the trial court erred in finding the evidence was sufficient to sustain the charge of Third Degree Burglary and in denying his motion for judgment of acquittal.

We first address the issue of whether the trial court erred in refusing to suppress the admission of Ashley's black leather coat at trial. Initially, we note that as a condition of gaining parole, Ashley agreed to submit to search and seizure whenever reasonable cause was ascertained by his parole agent. This is embodied in Ashley's parole agreement which states:

Search and Seizure: I will submit my person, property, place of residence, vehicle and personal effects to search and seizure at any time with or without a search warrant, whenever reasonable cause is ascertained by a parole agent.

Ashley does not dispute the validity of this provision. ¹ Instead, he contends that, under these circumstances, the seizure of his coat violated his Fourth Amendment rights because the underlying search was merely a front or subterfuge for a police investigation. In essence Ashley contends that Hamilton was acting as an agent for the police when he conducted a search of his apartment and when he seized Ashley's coat. According to Ashley, the police did not have a right to search for and seize items from Ashley's apartment or vehicle under these circumstances. Therefore, Hamilton, acting as an agent for the police, clearly did not have that right either.

This Court, for the first time, is called on to determine whether a parole agent's warrantless search of a parolee's residence violated the parolee's Fourth Amendment rights due to police participation in the search. While this issue has not been previously addressed by this Court, other courts have dealt extensively with this issue. On a number of occasions, the Ninth Circuit Court of Appeals has addressed this issue and has determined that a warrantless parole search runs afoul of the parolee's Fourth Amendment rights when the parole officer "acts as a 'stalking horse' to facilitate police investigations by circumventing the warrant requirement." United States v. Jarrad, 754 F.2d 1451, 1453 (9th Cir.1985), cert. denied 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985); see also Latta v. Fitzharris, 521 F.2d 246, 247 (9th Cir.1975), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975). In elaborating on this principle, the Ninth Circuit Court of Appeals has stated:

A parole officer is not a stalking horse if he, rather than the police, initiates the search in performance of his duties as a parole ... officer. When, on the other hand, a parole ... officer conducts a parole ... search on prior request of and in concert with law enforcement officials, the [parole] officer is in such a case acting, not as the supervising guardian, so to speak, of the parolee, but as the agent of the very authority upon whom the requirement for a search warrant is constitutionally imposed.

United States v. Richardson, 849 F.2d 439, 441 (9th Cir.1988) cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 141 (1988) (citations omitted). The aforementioned principles are based upon sound reasoning and are well established. Hence, we apply them to the facts in the present case to resolve the issue of whether the search and seizure in question violated Ashley's Fourth Amendment rights.

Applying the facts of this case to the aforementioned principles, it is clear that Hamilton was not acting as a "stalking horse" or agent of the police when he searched Ashley's apartment and seized Ashley's coat. The record reflects that before Hamilton...