State v. Baysinger

• Citation: 470 N.W.2d 840
• Decision Date: 25 October 1990
• Docket Number: No. 16983,16983
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Alan BAYSINGER, Defendant and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 840

470 N.W.2d 840

STATE of South Dakota, Plaintiff and Appellant, v. Alan BAYSINGER, Defendant and Appellee.

No. 16983.

Supreme Court of South Dakota.

Considered on Briefs Oct. 25, 1990.

Decided May 22, 1991.

Roger A. Tellinghuisen, Atty. Gen., M. Bridget Ryan, Asst. Atty. Gen., Pierre, for plaintiff and appellant.

Rick Johnson, Gregory, for defendant and appellee.

SABERS, Justice (On reassignment).

This is a discretionary appeal from an order granting Alan Baysinger's (Alan) pretrial motion to suppress evidence. We reverse and remand.

FACTS

In January 1989, a confidential informant told the Jerauld County sheriff that he had overheard a conversation between Tom Baysinger (Tom), Alan's cousin, and "another guy" regarding the receipt of some cocaine through the mail in Huron, South Dakota. As a result of a subsequent contact between the sheriff and the United Parcel Service (UPS), a package addressed to Tom was intercepted at the UPS office in Huron. Unknown to law enforcement, a UPS representative opened the package and discovered a white powdery substance inside. UPS notified the Huron police of the interception of the package and discovery of the powder and the police took the package into custody. ¹

On Monday, January 30, 1989, Doug Lake (Lake), an agent for the South Dakota Division of Criminal Investigation in Pierre, received a call from the Huron police. The police requested Lake's assistance with a controlled delivery of the cocaine to Tom's residence. Lake immediately flew to Huron where he met with local law enforcement officials. The package they had confiscated was taken back to the Huron UPS office where Lake field tested the powder in the package. The powder tested positively as cocaine. Lake removed all but two grams of the cocaine from the package and replaced it with a vitamin B compound. The package was then resealed to its original condition.

Lake borrowed a UPS uniform and truck and attempted to deliver the package to Tom's residence. He was followed by a surveillance team that videotaped the attempted delivery. No one answered the door so Lake left a note on the door advising that the package could be picked up at the UPS office. Lake then took the package back to the UPS office where he waited to see if someone would pick it up. Meanwhile, the surveillance team continued to monitor Tom's home where they filmed Alan stopping at the house and reading the UPS note on the door.

Later that same day, Tom came into the UPS office, signed for his package and left. Lake followed him to the parking lot where he saw him get into a car with an individual later identified as Alan, and drive away.

After Tom picked up the package of cocaine, Lake prepared an affidavit and request for a warrant to search Tom's residence. Lake, accompanied by other law enforcement officers, arrived at the house at about 6:00 p.m. Alan was standing in the living room and his wife was in the kitchen with Tom's wife and another woman. When Lake knocked on the door, Tom's wife answered. Alan heard Lake ask for Tom and Tom's wife went to get him.

When Tom got to the door, Lake handed him the search warrant and advised him that he was under arrest. Lake turned Tom over to another officer and entered the residence, advising that he had a warrant. Lake saw Alan standing in the living room and recognized him as the person who had accompanied Tom to the UPS office to pick up the package of cocaine. Lake took Alan into custody and turned him over to another officer who pushed Alan to the wall and handcuffed him.

At about this time, Lake heard an officer from outside yell that someone was in the bedroom. Lake proceeded to the bedroom where he saw Tom's wife attempting to hide the cocaine in a closet. There was white powder scattered throughout the room. Lake told the woman to "freeze" and placed her under arrest. In the meantime, Alan had been searched and a vial of cocaine found in one of his pockets. ² Officers outside the residence also discovered the empty UPS package in Tom's car.

Alan was later charged with one count of possession with intent to distribute the cocaine found at Tom's residence, one count of possession of the cocaine at the same residence and one count of possession of cocaine relating to the vial found in his pocket. Alan filed a motion to suppress the evidence seized from his pocket for lack of probable cause to search, because the search was not a frisk and because the search was not necessary and incidental to his arrest. After a hearing on Alan's motion, the trial court entered findings of fact, conclusions of law and an order suppressing the evidence seized from his pocket. We subsequently granted state's petition for allowance of an intermediate appeal of the suppression order.

ISSUE

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN SUPPRESSING THE EVIDENCE SEIZED FROM ALAN'S POCKET?

State argued before the trial court that the evidence seized from Alan's pocket was seized as the result of a valid search incident to his arrest. However, the trial court determined that Lake did not have probable cause to search Alan and, accordingly, suppressed the evidence seized from his pocket. On appeal, state advances a series of arguments to justify Alan's arrest and to demonstrate that the trial court was clearly erroneous in its probable cause determination. In essence, state argues that Alan's arrest was valid and, therefore, the evidence taken from his pocket was seized as a result of a valid search incident to his arrest.

STANDARD OF REVIEW

A trial court's findings of fact from a suppression hearing must be upheld unless they are clearly erroneous. State v. Pfaff, 456 N.W.2d 558 (S.D.1990). Similarly, a trial court's finding concerning probable cause for a warrantless arrest will not be overturned unless clearly erroneous. U.S. v. Woolbright, 831 F.2d 1390 (8th Cir.1987); U.S. v. McGlynn, 671 F.2d 1140 (8th Cir.1982). 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.

To disturb a trial court's ultimate decision to suppress evidence, this court must find that an abuse of discretion has occurred. Pfaff, supra. This refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. Id. In this regard, we do not determine whether we would have made a like decision but only whether a judicial mind, considering the law and facts, could have reached a similar decision. Id.

1. VALIDITY OF ARREST BASED ON COMMISSION OF OFFENSE IN

LAKE'S PRESENCE

SDCL 23A-3-2(1) provides that, "[a] law enforcement officer may, without a warrant, arrest a person ... [f]or a public offense, other than a petty offense, committed or attempted in his presence[.]" State contends the actions of Tom's wife in attempting to hide the cocaine in the bedroom while Alan was being arrested provides circumstantial evidence that Alan was in possession of the cocaine. See, State v. Wellner, 318 N.W.2d 324 (S.D.1982) (possession need not be exclusive and may be shared with others). See also, State v. Winckler, 260 N.W.2d 356 (S.D.1977) (circumstantial evidence can be used to demonstrate possession). Accordingly, state argues that Alan was committing a possession offense in Lake's presence justifying his arrest under SDCL 23A-3-2(1). Under this theory, it would follow that Alan's pockets were validly searched incident to his arrest. See, State v. Klingler, 84 S.D. 466, 173 N.W.2d 275 (1969).

This court has not previously addressed the validity of an arrest under SDCL 23A-3-2(1). However, in State v. Thompson, 295 N.W.2d 8 (S.D.1980), we did determine the validity of a DWI arrest under then SDCL 23-22-7(1), a precursor to SDCL 23A-3-2(1). ³ Similar to SDCL 23A-3-2(1), SDCL 23-22-7(1) (1967) provided that, "[a] peace officer may, without a warrant, arrest a person ... [f]or a public offense committed or attempted in his presence[.]" In Thompson, the defendant contended his arrest was invalid because the offense was not committed in the presence of the arresting officer. Rejecting that contention, we observed:

The conclusive evidence of defendant's intoxication appeared after the automobile stopped and the sheriff observed defendant's condition. In addition to receiving the radio report concerning defendant's condition, the sheriff observed defendant's driving and his intoxicated condition. As a result of his sensory perceptions alone the sheriff had a basis to arrest defendant without a warrant; the offense was committed in the sheriff's presence.

Thompson, 295 N.W.2d at 10 (emphasis added).

In reaching the above conclusion, we relied on the decision of the Minnesota Supreme Court in State v. Dax, 290 Minn. 546, 188 N.W.2d 422 (1971). In Dax, the Minnesota Court also explored the validity of a DWI arrest under an "in the presence" statute similar to SDCL 23A-3-2(1). In discussing the validity of the arrest under the statute, the Minnesota Court stated:

[A]n arrest without a warrant may not lawfully be made unless the acts constituting the offense are committed or attempted in the presence of the arresting officer.... While the circumstances of each case are usually determinative, all that is required by the statute in this case is that the officer (1) become aware, as a result of his sensory perception, of the act of driving and of defendant's intoxication; and (2) have a reasonable basis to infer that defendant was in fact driving the vehicle while he was under the influence.

Dax, 188 N.W.2d at 423 (emphasis added) (citations omitted).

Thompson...