State v. Belmontes

• Decision Date: 23 August 2000
• Docket Number: No. 21115.,21115.
• Citation: 615 N.W.2d 634,2000 SD 115
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Fernando M. BELMONTES, Defendant and Appellant.
• Court: South Dakota Supreme Court

615 N.W.2d 634

2000 SD 115

STATE of South Dakota, Plaintiff and Appellee, v. Fernando M. BELMONTES, Defendant and Appellant.

No. 21115.

Supreme Court of South Dakota.

Considered on Briefs March 20, 2000.

Decided August 23, 2000.

Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Bruce A. Hubbard of Hansen, Hubbard & Swanson, Sturgis, South Dakota, Attorney for defendant and appellant.

AMUNDSON, Justice.

[¶ 1.] Fernando Belmontes (Belmontes) appeals the denial of a motion to suppress evidence seized pursuant to search warrant. We reverse and remand.

FACTS

[¶ 2.] On March 31, 1999, Gary Cudmore (Cudmore), a deputy sheriff in Ziebach County, received a telephone call from an informant. Informant told Cudmore that he was informed by another person that Derwin Martinez had left Modesto, California, in a white passenger car with California license plates. Martinez and two other individuals were reportedly traveling to Red Scaffold, South Dakota with approximately five pounds of marijuana. Informant advised Cudmore that Martinez would be arriving in Red Scaffold within a couple days. Cudmore believed that this information was reliable because Informant had given information on four or five previous occasions and the tips had resulted in arrests for various violations.

[¶ 3.] Cudmore passed the information received from informant to Ziebach County Sheriff Robert Menzel (Menzel) and Trooper Shane Severyn (Severyn). Cudmore, however, would not release the name of the informant who supplied the information or the name of the individual who supplied the information to his informant. Severyn passed the information from Cudmore onto Agent Pat West (West) of the South Dakota Division of Criminal Investigation.

[¶ 4.] West subsequently prepared an Affidavit in Support of Request for Search Warrant. West's affidavit identified that he had received the information from the Ziebach Sheriff's Department. In addition, statements were included from Menzel that he had seized drug paraphernalia in the past from Martinez, that Martinez had been previously arrested for assault, and that Martinez owned a silver Buick Skylark automobile. West did not include, however, any information that the informant was reliable or his information was reliable. Further, the affidavit did not state that the information was supplied from an unnamed informant who had received the information from another unnamed informant.

[¶ 5.] Based upon the affidavit, the Magistrate issued a search warrant on April 1, 1999, to allow law enforcement to search the white Mercury Cougar that was identified in the warrant. The warrant, which is referred to as an anticipatory search warrant¹, limited the search to an area within fifty miles of Red Scaffold and required the warrant be served within seventy-two hours after signing.

[¶ 6.] On April 4, 1999, informant advised authorities that Martinez and two other men had arrived in South Dakota during the night, the white Mercury Cougar had broken down south of Red Scaffold and the three individuals had left the car and were in a different automobile driven by Martinez's mother, Carmen Collins (Collins). Severyn relayed this information to West. Severyn later stopped Collins' vehicle and ticketed Collins for having a dangling object in her vehicle and having no license in her possession. The three men in the car, Martinez, Miguel Valenzuela and Belmontes, were removed from the vehicle, pat-searched and detained. After being given their Miranda warnings, Valenzuela and Belmontes were taken to Faith, South Dakota Police Department. Martinez, however, was taken by West back to the white Mercury Cougar to execute the search warrant on the automobile. A search discovered numerous items including: a digital scale, packages of ZigZag papers used in rolling cigarettes and a one pound block of marijuana wrapped in plastic, baking soda, duct tape, and grease. Belmontes, Martinez and Valenzuela were arrested for possession of marijuana.

[¶ 7.] At trial, Belmontes moved to suppress the items discovered in the search. The trial court found that the affidavit requesting the search warrant did not contain sufficient probable cause because it lacked any evidence that efforts were made to collaborate the confidential informant's statements to ensure their credibility.² The trial court held that the law enforcement officers acted in good faith and should not be punished by the mistake of the Magistrate in issuing the warrant. Therefore, suppression of the fruit of this search was denied.

[¶ 8.] The jury convicted Belmontes of possession of marijuana. Belmontes appeals, raising the following issue:

Whether the circuit court erred in applying the good faith exception to a facially insufficient affidavit for search warrant.

STANDARD OF REVIEW

[¶ 9.] We have often stated that our standard of review for a trial court's grant or denial of a motion to suppress is abuse of discretion. State v. Vento, 1999 SD 158, ¶ 5, 604 N.W.2d 468, 469 (citing State v. Anderson, 1996 SD 59, ¶ 8, 548 N.W.2d 40, 42 (citations omitted)). An abuse of discretion is discretion " `exercised to an end or purpose not justified by, and clearly against reason and evidence.' "State v. Durke, 1999 SD 39, ¶ 11, 593 N.W.2d 407, 409 (quoting State v. Gesinger, 1997 SD 6, ¶ 8, 559 N.W.2d 549, 550 (citations omitted)). Further, it is well settled that,

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).... This [C]ourt'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.

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

DECISION

[¶ 10.] Whether the circuit court erred in applying the good faith exception to a facially insufficient affidavit for search warrant.

[¶ 11.] It is well-settled that "[i]f there is insufficient probable cause, the evidence seized in violation of the suspect's rights under the Fourth and Fourteenth Amendments must be suppressed." State v. Gerber, 90 S.D. 432, 436, 241 N.W.2d 720, 722-23 (1976) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court created a "good faith" exception to the Fourth Amendment exclusionary rule. Under the "good faith" exception, "evidence is admissible when police officers reasonably rely on a warrant that is subsequently invalidated because a judge finds there was insufficient basis for the issuing magistrate to find probable cause." State v. Saiz, 427 N.W.2d 825, 828 (S.D.1988). In Leon, the Supreme Court noted that "good faith" exception will not apply in the following four examples:

Suppression ... remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The exception ... will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, [422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416, 431] (Powell, J., concurring in part); see [Illinois v. Gates, 462 U.S. 213, 263-64, 103 S.Ct. 2317, 2345-46, 76 L.Ed.2d 527, 564-65 (1983)] (White, J., concurring in the judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.

Leon, 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699.

[¶ 12.] In the present case, the trial court concluded that "the affidavit in support of the search warrant contained insufficient probable cause in that it failed to show any efforts to corroborate the confidential informant's statements, nor any basis for the officer's belief in the informant's reliability." The court found that West had failed to meet the exception under Gerber, 90 S.D. 432, 241 N.W.2d 720, by "not corroborating the Informant's information by personal observation, reputation of the Defendants, or other research." Further, the court found that while the affidavit contained insufficient facts to support the issuance of a search warrant, the officers acted in good faith, as defined in Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Saiz, 427 N.W.2d 825, by relying on the search warrant issued by Magistrate.

[¶ 13.] It is well-settled that the purpose of the exclusionary rule was "to deter police misconduct rather than to punish the errors of judges and magistrates." Leon, 468 U.S. at 916, 104 S.Ct. at 3417, 82 L.Ed.2d at 694. In Leon, the error was made by a judicial officer. In the present case, however, the failure to supply information regarding the informants was the error of the officer requesting the warrant. Whether the "good faith" exception applies when...