State v. Boll

• Decision Date: 04 September 2002
• Docket Number: No. 22140.,22140.
• Citation: 651 N.W.2d 710,2002 SD 114
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William James BOLL, Defendant and Appellant.
• Court: South Dakota Supreme Court

651 N.W.2d 710

2002 SD 114

STATE of South Dakota, Plaintiff and Appellee, v. William James BOLL, Defendant and Appellant.

No. 22140.

Supreme Court of South Dakota.

Considered on Briefs May 28, 2002.

Decided September 4, 2002.

Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellee.

John R. Hinrichs, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

ZINTER, Justice.

[¶ 1.] William James Boll was convicted of unauthorized manufacture of a controlled substance (methamphetamine) and possession of a controlled substance (methamphetamine) in violation of SDCL 22-42-2 and SDCL 22-42-5.¹ He appeals contending that the trial court erred in denying his motion to suppress the evidence seized at his home and on his person. That evidence was seized pursuant to a search warrant. However, the affidavit supporting the warrant contained some information obtained from a prior illegal search. After redacting all information derived directly and indirectly from the illegal search, we conclude that the remaining information in the affidavit fails to establish probable cause. We therefore reverse and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On December 13, 2000, the Sioux Falls Police Department received an anonymous letter from Casper, Wyoming. The author alleged that an individual, identified as "Cooley," had been manufacturing methamphetamine in the basement of his home near Hartford, South Dakota. The letter also indicated that on November 29, 2000, the author told "a detective" that Cooley "deals marijuana." The letter finally indicated that a woman and her children living in Cooley's residence were in danger.

[¶ 3.] Sioux Falls Police Sergeant Jerry Mundt corroborated that "Cooley" was Boll. Boll's criminal record indicated that Boll had used "Cooley" as an alias. Boll also lived at the address identified by the informant. Mundt was not, however, able to corroborate any other information in the letter.

[¶ 4.] The next day, December 14, Mundt and Minnehaha County Sheriff's Department Detective Tyron Albers drove to Boll's rural farmhouse. The officers intended to investigate the allegations of the anonymous letter. The officers did not attempt to contact Boll before visiting his residence. They also did not obtain a search warrant. Instead, they intended to conduct what they described as a "knock and talk" with Boll when they arrived.

[¶ 5.] The officers drove to Boll's residence, found Boll's vehicle at home, but no one answered when the officers knocked on the front door. At this time Mundt made two observations. He first noticed that a gas grill near the front door had a missing propane tank. Mundt also observed footprints in the snow leading to a chicken coop within the curtilage of the house.

[¶ 6.] Instead of leaving upon making these discoveries, Mundt walked across the yard to the chicken coop. Although the door to that building was secured by a metal fence-post, Mundt removed the fence-post, opened the door, and looked inside.

[¶ 7.] Mundt immediately noticed evidence of an illegal methamphetamine laboratory. He first smelled a "strong odor of chemicals," and he observed a "toluol container." He also observed a propane tank that had a blue-green discoloration around the valve. Based upon his expertise in detecting clandestine drug labs, the discoloration indicated that anhydrous ammonia, a necessary component in the manufacture of methamphetamine, had been transported in the tank. The chemical odor and toluol container were also indicative of an illegal methamphetamine lab.

[¶ 8.] After making these observations, Mundt shut the door and replaced the fence-post that secured the door. He then advised Detective Albers, "well, I'm positive there is a meth lab here but unfortunately what I just did we can't use to get a warrant."

[¶ 9.] Five days later, on December 19, Mundt and Albers drove to Boll's residence to investigate again. They were accompanied by Sioux Falls Police Detective Jim Severson. This time the officers did not immediately approach the house. Instead, they parked on a hill about a half-mile away and observed Boll's farmyard with binoculars. With the binoculars, Mundt could see that the door to the chicken coop was now open. Although Boll's vehicle was not present, and although they had no search warrant, the officers then attempted to drive to Boll's house. However, because Boll's half-mile long driveway was blocked with snow, they walked through a cornfield to get to the residence.

[¶ 10.] When the officers reached the house, they knocked on the door, but no one answered. The officers then walked about 200 feet across Boll's yard and inspected some "burn barrels" that were near the path they had used to approach the house. Mundt also walked to the now open door of the chicken coop and looked inside. He observed that the discolored propane tank was still present. Mundt and Severson then inspected the contents of the burn barrels and discovered two metal cans, one of which was labeled as toluol. They also found melted plastic that resembled pill containers. The officers left the premises without physically seizing this evidence.

[¶ 11.] Later that same day, Mundt prepared an affidavit in support of a search warrant for Boll and his residence. In the affidavit, Mundt related the contents of the anonymous letter. Mundt also described his expertise in the investigation of clandestine methamphetamine labs and the methods used to manufacture methamphetamine. Mundt's affidavit finally described the events and observations made at Boll's residence. Paragraph 3 described the observations made on December 14, and paragraph 4 described the observations made on December 19. However, Mundt did not mention that he knew he had illegally entered on the first visit and could not use that illegally obtained information to get a search warrant. Mundt stated:

3. On 12-14-2000 Detective Tyrone Albers and I responded to 26150 466th Avenue to speak with Mr. Boll. A red [p]ick-up (sic) ..., registered to Mr. Boll, was parked next to the residence but no one answered the door. I did notice a gas grill, minus the propane tank, placed outside the only door to the residence and several outbuildings near the residence. I saw footprints leading up to the shed next to the house and, upon opening the door, smelled a strong odor of chemicals and a propane tank with blue-green discoloration around the valve. I resecured the door at that time and we left the farmplace.

4. On 12-19-2000 Detective Albers, Severson and I again responded to Bolls' [sic] residence. The pick-up [sic] was gone and no one answered the door. The shed next to the house had the door standing open. While standing outside the shed I noticed ... (just as it was on 12-14-2000), a propane cylinder with a blue-green residue around the brass valve. I know from my training and experience that brass turns blue-green after it is exposed to anhydrous ammonia, a necessary element in the manufacture of methamphetamine using the "nazi" method. We also located a small burning barrel about 30 feet from this shed. The burned contents included[:] two square cans, one of which was toluol, a common solvent used in the manufacture [of] methamphetamine and some sort of melted plastic which may have been old pill containers, like the ones used to store mini-thins (psuedoephedrine).

Mundt concluded that the items observed were indicative of an illegal methamphetamine lab at Boll's residence. [¶ 12.] Based upon this affidavit, a magistrate judge signed a search warrant for Boll's home, vehicle, and person. The warrant was executed the next day, December 20, when Boll was not home. The officers found evidence consistent with the presence of a clandestine methamphetamine lab in Boll's home. They later found a glass vial and a "pen tube" containing methamphetamine on Boll's person.

[¶ 13.] Boll was subsequently charged with one count of unauthorized manufacture of a controlled substance and one count of possession of a controlled substance. Prior to trial, Boll filed a motion to suppress the evidence seized from his person and at his residence. After a hearing, the motion was denied. A jury ultimately found Boll guilty of both charges.² Boll now appeals from trial court's denial of his motion to suppress.

STANDARD OF REVIEW

[¶ 14.] "A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. We review findings of fact under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo." State v. Myhre, 2001 SD 109, ¶ 9, 633 N.W.2d 186, 188 (internal citations omitted).

DECISION

[¶ 15.] The trial court observed that there were three elements within the four corners of the affidavit that supported a probable cause determination: (1) the information about "Cooley" received in the anonymous letter from Wyoming, (2) the information in paragraph 3 which related the police officers' observations made at Boll's residence on December 14, and (3) the information in paragraph 4 which related the police officers' subsequent observations made at Boll's residence on December 19.

[¶ 16.] The trial court considered each element and concluded that standing alone, the anonymous letter did not establish probable cause.³ The trial court also concluded that the information obtained from the December 14 entry of the chicken coop could not be used to establish probable cause because it was the product of an illegal search.⁴ The trial court did, however, find that even in the absence of the illegal search, the police would have inevitably gone back to the premises because of the anonymous letter. Therefore, the trial court concluded that the information gathered from the December 19 visit could be used to support the search warrant...