State v. Bowker, No. 24502.

• Court: Supreme Court of South Dakota
• Writing for the Court: Gilbertson
• Citation: 754 N.W.2d 56,2008 SD 61
• Docket Number: No. 24502.
• Decision Date: 09 July 2008
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Frankie Lee BOWKER, Defendant and Appellant.

754 N.W.2d 56 2008 SD 61 STATE of South Dakota, Plaintiff and Appellee,
v.
Frankie Lee BOWKER, Defendant and Appellant. No. 24502. Supreme Court of South Dakota. Considered on Briefs January 7, 2008. Decided July 09, 2008.

[754 N.W.2d 59]

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Amanda M. Wilcoxon, Minnehaha County Public, Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant. and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] On May 10, 2006, Frankie Lee Bowker (Bowker) was indicted by a Minnehaha County grand jury on one count of possession of a controlled substance in violation of SDCL 22-42-5, and one count of possession of drug paraphernalia in violation of SDCL 22-42A-3. Bowker filed motions in the South Dakota Second Judicial Circuit Court to suppress evidence and statements, which were heard on July 25, October 3, and November 21, 2006. The court denied all motions. Thereafter, a jury returned guilty verdicts on both counts. Bowker was sentenced to five years in the South Dakota State Penitentiary for the possession of a

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controlled substance conviction. That sentence was suspended but for 90 days to be served in the Minnehaha County Jail. Bowker was also sentenced to 30 days in jail for the possession of drug paraphernalia conviction, which was suspended. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On May 2, 2006, at around 6:45 a.m., Sioux Falls Police Officer James Buteyn (Buteyn) was pulling into the police station at Fourth Street and Minnesota Avenue in Sioux Falls, South Dakota, as he neared the end of his shift. At that time, Buteyn was flagged down by a passing motorist who reported that a man was on the roof of a nearby house. At about 6:48 a.m., Buteyn called in a possible burglary and proceeded to the subject house. Buteyn was shortly thereafter joined at the residence by Sioux Falls Police Officers Brett Hamlyn (Hamlyn), Jason Leach (Leach) and Allen Phillips (Phillips).

[¶ 3.] At the house, the officers observed a man in the yard with a Pit Bull. The officers approached and made contact with the man at 6:51 a.m. and observed that he had a fresh bleeding cut on his hand. They also observed that a second story window was broken. Buteyn asked the man to identify himself, where he lived and how he cut his hand. The man stated that his name was Shaun Corbine (Corbine) and that he had lived in an apartment inside the house for six months. However, when asked if he carried identification, Corbine produced a driver's license, issued six days earlier, which indicated his address was in Harrisburg. When asked about the discrepancy, Corbine explained that the address on the driver's license was his ex-wife's and that he had not lived there for six months. In reference to the apparent fresh cut, Corbine explained that he had cut his hand the night before when he broke a window after his frightened Pit Bull lunged at him.

[¶ 4.] Corbine was then asked if anyone was inside the apartment. He indicated that his girlfriend of six months, who had been staying with him, was sleeping inside. Buteyn asked for the girlfriend's name, but Corbine could not initially remember it stating, "I'm drawing a blank." Corbine eventually was able to recall that her name was Frankie Bowker. At the July 25, 2006 suppression hearing, Buteyn testified that due to the broken window; the suspicious answer Corbine gave when he was asked for the name of his girlfriend of six months; his inconsistent statements about his address; and the fresh cut on his hand, the police officers determined that it was necessary for them to enter the premises to conduct a well-being check because Corbine may have been a burglar and a possible assault victim may have been inside.

[¶ 5.] Corbine did not consent to the officers' entry of the apartment, but produced a key that was used to open the exterior door to the house. Corbine was handcuffed for officer safety and Hamlyn stayed with him while Buteyn, Leach and Phillips entered the house. At the July 25 hearing, Buteyn testified that the exterior door opened to a ground floor apartment on the left and a stairway straight ahead that led to a second floor apartment. At trial, Buteyn testified that after announcing their presence, he proceeded up the stairs to the second floor apartment followed by Leach and Phillips. Buteyn stated that when he was about three fourths of the way up the stairway, a woman emerged from the apartment, which was on the left, onto the second floor landing.

[¶ 6.] Buteyn testified that when the woman appeared, her feet were about level with his head. He said that he asked the woman her name and that she identified herself as "Frankie [Bowker]." Buteyn

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told Bowker to back up into the apartment for officer safety; at which time she stated that the officers could not be on the premises without a warrant. Buteyn again told Bowker to back up into the apartment. Bowker complied and the officers continued ascending to the second floor landing.

[¶ 7.] After reaching the landing, the officers observed that the doorway opened into a living room with a kitchen area on the left. The officers observed two small children sleeping on the living room floor. To the right of the living room, a doorway opened to a bedroom. At the July 25 hearing, Buteyn testified that from the second floor landing, the officers could see that there was blood on the doorframe leading into the bedroom. Buteyn asked Bowker if she lived in the apartment. At the hearing, Buteyn stated that Bowker said she did not.

[¶ 8.] Buteyn initially supervised Bowker while Leach and Phillips entered the apartment and swept through the living room and kitchen areas. Phillips then stayed with Bowker for officer safety while Buteyn and Leach entered the bedroom to continue the well-being check. At the July 25 hearing, Buteyn testified that upon entering the bedroom, three "meth pipes" were in plain view. He stated, "There was a meth pipe laying on the bed. There was a meth pipe laying on a chair and another meth pipe laying on a bed stand." Buteyn noted the time was 7:04 a.m. when the meth pipes were discovered. Buteyn and Leach seized the pipes, which they confirmed contained methamphetamine residue by conducting a field test. Buteyn then called down to Hamlyn to have him place Corbine under arrest.

[¶ 9.] At trial, Buteyn testified that he then went back into the living room to speak to Bowker. He stated that Bowker, then aware of the discovery, told him that while she did not live in the apartment, she did stay there a lot. At the October 3, 2006 suppression hearing, Buteyn testified that at this juncture, Bowker was free to leave. After speaking with Bowker, Buteyn then went back outside to talk to Corbine.

[¶ 10.] At the October 3 suppression hearing, Leach testified that while Buteyn was outside talking to Corbine, he stayed inside with Bowker and continued speaking to her. Leach asked Bowker how often she stayed at the apartment. Leach stated that Bowker replied that she stayed there four to five nights a week. Leach also testified that he asked Bowker about the meth pipes, and that she said she knew they were in the apartment, but that they were not hers. Leach further testified that following this questioning of Bowker, he did not intend to arrest her.¹

[¶ 11.] Buteyn then returned from talking to Corbine and asked Bowker how long it had been since she had stayed somewhere other than the apartment. At the October 3 hearing, Buteyn testified that in response to this question, Bowker said that she had not stayed anywhere else "for 10 days to two weeks." At this point, Buteyn placed Bowker under arrest for possession of methamphetamine and drug paraphernalia. Subsequent to the arrests, police obtained a search warrant for the apartment and found digital scales with methamphetamine residue, jeweler bags for which testimony was later given that they are frequently used for drug storage, documents that law enforcement testified constituted "owe sheets" from drug transactions, telephone records, automobile financing statements and a telephone list with Bowker's name at the top.

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[¶ 12.] At the July 25, 2006 suppression hearing, Bowker argued her motion to suppress the meth pipes and all subsequent evidence on the ground that they had been illegally obtained without a search warrant. The trial court denied Bowker's motion concluding that exigent circumstances constituting an exception to the warrant requirement existed due to the officers' perceived need to check on the well being of those inside the apartment.

[¶ 13.] At the October 3 and November 21, 2006 hearings, Bowker argued that her statements, made before and after the discovery of the meth pipes, should be suppressed because they were illegally obtained without a Miranda warning. The trial court denied the motion concluding that Miranda warning was not necessary because there was no custodial interrogation, and Bowker's statements were the product of the officers' "general, on-the scene" questioning. Findings of fact and conclusions of law were entered. Bowker's trial was conducted on December 7 and 8, 2006. Bowker was found guilty by a jury of possession of methamphetamine and drug paraphernalia.

[¶ 14.] Bowker raises four issues on appeal:

1. Whether the trial court erred by denying Bowker's motion to suppress evidence obtained without a search warrant.

2. Whether the trial court erred by denying Bowker's motion to suppress statements allegedly made to police while in custody and without a Miranda warning.

3. Whether an exhibit containing various documents obtained by police from the apartment was relevant to the State's case and properly admitted by the trial court.

4. Whether the State's remarks in reference to Bowker's request for a warrant were improper, constituting plain error...