State v. Clark

• Decision Date: 05 July 1979
• Docket Number: Nos. 12475,12477,s. 12475
• Citation: 281 N.W.2d 412
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Richard Dale CLARK, Jr., a/k/a Dick Clark, Defendant and Appellant, and Michael Hastings, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 412

281 N.W.2d 412

STATE of South Dakota, Plaintiff and Respondent, v. Richard Dale CLARK, Jr., a/k/a Dick Clark, Defendant and Appellant and Michael Hastings, Defendant and Appellant.

Nos. 12475, 12477.

Supreme Court of South Dakota.

Argued Jan. 24, 1979.

Decided July 5, 1979.

Judith A. Atkinson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

John C. Quaintance and Steven R. Binger, Legal Intern, Sioux Falls, for defendant and appellant Clark.

A. Thomas Pokela, of Braithwaite & Cadwell, Sioux Falls, for defendant and appellant Hastings.

DUNN, Justice.

Defendants Richard Clark and Michael Hastings appeal from their convictions in the Circuit Court of the Second Judicial Circuit of maintaining a dwelling house where controlled drugs were used or stored and of possession of marijuana in violation of the Drugs and Substances Control Act embodied in SDCL 39-17. ¹ We affirm.

The basic facts involved in this case were stipulated to by the parties, and there is no transcript of testimony before the trial court. It appears that both defendants resided in and paid the rent on a house located at 3726 North Seventh Avenue in Sioux Falls, South Dakota, for several months prior to the search of the house and their arrest as described below. On July 20, 1977, Willie Isonhood, Jr., was arrested by the Sioux Falls police on a felony drug charge unrelated to the present case. He informed officers that there was a place in northern Sioux Falls with the same address as the house the defendants rented where drugs were being stored and used. He also stated that he personally observed cocaine, marijuana, and amphetamines being used in the presence of one or both of the defendants at various times at that address during a period of four months. Isonhood purchased several grams of cocaine at the defendants' address on July 19, 1977, in the presence of the defendants. He noticed additional cocaine in the defendants' refrigerator and at least a pound of marijuana in the desk drawer. Isonhood was also present at the defendants' residence on a Tuesday evening when a telephone call was made to an individual in Des Moines, Iowa, in the presence of both defendants. The content of the telephone conversation was that various drugs were being ordered from an unknown individual in Des Moines who was in the trucking business or was a truck driver and who was bringing the drugs to Sioux Falls the next afternoon or evening.

On the same date as Isonhood's arrest, July 20, 1977, a search warrant was issued upon a finding of probable cause by a magistrate. The defendants' rented house at 3726 North Seventh Avenue was subsequently searched by several officers. The search resulted in the seizure of suspected controlled substances from throughout the house. The seized items were sent to the State Chemistry Laboratory in Vermillion, South Dakota, for scientific testing purposes. Testing resulted in identification of 42.39 ounces of marijuana (genus cannabis), as well as cannabis residue, prepared cannabis oil (hash oil), and cocaine.

On July 27, 1977, a Minnehaha County grand jury handed down indictments for each of the defendants on five criminal counts. The trial court denied the defendants' motions to quash the indictments, to suppress the evidence seized, and to quash the search warrant. On January 26, 1978, the trial court consolidated the charges against each of the defendants so that they could be tried at the same time. The defendants each entered oral pleas of not guilty to the charges set forth in the indictments, and the case was submitted to the trial court on the stipulated facts as to the charges of possession of marijuana more than one ounce and maintaining a dwelling where controlled drugs were used or stored. ² On February 10, 1978, the trial court found each of the defendants guilty of both criminal charges and ordered a presentence investigation as to each defendant. On April 14, 1978, the trial court sentenced each defendant to a total of two and one-half years in the state penitentiary.

On appeal, the defendants first contend that the trial court erred in denying their motions to suppress and in admitting the fruits of the search into evidence for the reason that the affidavit in support of the search warrant was insufficient to meet the requirements for a showing of probable cause. ³ In reviewing the affidavits, we must remember that the search warrant should not be invalidated by interpreting the affidavits in a hypertechnical manner; rather, the affidavit should be read as a whole and interpreted in a common-sense and realistic manner. State v. Kaseman, 1978, S.D., 273 N.W.2d 716; State v. Gerber, 1976, S.D., 241 N.W.2d 720; State v. Haron, 1974, 88 S.D. 397, 220 N.W.2d 829; United States v. Ventresca, 1965, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. The resolution of a marginal showing of probable cause on an affidavit should be largely determined by the preference to be accorded to warrants. State v. Kaseman, supra; State v. Kietzke, 1971, 85 S.D. 502, 186 N.W.2d 551. Accordingly, every reasonable inference possible should be drawn in order to support the determination of probable cause by the magistrate. State v. Kaseman, supra; State v. Glidden, 1976, S.D., 246 N.W.2d 779. See also, Spinelli v. United States, 1969,393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. There need not be a prima facie showing of legal evidence of a suspected act. The standard of probable cause for the issuance of a search warrant is a showing of probability of criminal activity. State v. Kaseman, supra.

The affidavit upon which the magistrate issued the search warrant was the sworn statement of a Sioux Falls detective. The affidavit contained the following information: that the Sioux Falls Police Department Narcotics Division had the defendants under periodic surveillance for drug trafficking since at least January of 1977; that both defendants were identified as being the occupants of the rented house at 3726 North Seventh Avenue in Sioux Falls; that defendant Hastings had been on juvenile probation for drug using and dealing; that the defendants' neighbors had complained about the large number of individuals coming and going at the residence; that Isonhood had been arrested on July 20, 1977, on a felony drug charge; that Isonhood had been distributing drugs, including cocaine, marijuana and speed, in the Sioux Falls area for about six months; that Isonhood purchased a "wide variety of drugs on numerous occasions in excess of twenty" from the defendants at their residence; that Isonhood purchased several grams of cocaine the evening before his arrest from defendant Hastings and there was more cocaine in the refrigerator and a pound of marijuana in a desk drawer; that Isonhood had been involved in setting up a contact for the defendants with a trucker bringing in drugs by truck and utilizing a rented car in Sioux Falls; that the affiant observed this operation in action and arrested the trucker allegedly supplying drugs to the defendants at their residence address.

The defendants would have us read the affidavit in a critical, hypertechnical manner to arrive at the conclusion that there is no showing of probable cause for the issuance of the search warrant. This we will not do. The affidavit places the defendants in the residence to be searched, the residence had been under surveillance for months for suspected drug activity, an individual personally observed drugs in the house and purchased such drugs, and the individual further provided information on the drug-running operation to the defendants' residence which resulted in an arrest. We are convinced that the magistrate was informed of some of the underlying circumstances from which the affiant and informant concluded that there were controlled substances at the defendants' residence and from which the affiant concluded that the informant's information was reliable. United States v. Harris, 1971, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723; Spinelli v. United States, supra; Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. See, People v. Bolender, 1974, 24 Ill.App.3d 804, 322 N.E.2d 624. With this information, the magistrate properly concluded that there was a showing of probability of criminal activity sufficient for the issuance of a search warrant for the defendants' residence. Therefore, the trial court did not err in denying the motions to suppress and in admitting the fruits of the search into evidence on the basis of lack of probable cause.

The defendants next contend that the trial court erred in denying their motions to suppress and in admitting the fruits of the search into evidence for the reason that the search warrant did not particularly describe what was to be seized. ⁴ The body of the search warrant reads as follows:

"Proof by Affidavit, having been this day made before me by Eugene Corbett, that there is probable cause for believing that the said MIKE HASTINGS and DICK CLARK, defendants above named, committed felonies, to-wit: Possession of a Controlled Substance with Intent to Distribute.

"YOU ARE THEREFORE COMMANDED, at any time of the day or night, to make immediate search of a residence at 3726 North Seventh Avenue, Sioux Falls, Minnehaha County, South Dakota, and seize any and all substances controlled by SDCL 39-17, and if you find the same or any part thereof, to bring it forthwith before me in the Courtroom, City Hall, Sioux Falls, Minnehaha County, South Dakota."

The defendants point to the language "any and all substances controlled by SDCL 39-17" as not particularly describing the thing to be searched and seized. The defendants contend that this constitutes an impermissibly general warrant.

The long history of the use of general warrants is largely a history of conflict between the British Crown and the press. During the time of enforcement of laws licensing the...