State v. Cundy, No. 11084

• Court: Supreme Court of South Dakota
• Writing for the Court: HANSON
• Citation: 201 N.W.2d 236,86 S.D. 766
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Richard L. CUNDY, Defendant and Respondent.
• Docket Number: No. 11084
• Decision Date: 20 October 1972

Page 236

201 N.W.2d 236 86 S.D. 766 STATE of South Dakota, Plaintiff and Appellant,
v.
Richard L. CUNDY, Defendant and Respondent. No. 11084. Supreme Court of South Dakota. Oct. 20, 1972.
Rehearing Denied Nov. 28, 1972.

[86 S.D. 768]

Page 237

Jon Mattson, State's Atty., Deadwood, for plaintiff and appellant.

Overpeck, Mueller & Bennett, Belle Fourche, for defendant and respondent.

HANSON, Presiding Judge.

An Information filed by the State's Attorney of Lawrence County charges the defendant, Richard L. Cundy, with the crime of grand larceny alleged to have been committed on June 11, 1971 by feloniously taking a calf belonging to the Spearfish Valley Ranch, Inc. Prior to trial defendant moved to suppress certain evidence upon the grounds it was obtained as the result of an unlawful search and seizure. The trial court ordered the evidence suppressed and the State with the permission of this Court has appealed from such intermediate order.

The evidence introduced at the suppression hearing shows that defendant Cundy is a rancher who owns three separate ranch properties, viz., one near St. Onge in Lawrence County, one near Spearfish in Lawrence County which adjoins a ranch owned by Spearfish Valley, Inc., and the other near Camp Crook in Harding County.

On June 1, 1971 defendant and his hired hand, Clee Brakke, gathered up some of defendant's hereford cattle at the Spearfish ranch and trailed them three or four miles over to the St. Onge [86 S.D. 769] ranch. Included in the herd was a black angus cow and calf. The black cow was branded IVM which was a registered brand issued to Spearfish Valley, Inc. Defendant told Brakke they would go ahead and trail the angus cow and calf home along with the herd and Spearfish Valley Ranch could come there and pick them up.

On arrival at the St. Onge ranch the cattle were left together in a pasture. A few days afterwards Brakke noticed the black angus cow and calf had been moved to a separate pasture near the corrals. Later he noticed the black calf was separated from its mother and was in a chicken house with a hereford cow.

On June 10, 1971 defendant was preparing to go to the Camp Crook ranch to do some branding and he instructed Brakke to haul the hereford cow and black calf up there the next morning. Following that conversation Brakke called Frank Carr, the manager of Spearfish Valley Ranch, who came over to the St. Onge ranch and identified his black cow and calf. Afterwards, Carr returned home and called his private attorney and the Lawrence County Sheriff's office. Deputy Sheriffs, Charles Crotty and Gerald Perrett, responded to the call. They met with Carr at the Spearfish Valley Ranch and then proceeded to defendant's St. Onge ranch with Carr and his employee, Jerry Fish. When they arrived at the St. Onge ranch Brakke opened the gate and let them in the corral. The defendant was not at home and was not present. When Brakke brought the black cow and calf into the corral the calf immediately ran to the cow, mothered up, and started sucking. At the suggestion of Carr, a dime and quarter were inserted under the flesh of the calf on the inside of its right front leg. This identification measure was performed by Carr, Fish, and Brakke. The calf was then taken back to the barn by Brakke and it was suggested by Carr to wait and see if the calf would be taken to Camp Crook and branded.

The next day Brakke followed defendant's instructions and hauled the black calf to Camp Crook. A few days later a search warrant was obtained authorizing a search of the Camp Crook [86 S.D. 770] ranch where the black calf was found, identified and seized. It had been branded with defendant's brand. Defendant was subsequently arrested and charged with grand larceny.

The Fourth Amendment to the United States Constitution and Art. VI, § 11 of our State Constitution both declare that 'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated * * *.' The term 'houses' used in these constitutional provisions 'has been enlarged by the courts to include the 'curtilage' or ground and buildings immediately surrounding a dwelling, formerly usually enclosed. The

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reach of the curtilage depends on the facts of a case.' Rosencranz v. United...