State v. Deneui

• Citation: 775 N.W.2d 221,2009 SD 99
• Decision Date: 10 November 2009
• Docket Number: No. 24853.,24853.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Brian Lee DENEUI, Defendant and Appellant,
• Court: Supreme Court of South Dakota

775 N.W.2d 221

2009 SD 99

STATE of South Dakota, Plaintiff and Appellee, v. Brian Lee DENEUI, Defendant and Appellant,

No. 24853.

Supreme Court of South Dakota.

Considered on Briefs February 17, 2009.

Decided November 10, 2009.

Marty J. Jackley, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.

Mark Kadi, Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] In a case of first impression, we are confronted with the question whether the community caretaker doctrine, which we previously applied to an automobile search, should also be applied to a home search. After smelling ammonia fumes outside a home, police officers entered without a warrant to see if anyone inside needed assistance. While in the home, they saw evidence of a methamphetamine lab in plain view, which later formed the basis for obtaining a search warrant. Defendant homeowner sought unsuccessfully to suppress the evidence seized in his house. He was convicted and sentenced on multiple charges related to the manufacture and possession of methamphetamine. On appeal, we conclude that, under the particular circumstances of this case, the officers were justified in their community caretaking function in entering the home to make sure no one had succumbed to noxious fumes. In another issue of first impression, we conclude that when a drug crime is committed at one location within two overlapping drug free school zones, such constitutes a single offense, and the constitutional prohibition against double jeopardy precludes dual convictions for both defendant's drug free school zone crimes. We affirm in part, reverse in part, and remand.

Background

[¶ 2.] On April 27, 2007, Roger Pieper of MidAmerican Energy was sent to investigate a potential gas leak at 510 East 31st Street, in Sioux Falls, South Dakota. It was not the first time the company had received complaints in recent days about gas fumes in the neighborhood. During his check of the residence, Pieper's handheld gas detector registered the presence of a "heavier combustible" gas lying low on the basement floor. Pieper later testified that no level of combustible gas is safe because it may indicate that the source of the gas could be "real strong" somewhere else. But because natural gas is lighter than air, he believed that the fumes were not likely natural gas. He went outside to check nearby houses, and noticed a "stronger" odor of fumes at the house next door, 508 East 31st Street, defendant's residence. He smelled an ammonia odor. It was similar to the odors he smelled in other areas on the block. Upon further investigation at the 508 home, Pieper noticed that the MidAmerican padlock for the gas meter was open and pliers were lying on the ground. Pieper initially thought a MidAmerican employee was working on the meter. When he walked around the house, however, he noticed another meter lying on the ground. He then believed that he was dealing with a possible theft of gas. He contacted his supervisor at MidAmerican, and his supervisor called the billing department to learn of the status of service to 508 E. 31st Street. During the call, Pieper learned that service at 508 had been shut off for nonpayment and that the meters had been switched with one taken from a house on inactive status fifteen blocks away. MidAmerican contacted the police.

[¶ 3.] While Pieper waited for a MidAmerican billing representative and law enforcement officers to arrive, he checked homes on the western side of the block for possible gas leaks. As he proceeded down the block, Pieper saw a person leave in a car from the 508 house. He also saw another person leave in a pickup. When Pieper returned to the residence, he noticed that the meter had been re-locked and shut off. He also noticed that the meter lying on the ground was gone.

[¶ 4.] Officer Peter Zimbelman of the Sioux Falls Police Department was the first to respond to 508 E. 31st Street to investigate the possible theft of gas. He activated his video camera to record the investigation, but the camera was in a fixed position in the patrol car, and thus, there is only an audio recording of what transpired. Pieper told Officer Zimbelman that he saw two people leave the residence. Officer Zimbelman asked if Pieper thought anyone was still inside. Pieper did not know. Officer Zimbelman saw that the glass storm door to the residence was closed but unlocked, and the main wooden door was wide open. "Because it was a wide open, unsecured house," Officer Zimbelman believed someone could still be inside. He testified that he detected a faint odor of ammonia while standing outside the front door. He knocked on the door but no one answered. A neighbor approached Officer Zimbelman and told him that the person living at 508 E. 31st Street was caught at Kmart buying Sudafed and was seen bringing a propane tank into the house. The neighbor also mentioned the presence of strange gas odors about the neighborhood and that MidAmerican had been called twice.

[¶ 5.] Officer Thaddeus Openhowski arrived on the scene. He did not take part in the conversations between Officer Zimbelman and Pieper. Rather, he walked the perimeter of the house. While in the backyard, he noticed a chest freezer with a clear plastic tube sticking out of it. He opened the freezer because he thought it looked unusual. The tube was connected outside the freezer to a garden sprayer type device and inside the freezer was a clear plastic bucket. The officer also noted that the back door to the house was unlocked. After walking around the exterior of the house, Officer Openhowski joined Officer Zimbelman by the front door.

[¶ 6.] Officer Zimbelman opened the storm door and yelled inside, "Hello, Police. Anybody in here?" According to Officer Zimbelman, the faint odor of ammonia he previously smelled became stronger when he opened the door. They decided to enter the residence "to check to make sure nobody was incapacitated inside." Both officers had personally experienced the adverse affects of ammonia fumes years earlier when they were on the scene after a packing plant explosion. Officer Openhowski was "hit with it pretty hard" and knew that ammonia could "knock somebody out."

[¶ 7.] Once inside the home, the officers saw in plain view a propane tank. They also noticed that the house was in disarray. Within a minute after entry, Officer Zimbelman can be heard on the audio commenting on the real strong chemical odor. Finding no one upstairs, they went toward the staircase leading to the basement. At the entry of the staircase, both officers testified that the chemical odor became stronger. This caused Officer Zimbelman to believe that they might have encountered a methamphetamine lab. Officer Zimbelman called metro communications to contact Sergeant Jerry Mundt. Officers Zimbelman and Openhowski attempted to search the basement for persons possibly overcome by the fumes, but the fumes were overwhelming. They became light headed and had to leave the residence. The fire department and an ambulance were called. Officer Zimbelman received oxygen at the scene, and both officers later went to the emergency room, where they were put on oxygen for two to three hours. No one was found in the house.

[¶ 8.] When Sgt. Mundt arrived, Officer Openhowski told him of the items he saw in the chest freezer. Sgt. Mundt opened the freezer to examine the contents. The officers also told Sgt. Mundt that during their entry to the basement they saw evidence of a possible methamphetamine lab. Sgt. Mundt contacted Detective Michael Walsh of the Minnehaha County Sheriff's Office to have a warrant prepared. Detective Walsh arrived at the scene but remained in his vehicle. Sgt. Mundt informed Detective Walsh of the contents of the freezer, the existence of the propane tank, that the tank had a blue discoloration consistent with the manufacture of methamphetamine, and of the items seen by Officers Openhowski and Zimbelman in the basement. Detective Walsh prepared an affidavit in support of the search warrant. A search warrant was executed and the homeowner, Brian Deneui (defendant), was later arrested. The search revealed a digital scale, methamphetamine pipes, a spoon and coffee filter that tested positive for methamphetamine, baggies, two wire strainers, one box of Sudafed PE, one baggie of white powder that tested positive for Ephedrine, lithium batteries, a forty-pound bag of Solar Salt, a snort tube, a propane tank, and a small baggie that tested positive for methamphetamine.

[¶ 9.] After defendant was arrested he was interviewed by Detective Walsh. Defendant admitted that he lived at 508 E. 31st Street. He also admitted to manufacturing methamphetamine for himself and his friends. Defendant was indicted on charges of (1) possession, distribution or manufacture of a controlled substance; (2) manufacturing a controlled substance within 1000 feet of Patrick Henry Middle School; (3) manufacturing a controlled substance within 1000 feet of St. Mary's Catholic School; (4) possession of methamphetamine; and (5) maintaining a residence where controlled substances are used.

[¶ 10.] Defendant moved to suppress the evidence seized on the ground that his home was searched illegally. A hearing was held and the circuit court ruled that the officers' initial entry into the residence was lawful under the community caretaker exception to the warrant requirement. In regard to the search of defendant's freezer in the backyard, the court held that it was unlawful. After striking the information in the warrant affidavit related to the unlawful portion of the search, the court concluded that the affidavit contained sufficient information to support probable cause. Defendant was found guilty of all charges in a bench trial. He was sentenced to six years on the manufacturing charge, six years on each...