State v. Dillon

• Decision Date: 25 July 2007
• Docket Number: No. 24027.,24027.
• Citation: 738 N.W.2d 57,2007 SD 77
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Margaret DILLON, Defendant and Appellant.
• Court: South Dakota Supreme Court

738 N.W.2d 57

2007 SD 77

STATE of South Dakota, Plaintiff and Appellee, v. Margaret DILLON, Defendant and Appellant.

No. 24027.

Supreme Court of South Dakota.

Considered on Briefs May 21, 2007.

Decided July 25, 2007.

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

Sandy J. Steffen, Gregory, South Dakota, Attorney for defendant and appellant.

SABERS, Justice.

[¶ 1.] After the police entered the home of Margaret "Peggy" Dillon (Dillon) claiming exigent circumstances, they found evidence of marijuana use in plain view. Using this evidence, the police applied for and were granted a search warrant for the home. During this search, the police found 2.9 pounds of marijuana. A warrant for Dillon's arrest and a search warrant for her urine were issued. After a positive urinanalysis indicated Dillon had ingested marijuana, she was charged with and found guilty of ingesting an intoxicant other than an alcoholic beverage. She appeals and we affirm.

FACTS

[¶ 2.] Around 2 a.m. on November 28, 2004, Chief Deputy Sheriff Dustin Baxter of the Mellette County Sheriff's Office responded to a reported stabbing in Horse Creek Housing near White River, South Dakota and a request to render first aid. Once there, he found Derek Rattling Leaf had been stabbed twice in the upper torso and once in the hip. When asked, Rattling Leaf indicated the stabbing had occurred in White River at the Dillon residence. Dillon rented the residence, but she did not live there. She lived with her boyfriend outside of White River, while Dillon's son, Travis Brandis, lived at the rental home along with Susan Beckers and Layne Arrow, among others.

[¶ 3.] Due to a call from Winner, South Dakota dispatch regarding a disturbance at the Dillon home, Chief Deputy Baxter learned Deputy Justin Hooper was at the residence. Chief Deputy Baxter proceeded to the Dillon residence. According to Chief Deputy Baxter, he went to help Deputy Hooper because he was unsure if Deputy Hooper knew a stabbing had just occurred there and was concerned for his safety.

[¶ 4.] Meanwhile, Deputy Hooper spoke with Susan Dillon and Susan Becker, who were outside the Dillon residence and appeared to be arguing with each other. The women told Deputy Hooper that Gilbert Rattling Leaf, the stabbing victim's brother, was inside, intoxicated and trying to fight. Deputy Hooper went inside the Dillon residence and spoke with Gilbert. Upon questioning, Gilbert told Deputy Hooper that Courtney Krogman was the one who had stabbed his brother Derek.

[¶ 5.] Deputy Hooper went upstairs to speak with Krogman. He noticed two spots of blood on the stairwell inside the Dillon residence. While the two were speaking, Chief Deputy Baxter arrived and took Krogman outside. According to Chief Deputy Baxter, Krogman implicated Layne Arrow in Derek's stabbing. The deputies began looking for Layne Arrow.

[¶ 6.] Shortly thereafter, the deputies learned Layne Arrow was a second stabbing victim and he was at his sister's house. When the deputies questioned Arrow's sister, she confirmed he had been stabbed but had left her house. The deputies were informed that Arrow was inside the Dillon residence and he was with the person who stabbed him, so they returned to the residence.¹

[¶ 7.] At some point in the night, the officers requested the assistance of the South Dakota Division of Criminal Investigation (DCI). The deputies were joined by DCI Agent Shannon Riter at the Dillon residence. The three knocked on the door, announced their presence, and attempted to get someone to open the door. According to Chief Deputy Baxter, they heard a male voice and people moving around in the house, but nobody would answer the door. Chief Deputy Baxter testified he was "concern[ed] for the safety of Layne Arrow" so they entered the home.

[¶ 8.] While looking for Arrow, Chief Deputy Baxter looked behind a computer desk that was angled in such a way it could hide a person. He discovered "a bag with green stems and seeds, which appeared to be that of marijuana." Next to this bag was a black and yellow bag that held more baggies. The officers did not find Arrow in the home, but took the bag of marijuana stems and seeds. Based on this evidence and Chief Deputy Baxter's observations, the Mellette County Clerk of Courts issued a search warrant for the Dillon residence.

[¶ 9.] The search warrant was executed on December 10, 2004. During the search of the Dillon residence, officers discovered 2.9 pounds of marijuana and other drug paraphernalia. On December 11, Chief Deputy Baxter obtained a warrant for Dillon's arrest and a search warrant for a urine sample from Dillon and others. She turned herself in to the Mellette County Sheriff's Office on December 14, 2004. Dillon's urine sample tested "positive for cannabinoids . . . components of marijuana."

[¶ 10.] Initially, Dillon was charged with keeping a place for the use or sale of a controlled substance. On January 12, 2005, the State filed an amended complaint charging Dillon with keeping a place for the sale or use of a controlled substance; distribution of marijuana; possession of marijuana; and ingesting intoxicants other than an alcoholic beverage.

[¶ 11.] A preliminary hearing was held on January 19, 2004. At the preliminary hearing, the state's attorney dismissed the charge of keeping a place for the sale or use of a controlled substance. The court found the State met its burden of demonstrating probable cause on the other charges in the amended complaint.

[¶ 12.] The State filed an Information on April 25, 2005, charging Dillon with distribution or possession with intent to distribute one pound or more of marijuana; possession of marijuana; and ingesting intoxicants other than an alcoholic beverage. Prior to trial, the State dismissed the distribution and possession charges. Therefore, the only charge at trial was the ingestion charge.

[¶ 13.] Dillon moved to suppress the evidence. A hearing was held and the trial court denied the motion and a jury trial started on September 16, 2005. However, that trial ended in a mistrial after one of the jurors informed the bailiff that she "was on the June trial . . . they had the hearing for the stabbing." Concerned she may have heard evidence that may not be included in this trial, the court granted a mistrial.

[¶ 14.] A second trial started on November 21, 2005. Dillon was found guilty of ingesting intoxicants other than an alcoholic beverage. She was sentenced on January 17, 2006, to one year in the Mellette County jail and all but thirty days of the sentence was suspended. Dillon appealed and this Court remanded on June 30, 2006 for entry of findings of fact and conclusions of law. In this appeal, Dillon raises the following issue:

Whether exigent circumstances existed to justify the warrantless entry into the Dillon residence.

STANDARD OF REVIEW

[¶ 15.] Our review of a motion to suppress is de novo. State v. Sweedland, 2006 SD 77, ¶ 12, 721 N.W.2d 409, 412 (quoting State v. Chavez, 2003 SD 93, ¶ 13, 668 N.W.2d 89, 95) (additional citation omitted). Nonetheless, findings of fact made by the trial court are reviewed for clear error. Id. "Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo." Id. The issue of whether an exception to the warrant requirement applies is reviewed de novo. State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319.

[¶ 16.] Dillon claims that the necessary exigent circumstances did not exist on November 28, 2004, to enter the residence without a warrant. If exigent circumstances did not exist, then the marijuana observed in plain view cannot be the basis for the search warrant because the officers were not lawfully in the residence. See Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990) ("It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.").

[¶ 17.] As we have previously noted, the Fourth Amendment to the United States Constitution² and Article VI, section 11 of the South Dakota Constitution³ generally require a warrant prior to entering a home for the purpose of search and seizure. Sweedland, 2006 SD 77, ¶ 13, 721 N.W.2d at 412; Hess, 2004 SD 60, ¶ 22, 680 N.W.2d at 324. However, there are exceptions to the general warrant requirement. This case concerns the exigent circumstances exception. See Hess, 2004 SD 60, ¶ 24, 680 N.W.2d at 325. The State argued, and the trial court agreed, that exigent circumstances existed on November 28, 2004, that allowed the officers to enter the home without a warrant.

[¶ 18.] Exigent circumstances exist when "a situation demand[s] immediate attention with no time to obtain a warrant." Id. ¶ 24. In determining whether exigent circumstances exist we ask, "Whether police officers, under the facts as they knew them at the time, would reasonably have believed that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspect[']s escape." Id. ¶ 25. The inquiry is one of objective reasonableness. Brigham City, Utah v. Stuart, ___ U.S. ___, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006); United States v. Clement, 854 F.2d 1116, 1119 (8th Cir.1988). Furthermore, "[e]xigency remains `within the narrow range of circumstances that present real danger to the police or the public or a real danger that evidence or a suspect might be lost.'" State v. Lamont, 2001 SD 92, ¶ 22, 631 N.W.2d 603, 610 (quoting United States v. Bulman, 667 F.2d 1374, 1384 (11th Cir.1982)).

[¶ 19.] In 2006, the United States Supreme Court examined "whether police may enter a home without a warrant when they have an objectively reasonable basis...