State v. Dreps

• Decision Date: 15 February 1996
• Docket Number: No. 19256,19256
• Citation: 558 N.W.2d 339,1996 SD 142
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Joseph William DREPS, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 339

558 N.W.2d 339

1996 SD 142

STATE of South Dakota, Plaintiff and Appellee, v. Joseph William DREPS, Defendant and Appellant.

No. 19256.

Supreme Court of South Dakota.

Considered on Briefs Feb. 15, 1996.

Decided Dec. 11, 1996.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.

Robin L. Zephier of Abourezk Law Offices, Rapid City, for defendant and appellant.

AMUNDSON, Justice.

¶1 Joseph W. Dreps (Dreps) appeals his conviction of possession of a controlled substance and possession of marijuana. He claims evidence obtained in a consent search of his car and statements he made while seated in a patrol car which were tape recorded without his knowledge should have been suppressed. We affirm.

FACTS

¶2 Dreps was stopped by highway patrol troopers Steve Swenson and Brian Bard on May 1, 1994. The troopers noticed a dangling object hanging from the rear view mirror of Dreps' vehicle and heard an exhaust leak, which prompted them to stop the vehicle. Troopers Swenson and Bard approached Dreps' vehicle, and asked him to produce his driver's license, vehicle registration, and proof of insurance. Trooper Swenson went back to the patrol car and activated a hidden audio tape recorder. Swenson then asked Dreps to bring his documentation to the patrol car and to sit in the front passenger side of the car. Once Dreps had joined Trooper Swenson in the patrol car, Dreps was issued warning citations and his driver's license and registration were returned to him.

¶3 Immediately after completing the ticketing and returning Dreps' documentation to him, Trooper Swenson told him the encounter had concluded but then started another line of inquiry:

SWENSON: Okay, you're free to go.... I do have a question, if you don't mind[.] [A]re you carrying any illegal weapons, drugs or contraband up in the car, are you?

DREPS: No sir.

SWENSON: Okay. Do you have a problem with ah Trooper Bard and myself searching the vehicle for those items?

DREPS: (Pause) Well, I really do need to get back to Rapid City.

SWENSON: Just take us a little bit.

DREPS: (Pause) Well, I suppose.

SWENSON: Okay.

Trooper Swenson then asked Dreps what his passenger had in the car. Dreps answered that the passenger might have a pistol, but he believed he had a permit to do so. ¹ Trooper Bard then asked Dreps to sit in the back of the patrol car: "Okay, well for our own safety, would you just have a seat in the back. This is unlocked. Okay, so it is open. Just have a seat in there, and get your friend to come back here and get you on the road real quick here. Okay?"

¶4 While Trooper Bard was having this exchange with Dreps, Trooper Swenson approached the passenger, Leonard Van Ausdale, who was still seated in Dreps' vehicle. Swenson advised Van Ausdale that Dreps had consented to the search of the vehicle. Trooper Swenson asked Van Ausdale if he could search his belongings and Van Ausdale said he did not have a problem with the search. Van Ausdale was asked to step out of the vehicle and take a seat in the back of the patrol car with Dreps. Van Ausdale did so, and the conversation he had with Dreps was recorded. Both men made inculpatory statements while the hidden tape recorded their conversation.

¶5 Meanwhile, during the search of Dreps' vehicle, Troopers Swenson and Bard found two black canisters in a coat. One contained marijuana, the other contained methamphetamine. Also found in another coat was a bag of marijuana. Dreps was arrested for possession of controlled substances, tried and convicted. He appeals, claiming the trial court should have suppressed evidence obtained in the search of his car and the surreptitiously recorded statements he made while seated in the patrol car.

ISSUES

¶6 1. Did the trial court abuse its discretion in denying Dreps' motion to suppress evidence obtained in the search of his car to which he consented?

¶7 Dreps contends that he was illegally detained by Trooper Swenson and as a result, his consent to the search of his car was invalid. He claims that as a consequence, the drugs found in the search of his car were inadmissible. In response, the State asserts that the findings made by the trial court amply support its conclusion that Dreps voluntarily consented to the search of his car.

¶8 Dreps challenges the denial of his motion to suppress the evidence discovered in the consent search. The standard of review we apply to these preliminary evidentiary questions was fully set forth in State v. Baysinger, 470 N.W.2d 840, 843 (S.D.1991) (citations omitted):

A trial court's findings of fact from a suppression hearing must be upheld unless they are clearly erroneous.... This court's function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. In making this determination, we review the evidence in a light most favorable to the trial court's decision.

To disturb a trial court's ultimate decision to suppress evidence, this court must find that an abuse of discretion has occurred. This refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. In this regard, we do not determine whether we would have made a like decision but only whether a judicial mind, considering the law and facts, could have reached a similar decision.

Additionally, "the presence or absence of consent to search is a question of fact [and] the trial court's finding regarding consent will be upheld unless, viewing the evidence in the light most favorable to the finding, it is clearly erroneous." State v. Fountain, 534 N.W.2d 859, 863 (S.D.1995) (citation omitted). Consent must be proven by the State by clear and convincing evidence. Id. "Clear and convincing evidence is evidence so clear, direct, weighty, and convincing as to allow the trier of fact to reach a clear conviction of the precise facts at issue, without hesitancy as to their truth." Id. at 864 (citation and quotation marks omitted).

¶9 In ruling on this evidentiary issue, the trial court was guided by the principle that consent given to law enforcement to conduct a search satisfies the Fourth Amendment search and seizure provisions and eliminates the necessity to obtain a warrant. Fountain, 534 N.W.2d at 863, citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973), and State v. Zachodni, 466 N.W.2d 624, 628 (S.D.1991). "Once consent to a search has been voluntarily tendered to the State's agents, not only is a warrant unnecessary, but so is probable cause." Zachodni, 466 N.W.2d at 628 (citation omitted). To determine if a consent search is valid, we must examine the totality of the circumstances to ensure that the consent was voluntarily given. State v. Almond, 511 N.W.2d 572, 573 (S.D.1994). An otherwise valid consent is vitiated if it was obtained during an illegal detention, and will invalidate a search based solely on such consent. Id.

¶10 Dreps claims his consent was not voluntarily given because he was illegally detained. He argues that once Trooper Swenson told him he was free to leave, the Trooper was no longer entitled to ask him any questions. According to his logic, any additional questioning was a detention which must have been supported by probable cause to stop him. Since Trooper Swenson admitted he had no articulable suspicion at the time he asked whether Dreps had any illegal weapons, drugs, or contraband, and thus no probable cause to detain him, Dreps contends that he was illegally detained at the time Trooper Swenson asked for consent to search. Thus, he claims the trial court's ultimate conclusion that he validly consented to the search is erroneous.

¶11 First we address Dreps' claim that probable cause was required before he could be asked to consent to a search of his car. The trial court correctly concluded that "[an] officer does not have to have probable cause to search before requesting consent to search." Consent given to law enforcement to conduct a search satisfies the Fourth Amendment and removes any necessity for a warrant or even probable cause. Fountain, 534 N.W.2d at 863; Zachodni, 466 N.W.2d at 628.

¶12 Dreps does not challenge any of the trial court's factual findings. ² Rather, he claims the facts here are like those in State v. Almond, 511 N.W.2d 572, and State v. Ramirez, 535 N.W.2d 847 (S.D.1995). He claims that, like Almond, he was stopped for a routine traffic violation, the Trooper issued a warning citation, returned his documents to him and, once that was completed, the Trooper then asked for permission to search. In Almond, we held there was a second arrest and illegal detention but we did so based on facts that do not exist in Dreps' case. In Almond, the defendant was issued a citation and warning ticket, exited the patrol vehicle, but was then commanded to stop and empty the contents of his pockets on the hood of the patrol vehicle. 511 N.W.2d at 573. Our decision there suppressing evidence from his pockets relied on the trial court's specific findings that at no time was Almond advised that he was free to leave and, under the circumstances, a reasonable person would have thought he was in custody. 511 N.W.2d at 574-75. The totality of the circumstances in this case indicate that Dreps was free to leave and that he was not subjected to a second and illegal detention. ³

¶13 Likewise, Dreps' reliance on Ramirez is misplaced. Dreps claims that when Trooper Swenson asked him to sit in the back of the patrol car during the search, he was in "back seat jail," a custodial detention for which no probable cause existed. See Ramirez, 535 N.W.2d at 850 (highway patrol officer's vehicle often serves as temporary jail). Dreps was not placed...