State v. Fountain, 18990

• Decision Date: 24 May 1995
• Docket Number: No. 18990,18990
• Citation: 534 N.W.2d 859
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Chad Allen FOUNTAIN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 859

534 N.W.2d 859

STATE of South Dakota, Plaintiff and Appellee, v. Chad Allen FOUNTAIN, Defendant and Appellant.

No. 18990.

Supreme Court of South Dakota.

Considered on Briefs May 24, 1995.

Decided July 26, 1995.

Mark Barnett, Atty. Gen., Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Steven R. Binger of Breit and Binger, Sioux Falls, for defendant and appellant.

AMUNDSON, Justice.

Chad Fountain ("Fountain") appeals his conviction for possession of LSD pursuant to SDCL 22-42-5, ¹ claiming that the third-party consent to search his jacket which contained LSD was unlawful. We affirm.

FACTS

The facts as described here are gleaned from the transcript of the suppression hearing, as no trial was conducted. On the morning of Wednesday, November 10, 1993, the local offices of the Drug Enforcement Administration and Sioux Falls police each received a tip from a confidential informant that Fountain and Adam Raski ("Raski") were in possession of LSD. Law enforcement determined that there were outstanding misdemeanor warrants for the arrest of both men, and decided to attempt to contact them at the respective locations identified by the informant.

Special Agent Matthew Mohr of the State Division of Criminal Investigation, Detectives Don Satterlee and Mark Moberly, and DEA agent Gary Harvison, all working with the local Drug Task Force, first went to the apartment where Raski was staying, and advised him that he was being arrested and taken into custody pursuant to the outstanding warrant. A routine pat down search of Raski revealed LSD and a loaded .22 caliber semi-automatic pistol.

Having found the informant's information reliable, the law enforcement agents then went to an apartment the informant had pointed out as the location where Fountain was staying. They knocked and identified themselves as law enforcement agents to the woman who answered the door, who identified herself as Billi Jo Ugalde. When Ms Ugalde indicated that Fountain was in her home sleeping on the couch, the officers then asked for and received permission from her to enter the apartment. Agent Mohr approached the waking man and informed him that there were outstanding warrants for his arrest; he got up from the couch. Fountain was then placed under arrest and taken to jail.

According to Agent Mohr's testimony, Detective Satterlee then sought and was given Ms. Ugalde's consent to search her apartment. During the search, Ms. Ugalde's child pointed to a jean jacket on the living room floor and said to Agent Harvison "Do you know whose jacket that is? ... [T]hat's Chad's; Chad, the one you just took to jail." Agent Harvison then retrieved the jacket and found 100 hits of LSD and a tweezers in it.

Fountain was later indicted on charges of possession of a controlled drug and possession of a controlled drug with intent to distribute. He sought suppression of the LSD seized from his coat. His motion was denied on the basis that the search was conducted pursuant to valid consent. Thereafter, Fountain entered into a stipulation with the State, the substance of which provided as follows:

WHEREAS the Defendant has heretofore filed a Suppression Motion alleging that the search by police was a violation of the Fourth Amendment and said Motion has been denied by the Court, and

WHEREAS the intent of the parties is to avoid the necessity of a jury trial while simultaneously preserving the Defendant's right to appeal the denial of his Suppression Motion, it is hereby

STIPULATED AND AGREED that the State shall file an amended information charging the Defendant with the offense of Possession of Controlled Substance under SDCL 22-42-5, it is further

STIPULATED AND AGREED that the Defendant shall waive his right to a trial by jury and instead shall agree to a court trial; it is further

STIPULATED AND AGREED that at the time of the above-described court trial, the state's witnesses, if called to present live testimony before the Court, would testify as follows: ...

The stipulated testimony of the State's witnesses included that Fountain was an overnight guest of Ms. Ugalde, and that the jacket in which the LSD was found was Fountain's.

Based on the stipulation, the trial court found Fountain guilty of possession of a controlled substance. His sentence was stayed pending this appeal.

ISSUE

DID THE TRIAL COURT ERR IN REFUSING TO SUPPRESS EVIDENCE SEIZED PURSUANT TO THIRD-PARTY CONSENT?

Fountain approaches his claim of a Fourth Amendment violation in three ways. First, he alleges there was no consent to search the apartment where he had been an overnight guest. Second, even if there was such consent, he contends the consent was invalid because the officers deliberately bypassed him and did not ask him for consent to search his jacket. Third, he argues that even if Ms. Ugalde consented to the search of his jacket, she did not have authority to give valid consent to search.

The State contends that this entire issue has not been preserved for appeal. The record clearly demonstrates otherwise. In the stipulation entered into by the State and Fountain, the State specifically agreed that this issue was preserved for appeal as no trial was to be conducted. Further, the Court is presented with a full record of the matter as it was presented to the trial court and, because there was no trial conducted, Fountain sought this provision in the stipulation for the sole purpose of ensuring the matter was preserved for appeal. The State's contention wholly lacks merit as the record has been properly preserved for appeal.

When called upon to review a trial court's legal decision on a suppression motion, we do so using the abuse of discretion standard. State v. Ramirez, 535 N.W.2d 847 (S.D.1995); State v. Flegel, 485 N.W.2d 210 213 (S.D.1992). The ultimate decision of the trial court on suppression will be affirmed unless the defendant can demonstrate that such discretion has been exercised to an end or purpose not justified by, and clearly against, reason and the evidence. Ramirez, slip op. at 3, --- N.W.2d ----; State v. Almond, 511 N.W.2d 572, 574 (S.D.1994). However, because the presence or absence of consent to search is a question of fact, 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. Almond, 511 N.W.2d at 573-74.

Initially, we note that exceptions to the warrant requirement of the Fourth Amendment may justify warrantless searches, including searches based upon consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Almond, 511 N.W.2d at 575. See generally Ramirez, for discussion of Fourth Amendment protection from unreasonable search and seizure. Consent given to law enforcement to conduct a search satisfies the Fourth Amendment and removes any necessity to obtain a warrant. Bustamonte; State v. Zachodni, 466 N.W.2d 624, 628 (S.D.1991). With these basic principles in mind, we consider Fountain's particular contentions.

A. Did Ms. Ugalde consent to the search?

Essentially, Fountain contends there was no competent evidence that Ms. Ugalde consented to the search of her apartment and, consequently, the search which revealed his jacket and the LSD contained in it was constitutionally infirm. He argues that the testimony of Agent Mohr alone is insufficient to show consent by clear and convincing evidence because it was not Agent Mohr himself who asked for and received the consent of Ms. Ugalde, and Agent Mohr was not present during the conversation where the consent was requested and given.

As noted previously, the presence or absence of consent to a search is a question of fact, the evidence of which must be reviewed in a light most favorable to the trial court's determination. Almond; Zachodni. The State must prove the existence of valid consent by clear and convincing evidence. Almond, 511 N.W.2d at 576. In those instances where there exists both shared use and joint access or control of the premises or effects in question, a third party may validly consent to the search of the other's property. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250, n. 7 (1974); Zachodni, 466 N.W.2d at 628. An overnight guest who shares use and access of the premises in question is subject to the third-party consent of his host to search the nonconsenting guest's effects, and such third-party consent is sufficient to constitute a valid search under the Fourth Amendment. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Zachodni, 466 N.W.2d at 628.

Fountain does not dispute that the apartment was Ms. Ugalde's personal residence, that she had authority to permit a search of her own residence, or that he was an overnight guest. The trial court made specific findings regarding whether Ms. Ugalde had consented to the search of her apartment:

11. Officers then asked Billy Jo Ugalde for permission to search the entire house and she gave them her consent.

12. While the officers were searching the residence, a young girl pointed out Fountain's jean jacket lying eight to ten feet from where Fountain had been sleeping.

* * * * * *

17. Chad Fountain ... was an overnight guest on November 10, 1993.

Despite these findings, Fountain argues that the testimony of Agent Mohr that consent was given by Ms. Ugalde to Detective Satterlee outside of Agent Mohr's presence does not constitute clear and convincing evidence necessary to support the finding that Ms. Ugalde gave her consent to search. The trial court's finding will be reversed as clearly erroneous if, and only if, after reviewing all of the evidence, this Court is left with a definite and firm conviction that a mistake has been made. Almond, 511 N.W.2d at 576.

Agent Mohr did not have first-hand...