State v. Gerber

• Decision Date: 13 May 1976
• Docket Number: No. 11696,11696
• Citation: 90 S.D. 432,241 N.W.2d 720
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Clifford Edward GERBER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 720

241 N.W.2d 720

90 S.D. 432

STATE of South Dakota, Plaintiff and Respondent, v. Clifford Edward GERBER, Defendant and Appellant.

No. 11696.

Supreme Court of South Dakota.

Argued March 15, 1976.

Decided May 13, 1976.

Marc Weber Tobias, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Thomas P. Tonner, of Maynes, Tonner & Maynes, Aberdeen, for defendant and appellant.

DUNN, Chief Justice.

Defendant Gerber appeals from convictions for driving while intoxicated and possession of a controlled substance. Both charges arose as a result of a search of his automobile by law enforcement officers. He contends that the court erred in not suppressing certain evidence which was obtained in that search. We affirm.

The record reveals that on December 5, 1974, a call was received at the headquarters of the Division of Criminal Investigation in Pierre from an unknown person. The caller talked about possible drug violations in and around Hoven, South Dakota. This information was relayed to D.C.I. Agent Jerry Baum. On December 7, 1974, Baum received a message to call a certain telephone number in Hoven, South Dakota. He was told by an anonymous person that the defendant was collecting money from high school students in Hoven and planned to travel to Watertown, South Dakota, to purchase drugs and transport them back to Hoven.

Later that same day, Baum received a call from an anonymous person. That person gave him a description of the car the defendant would be driving, the license plate number and the names of the persons who would be traveling to Watertown with the defendant.

Baum relayed this information to state trooper Dick Siedschlaw in Watertown with a request that he keep a lookout for a car matching the description of defendant's vehicle. Siedschlaw called Baum around 7 p.m. on December 7, 1974, and advised him that the automobile in question had entered Watertown at about 5 p.m. that evening and was presently parked outside a residence in Watertown which was known for drug activity. Siedschlaw called Baum again on December 8th and told him that the persons in the defendant's automobile had spent the night at the residence in Watertown and were seen leaving town at 9 p.m. heading west on Highway 20.

Baum secured a warrant to search defendant's vehicle from the justice of the peace of Potter County. The warrant was based solely on the following affidavit submitted by Baum:

'Jerry Baum, Special Agent Division of Criminal Investigation, (sic) State of South Dakota, being first duly sworn on oath, desposes (sic) and says that he has reason to believe and does believe that certain individuals known to be Clifford Gerber, Rocky Brehmer, Dan or Donald Hegeman, and A Benson (first name unknown) have or will have in their possession a controlled narcotic; drug or substance in excess of the amounts allowed or permitted by law; that the narcotic; drug or substance will be on the persons of the above named persons or concealed in a 1972 Mercury 4 dr. HT green automobile, Serial No. 2H1ON521403, South Dakota License No. 54--2777, 1974 owned by Clifford Gerber; that affiants department at Pierre, S. Dak received two anonomous (sic) telephone calls from a woman at Hoven, South Dakota advising that Clifford Gerber was callecting (sic) money from various kids in Hoven for the purpose of going to Watertown to pick up a load of drugs; that on Saturday, December 7, 1974 affiant received another call from Hoven to the effect that Clifford Gerber and the other three persons named above had left Hoven for Watertown, South Dakota; that as a result of such information affiant contacted the State Patrolman at Watertown who later advised affiant that the above vehicle, with four occupants arrived at Watertown at about 5:00 p.m. on December 7, 1974 and were parked in front of a dwelling at 1st Ave. and 11th St. S.E. in Watertown, a dwelling known to authorities to have had a prior history of drug activities; that affiants information is that the said occupants will be returning to Hoven, South Dakota on this date, Sunday, December 8, 1974.

'Affiant further says that the above is what he bases his belief upon and he has personal knowledge of said facts and believes that a search of the said outomobile, (sic) and particularly those areas of an automobile wherein narcotics, drugs or a controlled substance could be concealed, and of the persons of the occupants of said vehicle, will produce quantities of narcotics, drugs, or controlles (sic) substances.

'Wherefore, affiant herein prays that a search warrant be issued out of this Court and that the said automobile and its occupants, when it returns to Potter County,, (sic) South Dakots, (sic) be ordered searched as provided by law for the items above mentioned.'

The automobile carrying the defendant and the other occupants was stopped when it entered Potter County in the early morning hours of December 9, 1974. A search was made of the automobile and its occupants. Controlled substances were found on defendant's person and in the vehicle. These substances were introduced into evidence at defendant's trial over his strenuous objections. Defendant was driving the vehicle when it was stopped and he was also arrested for driving while intoxicated. A subsequent blood test revealed that defendant's blood alcohol content was .14%.

Defendant argues that the court erred in not suppressing the evidence seized when the vehicle was stopped and the results of his blood test. He maintains that the search warrant was invalid because there was no probable cause for the justice of the peace to issue it and therefore the evidence was illegally seized by Baum and the other officers.

It can be said without resort to citation that searches and seizures by law enforcement officers can be predicated only upon probable cause. When a search warrant is applied for, the police must demonstrate to a neutral and detached magistrate that there is probable cause to justify a search of a suspect's person, his house, or his automobile. If there is insufficient probable cause, the evidence seized in violation of the suspect's rights under the Fourth and Fourteenth Amendments must be suppressed. Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

In reviewing the determination of probable cause by the justice of the peace, we must consider only the evidence which was presented in support of the...