State v. Habbena, 14432

Decision Date31 July 1985
Docket NumberNo. 14432,14432
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Douglas M. HABBENA, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Steve Miller, Sp. Deputy State's Atty., Sioux Falls, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, and Joaquin K. Hanson, Minnehaha County State's Atty., Sioux Falls, on brief.

James E. McCulloch of Minick, Nelson & McCulloch, Vermillion, for defendant and appellant.

MORGAN, Justice.

This appeal arises from the conviction of Douglas Habbena (Habbena) on two counts: (1) distribution of a controlled substance (cocaine), in violation of SDCL 22-42-2; and (2) possession of a controlled substance (cocaine) with intent to distribute, in violation of SDCL 22-42-2. Habbena appeals the trial court's denial of certain portions of his motion to suppress evidence and the use of suppressed evidence at his sentencing hearing. We affirm.

In February of 1983, the Sioux Falls Police Department (Department) was in the process of an undercover investigation into cocaine sales. The purpose of this investigation was to arrest the supplier of one of the Department's contacts. In anticipation of an undercover cocaine purchase, officials of Department, along with the South Dakota Division of Criminal Investigation (DCI) and the federal Drug Enforcement Agency (DEA), met to discuss contingencies surrounding the anticipated buy. At this February 13, 1983, meeting, it was decided, after one officer sought the advice of a Minnehaha County Deputy State's Attorney, that if the officers knew that state money used to buy cocaine was in a particular residence, the officers should surveil the residence and seek a search warrant. The officers were also told that should someone leave the surveilled residence, prior to the arrival of the search warrant, that person should be stopped and returned to the residence and the officers should enter the residence and preserve the status quo pending arrival of the search warrant.

The evening of February 14, 1983, State Agent Duane Dahl (Dahl) met with Tim Reinius (Reinius) at a Department informant's house to arrange for a purchase of cocaine. Dahl gave Reinius $1,100 in "marked buy money" to obtain the cocaine. Reinius left and went to his own home. Approximately one hour later, Paul Gabrielson (Gabrielson) arrived at Reinius' house. Gabrielson left Reinius' house and proceeded to another residence in Sioux Falls. He was followed by police officers. Gabrielson remained inside for about ten minutes and then left, driving back to Reinius' house. Detective Conrad Smith (Smith) remained to surveil the residence Gabrielson had entered and left. At no time prior to Gabrielson entering the residence did the police have reason to connect this home or its occupants with drug-related offenses. Following Gabrielson's return, Reinius called Dahl and told him he had the cocaine. Gabrielson left Reinius' home and was stopped a few blocks later by Sioux Falls Police Sergeant Hoier (Hoier). Smith left his surveillance of the residence for approximately five to ten minutes to assist Hoier. Gabrielson was driven past the surveilled residence, and pointed it out as where he had left the "buy money" and obtained cocaine. Gabrielson was then taken to the Public Safety Building. Subsequently, Reinius was arrested as he delivered the cocaine to Dahl.

At this point, the residence, later identified as Habbena's, was under surveillance by Smith and three others. A lone male entered the home and, approximately fifteen minutes later, left. Pursuant to plan, Smith and Federal Agent Edwards, along with two uniformed officers, entered to "secure" the premises pending arrival of a search warrant. Smith and Edwards performed a cursory search for other occupants while the uniformed officers remained with Habbena. Smith also used the telephone in an upstairs bedroom to contact Police Detective Boos (Boos) who was in the process of preparing an affidavit in anticipation of securing a search warrant. At this time, Smith saw marijuana in an open shoe box lid on top of a television. Following his short conversation with Smith, Boos called Magistrate Judge Matheson to obtain a telephonic search warrant, pursuant to SDCL 23A-35-5, -6. 1 Upon information relayed to him by Hoier, Boos told Magistrate Matheson that cocaine had been purchased that evening by Dahl and that Gabrielson, who was in custody, had delivered the money to a residence in Sioux Falls, 626 South Prairie Avenue. Boos further stated that Gabrielson had seen cocaine in the residence and that the occupant was believed to be Dale Callies. Magistrate Matheson was also told that officers were in the residence holding persons until a warrant could be obtained. Boos asked for permission to search for controlled substances, cocaine, and the $1,100 in buy money, the warrant to be executed immediately. Magistrate Matheson authorized the warrant and Boos prepared a duplicate original search warrant, signing Matheson's name to it, with his name below that. Approximately forty-five minutes after the initial entry, Boos arrived at the residence and gave Habbena a copy of the warrant and explained its purpose.

During the execution of the warrant, nineteen different items or groups of items were seized. Along with cocaine and the "buy money," ledger books, hashish, marijuana, various pills and tablets and other drug paraphernalia were seized.

Habbena was indicted by the Minnehaha County Grand Jury on February 17, 1983. On March 25, 1983, Habbena filed a motion to suppress evidence, claiming that the initial securing of his premises constituted an illegal entry into his home, and all evidence obtained thereafter was so tainted by this illegal seizure that it should be suppressed. A hearing was held on the motion before the trial court. After this hearing, the trial court found that the initial securing procedure was a violation of Habbena's Fourth Amendment rights, and suppressed a statement made to the officers before the arrival of the warrant, along with marijuana actually seen by the officers during the securing procedure. 2 The trial court noted, however, that the evidence seized under the search warrant was the product of an independent source (the search warrant) and was therefore admissible. The trial court also found that the telephonic search warrant, although it did not comply with the letter of the statute (SDCL 23A-35-6), was in substantial compliance with the statute and, therefore, was a valid independent source for the items seized.

As to the failure to suppress all of the evidence seized, Habbena initially contends that the trial court erred in that the seizure of himself and his residence was a seizure of the entire contents of his home. It is clear that both the Fourth Amendment to the United States Constitution and Article VI, Sec. 11 of the South Dakota Constitution apply to unreasonable seizures, as well as searches. 3 It is, however, the unreasonableness of the seizure which involves constitutional prohibitions.

After the suppression hearing, the trial court found, in substance:

(14) The officers entered the house at about 8:34 p.m., identified themselves as police officers and announced that they were going to "secure" the house pending the arrival of a search warrant.

(15) Two of the officers performed a cursory search of the house for other occupants. The search included an upstairs bedroom where nearly all of the evidence was later discovered. They returned downstairs and remained in the living room.

(16) Smith later returned to the upstairs bedroom, the location of the only telephone in the house, to call the station to confirm the address. At that time he saw and reported some suspected marijuana in a shoe box top on open display in the bedroom.

....

(19) Two uniformed officers also were in the residence for a very brief period that played no significant roll in the securing procedure.

(20) Except for the initial cursory search and the telephone call no law enforcement officers went upstairs until after the warrant arrived. No search for evidence was conducted until the warrant arrived and none of the evidence eventually seized was seen by any law enforcement officer until the warrant arrived except the marijuana in the shoebox lid previously referred to.

Based on these findings of fact, the trial court concluded as a matter of law, in substance:

(1) That there was probable cause to arrest defendant.

(2) To search the residence for cocaine and the marked buy money at the time the residence was entered.

(3) That the entry and defendant's resulting restricted freedom of movement constituted an arrest under the Fourth Amendment and Article VI, Sec. 11 of the South Dakota Constitution, but no exigent circumstances existed which would authorize the warrantless entry to "secure" the premises.

(8) The "securing" procedure did not constitute a "seizure" in the constitutional sense of all the contents of the house.

(9) The marijuana seen by the police during the "securing" procedure before the arrival of the warrant was seized in the constitutional sense and should be suppressed.

(10) All other items seized during the execution of the search warrant are the fruits of an independent source--the search warrant--and are untainted by the illegal "securing" procedure.

This court will disturb the trial court's findings of fact only if the evidence preponderates against them. The findings of the trial court must stand if there is substantial evidence to support them. Halverson v. State, 356 N.W.2d 484 (S.D.1984); Brim v. State, 290 N.W.2d 680 (S.D.1980).

Habbena seems to contend that, inasmuch as the trial court found the entry to secure the premises illegal for lack of exigent circumstances and suppressed a statement made by defendant to the officers and suppressed the marijuana seen before the arrival of the search...

To continue reading

Request your trial
14 cases
  • State v. Tanner
    • United States
    • Oregon Supreme Court
    • November 17, 1987
    ...P.2d 375 (Okla.1986); State v. von Bulow, 475 A.2d 995 (R.I.1984); State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975); State v. Habbena, 372 N.W.2d 450 (S.D.1985); State v. Jennette, 706 S.W.2d 614 (Tenn.1986); Self v. State, 709 S.W.2d 662 (Tex.Crim.App.1986); State v. Harbaugh, 132 Vt. 5......
  • State v. Lamont, 21189.
    • United States
    • South Dakota Supreme Court
    • July 11, 2001
    ...can only cure a Fifth Amendment defect. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Cf. State v. Habbena, 372 N.W.2d 450 (S.D.1985) (holding that a subsequently issued search warrant was an independent source thus, the exclusionary rule did not apply). Because the......
  • State v. Berget
    • United States
    • South Dakota Supreme Court
    • February 12, 2013
    ...by the rules of evidence, and consideration of out-of-court information and hearsay evidence is not precluded.” State v. Habbena, 372 N.W.2d 450, 458 (S.D.1985) (quoting State v. Ellefson, 287 N.W.2d 493, 496 (S.D.1980) (citing Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 133......
  • State v. Helland
    • United States
    • South Dakota Supreme Court
    • December 7, 2005
    ...reasonable inference possible in support of the issuing court's determination of probable cause to support the warrant. State v. Habbena, 372 N.W.2d 450, 456 (S.D.1985) (citing State v. Wellner, 318 N.W.2d 324, 327 (S.D.1982)). This deferential standard "is appropriate to further the Fourth......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT