State v. Hanson

• Decision Date: 20 January 1999
• Docket Number: No. 20374,20374
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Pamela HANSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 885

588 N.W.2d 885

1999 SD 9

STATE of South Dakota, Plaintiff and Appellee, v. Pamela HANSON, Defendant and Appellant.

No. 20374.

Supreme Court of South Dakota.

Argued Oct. 21, 1998.

Reassigned Nov. 25, 1998.

Decided Jan. 20, 1999.

Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, for plaintiff and appellee.

Mary G. Keller, Huron, for defendant and appellant.

GILBERTSON, Justice (on reassignment).

¶1 Hanson appeals her conviction for possession of marijuana claiming that 1) the police lacked probable cause to arrest her; 2) her constitutional rights were violated in obtaining a sample of her urine; and 3) there was insufficient evidence to support her conviction. We affirm.

FACTS AND PROCEDURE

¶2 On February 21, 1997, at approximately 10:00 p.m., Huron police stopped a car driven by J.S., age 16, for violation of the tinted window law. Pamela Hanson (Hanson), age 42, was a passenger in the front seat and M.G., age 15, a passenger in the rear seat. J.S. and M.G. were friends of Hanson's son.

¶3 Officer Marotteck spoke with J.S. about the identity of the other occupants of the car. He learned that M.G. was 15 years old and in violation of the city's curfew law. Officer Marotteck leaned into the car to speak with M.G. and detected a faint odor of burnt marijuana.

¶4 Officer Marotteck spoke separately with all three passengers about where they had been and what they had been doing. Hanson claimed to have been in the car only a short time in order to receive a ride from her home to the grocery store. The stories of the two juveniles conflicted. All three denied any knowledge regarding the odor of marijuana. None claimed there had ever been a fourth passenger.

¶5 A drug dog was brought to the scene and "hit" on the car, but not on any of the three passengers. Searches of the car revealed a partially burned marijuana leaf and seed on the rear seat and a pipe with burnt marijuana residue under the rear seat. All three passengers denied any knowledge of the marijuana and pipe.

¶6 Hanson and the two juveniles were arrested. Hanson was transported to the police department where a urine sample was obtained. According to the trial court, her consent was "not requested, nor obtained." The urine sample tested positive for marijuana.

¶7 Hanson was charged with one count of possession of less than one-half pound of marijuana in violation of SDCL 22-42-6 and one count of possession of a controlled substance, methamphetamine, in violation of SDCL 22-42-5. The methamphetamine charge was dismissed prior to trial.

¶8 Hanson's motion to suppress the urinalysis evidence was denied by the trial court. At a court trial held June 4, 1997, M.G. testified that the pipe belonged to him and no marijuana had been smoked in the car on the night in question. The trial court stated in its memorandum opinion dated November 20, 1997, that it did not find the juvenile's testimony to be credible and found Hanson guilty of possession of marijuana.

¶9 Hanson appeals raising the following issues:

1. Whether there was probable cause for Hanson's arrest.

2. Whether the seizure of Hanson's urine violated her constitutional rights.

3. Whether there was sufficient evidence to support Hanson's conviction.

STANDARD OF REVIEW

¶10 Our standard of review is well established:

A trial court's findings of fact from a suppression hearing must be upheld unless they are clearly erroneous. State v. Pfaff, 456 N.W.2d 558 (S.D.1990). Similarly, a trial court's finding concerning probable cause for a warrantless arrest will not be overturned unless clearly erroneous. U.S. v. Woolbright, 831 F.2d 1390 (8thCir.1987); U.S. v. McGlynn, 671 F.2d 1140 (8thCir.1982). 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. State v. Corder, 460 N.W.2d 733 (S.D.1990). In making this determination, we review the evidence in a light most favorable to the trial court's decision. Id.

State v. Baysinger, 470 N.W.2d 840, 843 (S.D.1991).

ANALYSIS AND DECISION

¶11 1. Whether there was probable cause for Hanson's arrest.

¶12 Hanson argues that the police lacked probable cause to arrest her. She claims that her arrest was based solely on her presence in the car and her denial of any knowledge of the marijuana or pipe. We disagree.

¶13 "Probable cause to arrest exists where the facts and circumstances within the arresting officers' knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a belief by a man of reasonable caution that a suspect has committed or is committing an offense." Baysinger, 470 N.W.2d at 845 (citing State v. Stuck, 434 N.W.2d 43 (S.D.1988); State v. Max, 263 N.W.2d 685, 687 (S.D.1978)). "However, probable cause deals with probabilities that are not technical but only the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act." Baysinger, 470 N.W.2d at 845 (citing State v. Glick, 87 S.D. 1, 201 N.W.2d 867 (1972)). "[W]e do not approach [the] facts separately ... 'but rather we view the action of the arresting officers on the basis of the cumulative effect of such facts in the totality of the circumstances.' " Baysinger, 470 N.W.2d at 845-46 (alterations in original) (quoting United States v. Green, 525 F.2d 386, 390 (8thCir.1975) (citations omitted)).

¶14 The police had reason to stop the car because of its excessively tinted windows. State v. Lownes, 499 N.W.2d 896, 898-99 (S.D.1993) ("The probable cause required to make a stop is less than that required to issue a warrant or make an arrest.") (citing Terry v. Ohio, 392 U.S. 1, 25-27, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889, 908-09 (1968); State v. Anderson, 359 N.W.2d 887, 889 (S.D.1984)). Once Officer Marotteck detected the odor of burnt marijuana and the drug dog "hit" on the car, there was probable cause for a warrantless search of the car. Pfaff, 456 N.W.2d at 561 (citing State v. Peterson, 407 N.W.2d 221, 223 (S.D.1987)). "Probable cause justifying a search is present where the facts found by the court or the magistrate would lead a reasonable and prudent person to believe it fairly probable that a crime had been committed and that evidence relevant to the crime would be uncovered by the search." State v. Zachodni, 466 N.W.2d 624, 629 (S.D.1991) (citations omitted). We have held that "when a law enforcement officer stops a vehicle, and the officer has probable cause to believe the vehicle contains contraband, the vehicle may be searched without a warrant." Id. at 627 (citations omitted). The search of the car produced the marijuana leaf and seed and the pipe with residue of burnt marijuana.

¶15 We recognize that probable cause must be particularized as to each party arrested. Baysinger, 470 N.W.2d at 846; Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238, 245 (1979) ("Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person."). "A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to arrest that person." Baysinger, 470 N.W.2d at 846 (citation omitted).

¶16 In this case, however, there was more than mere proximity involved. All three occupants denied any knowledge of the marijuana and paraphernalia, but all had access to the rear seat of the small compact car. Possession requires that an individual be aware of the presence and character of the drug and intentionally and consciously possess such drug. State v. Wellner, 318 N.W.2d 324, 332 (S.D.1982) (citing State v. Kietzke, 85 S.D. 502, 506, 186 N.W.2d 551, 554 (1971)). "However, the possession need not be exclusive. It may ... [be] shared with others." Id. (quoting Kietzke, 85 S.D. at 506, 186 N.W.2d at 554).

¶17 Hanson has not shown that the trial court was clearly erroneous when it found probable cause to support her arrest and, therefore, we affirm this issue.

¶18 2. Whether the seizure of Hanson's urine violated her constitutional rights.

¶19 Hanson claims that the trial court should have suppressed the urinalysis results because the police violated her federal and state constitutional rights by obtaining a urine sample without her consent and without a warrant.

¶20 The Fourth Amendment to the United States Constitution and Article VI, § 11 of the South Dakota Constitution protect against unreasonable searches and seizures. "Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, ... these intrusions must be deemed searches under the Fourth Amendment." Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639, 660 (1989).

¶21 a. Consent.

¶22 Generally a search of a person or place must be authorized by a warrant based on probable cause to believe that the search will produce contraband or other evidence of a crime. Zachodni, 466 N.W.2d at 627 (citations omitted). However, "[c]onsent given to law enforcement to conduct a search removes any necessity to obtain a warrant based on probable cause." State v. Shearer, 1996 SD 52, p 11, 548 N.W.2d 792, 795 (citations omitted).

¶23 Hanson was simply told a sample would be taken. "The State bears the burden of proving that consent to a search has been freely and voluntarily given." Zachodni, 466 N.W.2d at 628 (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983)). "The State's burden is not met 'by showing a mere submission to a claim of lawful authority.' " Zachodni, 466 N.W.2d at 628 (quoti...