State v. Heney

• Decision Date: 30 October 2013
• Docket Number: No. 26624.,26624.
• Citation: 839 N.W.2d 558,2013 S.D. 77
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Peter Owen HENEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

839 N.W.2d 558

2013 S.D. 77

STATE of South Dakota, Plaintiff and Appellee,

v.Peter Owen HENEY, Defendant and Appellant.

No. 26624.

Supreme Court of South Dakota.

Considered on Briefs Sept. 30, 2013.

Decided Oct. 30, 2013.

Marty J. Jackley, Attorney General, Kelly Marnette, Assistant Attorney General, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.

Matthew J. Kinney, Rapid City, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Defendant Peter Heney was arrested and charged with possession of cocaine, possession of marijuana, and ingestion of marijuana. Before trial, Heney moved to suppress all evidence in the case as the fruit of an initial illegal search of his hotel room, alleging that all evidence discovered by police on a subsequent call to the hotel was tainted by the initial illegal search. The trial court granted the motion with respect to the drugs seized during the initial illegal search, but denied the motion with respect to evidence gathered during the second call to the hotel. Heney was convicted on all charges. Heney appeals these convictions, claiming that the trial court erred by denying his motion to suppress evidence. We affirm.

Facts and Procedural History

[¶ 2.] On August 10, 2012, at 12:30 p.m., Officer Jim Olson of the Deadwood Police Department responded to a call from the staff of the Mineral Palace Hotel. Officer Olson was informed that the staff had detected the smell of marijuana in the second-floor hallway. One of the maids at the hotel reported to Officer Olson that she had found a marijuana cigarette earlier that day in room 212. The maid escorted Officer Olson to room 212. On the way to room 212, Officer Olson first noticed the smell of marijuana smoke on the first floor in the elevator. The smell became stronger on the second floor. At room 212, Officer Olson knocked on the door but received no response. Officer Olson then had the maid open the door to the room. The maid complied, and then showed Officer Olson the half-smoked marijuana cigarette she had found earlier that day. Officer Olson recognized the cigarette as marijuana and collected it as evidence. Hotel management advised Officer Olson that room 212 was rented by Heney. Heney was not at the hotel at the time, so Officer Olson requested the hotel staff notify him when Heney returned.

[¶ 3.] Deadwood Police received another call from hotel staff at approximately 3:35 p.m., reporting that Heney had returned and that there was now a strong smell of marijuana coming from room 208. Officer Olson returned to the hotel, where he found the strongest odor emanating from room 208. Officer Olson knocked on the door of room 208 and the door was answered by Michelle Bogin–Dell.¹ Officer Olson informed Bogin–Dell that there was a complaint about someone smoking marijuana in one of the rooms, and the odor of marijuana in the hallway. Officer Olson did not mention his earlier visit to the hotel or finding the marijuana cigarette. Officer Olson advised Bogin–Dell that he believed the smell was strongest coming from the door to her room. Officer Olson then asked if he could enter her room. Bogin–Dell consented, and Officer Olson entered the room to talk with the other occupants of the room. Four other persons were inside the room at the time.

[¶ 4.] Officer Olson explained why he was at the room, and then asked if anyone in the room had any marijuana. A male, later identified as Heney, stood up and told Officer Olson that he had marijuana. Heney presented Officer Olson with a medical marijuana prescription from California and a cigarette box containing several marijuana cigarettes, which Heney was carrying in his shirt pocket. Officer Olson informed Heney that South Dakota does not recognize medical marijuana prescriptions and that possession of marijuana was a crime in South Dakota. When asked if anyone else in the room was smoking, Heney indicated that he was the only person in the room smoking marijuana.

[¶ 5.] Officer Olson placed Heney under arrest for possession and ingestion of marijuana. Heney then led Officer Olson to the room registered under Heney's name, where Heney allowed Officer Olson to inspect Heney's luggage. Officer Olson identified this as the same room in which the half-smoked marijuana cigarette was located earlier in the day. Before placing Heney in the patrol car, Officer Olson asked Heney if there was anything else on Heney's person that would get Heney in trouble when he got to the jail. Heney indicated that he had a small vial of cocaine in the top coin pocket of his jeans. Officer Olson located the vial and took it into evidence. At the jail, Heney gave a urine sample. The sample tested positive for marijuana and cocaine.

[¶ 6.] Heney was charged with Possession of a Controlled Substance (Cocaine), a Class 4 felony, in violation of SDCL 22–42–5; Possession of Marijuana (Less than two (2) ounces), a Class 1 misdemeanor, in violation of SDCL 22–42–6; and Ingesting, a Class 1 misdemeanor, in violation of SDCL 22–42–15. Heney entered a plea of not guilty at his arraignment on September 6, 2012. Heney subsequently filed a Motion to Suppress Evidence and the court conducted a motion hearing on October 24, 2012. The only witness was Officer Olson.

[¶ 7.] On November 29, 2012, the court entered an oral decision denying Heney's motion, in part. The trial judge suppressed evidence of the half-smoked marijuana cigarette found in Heney's room. The trial judge denied the motion with regards to Heney's statements to police, the marijuana handed over to Officer Olson by Heney in room 208, as well as the cocaine on Heney's person. A bench trial commenced the same day by stipulated facts and the court found Heney guilty on all charges. Heney appeals his conviction, raising one issue for our review: Whether the challenged evidence in this case was tainted by a previous illegal search so as to necessitate exclusion under the fruit of the poisonous tree doctrine.

Standard of Review

[¶ 8.] “A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review.” State v. Hess, 2004 S.D. 60, ¶ 9, 680 N.W.2d 314, 319 (citation omitted). Factual findings of the lower court are reviewed under the clearly erroneous standard, but once those facts have been determined, “the application of a legal standard to those facts is a question of law reviewed de novo.” Id. (citation omitted).

Analysis and Decision

[¶ 9.] “[T]he exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, and of testimony concerning knowledge acquired during an unlawful search.” State v. Boll, 2002 S.D. 114, ¶ 19, 651 N.W.2d 710, 716 (quoting Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988)). “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ ” Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984) (citations omitted). However, “[e]ven Wong Sun, the progenitor of the ‘fruit of the poisonous tree’ doctrine, recognized that original lawless conduct would not taint all evidence forever.” Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990). Application of the exclusionary rule should strike a balance between “the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime[.]” See Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984).

[¶ 10.] On appeal, the parties do not dispute the illegality of the initial search in room 212, or the trial court's suppression of evidence found in room 212 during that initial search. However, Heney argues that the trial court erred when it denied the motion to suppress with regards to the evidence obtained during Officer Olson's second trip to the Mineral Palace Hotel. Heney argues that the illegal entry into room 212 so tainted all subsequent evidence that all subsequent evidence should be excluded as fruit of the poison tree.

[¶ 11.] “It is well settled that the burden is on the one making the motion to suppress evidence to establish that such evidence was illegally seized.” State v. Rigsbee, 89 S.D. 360, 376, 233 N.W.2d 312, 321 (1975) (citation omitted).² “When the issue is whether challenged evidence is the fruit of a Fourth Amendment violation, the defendant bears the initial burden of establishing the factual nexus between the constitutional violation and the challenged evidence.” United States v. Marasco, 487 F.3d 543, 547 (8th Cir.2007) (citing Alderman, 394 U.S. at 183, 89 S.Ct. at 972). “Suppression is not justified unless ‘the challenged evidence is in some sense the product of illegal governmental activity.’ ” Segura, 468 U.S. at 815, 104 S.Ct. at 3391 (quoting United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1250, 63 L.Ed.2d 537 (1980)).

[¶ 12.] The challenged evidence should not be excluded as fruit of the poisonous tree “unless the illegality is at least the ‘but for’ cause of the discovery of the evidence.” Id. It should be noted that “but-for causality is only a necessary, not a sufficient, condition for suppression” under the fruit of the poisonous tree doctrine. Hudson v. Michigan, 547 U.S. 586, 592, 126 S.Ct. 2159, 2164, 165 L.Ed.2d 56 (2006). The primary focus of our analysis is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Boll, 2002 S.D. 114, ¶ 32, 651 N.W.2d at 719 (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963)).

[¶ 13.] Heney...