State v. Hess

• Decision Date: 05 May 2004
• Docket Number: No. 22619.,22619.
• Citation: 2004 SD 60,680 N.W.2d 314
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jacob L. HESS, Defendant and Appellant.
• Court: South Dakota Supreme Court

680 N.W.2d 314

2004 SD 60

STATE of South Dakota, Plaintiff and Appellee, v. Jacob L. HESS, Defendant and Appellant.

No. 22619.

Supreme Court of South Dakota.

Considered on Briefs August 25, 2003.

Decided May 5, 2004.

Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Bryan T. Andersen, Office of the Public Defender, Rapid City, South Dakota, Attorney for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] In this case, we must decide whether a warrantless police entry and search of a home, mistakenly thought to be the home of an arrestee for whom the officers had a warrant, constituted a Fourth Amendment violation. After looking in the window of a home where the police were to arrest a person on a felony warrant, which was actually the home next door, the officers observed the defendant and another man using a controlled substance. Believing that exigent circumstances existed and that this was the home of the person they were to arrest, the officers entered, arrested the men, and searched the premises. The defendant was the boyfriend of one of the women living at this residence. He was not planning on staying overnight on that evening, but he had been an overnight guest on previous occasions. In denying his motion to suppress, the circuit court ruled that the defendant had no standing to contest the search and seizure. The defendant was convicted of possession of a controlled substance. On appeal, we conclude that the defendant had standing to raise a constitutional challenge to the search. However, because the officers acted under the good faith but mistaken belief that they were executing an arrest warrant at the right premises, and because their observations through the window disclosed exigent circumstances allowing an immediate warrantless entry into the home, the Fourth Amendment was not violated by the search and arrest.

Background

[¶ 2.] On March 6, 2002, at 10:50 p.m., deputies from the Pennington County Sheriff's Office sought to serve an arrest warrant for Thomas Corey. The warrant was for the crime of second degree manslaughter, in that Thomas Corey was charged with recklessly causing the death of a person in a motor vehicle crash on February 10, 2002. The warrant specifically listed Corey's address as "3936 Canyon Lake Dr." Deputy Moore testified that they located Corey's residence by driving along Canyon Lake Drive until they found a mailbox by the road indicating the address of 3936 Canyon Lake Drive.¹ The deputies parked their car on the opposite side of the street behind a wall and proceeded across the four lanes of Canyon Lake Drive. After they passed the mailbox and crossed the lawn, they saw a two-stall carport that adjoined two homes. There were no lights on in the first residence. In the front of the second residence, the officers noticed a vehicle running with its lights on. Deputy Moore shined his flashlight on 3936½, but only saw the number 3936. He testified that later examination revealed that the numbers 3, 9, 3, and 6 were approximately two inches by one inch and the ½ was about a quarter of the size of the other numbers.

[¶ 3.] The deputies also noticed that there were lights on in the second residence. They went to the south side of 3936½ and looked through the window. Deputy Moore knew he was on private property at this point. Although the blinds were pulled, Deputy Moore, by putting his face close to the window, was able to see two males sitting on a bed.² To get a better view, he went to a window on the west side of the house located in the carport. Again the blinds were pulled on this window; however, Deputy Moore was able to see that the two males sitting on the bed were loading and smoking a pipe with a white substance taken from a metal container.³ Believing that he was witnessing the illegal use of a controlled substance, specifically methamphetamine, Deputy Moore conferred with Deputy Osborne and they decided that there were exigent circumstances because they did not know how much evidence was there. While Deputy Osborne remained at the window to watch the two men, Deputy Moore went to the front door and knocked.

[¶ 4.] Jennifer Mink opened the front door to Deputy Moore. He pushed his way into the house, proceeding to the back bedroom. Deputy Smith followed. Once in the bedroom, the deputies apprehended and restrained the two men, later identified as the defendant Jacob Hess and Tuan Nguyen. Having observed the men from the window, Deputy Osborne indicated that one of them had shoved the metal container underneath the bed. Deputy Moore reached under the bed and pulled out the open metal container. It contained three snort tubes, plastic baggies with a white substance, a couple of vials containing a white substance, razor blades, and a green bag containing a pill. An initial field test showed that the white substance was methamphetamine. Later laboratory tests confirmed the analysis.

[¶ 5.] Upon further investigation, the deputies learned that Jennifer Mink and Jennifer Wright were the persons who lived at the residence. They also discovered that they were not at 3936 Canyon Lake Drive, but at 3936½ Monte Vista. Deputy Sergeant Verchio arrived on the scene after Jennifer Mink requested to speak with a supervisor. He obtained Jennifer Wright's permission to continue to search her bedroom, the room where the defendant had been seen using the methamphetamine. Shortly thereafter, the deputies found a scale and a large white rock substance under the bed.

[¶ 6.] Jennifer Wright later testified that Hess had been at the residence all afternoon, that they had left only to go to dinner, and that they had returned to the residence after dinner. At approximately 10:50 p.m., when the deputies arrived, no definite plans had been made on whether Hess was to spend the night. The group had planned to go out to the bars and it was a possibility that Hess would spend the night in the apartment. Jennifer Wright disclosed that she and Hess had an intimate relationship, that he had been at the residence numerous times before March 6, 2002, and that they had previously spent the night there together.

[¶ 7.] Hess was charged with possession of a controlled substance in violation of SDCL 22-42-5, a class four felony, and inhalation of a substance as defined in SDCL 35-1-1 for the purpose of becoming intoxicated in violation of SDCL 22-42-15, a class one misdemeanor. In circuit court, he moved to suppress the evidence seized, asserting violations of his state and federal constitutional rights. The trial court denied the motion. The court concluded that Hess had no standing to challenge the search because he lacked any reasonable expectation of privacy, since he was not an overnight guest on that occasion. Alternatively, the court found that, even if Hess had a reasonable expectation of privacy, the officers' actions "in approaching the poorly marked residence and peering inside to determine whether Corey Thomas [the arrestee] was present was done in good faith and was objectively reasonable." The court then concluded, "once the officers saw the use of controlled substances, they had exigent circumstances sufficient to enter the residence and secure the situation." Lastly, the court ruled that Wright's consent was sufficient to allow a continued search of her bedroom. After a stipulated court trial, Hess was found guilty of possession of a controlled substance. He was sentenced to a suspended four-year term in the penitentiary and placed on intensive probation. In addition, he was ordered to serve 180 days in the county jail with work release. The State dismissed the charge of inhaling a substance.

[¶ 8.] On appeal, Hess asserts the following: (1) "The trial court erred in finding that Hess did not have a legitimate expectation of privacy in the home of Wright and Mink to challenge the legality of the deputies' warrantless search and subsequent warrantless entry and search of that home." (2) "The trial court erred in not finding that the deputies' observations through the window of the home of Wright and Mink constituted a search that was in violation of Hess's Fourth Amendment right against unreasonable searches and seizures." (3) "The trial court erred in finding that exigent circumstances did exist justifying the deputies' failure to obtain a warrant before entering and searching the Wright and Mink home." (4) "The trial court erred in finding that the `good faith' exception to the exclusionary rule applied in the present case." (5) "The trial court erred in finding that the consent given by Wright to search her bedroom was valid."

Standard of Review

[¶ 9.] "A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review." State v. Herrmann, 2002 SD 119, ¶ 9, 652 N.W.2d 725, 728 (citations omitted). We review findings of fact under the clearly erroneous standard. State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. State v. Lamont, 2001 SD 92, ¶ 12, 631 N.W.2d 603, 607 (citation omitted). Whether police had a "lawful basis to conduct a warrantless search is reviewed as a question of law." Id. ¶ 12 (quoting State v. Sleep, 1999 SD 19, ¶ 6, 590 N.W.2d 235, 237 (citing State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993) (citation omitted))). Thus, the issue whether an exception to the warrant requirement applies is reviewed de novo.

Analysis and Decision

Expectation of Privacy

[¶ 10.] Hess asserts that the deputies violated his constitutional protections against unreasonable searches and seizures when they conducted a warrantless search of his girlfriend's apartment and therefore all evidence obtained as a result of the search must be suppressed. Before we consider the validity of the...