State v. Heumiller

• Decision Date: 17 November 1981
• Docket Number: No. 13445,13445
• Citation: 317 N.W.2d 126
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ernest H. HEUMILLER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 126

317 N.W.2d 126

STATE of South Dakota, Plaintiff and Appellee, v. Ernest H. HEUMILLER, Defendant and Appellant.

No. 13445.

Supreme Court of South Dakota.

Considered on Briefs Nov. 17, 1981.

Decided March 3, 1982.

Jeff Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

C. Joseph Neiles, Sioux Falls, for defendant and appellant.

FOSHEIM, Justice.

Ernest H. Heumiller appeals his conviction of aggravated assault. We affirm.

While Deputy Sheriff Mark Norris was patrolling near Bridgewater, South Dakota, about 8:45 p. m. on October 27, 1980, he observed, followed, and stopped a car weaving on the road. As Norris approached the stopped vehicle, appellant exited from the passenger side, and rapidly came towards him, while shouting obscenities. He then began pushing the deputy to prevent him from reaching the driver's side of the stopped car. He hit the officer on the side of the head with his fist. The deputy then returned to the patrol car and obtained his night stick. Ernest again threatened the deputy and Norris struck him in the stomach with his stick. Deputy Norris was then able to get around his assailant and approach the driver, the appellant's brother, who was then getting out of his car. Ernest again yelled at the deputy and went after him. As Ernest lunged, Officer Norris hit him on the leg and Ernest fell to the ground.

Appellant returned to the passenger side of their vehicle. Deputy Norris meanwhile administered a field sobriety test to the driver and arrested him for driving while intoxicated. Appellant again came out of the car--this time with a pump-type shotgun and said, "We are going to get rid of this F-Monkey--Now we got him, we are going to get rid of him." He shouldered the shotgun and pointed it at the deputy with his finger on the trigger, and said "we've got him now." While using the driver of the vehicle as a shield, Norris tried to reason with Ernest. As they approached the rear of the car, the appellant pointed the shotgun toward the ground. The deputy grabbed the gun with his right hand and they wrestled for it. Eventually Norris decided he could not overcome both antagonists and, out of fear the gun might discharge, he told Ernest he was going to let him go and back off, which he did. All parties then returned to their respective vehicles.

Appellant and his brother proceeded to drive to their farm. The deputy followed. At one point Ernest sat out of the car window and pointed the shotgun at the patrol car.

Upon arriving at the farm, Ernest Heumiller got out of the car, carrying the shotgun. He opened the gate, let his brother drive through, shut the gate, and returned to the car. They then drove to the farm house. Meanwhile, Deputy Norris had radioed for help and Deputy Sheriff Hartman arrived. Ernest and his brother got out of the car and the law enforcement officers, using the PA system, advised them not to enter the house. The appellant nevertheless entered the house with the shotgun. He immediately returned without the gun but left a light on in the kitchen. By this time Sheriff Taylor had arrived on the scene. The brothers then both came over to the gate and were arrested, searched, handcuffed, given their rights, and placed in the patrol car.

Sheriff Taylor and Deputy Norris then entered the house. No one else was seen in the house but two guns were found behind the kitchen door. Loaded shells were found in both the magazine and chamber of the gun seized and identified as the weapon used. The gun and shells were received in evidence.

The first question presented is whether the shotgun and shells taken in the warrantless search of appellant's home should have been suppressed as the fruits of an unreasonable search and seizure. It is appellee's position that exigent circumstances sufficient to justify the warrantless search under the "emergency doctrine" rendered the shotgun admissible evidence.

The Fourth Amendment to the United States Constitution, and Art. VI, Sec. 11, of the South Dakota Constitution, both grant the people the right to be secure in their persons, homes, papers, and effects against unreasonable searches and seizures. Accordingly, warrantless arrests and searches "are unconstitutional, unless there is a showing by those who seek exemption from the warrant requirement that their actions were reasonable, based on probable cause, and that the exigencies of the situation made the course imperative." State v. Max, 263 N.W.2d 685, 687 (S.D.1978).

Justice Marshall, writing for the United States Supreme Court recently stated in Steagald v. United States, 451 U.S. 204, 211-12, 101 S.Ct. 1642, 1647-48, 68 L.Ed.2d 38 (1981):

Except in such special situations, we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U.S. 573 [100 S.Ct. 1371, 63 L.Ed.2d 639] (1980); Johnson v. United States, 333 U.S. 10, 13-15 [68 S.Ct. 367, 368-370, 92 L.Ed. 436] (1948). Thus, as we recently observed: "[I]n terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, supra, [445 U.S.] at 590 . See Coolidge v. New Hampshire, 403 U.S. 443, 474-475, 477-478 [91 S.Ct. 2022, 2042-43, 2043-44, 29 L.Ed.2d 564] (1971); Jones v. United States, 357 U.S. 493, 497-498 [78 S.Ct. 1253, 1256-1257, 2 L.Ed.2d 1514] (1958); Agnello v. United States, 269 U.S. 20, 32-33 [46 S.Ct. 4, 6-7, 70 L.Ed. 145] (1925)

Thus, "an officer may legally search premises without a warrant under limited circumstances such as ... an emergency where there is no time to get a warrant and the situation demands immediate action[.]" State v. Cundy, 86 S.D. 766, 201 N.W.2d 236, 239 (1972); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

In State v. Max, supra, at 687, we set forth guidelines to consider when deciding whether exigent circumstances exist to justify a warrantless search. We noted that the "exigent circumstances doctrine is to be applied to the facts as perceived by the police at the time of entry, not as subsequently uncovered." We also note that a warrantless search must be " 'strictly circumscribed by the exigencies which justify its initiation.' " Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968)).

When these standards are applied, this search does not emerge as justified by any emergency or exigent circumstances. The officers were not in hot pursuit. Both appellant and his brother were handcuffed in the patrol car when the Sheriff and Deputy Norris entered the house.

Appellee argues that the search was nevertheless justified because the officers at the scene did not know if other people were in the house and in view of what had occurred, they properly entered the house and removed the gun to secure their safety. In Mincey v. Arizona, supra, 437 U.S. at 392, 98 S.Ct. at 2413, the United States Supreme Court said: "We do not question the right of the police to respond to emergency situations.... 'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.' " That argument, however, likewise fails for want of supporting facts as Deputy Norris searched only the kitchen, where he discovered two guns behind the door. He examined and seized one gun. The other gun was neither examined nor seized. This indicates the intrusion was motivated to get the shotgun for evidentiary purposes rather than for personal safety. Without more, the commission of a felony plus probable cause to believe evidence would be found within the house does not constitute exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citing Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970)). Neither may the search be upheld as incidental to an arrest as the arrests were made some 500 feet from the farm house. A search incident to an arrest must be substantially contemporaneous with, and confined to, the immediate vicinity of the arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (citing Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925)). Furthermore, that there may be some delay or inconvenience in getting a search warrant is not a valid reason for averting the constitutional requirements. McDonald v. United States, supra (citing Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948)).

Consequently, we conclude that the evidence obtained was the result of an unreasonable search and seizure.

Did then the introduction and receipt of that evidence at the trial constitute prejudicial error? SDCL 23A-44-14 defines harmless error as "[a]ny error, defect, irregularity or variance which does not affect substantial rights[.]" See also: State v. Branch, 298 N.W.2d 173 (S.D.1980). Even an error involving the denial of a constitutional right can be harmless, not requiring the automatic reversal of a conviction, provided the court is able to declare a belief beyond a reasonable doubt that it was harmless and did not contribute to the verdict obtained. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Accord: State v. Reiman, 284 N.W.2d 860 (S.D.1979); State v. Parker, 263 N.W.2d 679 (S.D.1978).

In Chapman, supra, the United States Supreme Court stated:

We are urged...