State v. Hirning, s. 20567

• Court: Supreme Court of South Dakota
• Writing for the Court: KONENKAMP
• Citation: 592 N.W.2d 600,1999 SD 53
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Milo Walter HIRNING, Defendant and Appellant. . Considered on Briefs
• Docket Number: Nos. 20567,20571,s. 20567
• Decision Date: 24 February 1999

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592 N.W.2d 600 1999 SD 53 STATE of South Dakota, Plaintiff and Appellee,
v.
Milo Walter HIRNING, Defendant and Appellant. Nos. 20567, 20571.
Supreme Court of South Dakota. Considered on Briefs Feb. 24, 1999.
Decided April 21, 1999.

Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for plaintiff and appellee.

Ramon A. Roubideaux, Rapid City, for defendant and appellant.

KONENKAMP, Justice.

¶1 Will probable cause exist to search a passenger when the driver admits to a highway patrol officer that drugs found in the car belong to all the occupants? As probable cause only requires reasonable, individualized suspicion, the all-encompassing admission, together with the other circumstances, created sufficient justification to search the passenger for drugs. We uphold the search and the resulting conviction for possession of methamphetamine.

Facts

¶2 On July 20, 1997, at 2:30 a.m., Denise and Billy Mills and defendant, Milo Hirning, were traveling on Highway 12, just east of Aberdeen. Denise drove while Billy sat in the front passenger seat. Hirning sat in back. Highway Patrol Officer Richard Pederson clocked their speed using radar at forty-eight miles per hour, well below the sixty-five mile per hour speed limit. With the odd hour and the car's unusually slow speed, Pederson became suspicious and decided to follow. Then, he noticed an object dangling from the rearview mirror, in violation of South Dakota law. See SDCL 32-15-6. He activated his emergency lights to pull the car over.

¶3 After the car stopped, Pederson directed his spotlight into the vehicle. He saw the passenger in front reaching underneath the seat. Concerned for his safety, Pederson approached the car on the passenger side. He noticed that both Denise and Billy were extremely nervous. Hirning appeared less nervous. Pederson asked Billy what he hid under the seat. Billy denied concealing anything, saying he was merely reaching for a cup, which he showed the trooper. Pederson then asked Denise for her driver's license. Denise began "nervously" searching through various tote bags in the car. Pederson later testified that her behavior made him more concerned for his safety.

¶4 At this point, Pederson had Billy step out of the car. Using a flashlight, the officer looked underneath the front passenger seat to find what Billy had concealed. He saw a clear brown container. Through the bottom of the container he could see a green leafy substance appearing to be marijuana. He opened it and saw, along with the green leafy material, a small vial containing a clear liquid and a dryer sheet wrapped around a substance having the appearance of methamphetamine. Pederson arrested Billy and placed him in the patrol vehicle.

¶5 Pederson then asked Denise, without first giving her Miranda warnings, if there were any other drugs in the car and to whom the drugs under the seat belonged. At that moment, she was not under arrest, according to Pederson, but she was not free to leave. She claimed there were no additional substances in the vehicle, and that the drugs the officer found "belonged to basically all of them." Denise was then arrested. Armed with the information about the ownership of the drugs, and based on the discovery of drugs in the car, Pederson went back to Hirning. He was asked to step out to be patted down. Pederson later admitted he was searching for drugs and weapons. At no time before the search did Hirning do or say anything to make Pederson suspect he was either armed or dangerous. During the patdown, Pederson felt a few very small bulges in one of Hirning's pockets. Not big enough to be weapons, the bulges, the trooper concluded, seemed to be "nothing major." Pederson then reached inside Hirning's pocket and pulled out four small baggies containing methamphetamine. Hirning was arrested. A later search of the vehicle uncovered drug paraphernalia, a .22 caliber pistol, ammunition, a "Kershaw" knife, and an M80 firecracker.

¶6 Hirning was indicted on possession of a controlled substance. Also, the State charged him as a habitual offender in a Part II information. Hirning moved to suppress the methamphetamine evidence. Judge Dobberpuhl denied Hirning's motion and later recused himself. On receiving the case, Judge Lovrien reconsidered the suppression

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issue on his own cognizance. He declared the search unconstitutional because the patdown went beyond a search for weapons and Pederson's reach into the pocket violated Hirning's Fourth Amendment rights. Nonetheless, the court held the evidence admissible under the inevitable discovery doctrine, as the methamphetamine would have been discovered eventually because Hirning was subject to search incident to arrest after Denise said the drugs in the car belonged to everyone.

¶7 By stipulation, Hirning was tried to the court on the following facts: (1) On July 20, 1997, Hirning was in Brown County; (2) he possessed methamphetamine in his pocket; (3) he knew the substance was methamphetamine when it was in his pocket; and, (4) he objected to the admission of this evidence and the issue was preserved for appeal. Hirning was convicted of possession of a controlled substance and of being a habitual offender. He was sentenced to ten years in the state penitentiary and ordered to pay a $3,000 fine, and costs. On appeal, Hirning challenges the search of his person as unconstitutional under the Fourth Amendment. By notice of review, the State asserts that the circuit court could have simply upheld the search as incident...