State v. Jackson, 21014.

CourtSupreme Court of South Dakota
Citation2000 SD 113,616 N.W.2d 412
Docket NumberNo. 21014.,21014.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Dawn JACKSON, Defendant and Appellant.
Decision Date23 August 2000

616 N.W.2d 412
2000 SD 113

STATE of South Dakota, Plaintiff and Appellee,
Dawn JACKSON, Defendant and Appellant

No. 21014.

Supreme Court of South Dakota.

Argued January 11, 2000.

Decided August 23, 2000.

616 N.W.2d 414
Mark Barnett, Attorney General, Timothy G. Bartlett, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee

John R. Murphy, Rapid City, South Dakota, Attorney for defendant and appellant.


[¶ 1.] Dawn Jackson sought admittance to a house while it was being searched under the authority of an "all persons" search warrant. She was searched and officers found illegal substances in her purse. Her motion to suppress was denied and she was convicted of drug offenses. We must decide if the affidavit in support of the search warrant was adequate to show probable cause for the issuance of an "all persons" warrant. We conclude that as applied to Jackson the warrant was valid because she sought entry to a private house at night while it was being lawfully searched, and the warrant's inclusion of all persons arriving at the residence during the search was not overbroad in view of the occupants' history of illicit drug activity.


[¶ 2.] During a traffic stop on September 30, 1998, South Dakota Highway Patrol troopers discovered a small amount of methamphetamine in the motorist's vehicle. Chad Evans, a Division of Criminal Investigations special agent, was called to the scene to interview the driver. Evans learned that the driver had purchased the methamphetamine from a person named Scott Mallula the previous day, at Mallula's residence in Rapid City. The driver also told Evans that he had known Mallula for about four years and that he had purchased methamphetamine from him on six other occasions. He described for the officers where Mallula currently lived, and accompanied them to identify the residence at 105 E. Monroe Street as Mallula's house. The driver, now informant, agreed to try to make a controlled methamphetamine purchase from Mallula at the residence. He was successful, buying one gram of methamphetamine for $100.

[¶ 3.] The following day, Evans sought a search warrant to search the residence where Mallula and his girlfriend, Bobbie Maurer, lived. The affidavit supporting the warrant set out, among others, the following facts:

(1) On April 9-10, 1997, Evans assisted in a consent search of Mallula and Maurer's residence at 4003 Sunset Drive, Rapid City, where residue amounts of methamphetamine and marijuana, drug paraphernalia, and what appeared to be documentation of drug activity were found.
(2) On January 1, 1998, Evans executed a search warrant at the then current residence of Mallula and Maurer, at 220 Federal Avenue, Rapid City, where he found residue amounts of methamphetamine and marijuana, drug paraphernalia, and what appeared to be documentation of drug activity, including drug transactions and money accounts.
(3) On September 30, 1998, the informant was found to be in possession of a
616 N.W.2d 415
small amount of methamphetamine during a traffic stop.
(4) The informant told Evans he had purchased the methamphetamine in his possession from Mallula at Mallula's residence the previous day, and that he has known Mallula for approximately four years and had bought methamphetamine from him about six times.
(5) The informant pointed out Mallula and Maurer's residence at 105 E. Monroe Street; he identified the automobile parked there as owned by the couple and also pointed out a former residence of the couple—information which was confirmed.
(6) The informant made a controlled purchase of a gram of methamphetamine at the residence using previously recorded DCI funds.
(7) Evans was not aware of ever meeting the informant before; the informant told Evans he had been released from the South Dakota State Penitentiary earlier in the year and wanted to cooperate in an effort to not be sent back to prison; no deal was made, but Evans told the informant that the informant's cooperation would be made known to the prosecutor.

[¶ 4.] Evans also added a number of opinions based upon his training and experience:

(1) Individuals who possess controlled substances often sell them to support their habit and to make a profit.
(2) Individuals who possess or distribute marijuana and/or other controlled substances also often possess or distribute other controlled substances.
(3) Individuals who possess or distribute drugs often possess drug paraphernalia.
(4) Individuals who distribute controlled substances often keep records of the transactions; possess firearms to protect themselves and to deter law enforcement; and use vehicles to both transport and store the drugs, paraphernalia, and proceeds.
(5) Individuals who occupy homes where controlled substances are stored often have those substances on them.

[¶ 5.] Based on this affidavit, a circuit judge issued a search warrant on October 1, 1998. It authorized the search of the dwelling, all outbuildings at the residence, the vehicle belonging to the couple, the persons of Mallula and Maurer, all persons at the residence when the warrant is executed as well as the vehicles driven by those individuals "if they are parked in the vicinity of the residence," and "[a]ll persons arriving at this residence during the execution of the search warrant and the vehicles that they arrive in." The warrant ordered a search for controlled substances, marijuana, drug paraphernalia, records relating to distribution of drugs, firearms, and U.S. currency, as well as blood and urine samples from Mallula and Maurer. The court allowed the warrant to be executed without notice at any time of the day or night.

[¶ 6.] That same evening, beginning at 8:30 p.m., the warrant was executed. While the search was proceeding, Jackson and a friend arrived at the residence. They knocked at the door and were greeted by DCI agents. As authorized by the warrant, the two were then searched, including their purses. The agents found a small amount of marijuana, a snort tube, and a quarter gram of amphetamine in Jackson's purse. She was charged with possession of a controlled substance, in violation of SDCL 22-42-5; possession of two ounces or less of marijuana, in violation of SDCL 22-42-6; and possession of drug paraphernalia, in violation of SDCL 22-42A-3.

[¶ 7.] Jackson moved to suppress. Her motion was denied. She was convicted of all three charges against her and was sentenced to four years in the South Dakota State Penitentiary. She now appeals, challenging the sufficiency of the affidavit in support of the search warrant, and questioning whether the court erred in considering new information at the suppression

616 N.W.2d 416
hearing not supplied at the time the search warrant was sought

Standard of Review

[¶ 8.] Although our standard of review is highly deferential, we do not examine challenges to the sufficiency of search warrants under the abuse of discretion standard; rather, we review such challenges by looking at the totality of the circumstances to decide if there was at least a "substantial basis" for the issuing judge's finding of probable cause. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983) (citations omitted). Our inquiry is whether the information provided to the judge was sufficient for a "common sense" decision that there was a "fair probability" the evidence would be found on the persons or at the place to be searched. Id. Furthermore, we review the issuing judge's probable cause decision to grant a search warrant independently of the conclusion reached by the circuit court in the suppression hearing. See United States v. Hibbard, 963 F.2d 1100, 1101 (8th Cir. 1992); United States v. Anderson, 933 F.2d 612, 614 (8th Cir.1991).

[¶ 9.] Reviewing courts are not empowered to conduct an after-the-fact de novo probable cause determination; on the contrary, the issuing judge's legal basis for granting the warrant is examined with "great deference." Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547. "A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721, 727 (1984). Under the Gates standard, an "informant's reliability, veracity, and basis of knowledge are relevant considerations—but not independent, essential elements—in finding probable cause." United States v. Reivich, 793 F.2d 957, 959 (8th Cir.1986).

Analysis and Decision

1. Extraneous Evidence in Suppression Hearing

[¶ 10.] Jackson contends that during the hearings on the motion to suppress, the circuit court considered information that was not presented in Evans' affidavit. She characterizes this extraneous information as "highly inflammatory, prejudicial speculation." During these hearings, the court and counsel discussed various hypothetical circumstances encompassing the right to search persons arriving on the scene of a search being conducted with a search warrant. Whatever conclusions these remarks may have generated, they have no bearing on our independent review of the affidavit. Thus, Jackson's complaints in this respect are pointless.

[¶ 11.] "The determination of whether an affidavit in support of a search warrant shows probable cause for issuance of the warrant must be based upon an examination of the four corners of the affidavit." State v. Lodermeier, 481 N.W.2d 614, 622 (S.D.1992) (quoting State v. Iverson, 364 N.W.2d 518, 522 (S.D. 1985)); State v. Smith, 281 N.W.2d 430, 433 (S.D.1979). Reasonable inferences may be drawn from the information in the affidavit. Lodermeier, 481 N.W.2d at 622 (citing State v. Kaseman, 273 N.W.2d 716, 722-23 (S.D.1978)). When reviewing a judge's probable cause determination, the only evidence to be considered is what was before the judge at the time the application was made. Sm...

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