State v. Johnson

• Decision Date: 31 August 1993
• Docket Number: Nos. 18059,18060,s. 18059
• Citation: 509 N.W.2d 681
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Christine or Christy JOHNSON, aka Christy Carrow, Defendant and Appellant. STATE of South Dakota, Plaintiff and Appellee, v. Brent JOHNSON, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 681

509 N.W.2d 681

STATE of South Dakota, Plaintiff and Appellee, v. Christine or Christy JOHNSON, aka Christy Carrow, Defendant

and Appellant.

STATE of South Dakota, Plaintiff and Appellee, v. Brent JOHNSON, Defendant and Appellant.

Nos. 18059, 18060.

Supreme Court of South Dakota.

Considered on Briefs Aug. 31, 1993.

Decided Dec. 22, 1993.

Rehearing Granted Feb. 18, 1994.

Mark Barnett, Atty. Gen., Scott Bogue, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

James E. McCulloch, Minick and McCulloch, Vermillion, for appellant, Christine Johnson.

Wayne D. Groe, Stickney and Groe, Elk Point, for appellant, Brent Johnson.

SABERS, Justice.

As a result of a controlled delivery of drugs by DCI agents, Defendants were convicted of possession of drugs and appeal. We affirm.

Facts

On November 8, 1991, a United States Postal Service Express Mail package addressed to Christine Johnson (Christine), Rt 1 Box 12A, Beresford, South Dakota from Chris Davis (Davis) was inadvertently delivered to Citibank in Sioux Falls by post office personnel. The following day, Citibank personnel opened the package and discovered a "white powdery substance" inside. Sioux Falls police were notified. The substance, which weighed slightly more than two grams, field-tested positive for methamphetamine.

State Division of Criminal Investigation (DCI) agents decided to make a controlled delivery of the package to Christine. Agent Barry Mennenga (Mennenga) made up two fake bindles, each approximately one gram in weight (Exhibit 8). One of the bindles contained only inositol, a "cutting agent." The other bindle contained mostly inositol with a small amount of the methamphetamine.

After an unsuccessful attempt to deliver the package that day, DCI Agent John Dalziel (Dalziel) left a note at Christine and Brent Johnsons' mobile home indicating that the package would be delivered before 10:00 a.m., Tuesday, November 12, 1991.

Shortly before 10:00 a.m. on Tuesday, Dalziel, posing as a U.S. Postal Service employee delivered the package to the Johnsons' residence. Christine met Dalziel on the front porch of the mobile home. She identified herself and accepted the package containing the two bindles. Within seconds after Christine accepted the package, Dalziel arrested Christine for possession of methamphetamine and retrieved the package from her.

Christine went inside the mobile home to tell her husband, Brent Johnson (Brent), that she had been arrested. Dalziel accompanied her, carrying the package. DCI Agent Harvison (Harvison), who followed Christine and Dalziel into the mobile home, found and unloaded a shotgun lying inside the front door. Defendants refused to consent to a search of the mobile home. ¹

Christine was taken by Beresford police to the station. Dalziel placed the package in the trunk of his car and returned to Vermillion with Harvison to obtain a search warrant. Mennega and Officer Dave Gillespie stayed inside and secured the mobile home so that evidence was not destroyed while Dalziel and Harvison were obtaining the search warrant. Brent remained in the mobile home. After approximately 1 1/2 hours, Dalziel returned to the mobile home and executed the warrant.

Christine was found guilty of possession of methamphetamine and more than one pound of marijuana. Brent was found guilty of possession of more than one pound of marijuana. Defendants raise five issues on appeal. We affirm.

1. Search Warrant

Defendants filed Motions to Suppress the evidence obtained by the police in the search of their mobile home. According to Defendants, the failure to state in the affidavit that the package was no longer in the residence was a material omission which, if included, would have prevented the finding of probable cause upon which the search warrant was issued. The motions were denied.

"Our scope of review on a motion to suppress is whether the trial court abused its discretion. As to any factual determinations, our scope of review is the clearly erroneous standard. On appeal, this court must determine whether the trial court's findings are against the weight of the evidence." State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990) (citations omitted). "This court will overturn the trial court's decision to suppress or not to suppress if we find the trial court has exercised its discretion to an end or purpose not justified by, and clearly against reason and evidence." State v. Zachodni, 466 N.W.2d 624, 630 (S.D.1991) (citations omitted).

Defendants argue that the fruits of the search should be suppressed because the intentional omission of material facts in the affidavit invalidated the warrant. The claimed omission is the fact that the package containing methamphetamine was no longer at the Johnson residence. "The affidavit need only show facts sufficient to support a finding of probable cause. Therefore, omissions of other facts would not be misrepresentations unless they cast doubt on the existence of probable cause." United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980) (citations omitted). "The question then becomes whether the alleged omissions would cast doubt on the existence of probable cause." Brings Plenty, 459 N.W.2d at 401.

Probable cause justifying a search is present where the facts found by the court or the magistrate would lead a reasonable and prudent person to believe it fairly probable that a crime had been committed and that evidence relevant to the crime would be uncovered by the search. Although the evidence supporting a probable cause determination must be more than a bare suspicion, it need not establish proof beyond a reasonable doubt or even proof by preponderance.

Zachodni, 466 N.W.2d at 629 (citations omitted). In this instance, probable cause means reason to believe that contraband will be located on the premises when the search takes place. See generally United States v. Garcia, 882 F.2d 699, 703 (2nd Cir.1989) cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). See also State v. Baysinger, 470 N.W.2d 840 (S.D.1991); State v. Engel, 465 N.W.2d 787 (S.D.1991).

The omission of the fact that the package was no longer in the residence does not rise to the level of a misrepresentation because it does not "cast doubt on the existence of probable cause." Dennis, 625 F.2d at 791. The affidavit reported the interception of a package containing two grams of methamphetamine addressed to Christine Johnson and that she in fact received that package at the listed address. The accompanying letter established her knowledge that she would be receiving the package. A reasonable inference was that this was not an isolated incident and that the home contained other controlled substances, as well as incriminating evidence. Baysinger, 470 N.W.2d 840; Engel, 465 N.W.2d 787. Clearly, the affidavit together with the attached letter to Christine would lead a reasonable and prudent person to believe it fairly probable that contraband would be located in the home and that relevant evidence would be uncovered by the search. Id. Because the omitted fact was not material to a finding of probable cause, we need not consider whether its omission was intentional. Dennis, 625 F.2d at 792 (citation omitted).

Defendants also argue that the evidence seized during the search was tainted because the affidavit upon which the search warrant was issued contained fruits of an illegal entry into their home. While information that is the result of an illegal entry may not be used to obtain a search warrant by placing fruits of that entry in the search warrant affidavit, the statement "delivered to her residence" in the affidavit is not information obtained as a result of an illegal entry. The package was given to Christine outside the mobile home where she was arrested. The package was retrieved at that point and then taken into the mobile home by Dalziel, the arresting officer, only because Christine wanted to go back into the home to tell Brent that she had been arrested. The evidence was delivered and seized outside the home and was not the result of an illegal entry. While the affidavit states that the package was "delivered to her residence," which was true, the warrant in no way depended on observations made during the securing process. See State v. Habbena, 372 N.W.2d 450, 455 (S.D.1985) ("[T]he evidence in this case shows that the preparation of the affidavit was commenced prior to the securing and the information as to the address and the fact that the buy money and additional cocaine were present in the house was obtained from a third person outside the house and prior to the entry[.]"); See generally Segura v. United States, 468 U.S. 796, 814, 104 S.Ct. 3380, 3390, 82 L.Ed.2d 599, 614-15 (1984). ² Here, as in Habbena, the warrant arose from a legal source of information and therefore was valid. The evidence seized thereunder need not be suppressed. Habbena, 372 N.W.2d at 455-56.

Mennenga and Gillespie stayed inside the mobile home and secured it so that evidence was not destroyed while Dalziel and Harvison returned to Vermillion to obtain the search warrant. Conversations occurring inside the home during this time were taped and played for the jury during the trial. Defendants argue that the tape was inadmissible because it is the direct fruit of the illegal "securing" process. The securing process was not, however, illegal.

[S]ecuring a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents ....

[A]n entry in the absence of exigent circumstances is illegal.... [O]fficers who have probable cause and who are in the process of obtaining a warrant have no reason to enter the premises before the warrant issues, absent exigent circumstances which, of course, would justify the entry.

Segura, 468 U.S. at 810, 812, 104 S.Ct. at 3388, 3389, 82 L.Ed.2d at...