State v. Koehn

• Decision Date: 12 December 2001
• Docket Number: No. 21659.,21659.
• Citation: State v. Koehn, 2001 S.D. 144, 637 N.W.2d 723 (S.D. 2001)
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Michael KOEHN, Defendant and Appellant.
• Court: South Dakota Supreme Court

637 N.W.2d 723

2001 SD 144

STATE of South Dakota, Plaintiff and Appellee, v. Michael KOEHN, Defendant and Appellant.

No. 21659.

Supreme Court of South Dakota.

Argued April 25, 2001.

Reassigned August 24, 2001.

Decided December 12, 2001.

Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, for plaintiff and appellee.

Michael Abourezk of Abourezk Law Firm, Rapid City, for defendant and appellant.

KONENKAMP, Justice (on reassignment).

¶ 1 Defendant admitted to law enforcement officers that he had recently smoked marijuana. He consented to a urinalysis, which confirmed his marijuana use. Later, as the target of a drug investigation, he admitted under immunity before a grand jury that he used marijuana for medicinal purposes. Forewarned with this information, the prosecutor obtained an order prohibiting defendant from asserting a medicinal use defense at trial. The court denied defendant's motions to interrogate the prosecutor and to dismiss on the ground that the prosecution gained a tactical advantage with defendant's immunized testimony. Although the prosecutor used defendant's compelled testimony to forestall his medicinal use defense, we find no prejudice because such defense is not recognized in South Dakota.

A.

¶ 2 On July 31, 1998, along a local highway in Fall River County, law enforcement officers contrived a mock drug checkpoint. Positioned on the shoulder of the road, a large, lighted sign flashed the words "Drug Check Ahead — Drug Dogs in Use." Spotters hid in positions to observe vehicles going past the sign. At 4 p.m., a car approached the sign and stopped abruptly. It had one occupant. The driver reached toward the back of the vehicle, then made a throwing motion out the window. A spotter saw "an object skip across the road." The car pulled away from the sign. But it stopped again momentarily, the driver appearing to contemplate his next action. Then it drove off.

¶ 3 A short distance down the road, an officer pulled the car over after being alerted by radio to what the spotters had observed. Defendant, Dr. Michael Koehn, was the driver. After a brief conversation, Koehn was released. On the roadside where the object had been thrown, an agent found a small brown vial. A field test incorrectly registered negative for methamphetamine and positive for cocaine. Later, a chemist found that the vial contained a half-gram of methamphetamine.

¶ 4 On the same night, around midnight, four officers supplied with a search warrant went to Koehn's home. After explaining their presence, the agents requested that Koehn give them a urine sample. He responded, "OK, I can give you a sample of my urine." He asked what substance they were seeking to find. An officer said, "cocaine, controlled substance, methamphetamine." Koehn replied, "I don't use methamphetamine. Okay, but I did have a college buddy come out and visit me not so long ago and we smoked a joint."

¶ 5 Concerned that publicity might hurt his chances in his upcoming political campaign, Koehn asked if the presence of marijuana in his urine would result in charges. The chief investigator responded, "We're not gonna, you're not gonna be charged with anything like that, okay?" But a little later the investigator said, "Normally what we, what we do is if people have a little pot in their urine, you don't have any prior history or anything.... We don't charge that out and as a law enforcement officer I can't promise you that's gonna happen, you know, but...." After briefly speaking with his attorney wife, Koehn offered to give a blood sample to gain a faster result, but the officers thought a urine sample would be sufficient. At the state health lab, Koehn's urine tested negative for methamphetamine, but positive for marijuana.

¶ 6 A special prosecutor was appointed to handle Koehn's case. At the prosecutor's behest, Koehn was commanded to testify in a grand jury hearing. On two occasions in January 1999, he appeared before the grand jury and invoked his Fifth Amendment right against self-incrimination. The special prosecutor granted him use and derivative use immunity under SDCL 23A-14-29. Koehn was then compelled to testify about his marijuana use. He told the grand jury that he took marijuana medicinally for a condition he suffered. Later, the prosecutor moved the court to order discovery of any medical records that would "form the basis of any defense to be presented by the defendant." On the prosecutor's motion, the court prohibited Koehn from offering a medicinal use defense at trial.

¶ 7 Following further investigation, the grand jury indicted Koehn for possession of methamphetamine (SDCL 22-42-5), ingesting a substance to become intoxicated (SDCL 22-42-15), and possession of less than two ounces of marijuana (SDCL 22-42-6). The circuit court dismissed the indictment, however, when it was learned that the "chief investigator" and "others" were in attendance with the grand jury while the case was under consideration, a violation of SDCL 23A-5-11. Five months later, the special prosecutor filed a complaint against defendant, and later an information, charging him with the same offenses as in the former indictment.

¶ 8 At trial, Koehn was found guilty of possession of marijuana and not guilty of the other two charges. He was given a thirty-day jail sentence, suspended, and a fine of $250, plus court costs. He raises the following issues on appeal: (1) whether the state used his immunized testimony in violation of his constitutional rights; (2) whether his statements were obtained in violation of Miranda v. Arizona; (3) whether he voluntarily consented to the urine sample taken at his residence; and (4) whether the testing of his urine for THC (tetrahydrocannabinol) was outside the scope of the search warrant.¹

B.

Prosecutor's Use of Immunized Testimony

¶ 9 The Fifth Amendment prohibits the government from compelling people to testify against themselves. In upholding a federal use immunity statute, the United States Supreme Court explained the limits of Fifth Amendment protection:

The privilege [against self-incrimination] has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being forced to give testimony leading to the infliction of "penalties affixed to ... criminal acts." Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection.

Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212, reh'g denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972) (internal citations omitted). Any grant of immunity, the Court ruled, should leave the witness and the government "in substantially the same position as if the witness had claimed his privilege." Kastigar, 406 U.S. at 457, 458-59, 92 S.Ct. at 1663, 1664, 32 L.Ed.2d 212. Testimony compelled under a grant of immunity may not be used against the witness in any respect. Id., 406 U.S. at 453, 92 S.Ct. at 1661, 32 L.Ed.2d 212. Kastigar disallows any attempt to "obtain leads, names of witnesses, or other information not otherwise available that might result in a prosecution." Id., 406 U.S. at 459, 92 S.Ct. at 1664, 32 L.Ed.2d 212. The prosecutor's burden is to prove "that all of the evidence it proposes to use was derived from legitimate independent sources." Id., 406 U.S. at 461-62, 92 S.Ct. at 1665, 32 L.Ed.2d 212.

¶ 10 South Dakota's immunity statute is similar to the federal statute the Supreme Court considered in Kastigar. Our statute provides in part:

No testimony or other information compelled under an order or a grant of immunity, or any information directly or indirectly derived from such testimony, may be used against the witness in any criminal proceeding, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

SDCL 23A-14-29. As the parties agree that the Kastigar analysis applies here, we will examine how various federal courts interpret that decision. Because we are interpreting our own statute, however, we do not consider ourselves bound by any particular federal circuit's interpretation. Under Kastigar, a defendant "need only show that he or she testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence was derived from legitimate independent sources." Kastigar, 406 U.S. at 461-62,92 S.Ct. at 1665,32 L.Ed.2d 212. This burden imposes on the prosecution an "affirmative duty to prove that the evidence it proposes to use is derived from legitimate source[s] wholly independent of the compelled testimony." Kastigar, 406 U.S. at 460,92 S.Ct. at 1665,32 L.Ed.2d 212,citing Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). The prosecutor's burden must be established by a preponderance of the evidence. See John A. Darrow, White Collar Crime: Fifth Survey of Law— Immunity, 26 AmCrimLRev 1169, 1179 & n.62 (1989).

¶ 11 Although the most common time to hold a Kastigar hearing is before trial, a court may conduct the hearing before, during, or after trial, or in a combination these times. See United States v. De Diego, 511 F.2d 818, 823-24 (D.C.Cir.1975). Whether the prosecutor made use of immunized grand jury testimony is an issue of fact; accordingly, a court must make factual findings on the independent nature of the evidence. United States v. Rinalcli, 808 F.2d 1579, 1584 (D.C.Cir.1987). On review, the circuit court's findings will not be reversed unless they are clearly erroneous. United States v. Garrett, 849 F.2d 1141, 1142 (8th Cir.1988); United States v. Gallo, 863 F.2d 185, 190 (2d Cir.1988), cert. denied, 489 U.S. 1083, 109 S.Ct. 1539, 103 L.Ed.2d 843 (1989).

¶ 12 When a court concludes that a prosecutor improperly used immunized testimony given before a grand jury, generally the remedy for the violation is the...