State v. Kottman

• Decision Date: 22 November 2005
• Docket Number: No. 23443.,23443.
• Citation: 707 N.W.2d 114,2005 SD 116
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Michael Joseph Christopher KOTTMAN, Defendant and Appellant.
• Court: South Dakota Supreme Court

707 N.W.2d 114

2005 SD 116

STATE of South Dakota, Plaintiff and Appellee, v. Michael Joseph Christopher KOTTMAN, Defendant and Appellant.

No. 23443.

Supreme Court of South Dakota.

Argued On October 3, 2005.

Decided November 22, 2005.

COPYRIGHT MATERIAL OMITTED

Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

John R. Hinrichs, Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] As a condition of his release on parole, defendant signed a waiver allowing warrantless searches of his home and person by parole agents or law enforcement officers, whenever a reasonable suspicion arose that he was violating a condition of his parole. Sioux Falls police suspected defendant in a burglary that appeared to have been an "inside job." Defendant had recently been fired from the burglarized business. Because the officers knew defendant had signed a waiver, they searched his home without a warrant. They found a methamphetamine pipe, and defendant was charged and convicted of possession of a controlled substance. In this appeal, defendant contends that the warrantless search was illegal, and even if his waiver allowed for this type of search, there was still no reasonable suspicion to justify it. We affirm.

Background

[¶ 2.] Defendant, Michael J. Kottman, signed a supervision agreement in 2000, allowing a parole agent to search his "person, property, place of residence, vehicle and personal effects" when "reasonable cause is ascertained." (emphasis added). Then in 2002, as a result of the United States Supreme Court decision in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the South Dakota Department of Corrections amended the terms of the waiver condition in South Dakota parole agreements. First, reasonable cause was changed to reasonable suspicion, and, second, both parole agents and law enforcement officers were permitted to conduct warrantless searches.¹ Kottman signed his new parole supervision agreement on March 6, 2002.

[¶ 3.] On November 16, 2003, the security alarm went off at Empire Plastics, a Sioux Falls business. The alarm sounded at 2:52 p.m., and two Sioux Falls police officers arrived four minutes later. Officers Kurtis Daughters and Travis Olsen noticed a broken exterior window. They contacted the business owner, Doug Edwards, and foreman, Nick Swier, who assisted them in examining the premises. The owner, Edwards, identified the location of the motion sensors and indicated that only one had been activated. He also told the officers that nothing seemed out of place and that the only thing missing was "the metal cash box, which contained between $200 and $300, and which had been kept inside a back office closet." Because the business had multiple motion sensors and only one was activated and also because the cash box was in the closet of an interior office, where there were no motion sensors, Edwards told the officers that the "intruder must have had knowledge of the layout of the building, and about where this cash box had been stored."

[¶ 4.] Other officers joined Daughters and Olsen and assisted in the remainder of the search of Empire Plastics. After the search, Officer Daughters asked Edwards if he had any suspects in mind. Edwards responded that he had a good relationship with all his past and current employees except one, Michael Kottman. Edwards said that he had fired Kottman just five days earlier and that Kottman knew where the cash box was located because he had recently stocked the storage room. Thereafter, Daughters spoke with the foreman, Swier, who indicated that Kottman had worked for Empire Plastics for only two weeks. In addition, he "emphasized that [Kottman] had even said that he had a `methamphetamine problem' and that he `was a user.'"

[¶ 5.] In response to this information, Daughters went to his squad car and performed a preliminary background check on Kottman. The check revealed that Kottman was on parole and had previously been convicted of four burglaries and other theft crimes. When Daughters attempted to contact Kottman's parole agent, he was unable to reach him and instead spoke with another parole agent, John Schultz. During this conversation, Daughters confirmed that Kottman was on parole for burglary and theft convictions and as a condition of parole he had signed a search and seizure waiver. Then Daughters obtained the address Kottman reported as his residence and informed Schultz that he planned to "go to Kottman's residence and conduct a warrantless search of the premises and his vehicles." Because Daughters was familiar with the waiver provision in the parole supervision agreements, he did not obtain a copy of Kottman's agreement before conducting the search.

[¶ 6.] When the officers arrived at Kottman's home, his girlfriend, Shannon Weiss, let them inside, and then she went downstairs to get Kottman, who was showering. Thereafter, the officers explained to Kottman that they suspected him of burglarizing Empire Plastics and that they would be searching his home and vehicles. "Daughters began his search of the premises by going downstairs first to the basement section of [Kottman's] split-level home, which had four floors." He noticed that the shower had recently been used and that a pile of clothes were on the floor in the north-east bedroom. While in the bedroom, Daughters also noticed a "karate-type shirt" located about two feet from the pile of clothes and it was "nicely rolled up." When he picked up the shirt, a glass methamphetamine pipe containing "a white powdery residue" rolled out onto the carpet. Daughters concluded that the bathroom and bedroom he had just searched belonged to Kottman, who was upstairs waiting with Officer Mike Iverson.

[¶ 7.] During the officers' search of the remainder of the home and all the vehicles, they did not find any other drugs or paraphernalia. However, they found and seized several items as possible evidence connecting Kottman to the burglary.² Kottman was thereafter charged with possession of methamphetamine and he moved to suppress the evidence because the officers did not have a warrant and there were no "exigent circumstances necessitating their entrance and search of [Kottman's] home." Kottman also claimed that the officers did not have enough information to conclude with reasonable suspicion that Kottman burglarized Empire Plastics.

[¶ 8.] His motion was denied, and, after a jury trial, he was convicted of possession of a controlled substance. Kottman appeals, claiming (1) the warrantless search of his home was illegal because it violated his Fourth Amendment right to be free from unreasonable searches and seizures, (2) the United States Supreme Court case, U.S. v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), does not apply and does not make this search reasonable because it violated the "stalking horse doctrine," and (3) if Knights applies, the search was illegal because reasonable suspicion did not exist.

Standard of Review

[¶ 9.] "`A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review.'" State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Herrmann, 2002 SD 119, ¶ 9, 652 N.W.2d 725, 728). The circuit court's application of a legal standard is also reviewed de novo, while its factual findings are reviewed under the clearly erroneous standard. Id.; State v. Ballard, 2000 SD 134, ¶ 9, 617 N.W.2d 837, 840 (citations omitted).

Analysis and Decision

[¶ 10.] Even though Kottman maintains that the officers needed a warrant to enter his home or that the entry without a warrant must have been supported by exigent circumstances, Kottman sacrificed substantial Fourth Amendment rights when he signed the supervision agreement as a condition of his parole. The constitutionality of these conditional waivers has previously been upheld by this Court. See State v. Ashley, 459 N.W.2d 828, 830 n. 1 (S.D. 1990); State v. Cummings, 262 N.W.2d 56, 61 (S.D.1978). Specifically, we recognized that "[a] probationer's expectations of privacy are less than those of the average citizen, and a condition of probation such as that imposed in [a conditional waiver] does not run afoul of [a probationer's] Fourth Amendment rights."³ Cummings, 262 N.W.2d at 61. Thus, the mere fact the officers searched Kottman's home without a warrant or exigent circumstances does not mean his Fourth Amendment rights were violated.

[¶ 11.] Nevertheless, Kottman insists that the existence of this conditional waiver does not negate the officers' violation of the stalking horse doctrine, which "prevents law enforcement officers from unfairly exploiting search and seizure waivers in probation and parole agreements to skirt Fourth Amendment rights." Kottman cites Ashley, where we adopted the stalking horse doctrine. 459 N.W.2d at 830. In further support, Kottman requests that we apply decisions from the District Court of South Dakota and Eighth Circuit Court of Appeals, which also recognized the doctrine. See United States v. Scott, 945 F.Supp. 205, 209 (D.S.D.1996) (stating "searches must be used for rehabilitative and security purposes and not as a mechanism for solving crimes and circumventing the proscriptions of the Fourth Amendment"); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.1997) (invalidating a parole search that was "nothing more than a ruse for a police investigation").

[¶ 12.] In response, the State asserts that "the United States Supreme Court's analysis in U.S. v. Knights supersedes Ashley." In Knights, the defendant signed a probationary agreement with waiver language almost identical to Kottman's supervision agreement. See 534 U.S. at 114, 122 S.Ct. at 589, 151 L.Ed.2d 497. Similar to Kottman's contention here, the...