State v. Krebs, s. 17877

• Decision Date: 15 March 1993
• Docket Number: Nos. 17877,17882,s. 17877
• Citation: 504 N.W.2d 580
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Roger H. KREBS (# 17877) and Guy A. Davis (# 17882), Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 580

504 N.W.2d 580

STATE of South Dakota, Plaintiff and Appellee, v. Roger H. KREBS (# 17877) and Guy A. Davis (# 17882) Defendants and Appellants.

Nos. 17877, 17882.

Supreme Court of South Dakota.

Considered on Briefs March 15, 1993.

Decided Aug. 4, 1993.

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

Ron J. Volesky, Huron, for defendant and appellant Krebs.

Douglas E. Kludt, Churchill, Manolis, Freeman and Kludt, Huron, for defendant and appellant Davis.

WUEST, Justice.

Defendants Krebs and Davis were tried jointly for third-degree burglary, grand theft and possession of burglary tools with intent to commit burglary. Krebs was convicted on all three charges and Davis was convicted of grand theft and possession of burglary tools with intent to commit burglary. Each was represented by different counsel and each has filed a separate appeal. Since the facts and two of the issues are the same in both cases, we have consolidated the appeals for the purposes of this opinion.

Both Krebs and Davis claim the trial court erred in denying their separate motions to suppress certain evidence and by permitting the introduction of other acts evidence.

Davis claims the evidence was insufficient as a matter of law to support the judgment and therefore the trial court erred by denying his motions for acquittal. He also maintains the trial court erred in denying his motion for severance.

We affirm the trial court on all issues.

FACTS

On July 26, 1991, Madison Police Department Detective Jim Johnson received information concerning two males who were suspects in several burglaries in the Huron area. As a result of this information, Johnson prepared a bulletin for distribution to law enforcement officers in Madison. ¹ All of the law enforcement officers involved in this appeal received copies of the bulletin.

South Dakota Highway Patrol Trooper Roger Wermers (hereinafter Wermers) was on duty in Madison, South Dakota on July 27, 1991, at 12:35 A.M. At the local 7-11, Wermers saw a vehicle which fit the general description of the car and a man who resembled one of the men described in the police bulletin. Another male came out of the 7-11 and entered the car. Wermers followed the car to a residence in Madison where it stopped. Wermers parked behind it. The driver stayed in the vehicle while the passenger went into the residence. As Wermers approached the vehicle, he noticed an object dangling from the rear view mirror. The driver of the car identified himself as Roger Krebs and said his passenger was Guy Davis. Krebs told Wermers that he and Davis would be spending the night at the residence, the home of Davis' cousin. Wermers issued a warning ticket to Krebs because of the handcuffs dangling illegally from the rear view mirror. The passenger returned to the car as Wermers drove away.

Immediately after Wermers pulled away from the residence he made a radio request for assistance from the Madison Police Department because the vehicle and occupants fit the information in the bulletin. Madison Police Officers Rob Haug and Tom Spiering responded and met Wermers a block from the residence. While Wermers was meeting with the officers, Krebs drove away from the residence. Haug and Spiering followed in their police car.

As Haug and Spiering were following the vehicle, they radioed Wermers and asked whether he knew the name of the passenger. Wermers informed Haug and Spiering the passenger was Guy Davis. At about the same time, Wermers noticed Davis' name on the bulletin. With corroboration of the name in the flyer, Haug and Spiering stopped the vehicle which was now traveling east out of Madison on Highway 34. Wermers also went to that location.

Krebs and Davis were then asked if they would wait so that Sergeant Johnson could talk to them. They agreed to wait and stood behind their car.

Wermers asked Krebs, the owner of the car, if he could look in the car. Krebs asked: "What for?" Wermers responded there was something interesting underneath a pack of cigarettes on the front floor and he wanted to look through the car; he repeated that he wanted to look through the car. Krebs consented to the search provided he could watch. In the glove compartment, Wermers found a plastic baggie with white pills, a vial with black capsules and two rolls of unopened quarters. A map with pencil-marked lines, X's and circles over several central South Dakota towns was found on the passenger's side of the floor. One of the towns circled, Wessington Springs, was where the recently-burglarized Sunset Bar was located.

Davis identified the pills as his and informed the officers the drugs were ephedrine and caffeine--non-controlled substances. The officers believed they were illegal drugs.

After finding the pills, map and quarters, Wermers asked Krebs for permission to search the trunk of the vehicle. Krebs refused. Wermers then talked with Sergeant Johnson and Agent Dan Peterson, who had arrived at the scene. After being informed of what had been found in the interior of the vehicle during the search, Peterson asked Krebs to open the trunk. When Krebs refused to open the trunk, Peterson obtained the key and opened it. In the trunk officers discovered several nylon bags which contained clothing, a Beretta 9mm semiautomatic pistol, large amounts of money, several miniature whiskey bottles and a National Bank of Miller bank bag full of pennies. A crow bar, a tire iron and five screw drivers were also discovered in the trunk. Many of the items found matched articles reported stolen during the burglaries.

Krebs and Davis were then arrested by Sergeant Johnson on burglary-related charges.

ANALYSIS

I. MOTIONS FOR THE SUPPRESSION OF EVIDENCE SEIZED WERE PROPERLY DENIED.

Prior to the trial, both Krebs and Davis moved to suppress certain evidence claiming it was seized from the car as a result of an illegal search and seizure contrary to Article VI, Sec. 11 of the South Dakota Constitution and the Fourth Amendment to the United States Constitution. The trial court denied the motion. We affirm.

A. The stops of Krebs' vehicle.

The Fourth Amendment of the United States Constitution is implicated when a vehicle is stopped. The action constitutes a seizure even though the purpose of the stop is limited and the detention is brief. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). A passenger has standing to challenge the stop of a vehicle because a stop is a seizure of all persons in the vehicle. United States v. Erwin, 875 F.2d 268, 270 (10th Cir.1989).

Governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In accord with the Fourth Amendment, a police officer may not stop a vehicle without a reasonable basis for doing so. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The reasonable cause required to make a stop is less than the probable cause required to issue a warrant or make an arrest. Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882, 20 L.Ed.2d at 900-909. State v. Lownes, 499 N.W.2d 896, 898 (S.D.1993); State v. Anderson, 331 N.W.2d 568, 570 (S.D.1983) (citing Marben v. State, Dep't of Public Safety, 294 N.W.2d 697, 699 (Minn.1980)). The United States Supreme Court has articulated the following standard to evaluate the reasonableness of a stop in the absence of probable cause [W]hether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

Terry, 392 U.S. at 20, 88 S.Ct. at 879, 20 L.Ed.2d at 905. We have previously set forth the standard by which this court will measure the reasonableness of a stop of a vehicle:

[T]he factual basis required to support a stop for a "routine traffic check" is minimal.... All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion[.]"

Anderson, 331 N.W.2d at 570 (quoting People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 74, 330 N.E.2d 39, 44 (1975)); Lownes, 499 N.W.2d at 899.

The finder of fact is the exclusive judge of the credibility of witnesses. State v. Lingwall, 398 N.W.2d 745, 747 (S.D.1986). A trial court's factual findings resulting from a suppression hearing will be upheld unless clearly erroneous. State v. Smith, 477 N.W.2d 27, 31 (S.D.1991); State v. Pfaff, 456 N.W.2d 558, 560 (S.D.1990). Whether the facts, when taken together, add up to probable cause, is a different question. Smith, 477 N.W.2d at 31. The existence of probable cause is a question of law, fully reviewable de novo by this court. Id.; State v. Zachodni, 466 N.W.2d 624, 630 (S.D.1991).

1. The first stop as it relates to Davis.

Davis testified that the Krebs vehicle was driven from the 7-11 and parked at Davis' cousin's home; he stated: "We were going to that address anyway." The record shows the patrol car followed the vehicle from the 7-11 and, after it had stopped, parked behind Krebs' car. Davis testified he got out of the car and went inside the residence. Wermers then approached the vehicle. Davis stated he did not hear any conversation between Krebs and Wermers and that when he exited the residence, Wermers was pulling away.

Davis was not stopped, questioned, detained or seized in any manner in the first stop of Krebs' vehicle. He exited the car before Wermers approached the car and did not return until he was driving away. Davis has no standing to challenge the first stop of Krebs' vehicle.

2. The first stop as it relates to Krebs.

When Wermers saw Krebs and Davis in the vehicle at the 7-11, Wermers...