State v. Labine

• Decision Date: 02 May 2007
• Docket Number: No. 24202.,24202.
• Citation: 2007 SD 48,733 N.W.2d 265
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Travis LABINE, Defendant and Appellee.
• Court: South Dakota Supreme Court

733 N.W.2d 265

2007 SD 48

STATE of South Dakota, Plaintiff and Appellant, v. Travis LABINE, Defendant and Appellee.

No. 24202.

Supreme Court of South Dakota.

Considered on Briefs March 19, 2007.

Decided May 2, 2007.

Lawrence E. Long, Attorney General, Steven Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

G. Matthew Pike, Lawrence County, Public Defender's Office, Deadwood, South Dakota, Attorney for defendant and appellee.

SABERS, Justice.

[¶ 1.] Travis Labine (Labine) was indicted for possession of marijuana in a moving vehicle. After a magistrate judge granted Labine's motion to suppress, the State petitioned for a discretionary appeal, which we granted. We affirm.

FACTS

[¶ 2.] On March 29, 2006, the Spearfish Police Department was conducting a school zone speed saturation patrol near Jackson Boulevard and 10th Street in Spearfish, South Dakota. The officers were conducting this operation on foot, their patrol cars parked some distance away. One officer would radar the speeding car and relay the information to a second officer, who would flag down the speeding vehicle and issue a citation. It was during this operation that the officers clocked a blue Cadillac going thirty-nine miles per hour in the fifteen miles per hour school zone. Labine was a passenger in this vehicle.

[¶ 3.] Officer Matthew Symonds (Officer Symonds) signaled to the Cadillac to pull over. Officer Symonds made contact with the driver, obtained his information from his driver's license, and began issuing a citation for speeding. He did not smell any illegal substances at this time. During this time, South Dakota Highway Patrolman Brian Swets (Trooper Swets) parked his squad car near the other police vehicles and approached the blue Cadillac. According to his testimony at the suppression hearing, he did not stop because he witnessed any criminal activity, nor was he summoned to the scene by the other officers. He testified he was passing by and stopped to visit.

[¶ 4.] At this point, the testimony of Trooper Swets and Officer Symonds diverges. Trooper Swets testified that he noticed the blue Cadillac had illegal mirrorized tint on its windows. As he approached the vehicle, he asked Officer Symonds if that violation had been addressed. When Officer Symonds informed him that it had not, he asked Officer Symonds if it would be okay if he talked with the occupants of the vehicle about it. However, Officer Symonds testified that Trooper Swets did not speak with him prior to talking to the vehicle occupants. Instead, Trooper Swets went directly to the passenger side and began speaking with the occupants.

[¶ 5.] When Trooper Swets approached the vehicle, he claimed he smelled the odor of burnt marijuana and alcohol. According to Trooper Swets' and Labine's testimony, he asked whether there was any reason why his narcotics detection dog would smell the odor of an illegal drug coming from the vehicle, even though the drug dog was in his vehicle a half a block away.¹ Furthermore, he smelled alcohol emanating from Labine, so he asked him to step out of the car and to see his identification.

[¶ 6.] Labine appeared nervous to both Trooper Swets and Officer Symonds. When questioned, Labine informed the officers that he was out on bond. Labine was asked if he had any illegal drugs on his person, to which he replied no [¶ 7.] Here again, Officer Symonds' and Trooper Swets' testimony differs. Trooper Swets claims he asked Labine for consent "to search his person," and according to Trooper Swets, Labine consented to the search of his person. Labine was informed by Officer Swets that "he didn't have to allow [[a] search [of] his person], and he could deny [the] search if he chose to do so." According to Trooper Swets, Labine consented again. Trooper Swets immediately went to Labine's pockets, felt outside the pocket for any sharp objects and then pulled out a baggie from within the pocket containing less than two ounces of marijuana.

[¶ 8.] Officer Symonds testified that Labine and Trooper Swets were at the rear of the vehicle so he heard the conversation between them. According to Officer Symonds, Trooper Swets asked numerous times, "It's all right if I pat you down?" He also testified that the pat-down Trooper Swets conducted was "more in depth" than the pat-down search he was trained to conduct.

[¶ 9.] Similarly, Labine stated that Trooper Swets asked if he could "pat-down your person." According to Labine, Trooper Swets asked if he could conduct a "pat-down" twice. Furthermore, he thought he was consenting to nothing more than a pat-down for weapons.

[¶ 10.] After the suppression hearing, the magistrate suppressed the evidence. In its memorandum opinion, it explained that it "struggles because based upon Trooper Swets testimony he acted completely within the scope of the law. However, consideration of the testimony of the other witnesses gives the Court reasonable doubt." The court decided the State did not meet its burden of proof and ruled that all evidence "seized from a pat-down search not prompted by a reasonable belief of present danger should be suppressed."

[¶ 11.] The State made a motion to reconsider, but the magistrate suppressed the evidence. The State proposed findings of fact and conclusions of law, which were rejected. The magistrate then issued findings of fact and conclusions of law, which did not expressly incorporate the memorandum opinion. Thereafter, the State petitioned this Court for permission to take a discretionary appeal. The petition listed four issues.² We granted the petition, and the State appealed the following issues:

1. Whether the trial court erred in applying the wrong standard to determine if Labine consented to a search of his person.

2. Whether the trial court erred in its application of the exclusionary rule.

STANDARD OF REVIEW

[¶ 12.] Our standard of review on suppression cases is well settled,

A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. We review findings of fact under the clearly erroneous standard. Once the facts have been determined however, the application of a legal standard to those facts is a question of law reviewed de novo.

State v. Sweedland, 2006 SD 77, ¶ 12, 721 N.W.2d 409, 412 (citing State v. Chavez, 2003 SD 93, ¶ 13, 668 N.W.2d 89, 95) (additional citations omitted).

[¶ 13.] The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.³

This prohibition generally means a warrant must be issued before an individual may be subject to a search or seizure. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968); State v. Ballard, 2000 SD 134, ¶ 10, 617 N.W.2d 837, 840. However, there are exceptions to the general warrant requirement including, as argued in this case, consent. See State v. McGarrett, 535 N.W.2d 765, 767 (S.D.1995) (noting that "once a person consents to a search, probable cause is no longer necessary"); see also Sweedland, 2006 SD 77, ¶ 13, 721 N.W.2d at 412-13 (noting the automobile exception); State v. Swalve, 2005 SD 17, ¶ 36, 692 N.W.2d 794, 803 (discussing the independent source doctrine); State v. Sorensen, 2004 SD 108, ¶ 8, 688 N.W.2d 193, 196 n. 4 (discussing the good faith exception); State v. Raveydts, 2004 SD 134, ¶ 19, 691 N.W.2d 290, 296 (Sabers, J., concurring specially) (listing exceptions to warrant requirement including consent, exigent circumstances, search incident to arrest, and protective sweeps).

[¶ 14.] "[L]aw enforcement is afforded no deference when relying on an exception to" the warrant requirement. Sweedland, 2006 SD 77, ¶ 14, 721 N.W.2d at 413 (citing Raveydts, 2004 SD 134, ¶ 8, 691 N.W.2d at 293; State v. Luxem, 324 N.W.2d 273, 279 (S.D.1982)). Furthermore, the State has the heavy burden of proving a warrantless search meets an exception to the warrant requirement. Id. In this case, the State has the burden to show by a preponderance of the evidence that consent was voluntarily given. See State v. Akuba, 2004 SD 94, ¶ 13, 686 N.W.2d 406, 412-13. In order to determine if consent was voluntary, we look at the totality of the circumstances. Id. ¶ 25.

[¶ 15.] The State's first argument in this case is that the magistrate court held the State to a higher burden than preponderance of the evidence. In its memorandum opinion, the court stated that "the testimony of other witnesses gives the court reasonable doubt. As such the Court finds the State has not met its burden of proof." According to the State, the trial court's "erroneous view of the applicable law" requires reversal.

[¶ 16.] However, the magistrate's memorandum opinion is not incorporated into its findings of fact and conclusions of law. The specific findings of fact and conclusions "supersede the memorandum and articulate the trial court's final and determinative thoughts. . . ." State v. Tapio, 459 N.W.2d 406, 410 (S.D.1990). "[I]t is settled law that we do not review the trial court's memorandum opinion unless the same is expressly incorporated in the trial court's findings of fact and conclusions of law." Linard v. Hershey, 516 N.W.2d 304, 305 (S.D.1994) (quoting Olson v. Olson, 438 N.W.2d 544, 547 (S.D.1989) (additional citations omitted)). Since the memorandum was not incorporated, and cannot be used, our review is limited to the findings of facts and conclusions of law.

[¶ 17.] The State also argues the trial court erred because the findings and conclusions do not explain what standard was utilized. The absence in the conclusions of the legal standard used does not require...