State v. Madsen

Decision Date21 January 2009
Docket NumberNo. 24654.,24654.
Citation2009 SD 5,760 N.W.2d 370
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Harry L. MADSEN, Defendant and Appellant.
CourtSouth Dakota Supreme Court

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

Jack Der Hagopian, Sioux Falls, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Defendant was arrested and convicted for drug-related crimes using evidence seized by security guards at a hotel owned and operated by the Flandreau Santee Sioux Tribe. Defendant claimed the search violated either the Indian Civil Rights Act, or the Fourth Amendment, and that the evidence seized should be suppressed. The circuit court denied Defendant's motion to suppress the evidence. We reverse and remand.

FACTS

[¶ 2.] On January 12, 2007, the Defendant Harry L. Madsen (Madsen) rented a hotel suite at the Royal River Casino and Hotel in Flandreau, South Dakota. Madsen invited friends to his room including Benjamin Carter (Carter) and Matthew Leiss. The two friends were not registered guests of the hotel, did not have a key to the room, and were not staying overnight in the room.

[¶ 3.] The Royal River Casino Hotel is owned and operated by the Flandreau Santee Sioux Tribe.1 The tribe hires tribal members as security guards for the protection of casino and hotel assets, and watch for any unlawful activity or unruly behavior. Security guards carry company-owned and issued firearms, ammunition, and handcuffs while on duty, and follow the casino and hotel's internal procedures for reporting unusual situations to a security captain before summoning local law enforcement for criminal matters. Security guards do not have authority to conduct an arrest on tribal property, only to detain suspected violators until law enforcement arrives.

[¶ 4.] Shortly after midnight on January 13, 2007, security captain Robert Long Crow (Long Crow) received a report from two security guards who had been escorting a guest back to a room on the third floor. The security guards reported they could smell a "very strong odor of marijuana" emanating from a room on the third floor, which was subsequently identified as Madsen's suite. Long Crow, wearing his casino-issued uniform and firearm, exited the elevator on the third floor and detected a strong odor of raw marijuana. He could also hear male voices and the loud noise of a television coming from the suite. Long Crow approached the suite, stuck his nose up against the door, and determined that Madsen's suite was the source of the odor.

[¶ 5.] Long Crow, now in the company of two other security guards, placed his finger over the peephole and knocked on the door. Long Crow intended to gain access to the room first by ruse, and if entry was not permitted he intended to use a master key and a crash bar to open the door by force. Benjamin Carter (Carter) opened the door four or five inches and Long Crow told him of a non-existent noise complaint as a ruse to get Carter to open the door. Carter denied Long Crow entry and attempted to close the door. Long Crow had placed his foot over the threshold while speaking with Carter, and pushed the door back toward Carter. Carter then said "go ahead and come on in," and Long Crow and one of the security guards entered the living room of the hotel suite. The security guard made a sweep of the living room, while Long Crow walked toward what he thought at the time was a syringe but turned out to be a small screwdriver. During the security sweep, one of the guards discovered a marijuana bud the size of a quarter on the carpet next to a coffee table. The security guards did not search the bedroom or the bathroom, as the doors to these rooms were closed.

[¶ 6.] Long Crow and the security guards placed all three men in casino issued handcuffs and led them to the hotel lobby to await the arrival of local law enforcement. All three men denied being the registered guest during this time. Each claimed that they were a friend of the hotel guest and had intended to stay for a few hours before leaving.

[¶ 7.] Mike Eisenbarth (Eisenbarth) of the City of Flandreau Police Department arrived at the hotel lobby, and was informed of the circumstances of the detention. Eisenbarth was shown the marijuana bud. Eisenbarth then searched the three men before transferring them from the casino's handcuffs to police department handcuffs. While searching Madsen's pockets, Eisenbarth discovered six nine-millimeter pistol rounds and $2,500.00 in cash. Eisenbarth also obtained the driver's licenses of the three men and eventually was able to determine Madsen's identity and that the hotel suite was registered to Madsen.

[¶ 8.] Eisenbarth then filed an affidavit with the circuit court along with a request for a warrant to search Madsen's hotel suite and car. In the affidavit, Eisenbarth recounted Long Crow's report on the search of the room, stated his opinion that the item found by Long Crow and his staff was a marijuana bud, and recounted Eisenbarth's discovery of the cash and ammunition on Madsen. After a warrant issued, Eisenbarth searched Madsen's suite and discovered a bag that contained eight baggies of raw marijuana, two packets of methamphetamine, one spoon, four knives, and a Chinese throwing star. A search of Madsen's car revealed some hypodermic needles, a container of a suspicious white substance, and a bottle of pills without a prescription label. A urine sample collected from Madsen tested positive for cocaine, methamphetamine, and marijuana.

[¶ 9.] Madsen's pretrial motion to suppress all evidence collected by Eisenbarth was denied by the circuit court. Madsen's renewed motion to suppress was also denied. The circuit court found that the Indian Civil Rights Act applied to the matter, as the incident occurred in Indian country. The circuit court also found that the Royal River Casino and Hotel were owned by the Tribe, and operated either by the Tribe or under a third-party management contract. The circuit court then found that Long Crow and his security guards were acting as private citizens rather than as agents of the State or the Tribe when they conducted the search of Madsen's hotel suite. Finally, the circuit court concluded that the prohibition against unreasonable searches and seizures did not apply to Long Crow and his security guards given their status as private citizens. The circuit court did not make any findings concerning whether Carter was authorized to and willingly gave consent to the search of Madsen's hotel suite.

[¶ 10.] After a bench trial on the matter, Madsen was sentenced to two, concurrent, six-year sentences for possession of controlled substances (methamphetamine and cocaine); a three-year sentence for intent to distribute marijuana to be served consecutive to the controlled substance counts; a suspended thirty-day jail sentence for possession of marijuana; and a second suspended thirty-day jail sentence for ingesting substances. Madsen raises two issues on appeal:

1. Whether the circuit court erred by denying Madsen's motion to suppress and motion to reconsider based on its conclusion of law that the hotel security guards were not working as agents of State or Tribal law enforcement.

2. Whether the circuit court erred by not considering Madsen's motion to suppress and motion to reconsider based on Carter's inability to consent to a search of the hotel suite.

STANDARD OF REVIEW

[¶ 11.] A warrantless search conducted by the government, its officials and agents implicates a defendant's Fourth Amendment right. State v. Bowker, 2008 SD 61, ¶ 17, 754 N.W.2d 56, 62 (citing State v. Sweedland, 2006 SD 77, ¶¶ 12-13, 721 N.W.2d 409, 412). "The constitutional provisions prohibiting unreasonable searches and seizures only protect against action by the government, its officials and agents, and have no application to the wrongful or unauthorized acts of private individuals." State v. Cundy, 86 S.D. 766, 771, 201 N.W.2d 236, 239 (1972) (citing 79 C.J.S. Searches and Seizures § 5c, p.783). "This Court reviews the denial of a motion to suppress alleging a violation of a constitutionally protected right as a question of law by applying the de novo standard." Bowker, 2008 SD 61, ¶ 17, 754 N.W.2d at 62 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993); State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603)). However, the clearly erroneous standard is applied to the circuit court's findings of fact. Id.

ANALYSIS AND DECISION

[¶ 12.] 1. Whether the circuit court erred by denying Madsen's motion to suppress and motion to reconsider based on its conclusion of law that the hotel security guards were not working as agents of State or Tribal law enforcement.

[¶ 13.] Madsen argued below that the hotel security guards were agents of the Tribe and in that capacity were required to adhere to Fourth Amendment principals by virtue of the Indian Civil Rights Act, 25 U.S.C. § 1302(2). Madsen contended that violations of the reasonableness requirement in the Indian Civil Rights Act by hotel security guards required suppression of the marijuana bud seized in the hotel suite at the time of the original search. Madsen further contended all evidence subsequently discovered in the safety search of his person and under the search warrant obtained after the discovery of the marijuana bud was fruit of the poisonous tree and should have been excluded under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In the alternative, Madsen argued that the hotel security guards were acting as agents of the City of Flandreau Police Department, and thus their actions were limited by the constraints of the Fourth...

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