State v. McClendon
| Decision Date | 16 April 1936 |
| Docket Number | 7828. |
| Citation | 266 N.W. 672,64 S.D. 320 |
| Parties | STATE v. McCLENDON. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Davison County; R. C. Bakewell, Judge.
George McClendon was convicted of having burglary tools in his possession, and he appeals.
Reversed.
C. R Keister, of Mitchell, for appellant.
Walter Conway, Atty. Gen., and W. E. Weygint, Asst. Atty. Gen., for the State.
The state's attorney of Davison county filed an information against one George McClendon, charging him with the crime of having burglary tools in his possession, under section 4174 of the Revised Code of 1919. He was tried in circuit court found guilty and sentenced to a term of five years in the State Penitentiary. A motion for a new trial was denied, and the defendant has appealed from the judgment and order denying the motion for a new trial.
In due time, and before the opening of the trial, the appellant moved for the suppression of certain evidence held by the state, upon the grounds that the said evidence was obtained through an illegal search of the appellant's dwelling place. The facts upon which appellant based his motion for suppression, and which are amply disclosed and upheld by the record, are substantially as follows: Appellant's dwelling place was a room in a certain rooming house at No 104 Rowley street, Mitchell, S.D. Appellant had for several days rented said room, paying each day in advance, and on March 14, 1934, had paid the rental for said room for the following night and the next day. On the evening of March 14 1934, T. E. Callan, sheriff of Davison county, S. D., and A. L. Kirkpatrick, chief of police of Mitchell, S. D., came to said rooming house and asked to be admitted to the room of the appellant. E. L. Ellis, the proprietor of the rooming house, knowing the men to be officers, and thinking they had the right to enter appellant's room, unlocked the door and allowed them to enter said room. The officers searched the room and examined the property and effects of the appellant. After waiting approximately two hours, the officers departed. Later in the evening, one Leo Kirby, a police officer of the city of Mitchell, and who was known as such by Ellis, called at the rooming house and asked to be admitted to the appellant's room. Ellis allowed him to enter said room, and after searching it, Kirby returned to the dining room of the rooming house. There he sat down and awaited the return of appellant. At about 1 a. m. on the morning of March 15, 1934, appellant returned. Immediately after entering, appellant was arrested by Kirby. This arrest took place some twenty-five to thirty feet from the door of appellant's room, which was locked. Kirby and appellant left immediately after the arrest. About thirty minutes later, Kirby returned and asked to be again admitted to the appellant's room. Ellis, still believing that Kirby had the right to enter the room, unlocked the door and allowed Kirby to enter said room. Kirby again searched the room, and took with him all of the personal belongings of the appellant. At no time, either before or after these searches, was a search warrant issued authorizing the search of appellant's room.
Appellant was tried and convicted of having burglary tools in his possession. The personal belongings that the state alleged were burglary tools, and which they introduced as such at the trial of appellant, were a part of the personal belongings which Kirby removed from appellant's room on the morning of March 15, 1934, and the use of which as evidence the appellant had moved to suppress.
The state admitted that no search warrant was issued. The contention of the state is that such search was an incident of the arrest of appellant, and therefore, any evidence obtained through this search was admissible at the trial of appellant.
By the act of searching appellant's room, and seizing his personal effects and property, without his permission and without a lawfully issued search warrant permitting said search and seizure, said officers directly violated appellant's constitutional rights guaranteed him by sections 9 and 11 of article 6 of the Constitution of South Dakota, which read:
In considering the decision of the trial court in refusing to suppress the use of this evidence, it is necessary to determine the admissibility of evidence obtained through the illegal search and seizure. This court has definitely adopted the federal rule, that evidence obtained through an illegal search and seizure cannot be used as evidence on trial. In State v. Gooder, 57 S.D. 619, 234 N.W. 610, we dealt with the suppression of evidence where such evidence was obtained in violation of defendant's constitutional rights, and said:
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