State v. Merrill, 10356

• Decision Date: 21 July 1967
• Docket Number: No. 10356,10356
• Citation: 82 S.D. 609,152 N.W.2d 349
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Charles Halley MERRILL, Jr., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 349

152 N.W.2d 349

82 S.D. 609

STATE of South Dakota, Plaintiff and Respondent, v. Charles Halley MERRILL, Jr., Defendant and Appellant.

No. 10356.

Supreme Court of South Dakota.

July 21, 1967.

John J. Simpson, Winner, James R. Zieser, Tyndall, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, Ernest W. Hertz, State's Atty., Olivet, for plaintiff and respondent.

RENTTO, Judge.

Charles Halley Merrill, Jr. was charged with the crime of grand larceny involving the theft in April 1964 of a 5 section drag and one noble evener alleged to be the property of Allen Schoenfisch of Menno, South Dakota. After a two-day trial the jury on April 29, 1966 returned its verdict finding him guilty as charged. He was sentenced to a term of three years in the state penitentiary. From that judgment and sentence he appeals.

The principal errors assigned and argued are that the court erred in admitting in evidence testimony and a photograph concerning property seized in an unlawful search and seizure and in denying defendant's motion to suppress such evidence. The decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, made evidence obtained by an unconstitutional search and seizure inadmissible in a state court. This mandate of the U.S. Supreme Court we recognized and gave effect to in State v. McCreary, S.D., 142 N.W.2d 240.

The search warrant issued on April 12, 1965 on an affidavit of that date, made by a special agent for the Division of Criminal Investigation of our Attorney General's office, commanded the immediate search of the SE 1/4, Sec. 36, T. 36 N., R. 44 W. in Shannon County, South Dakota, belonging to C. H. Merrill for some described farm equipment which it stated had been stolen from one Bly Rous and from the Alliance Tractor & Implement Company of Alliance, Nebraska and which was then in the possession of said C. H. Merrill. It did not describe the property which the defendant was convicted of stealing.

On the quarter section in question were located the residence of the owner and also the residence of his son, the defendant, also known as C. H. Merrill and two bunkhouses and a trailer occupied by the hired help. Defendant claims that because there were numerous residences located on the property and the warrant did not specify the residence which was to be searched it became a general warrant and as such was invalid. He also urges that it should have specified which C. H. Merrill, senior or junior, was the subject of the search. In the view that we take of this matter we do not reach these questions.

Our Constitution, Art. VI, Sec. 11 declares that 'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated * * *'. This is also the language of the Fourth Amendment to the Constitution of the United States. Because of these provisions a private residence and the curtilage thereof may not be searched by an officer without a valid search warrant, unless it is incidental to a lawful arrest of the occupant or with his consent. State v. McCreary, supra; 79 C.J.S. Searches and Seizures §§ 13 and 66; Underhill Criminal Evidence, 5th Ed., § 411.

A precise definition of the term curtilage is not easily formulated. See Words & Phrases, Permanent Ed., Vol. 10. Nor do we think it necessary or advisable that such be done in this case. In U.S. v. Minker, 3 Cir., 312 F.2d 632, it is written:

'Whether a given area is within the protected curtilage of one's dwelling depends upon a number of factors, including its proximity to the dwelling, whether it is within the enclosure surrounding the dwelling, and its use as an adjunct to the domestic economy of the family. Care v. United States, 231 F.2d 22 (C.A.10), cert. denied, 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461 (1956). Of course, factors of paramount importance in considering a Fourth Amendment claim are the nature of the individual's interest in and the extent of the claimed privacy of the premises searched. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).'

While the curtilage is immune from unreasonable searches and seizures one's lands not contained therein are not so protected. 47 Am.Jur., Searches and Seizures, § 17; People v. Ring, 267 Mich. 657, 255 N.W. 373, 93 A.L.R. 993; People v. Reed, 210 Cal.App.2d 80, 26 Cal.Rptr. 428; People v. Shields, 232 Cal.App.2d 716, 43 Cal.Rptr. 188. These cases cite many authorities to this effect, but all place their main reliance on Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898.

In this case there is no contention made that the search complained of was incidental to a lawful arrest or with the consent of the occupant. The question which we must first decide is whether the area entered by the officers and where they found the drag, which the defendant was charged with stealing, was within the constitutional protection against unreasonable searches and seizures. If it was not in such an area then the validity of the warrant which they held becomes immaterial. State v. Zugras, 306 Mo. 492, 267 S.W. 804; Greenwood v. State, 110 Tex.Cr.R. 478, 9 S.W.2d 352.

The evidence indicates without dispute that the officers armed with the search warrant and accompanied by the owner of the drag on April 12, 1965, in the daytime, went on to the quarter section described in the warrant, but did not enter any of the buildings thereon. They found the drag in the open, in a yard amongst some other machinery. It was described as being east and north of the main house, the father's residence. The record is silent as to where it was located in reference to the defendant's residence. Accordingly, it is fair to conclude that...