State v. Opperman, 11440

Citation89 S.D. 25,247 N.W.2d 673
Decision Date12 November 1976
Docket NumberNo. 11440,11440
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Donald OPPERMAN, Defendant and Appellant.
CourtSupreme Court of South Dakota

William J. Janklow, Atty. Gen., Peter H. Lieberman and John P. Guhin, Asst. Attys. Gen., Pierre, for plaintiff and respondent.

Lee M. McCahren, Vermillion, for defendant and appellant.

WINANS, Justice.

On April 15, 1975, this court reversed a judgment against petitioner because we found that the contraband used to convict petitioner had been seized pursuant to an inventory search which was unreasonable under the Fourth Amendment to the United States Constitution. State v. Opperman, 1975, S.D., 228 N.W.2d 152. On November 3, 1975, the United States Supreme Court granted certiorari; in a 5--4 decision it reversed the judgment of this court and remanded for further proceedings not inconsistent with its opinion. South Dakota v. Opperman, 1976, --- U.S. ---, 96 S.Ct. 3092, 49 L.Ed.2d 1000. On August 26, 1976, this court granted a rehearing to ascertain whether the inventory search of petitioner's automobile was in violation of his rights under Article VI, § 11 of the South Dakota Constitution. We find that the inventory procedure followed in this instance constitutes an unreasonable search under our state constitution; accordingly we reverse the decision of the trial court. 1

We are mindful that the United States Supreme Court found that the inventory procedure followed in this case did not amount to an 'unreasonable search' in violation of the Fourth Amendment. South Dakota v. Opperman, supra. That decision is binding on this court as a matter of federal constitutional law. Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789. 'However, manifestly the question remains for us to decide whether it offends any of the provisions of our own constitution and we are under no compulsion to follow the United States Supreme Court in that regard.' House of Seagram v. Assam Drug Co., 1970, 85 S.D. 27, 32, 176 N.W.2d 491, 494.

There can be no doubt that this court has the power to provide an individual with greater protection under the state constitution than does the United States Supreme Court under the federal constitution. Oregon v. Hass, 1975, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570. 2 This court is the final authority on interpretation and enforcement of the South Dakota Constitution. 3 We have always assumed the independent nature of our state constitution regardless of any similarity between the language of that document and the federal constitution. Admittedly the language of Article VI, § 11 is almost identical to that found in the Fourth Amendment; 4 however, we have the right to construe our state constitutional provision in accordance with what we conceive to be its plain meaning. We find that logic and a sound regard for the purposes of the protection afforded by S.D.Const., Art. VI, § 11 warrant a higher standard of protection for the individual in this instance than the United States Supreme Court found necessary under the Fourth Amendment.

'The right of the people of be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly descriging the place to be searched and the person or thing to be seized.'

Article VI, § 11 of our state constitution guarantees our citizens the right to be free from 'unreasonable searches and seizures.' We have held that a determination of reasonableness requires a balancing of the need for a search in a particular case against the scope of the particular intrusion. State v. Catlette, 1974, S.D., 221 N.W.2d 25. In that opinion we relied on United States v. Lawson, 8 Cir., 1973, 487 F.2d 468, and held that an inventory was a search, but found that it was not an unreasonable search as long as it was conducted without investigative motive and its scope was limited to things within plain view.

We also find persuasive the reasoning in Lawson that for an inventory search to be reasonable, absent a warrant or circumstances constituting an exception to the warrant requirement, there must be a 'minimal interference' with an individual's protected rights. 487 F.2d at 475. We now conclude that as a matter of protection under S.D.Const., Art. VI, § 11, 'minimal interference' with a citizen's constitutional rights means that noninvestigative police inventory searches of automobile without a warrant must be restricted to safeguarding those articles which are within plain view of the officer's vision. We therefore affirm the rationale of our original decision as a matter of state constitutional law. State v. Opperman, supra.

Respondent argues that because petitioner failed to brief or argue the applicability of the state constitution before this court on the first appeal, this issue should be deemed abandoned. 5 See Schumacher v. R-B Freight Lines, Inc., 1950, 73 S.D. 535, 45 N.W.2d 458. Admittedly petitioner did not contend that our state povision should be interpreted as giving greater individual protection than does the federal constitution; this court, however, granted a rehearing to consider that question and afforded both sides the opportunity to brief and argue that point. We find that this matter is properly before the court. 6 Accordingly, we reverse the judgment of the trial court as a matter of state constitutional law.

DUNN, C.J., and COLER and ZASTROW, JJ., concur.

WOLLMAN, J., dissents.

WOLLMAN, Justice (dissenting).

For the reasons set forth in my dissenting opinion issued when this case was first before us, State v. Opperman, S.D., 228 N.W.2d 152, 159, I would affirm the judgment of the trial court on the ground that the inventory of defendant's automobile did not constitute an unreasonable search within the meaning of Article VI, § 11 of the South Dakota Constitution.

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  • Com. v. Soares
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 8, 1979
    ...route to relief. Compare South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), with State v. Opperman, S.D. (1976) (247 N.W.2d 673 (1976)). We note, however, that the five cases that have come before us where the issue has been raised, by a variety of defense counse......
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    ...compartment of an impounded car exceeded the scope of a permissible inventory search under the Oregon Constitution); State v. Opperman , 247 N.W.2d 673, 675 (S.D. 1976) (holding, on remand from the United States Supreme Court, that "noninvestigative police inventory searches of automobile[s......
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  • Breaking stride: the Texas Court of Criminal Appeals' rejection of the Lockstep approach 1988-1998.
    • United States
    • Albany Law Review Vol. 62 No. 4, June 1999
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    ...1975) (holding that police illegally seized contraband from respondent, thus violating the California Constitution); State v. Opperman, 247 N.W.2d 673 (S.D. 1976) (holding an inventory search of a closed console in defendant's car, towed for a parking violation, was an unreasonable search u......
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