State v. Ostby, #29205

• Decision Date: 04 November 2020
• Docket Number: #29206,#29205
• Citation: 2020 S.D. 61
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. CARRIE LYNN OSTBY, Defendant and Appellee. STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. DANA OLMSTED, Defendant and Appellee.
• Court: South Dakota Supreme Court

2020 S.D. 61

STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. CARRIE LYNN OSTBY, Defendant and Appellee.

STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. DANA OLMSTED, Defendant and Appellee.

#29205

#29206

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

ARGUED OCTOBER 7, 2020

November 4, 2020

#29205, #29206-r-SRJ

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA

THE HONORABLE ERIC STRAWN Judge

JASON R. RAVNSBORG

Attorney General

ERIN E. HANDKE

Assistant Attorney General

Pierre, South Dakota

BRENDA K. HARVEY of

Lawrence County State's

Attorney's Office

Attorneys for plaintiff and

appellant.

ELLERY GREY of

Grey & Eisenbraun Law

Rapid City, South Dakota

Attorneys for defendant and

appellee Carrie Ostby.

ROBERT D. PASQUALUCCI of

Pasqualucci Law

Rapid City, South Dakota

Attorney for defendant and

appellee Dana Olmsted.

JENSEN, Justice

[¶1.] Carrie Lynn Ostby and Dana Olmsted were separately indicted on felony-controlled substance charges. Ostby and Olmsted filed motions to suppress evidence seized by law enforcement, pursuant to a search warrant, at the apartment where Ostby and Olmsted resided. The motions alleged that the affidavit supporting the search warrant did not show probable cause for the search. Ostby and Olmsted also argued that exigent circumstances did not exist to search the apartment. The circuit court sustained both motions to suppress. We granted the State's petitions for intermediate appeal of both rulings. The cases are consolidated for the purpose of considering the appeals. We reverse the suppression orders.

Facts and Procedural History

[¶2.] On March 20, 2019, at around 5:45 p.m., Deadwood police officers responded to a report of possible illegal drug activity associated with Apartment 15 located at 53 Dunlap Avenue, in Deadwood, South Dakota. After a failed attempt to speak with the occupant, officers gained entry into Apartment 15 and detained a male subject inside the apartment. Subsequently, Officer Erik Jandt submitted a search warrant request to a magistrate judge. Officer Jandt signed the affidavit in support of the warrant, presenting the following facts.

[¶3.] On March 20, 2019, April Roberts contacted the Deadwood Police to report that she had found a baggie that she suspected contained methamphetamine in a dryer of the apartment building at 53 Dunlap Avenue in Deadwood, South Dakota. After the officers arrived, Roberts told them that she was doing laundryand needed to use the clothes dryer located in a common area of the apartment building, but there were clothes left inside the dryer. Roberts reported that she knocked on the door of Apartment 15 and asked the male occupant to remove the clothes from the dryer. After he removed the clothes, Roberts looked inside the dryer and found a baggie with a substance she believed was methamphetamine. The substance tested positive for methamphetamine in a field test conducted by Officer Jandt. Roberts also told the officers that a month earlier, she had found a small baggie that she believed contained methamphetamine in the hallway of the apartment building where the dryer was located, and that she reported it to law enforcement. Roberts had also reported that there was "heavy short-term traffic" in and out of Apartment 15.

[¶4.] After speaking with Roberts, the officers knocked on the door of Apartment 15. A male voice inside yelled, "Who is it?" Officer Jandt responded that it was the police. No response was heard from inside the apartment, but the officers could hear someone walking around inside. The officers then obtained a key from the property manager to gain access to Apartment 15. The officers detained the male individual, identified as Dana Olmsted, transported him to the Lawrence County jail, and arrested him for possession of a controlled substance and possession of drug paraphernalia.

[¶5.] Officer Jandt was also aware of information from Drug Investigator James Olson, who was actively working a drug investigation involving Apartment 15. Olson knew that the apartment was rented by Ostby and was aware of the report, made by Roberts, of heavy foot traffic in and out of Apartment 15. As part ofOlson's investigation, he observed a male subject arrive at "Ostby's residence and go inside with the vehicle running and the driver's door open." The male subject was in the residence "approximately 2 minutes." The subject was later stopped for a traffic violation and arrested for possession of methamphetamine. Olson also received unconfirmed information that Ostby had been distributing methamphetamine.

[¶6.] The affidavit requested to search Apartment 15 and Ostby's vehicle for illegal drugs. The affidavit also requested permission to take urine samples from both Ostby and Olmsted. The reviewing magistrate judge found probable cause for the search warrant and granted the request.

[¶7.] The subsequent search of the apartment produced several bags containing a white crystal substance, which was later confirmed to be methamphetamine. The urine samples taken from Ostby and Olmsted both tested positive for methamphetamine. The search of Ostby's vehicle did not result in the discovery of any contraband.

[¶8.] On March 27, 2019, Olmsted was indicted and charged with one count of possession of a controlled drug or substance. On April 24, 2019, Ostby was indicted on one count of unauthorized ingestion of a controlled substance. She was subsequently charged, by superseding indictment, with unauthorized ingestion of a controlled substance, possession of a controlled drug or substance, and possession of a controlled drug or substance with the intent to distribute.

[¶9.] On July 9, 2019, Olmsted filed a motion to suppress evidence. He argued that probable cause did not exist to issue a search warrant for theapartment, and that there were no exigent circumstances for the search in the absence of a valid warrant. Olmsted requested that "all evidence seized as a result of his stop, detention, and search of his residence be suppressed."¹ On July 24, 2019, Ostby joined the motion to suppress filed by Olmsted.

[¶10.] The State responded that probable cause existed for the issuance of a search warrant, and that exigent circumstances existed to search the apartment without a warrant. Alternatively, the State argued that suppression was not a proper remedy if probable cause did not exist for the search warrant because Officer Jandt had a good-faith belief that the warrant was valid.

[¶11.] On September 10, 2019, Officer Jandt testified at an evidentiary hearing held on both motions to suppress. The circuit court filed memorandum decisions granting the motions on November 25, 2019. The circuit court determined probable cause did not exist for the search warrant, and that the exigent circumstances exception to the warrant requirement was inapplicable. The circuit court did not address the good-faith exception raised by the State.

[¶12.] The circuit court entered separate orders granting the motions to suppress. The State timely filed petitions for permission to appeal both intermediate orders on December 21, 2019. This Court granted both petitions on January 30, 2020. The State raises the following issues as to both suppression orders:

I. Whether the affidavit in support of the search warrant established probable cause to search Apartment 15.

II. Whether the good-faith exception applies to the exclusionary rule, if the search warrant is determined to be invalid.

Analysis and Decision

I. Whether the affidavit in support of the search warrant established probable cause to search Apartment 15.

[¶13.] "We review the issuing court's probable cause determination independently of any conclusion reached by the judge in the suppression hearing." State v. Gilmore, 2009 S.D. 11, ¶ 7, 762 N.W.2d 637, 641. Our review of the probable cause determination of the issuing magistrate judge is deferential. "Reviewing courts are not empowered to conduct an after-the-fact de novo probable cause determination; on the contrary, the issuing judge's legal basis for granting the warrant is examined with 'great deference.'" State v. Raveydts, 2004 S.D. 134, ¶ 8, 691 N.W.2d 290, 293 (quoting State v. Jackson, 2000 S.D. 113, ¶ 9, 616 N.W.2d 412, 416). "A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Id. (quoting Jackson, ¶ 9, 616 N.W.2d at 416). "On review, we are limited to an examination of the facts as contained within the four corners of the affidavit." Gilmore, 2009 S.D. 11, ¶ 7, 762 N.W.2d at 641.

[¶14.] In determining whether probable cause exists to support the issuance of a search warrant, "[t]here must be 'a showing of probability of criminal activity.'" State v. Tenold, 2019 S.D. 66, ¶ 30, 937 N.W.2d 6, 14 (quoting State v. Helland, 2005 S.D. 121, ¶ 16, 707 N.W.2d 262, 269). "[T]he judge must be able 'to make apractical, common-sense decision whether, given all the circumstances set forth in the affidavit before [the judge], including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)). This Court, in Gilmore, explained that "these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case" but "as closely intertwined issues that may" aid in the finding of probable cause. 2009 S.D. 11, ¶ 11, 762 N.W.2d at 642 (quoting Gates, 462 U.S. at 230, 103 S. Ct. at 2328).

[¶15.] "Probable cause cannot be determined by some 'formulaic solution.'" State v. Dubois, 2008 S.D. 15, ¶ 11, 746 N.W.2d 197, 202 (quoting Helland, 2005 S.D. 121, ¶ 15, 707 N.W.2d at 268). It "'is a fluid concept—turning on the assessment of probabilities in particular contexts—not readily, or even usefully, reduced to a neat set of...