State v. Pierson

• Decision Date: 16 December 1976
• Docket Number: 11778,11763,Nos. 11762,s. 11762
• Citation: 248 N.W.2d 48
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Elon Thomas PIERSON and Susan Pierson, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 48

248 N.W.2d 48

STATE of South Dakota, Plaintiff and Appellant, v. Elon Thomas PIERSON and Susan Pierson, Defendants and Respondents.

Nos. 11762, 11763, 11778.

Supreme Court of South Dakota.

Dec. 16, 1976.

Rehearing Denied Jan. 21, 1977.

Earl R. Mettler, Asst. Atty. Gen., for plaintiff and appellant; William J. Janklow, Atty. Gen., Pierre, on the brief.

John L. Maynes, Aberdeen, for defendant and respondent Susan Pierson.

Drew C. Johnson, Aberdeen, for defendant and respondent, Elon Thomas Pierson.

CHEEVER, Circuit Judge.

The defendants were charged with possession of marijuana in excess of one ounce, possession of amphetamines, and possession of a controlled substance with intent to distribute on May 12, 1975. Arrest warrants were issued on the same date. A preliminary hearing was held on June 18, 1975, with the various complaints being combined for purposes of the preliminary hearing. The defendants were bound over on all counts and informations were filed on June 19th. The defendants appeared, were arraigned, and entered pleas of not guilty. Subsequently, the defendants filed motions to suppress and to quash the search warrant. A hearing was held on such motions on the 16th of July, 1975, and subsequently the trial court entered its order suppressing the evidence and quashing the search warrant. The state made application for and obtained an order permitting an intermediate appeal dated November 6, 1975.

The matter was submitted on briefs without oral argument. We reverse.

On May 10, 1975, at about 7 p.m., the defendants appeared at the Sundown Motel in the City of Aberdeen. Defendant, Elon Thomas Pierson, went in the office to arrange for accommodations. Mr. David Allen Bunt, the manager of the motel, was at the desk. Mr. Pierson signed the registration card as Mr. and Mrs. Tom Pierson, No. 13, Holmes Trailer Court, Vermillion, South Dakota. The vehicle they were driving was a 1965 Rambler with Brown County license. Mr. Pierson indicated that they would be staying four days and volunteered the information that he was visiting his parents who lived at Richmond Lake. Mr. Bunt advised him that the normal procedure was for him to pay for the four nights in advance, that the room rental would amount to $44.08. Mr. Pierson advised him that he did not have money to pay the entire amount, but that he would be getting a check on Sunday and would be able to pay at that time. Mr. Pierson offered all the money he had which amounted to nine dollars and some cents. Mr. Bunt took the nine dollars and noted that amount to have been paid on the registration card. Mr. Bunt assigned the Piersons to room #6 in the motel. He indicated that at the time Mr. Pierson came into the motel he thought him to be a construction worker who did not look too prosperous. Immediately after Mr. Pierson left the office, Mr. Bunt checked the telephone directory and was not able to note a Pierson at Richmond Lake. He also testified that this caused him to be somewhat uneasy about the Piersons.

Shortly after going to his room, Mr. Pierson made a phone call. The switchboard in the motel is of a type that when the phone is picked up in the room it rings the central switchboard of the motel. The switchboard operator answers the call and is given the desired phone number and the operator dials the number. When the party called answers, the operator can either disconnect or he can listen in on the conversation. Mr. Bunt testified that he listened in on the first call made and overheard something to the effect that Mr. Pierson wanted to borrow a scale from the party he was calling. The called party indicated that he did not loan his scale out. Shortly thereafter, Mr. Pierson placed another call and Mr. Bunt listened to a part of this conversation and overheard Mr. Pierson saying something about ten cents cheaper or a dime less. Mr. Bunt testified that both of these calls aroused his suspicion.

On Sunday, there was a great deal of traffic in and out of the motel room occupied by the Piersons. Mr. Bunt testified there were probably ten people who came and went from this room. He testified further that during the fifteen years he had been managing this motel he had never had so much traffic in and out of a private individual's room. He further classified the individuals as being rather 'skruddy' looking people. On Sunday afternoon, about 1:30, he called the police department and talked to an officer there who indicated that he would have one of the detectives come over and see Mr. Bunt. Shortly thereafter, Captain Steven Oakes arrived at the motel and Mr. Bunt relayed to him the information that he had, starting with the telephone calls and other things which had aroused his suspicion. At the time that Captain Oakes arrived, there were several people in cars leaving the motel from the Pierson room. Captain Oakes recognized some of them as suspected drug users in the Aberdeen area. He noted the license numbers on their vehicles. At this time, Mr. Bunt was quite insistent that something be done, and Captain Oakes indicated to him that there was not enough evidence to proceed upon anything. Captain Oakes remained at the motel approximately thirty minutes. Things had quieted down so he returned to his home.

On Sunday, at the request of the Piersons, their motel room was not straightened up or cleaned. On Monday, they did not leave the motel room until rather the in the morning. The regular cleaning ladies had completed their work and left the motel. So Mr. Bunt sent his sister, who occasionally worked as a cleaning lady at the motel, and his brother in to take care of cleaning the Pierson room. He did tell them that he suspected there was some drug activity in and out of this room. In cleaning the room, they opened the dresser drawers, and in one drawer found a full bag and part of another bag of what they thought was marijuana. In another drawer, they found a scale. They reported this to Mr. Bunt who in turn contacted the Chief of Police. He requested the brother and sister to come to the police department. After hearing their story, Captain Oakes showed them a bag of marijuana and each indicated that it appeared to be the same substance that they had found in the room, so he had each of them give him a written statement.

Captain Oakes proceeded to prepare an affidavit for a search warrant. In the affidavit, he recited the call that had been made to him by Mr. Bunt, the fact that he had visited the motel and his conversations with Mr. Bunt, wherein Mr. Bunt had relayed to him the information concerning the number of people coming and going to the room on Sunday, the conversations which Mr. Bunt had overheard on the two telephone calls--one referring to some grass and another referring to borrowing a scale. Captain Oakes recited that he had personally watched the activities of the people coming and going from motel room #6 and had obtained the license numbers of cars and that he had recognized some of these people as having a reputation for drug activity in and around Aberdeen. He then recited the finding of the marijuana and the scale by Mr. Bunt's brother and sister, and the fact that they had given written statements. He attached copies of these statements to his affidavit. Based upon this affidavit, a search warrant was obtained and taken to the motel by Captain Oakes. The Piersons were not at the motel at the time that he arrived. He waited until Mrs. Pierson arrived and then served the warrant upon her.

A search of the room revealed 29 one-pound packages of suspected marijuana and a part-package of suspected marijuana, together with some pills which were later analyzed and identified to contain amphetamines.

The prime thrust of each of the motions to suppress was that David Bunt had intentionally, deliberately, wrongfully, and illgally intercepted two telephone conversations originating from room #6 of the Sundown Motel occupied by the Piersons on the evening of May 10, 1975, in violation of §§ 2510--2520, 18 U.S.C.

The trial court in its order of suppression found that David Bunt deliberately and wilfully listened to the two telephone conversations and that such interception was in violation of § 2515, 18 U.S.C. It further found that the issuance of the search warrant and the evidence obtained in the search were derivative of the information obtained by David Bunt's interception of the phone calls and that such evidence was inadmissible by reasons of the provisions of such section.

The plaintiff has urged three separate grounds for reversal of the court's decision. The first is that the evidence of the drugs should not have been suppressed as derived from an illegal search because the evidence was not obtained by any exploitation of the initial illegality. Secondly, the evidence of the drugs found in the defendants' motel room should not have been suppressed as derived from an illegal search because the evidence was made known to the authorities from a wholly independent source. A third ground for reversal is that the federal statute, § 2515, 18 U.S.C., excluding the evidence from state courts is an unconstitutional exercise of power by the federal government in violation of the Tenth Amendment.

The exclusionary rule of the Fourth Amendment does not apply to this case because there was no illegal search conducted by the state. It is clear that the Fourth Amendment applies only to governmental action, Burdeau v. McDowell, 1921, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; State v. Cundy, 1972, 86 S.D. 766, 201 N.W.2d 236. Substantially all of the investigation involved here, prior to the issuance of a search warrant, was conducted by private individuals. There is absolutely no evidence that Mr. Bunt and his employees were acting as government agents. The police did not instruct or request them to take any action. The only investigation conducted by a police officer was the observations made by Captain Oakes at the motel,...