State v. Powless, s. 12043 and 12071
| Decision Date | 24 May 1985 |
| Docket Number | Nos. 12043 and 12071,s. 12043 and 12071 |
| Citation | 265 N.W.2d 143 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Mark A. POWLESS, Philip Bautista and James Fredrick War Bonnet, Defendants and Appellants. STATE of South Dakota, Plaintiff and Respondent, v. Herbert G. POWLESS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., and Harry W. Christianson, Asst. Atty. Gen., Pierre, on brief.
John T. Elston, Hot Springs, Christopher D. Stanley, Cleveland, Ohio, for defendants and appellants, Philip Bautista, Mark Powless and James Fredrick War Bonnet.
Russell D. Kading, Sioux Falls, Dennis P. Coffey of Coffey & Coffey, Milwaukee, Wis., for defendant and appellant, Herbert G. Powless.
*
All four defendants were convicted of violating SDCL 22-14A-14, possession of explosives by a felon, by a judge of the Seventh Judicial Circuit in a trial to the court. They raise questions as to the sufficiency of the evidence, the legality of the search and seizure, denial of their right to a speedy trial and lack of jurisdiction. We affirm the convictions.
On March 1, 1975, about 1:40 p. m., State Trooper Van Orman received a state police radio broadcast advising that an individual by the name of War Bonnet had purchased a quantity of .357 magnum ammunition in Rapid City, that he had entered a bronze or copper colored van without license plates and was believed to be armed with an AR 15 rifle. The van was believed to be headed south on Highway 16, and the broadcast indicated that anyone stopping the vehicle should be careful because the occupants were armed. The police were aware that an outstanding warrant for Joseph War Bonnet existed and had been informed several days earlier by teletype from the Iowa Bureau of Criminal Investigation that James War Bonnet was driving a stolen green van and had in his possession a number of rifles, submachine guns and rocket launchers. The police radio broadcast specifically mentioned this teletype and referred to James War Bonnet as "the guy with all the guns and stuff in the van * * *."
Shortly after the first broadcast a subsequent broadcast advised that the van might be heading south on Highway 79. Trooper Van Orman, accompanied by a deputy sheriff, proceeded to Highway 79 and there observed a south bound, copper colored van without license plates as it passed him. Trooper Van Orman informed the state police of his sighting and arranged for a roadblock at a bridge near Maverick Junction.
The van was stopped at the roadblock and the seven Indian occupants stepped out of the van as directed. The driver was James War Bonnet, who admitted that Joseph War Bonnet was his brother, but Joseph was not one of the people in the van. Each occupant of the van was pat-searched. Herb Powless produced title papers showing that the van was owned by the American Indian Council on Alcoholism, Milwaukee, Wisconsin, but none of the occupants identified themselves as members of that organization at the time of the stop and search. It later was revealed that Herbert Powless was the council's director.
For the purpose of running a National Crime Information Center check on the van, Trooper Van Orman went to the van to obtain its serial number, which he found on the back portion of the left door panel about two and one-half feet above the ground. While stooping over looking at the number, Trooper Van Orman observed what appeared to be the butt of a rifle under a blanket in the rear of the van. At trial, his testimony was unclear because he stated that he inadvertently observed the gun butt; however, at the suppression hearing, he stated that he had been informed that the defendants were armed and dangerous, so he was looking for weapons in the van when he spotted the gun butt. He took the keys from the ignition and opened the van's back door and discovered three loaded rifles under a blanket along with several briefcases. At this point the occupants were placed under arrest for possession of machine guns. As the van was being prepared for return to Hot Springs, the police opened one of the briefcases and found some fuses and fuse lighters. The rest of the briefcases were opened at a later date after a search warrant had been obtained in Hot Springs and sixty sticks of dynamite, along with blasting caps and other demolition equipment, were found.
A preliminary hearing was held on March 14, 1975, and the defendants were bound over on four counts: (1) Possession of substances with intent to make a destructive device SDCL 22-14A-15; (2) Possession of explosives with intent to injure person or property SDCL 22-14A-6; (3) Transportation of a destructive device in violation of SDCL 22-14A-7; and (4) Possession of explosives by a felon in violation of SDCL 22-14A-14. A suppression hearing was held in front of a circuit court judge and the motion to suppress was denied. The trial of these four defendants was held before a different judge on March 29, 1976, and the third count was dismissed before trial. The first and second counts were dismissed after presentation of the state's case. The defendants offered no evidence and all were convicted of possession of explosives by a felon.
The first issue raised deals with the legality of the search and seizure. It is conceded that the police had a right to make an investigatory stop of the van because of the absence of license plates. This stop revealed that the van had a temporary Wisconsin plate in the front window and was registered to the American Indian Council on Alcoholism, but at that time none of the occupants informed the police that he was connected with that organization. This fact plus the information given over the police radio justified Trooper Van Orman's action in obtaining the serial number of the van, especially in light of the fact the teletype received several days prior to this incident indicated that War Bonnet was driving a van stolen in Kesheina, Wisconsin. United States v. Powless, 1977, 8 Cir., 546 F.2d 792; United States v. Pearson, 1971, 5 Cir., 448 F.2d 1207; United States v. Powers, 4 Cir., 1971, 439 F.2d 373; United States v. Squires, 1972, 2 Cir., 456 F.2d 967.
The United States Court of Appeals for the Eighth Circuit has examined the search of this van and concluded that the search and seizure of the weapons was justifiable as a "plain view" discovery during the course of the examination of the van for a serial number. United States v. Powless, supra. It concluded that Trooper Van Orman's viewing of the gun butt was inadvertent, which this court has held is a prerequisite to application of the plain view doctrine. State v. Watkins, 1975, S.D., 237 N.W.2d 14, 17. The testimony of Trooper Van Orman at the suppression hearing, however, indicates that his viewing of the gun butt was not inadvertent and was a result of a deliberate search by the trooper for weapons. In light of this we cannot accept the "plain view" doctrine as a basis for upholding the search and seizure.
However, the search and seizure of the guns can be justified, under the doctrine set down by the United States Supreme Court in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 and reaffirmed in Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. This doctrine allows a search of motor vehicles without a warrant where the seizing officer has probable cause for belief that the contents of the vehicle "offend against the law." The court set down four circumstances which render a search warrant unnecessary: (1) "the car is movable," (2) "the occupants are alerted," (3) "the car's contents may never be found again if a warrant must be obtained," and (4) probable cause exists for a search of the automobile stopped on the highway. 399 U.S. 51, 90 S.Ct. 1981, 26 L.Ed.2d 428. The first three factors were certainly present in this case and for the reasons given below, we conclude that probable cause for the search also existed.
Trooper Van Orman testified that the reasons for his extreme caution in stopping the van were:
"Well, the information that I had led me to believe that the subjects were armed and dangerous and with incidents that have happened in the past, going back to 1973 when the agents were fired on from the back doors of a van, the doors were kicked open and Federal agents were fired upon, the information that James War Bonnet was in a van with a sub-machine gun, there had also been an exchange of gun fire in the Pine Ridge area just a few days previously ."
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State v. Gardner
...action. The circumstances justified the officer's conduct under either the plain view doctrine or on probable cause. See State v. Powless, 265 N.W.2d 143 (S.D.1978), Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981); United States v. Martin, 806 F.2d 204 (8th Cir.19......