State v. Ramirez

• Decision Date: 12 July 1995
• Docket Number: No. 18762,18762
• Citation: 535 N.W.2d 847
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Victor RAMIREZ, Petitioner and Appellant.
• Court: South Dakota Supreme Court

Page 847

535 N.W.2d 847

STATE of South Dakota, Plaintiff and Appellee, v. Victor RAMIREZ, Petitioner and Appellant.

No. 18762.

Supreme Court of South Dakota.

Argued April 26, 1995.

Decided July 12, 1995.

Mark Barnett, Atty. Gen., Todd A. Love, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Jamie L. Damon, Pierre, for petitioner and appellant.

KONENKAMP, Justice.

After a traffic stop a highway patrol officer secretly tape recorded a conversation between the driver and his companion while they were in custody in the back of the patrol vehicle. When they were released, the officer listened to the tape and heard the driver admit to his companion that cocaine was in his car. The trooper again stopped the vehicle, searched the car and found cocaine. The driver was charged with possession of a controlled substance. His motion to suppress the taped admissions was denied. Following a discretionary appeal, we affirm.

FACTS

On a snowy February 22, 1994, Victor Ramirez drove past Trooper Steve Swenson of the South Dakota Highway Patrol on Interstate 90. Trooper Swenson noticed an object dangling from the vehicle's rear view mirror. As the presence of such an object violates SDCL 32-15-6, ¹ the trooper stopped the vehicle. He approached the car, apprised Ramirez of the offense--the dangling object was an air freshener--and asked for his license and proof of registration. Unable to produce his registration, Ramirez accompanied the trooper to the patrol car and sat in the front seat where he was issued a warning for the dangling object. Trooper Swenson also radioed in for a computer check to verify the registration. Perceiving Ramirez's apparent nervousness, the trooper questioned him about possessing illegal firearms or drugs. Ramirez denied possessing these things, but Trooper Swenson nonetheless asked for permission to search the vehicle. Ramirez initially acquiesced, but soon withdrew consent when the trooper placed him and his passenger, Lisa Hartfield, in the back of the patrol car.

Trooper Swenson then announced that he would instead conduct a "plain view" search of Ramirez's car while awaiting the vehicle registration check. Before stepping out of his car to begin the search and while Ramirez and his companion sat in the back seat of the police car, the trooper surreptitiously activated a tape recorder to record the two while he was outside his vehicle. The officer justified this action as a protective measure in case Ramirez or his companion placed something under the patrol car's seat and to prove that they were not being illegally detained. During the search the trooper looked through the windows in Ramirez's car and at one point opened a door in order to closely examine a seed on the driver's seat. His "plain view" search uncovered nothing. While the trooper was outside his car, the recorder captured Ramirez saying, "I've got the coke and shit up front ..." The officer returned to the patrol car and permitted the two to leave once the vehicle's registration had been confirmed. Upon hearing this inculpatory statement, Trooper Swenson pursued and stopped Ramirez again. Now possessing probable cause, Swenson's interior search of Ramirez's vehicle led to the discovery of a mirror with cocaine residue.

Both Ramirez and Hartfield were arrested and read their Miranda rights for the first time. Charged with possession of a controlled substance, Ramirez asked the trial court to exclude the recorded statements from the evidence to be presented at trial. The trial court refused, but this Court granted an intermediate appeal on the suppression decision to consider the following issue:

Did the trial court err in denying suppression of the statements secretly recorded during the "plain view" search?

ANALYSIS

We review a trial court's decision on a suppression motion under the abuse of discretion standard. State v. Flegel, 485 N.W.2d 210, 213 (S.D.1992). Unless such discretion is exercised to an end or purpose not justified by and clearly against reason and evidence, the trial court's decision should stand. State v. Almond, 511 N.W.2d 572, 574 (S.D.1994).

Both the Fourth Amendment of the United States Constitution and Art. VI, § 11 of the South Dakota Constitution protect against "unreasonable searches and seizures." These provisions guarantee an individual's right to personal security free from arbitrary law enforcement interference. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). As noted by the trial court and conceded by Ramirez, Trooper Swenson had probable cause under SDCL 32-15-6 to stop Ramirez's vehicle because a small, cardboard-thin air freshener was hanging from the rearview mirror. Thereafter, Ramirez was taken to the patrol car and issued a warning citation. For this purpose, law enforcement intervention was minimally intrusive and a reasonable exercise in the public interest. See United States v. Cummins, 920 F.2d 498, 500 (8th Cir.1990), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991); SDCL 23-1A-7. After Ramirez failed to present proof of registration, Trooper Swenson, in accord with standard procedure, radioed in for verification.

We first determine whether Ramirez was illegally detained beyond what was necessary for this stop. Law enforcement officers are entitled to diligently investigate to verify a vehicle's registration. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). A brief delay while running a computer check on a vehicle registration or a driver's license via radio is permissible. State v. Hewey, 144 Vt. 10, 471 A.2d 236 (1983); 4 Wayne R. LaFave, SEARCH AND SEIZURE § 10.8(a), at 64 (2d ed. 1987). Failure to possess a valid registration is a petty offense. SDCL 32-5-91. A law enforcement officer is entitled to briefly detain a petty offender pursuant to SDCL 23-1A-7. The record contains no indication that Ramirez was unduly detained beyond the time necessary to verify registration. So we conclude that Trooper Swenson diligently performed the check and released Ramirez just after registration was verified. Our function does not include indulging "in unrealistic second-guessing" when nothing presented by Ramirez indicates that the registration check was improper or too long in duration. Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575.

Trooper Swenson noticed that Ramirez appeared overly nervous, so he asked for consent to search the car.

The results of the initial stop may arouse further suspicion or may dispel the questions in the officer's mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer's suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.

State v. Watson, 165 Conn. 577, 345 A.2d 532, 537 (1973). Upon first giving consent to search, Ramirez and his companion were ordered into the back seat of the patrol car; they were given no option and were not free to leave. Unquestionably, therefore, they were "in custody" or "seized," and the trial court so found. State v. Krebs, 504 N.W.2d 580, 584 (S.D.1993). At this point Ramirez changed his mind and withdrew consent.

When this occurred, there truly was no need for the two to remain in the patrol car. Nevertheless, as recognized in Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977), once the authorities have opted to briefly detain a driver (here, to await confirmation of registration), the only question is where the driver will spend the waiting period. Trooper Swenson's insistence that the driver and his passenger stay in the patrol car is not a "serious intrusion upon the sanctity of the person," and hardly rises to the level of a "petty indignity." Id. (quoting Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968)). Their placement in the back seat, while convenient for Trooper Swenson's use of the tape recorder, was at most a mere inconvenience to Ramirez and Hartfield. Hence, Ramirez was not illegally detained.

Lacking consent for an interior search of the car, the trooper opted to conduct what he termed a "plain view" search. "Plain view" was a misnomer. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Flores, 305 So.2d 292 (Fla.App.1974); 1 Wayne R. LaFave, SEARCH AND SEIZURE § 2.5(c), at 450 (2d ed. 1987). Ramirez argues that if the "plain view" search was improper, any information obtained from the recording is inadmissible as "fruits of the poisonous tree." The search did not beget the incriminating statements. Rather they were the result of Swenson's absence from the car. As Swenson discovered nothing during the so-called "plain view" search, we need not tarry over the officer's actions at Ramirez's car. The search occurred while the officer was legitimately awaiting radio confirmation of registration.

While Trooper Swenson was at Ramirez's car and awaiting radio confirmation, an undisclosed tape player secretly recorded the conversation between Ramirez and Hartfield. Ramirez asserts that this was in violation of his privacy rights. ² Perhaps he had a subjective expectation of privacy during his dialogue in the back of the patrol car, otherwise he presumably would not have made the incriminating statement. State v. Lowther, 434 N.W.2d 747, 754 (S.D.1989); People v. Crowson, 33 Cal.3d 623, 190 Cal.Rptr. 165, 168, 660 P.2d 389, 392 (1983). Whether he possessed a legitimate or reasonable expectation of privacy, on the other hand, is ultimately a matter of common sense and practical judgment. Krebs, 504 N.W.2d at 586; Crowson, 660 P.2d at 392. Such expectation must be one that society is prepared to recognize as reasonable. Lowther, 434 N.W.2d at 754; Crowson, 660 P.2d at 393; Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) ...