State v. Rigsbee

Decision Date19 September 1975
Docket NumberNo. 11389,11389
Citation233 N.W.2d 312,89 S.D. 360
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. William Alton RIGSBEE, Jr., Defendant and Appellant.
CourtSouth Dakota Supreme Court

Frederic R. Moulton, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Kermit A. Sande, Atty. Gen., Pierre, on the brief.

Sidney B. Strange, Sioux Falls, for defendant and appellant.

DUNN, Chief Justice (on reassignment).

Defendant was convicted of possessing more than one ounce of marijuana by the Circuit Court of Codington County sitting without a jury. He was sentenced to spend two years in the State Penitentiary. He assigns as error four aspects of the trial court's decision. The major issue is whether the trial court properly refused to suppress a large quantity of marijuana which defendant had in his vehicle at the time of his arrest.

The record reveals that between 5 and 5:30 p.m. on March 16, 1973, Officer Durham of the Watertown police received information from a confidential informant that 'Mr. Rigsbee had marijuana or a controlled substance in his vehicle and he normally went to the Club 20 between 6:20 and 7:00, and * * * that he had been selling marijuana out there.' Officer Durham considered the informant to be reliable, and defendant does not challenge that reliability here. In addition to this information, Officer Durham knew that defendant had previously been arrested for possession of less than one ounce of marijuana and that he had a reputation in Watertown as being a seller of controlled substances.

As a result of the tip, Officer Durham, along with Officer Witt, waited in a patrol car several blocks from defendant's house until the defendant left in his car at approximately 7:10 p.m. The officers followed Rigsbee and stopped his car when he turned onto Highway 20 at about 7:15 p.m. Officer Durham told him that he 'had information to believe that (Rigsbee) had marijuana in his car * * *.' Rigsbee was asked several times if the officers could search his car and he was informed that if he refused the officers would have to get a search warrant.

The defendant refused to allow a search of his car at that time. He was then taken into custody and driven to the police station by Officer Witt. Officer Durham drove the defendant's car to the station.

At this point there is a conflict in the testimony. The defendant claims that when he arrived at the police station he was taken to the interrogation room where he was told that if he did not consent to a search of his car that the police would get a warrant and 'tear it apart.' He says that he then went with the officers to the car and retrieved three bags of marijuana from the glove compartment. He was then taken back to the interrogation room and later led the officers back to the car where he produced a larger quantity of marijuana from a compartment in the back of the car.

The police version of what happened at the station is entirely different. They testified that as Rigsbee was being taken into the station through the garage that he told Officer Durham, "You don't need a search warrant, I will get the stuff for you." He then went to the car and produced three bags of marijuana which he got out of the glove compartment. Officer Durham also testified that he never told the defendant that he would tear his car apart if he had to get a search warrant or threatened the defendant in that manner.

The pivotal issue in this case is whether the police had sufficient probable cause to stop the defendant's car on Highway 20 and take the defendant into custody. If the police had no probable cause to arrest the defendant, all that followed could be tainted by this illegal stop. Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Cf. Brown v. Illinois, 1975, --- U.S. ---, 95 S.Ct. 2254, 45 L.Ed.2d 416. The test to determine the sufficiency of an informant's tip as it relates to probable cause was set out by the United States Supreme Court in Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Although the case dealt specifically with the sufficiency of an affidavit for a search warrant, the test has been used in determining if probable cause exists where there is an arrest without a warrant. See McCray v. Illinois, 1967, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Beck v. Ohio, 1964, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.

Mr. Justice Goldberg, writing for the majority in Aguilar, set out a two-prong test to determine the sufficiency of the information from an informant as it relates to probable cause:

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, the magistrate must be informed of Some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, Was 'credible' or his information 'reliable." 378 U.S. at 114--115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. (emphasis supplied)

There is no question in the instant case that the second prong of the test was met. Officer Durham testified that the informant had supplied reliable information about criminal activity to him in the past. In addition, defendant concedes the credibility of the informant. The threshold question is whether the first prong of the Aguilar test was met. Simply stated, did Officer Durham at the suppression hearing supply 'underlying circumstances from which the informant concluded that the (marijuana was) where he claimed (it was)?'

The first part of the Aguilar test has come to be known as the 'basis of knowledge' prong.* It was clarified by the Supreme Court in Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. There the Court stated:

'In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.

'The detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides a suitable benchmark.' 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, an informant named Hereford told federal narcotics agents that Draper had gone to Chicago and that he was going to bring back three ounces of heroin. He gave the agents Draper's description and told them that Draper would be arriving in Denver by train at a certain time on one of two days. He said that Draper habitually walked fast and that he would be carrying a tan zipper bag. When Draper did arrive by train he was arrested and the heroin was found in his possession. The court held that the informant's tip, plus the verification of the tip by the police, was sufficient to establish probable cause for Draper's arrest and the search of his person.

'* * * Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had 'reasonable grounds' to believe that the remaining unverified bit of Hereford's information--that Draper would have the heroin with him--was likewise true.' 358 U.S. at 313, 79 S.Ct. at 333, 3 L.Ed.2d at 332.

In examining whether there were underlying circumstances showing the informant's basis of knowledge of the criminal activity in this case we will use Draper v. United States, supra, as a benchmark as suggested by the Court in Spinelli v. United States, supra. The informant here told Officer Durham (1) that Rigsbee was in town, (2) that he usually went to Club 20 where he sold marijuana, (3) that he would leave for Club 20 between 6:30 and 7 p.m., and (4) that he would have a controlled substance in his car. Before making the arrest, Officer Durham personally verified most of the informant's tip: the defendant was at home; he did leave home within ten minutes of the time the informant said he would leave; and he was proceeding in the direction of Club 20 at the time he was stopped by the officers. The only bit of unverified information was that Rigsbee would have a controlled substance in the car.

Considering the information given by the informant as a whole and the subsequent verification by the officers, we conclude that the informant did have firsthand knowledge of the defendant's criminal activity. We hold that this information, plus the proven credibility of the informant meets the two-pronged Aguilar test for probable cause. Therefore the officers were justified on the basis of the informant's tip in taking the defendant into custody.

This holding is in complete accord with the latest pronouncement from the Eighth Circuit Court of Appeals regarding the Aguilar-Spinelli-Draper line of cases. In United States v. Cummings, 1974, 507 F.2d 324, a reliable unnamed informant notified law enforcement authorities that slot machines were being carried into Sioux Falls, South Dakota. He described the U-Haul truck that carried the slot machines, gave the license number of the truck, and stated that the driver was one James Christensen of Sioux Falls. On the basis of this tip a search warrant was issued by a municipal judge in Sioux Falls and slot machines were found in the described truck. The Court of Appeals examined...

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4 cases
  • United States ex rel. Rigsbee v. Parkinson
    • United States
    • U.S. District Court — District of South Dakota
    • 19 Febrero 1976
    ...was convicted in a trial without a jury and the conviction and sentence were affirmed by the South Dakota Supreme Court. State v. Rigsbee, S.D., 233 N.W.2d 312 (1975). I. NO PROBABLE CAUSE TO Petitioner alleges that the officers had insufficient probable cause to arrest and subsequently sea......
  • McGillivray v. Siedschlaw
    • United States
    • South Dakota Supreme Court
    • 5 Junio 1979
    ...Aguilar v. Texas, supra, has been used in determining if probable cause exists where there is an arrest without a warrant. State v. Rigsbee, 1975, S.D., 233 N.W.2d 312, citing McCray v. Illinois, 1967, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, and Beck v. Ohio, supra. It is suggested that......
  • State v. Heney
    • United States
    • South Dakota Supreme Court
    • 30 Octubre 2013
    ...is on the one making the motion to suppress evidence to establish that such evidence was illegally seized.” State v. Rigsbee, 89 S.D. 360, 376, 233 N.W.2d 312, 321 (1975) (citation omitted).2 “When the issue is whether challenged evidence is the fruit of a Fourth Amendment violation, the de......
  • Rigsbee v. Parkinson
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 19 Noviembre 1976
    ...that there was contraband in the car, they had probable cause to conduct a search on the spot or at the police station. State v. Rigsbee, 233 N.W.2d 312, 315 (S.D.1975). After exhausting his state remedies, Rigsbee filed the instant habeas petition pressing the same fourth amendment claims ......

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