State v. Robinette

Citation270 N.W.2d 573
Decision Date12 October 1978
Docket NumberNo. 12133,12133
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. William Anthony ROBINETTE, Defendant and Appellant.
CourtSupreme Court of South Dakota

Brent A. Wilbur, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Keith R. Strange, Jack Gunvordal, Legal Intern, Sioux Falls, for defendant and appellant.

ZASTROW, Justice.

This is an appeal from a conviction of unauthorized possession of a controlled drug or substance in excess of one ounce of which the defendant, on December 7, 1976, received a sentence of four years in the state penitentiary. We reverse the judgment and conviction.

FACTS

The defendant lived in a small garage apartment in Madison about a block from the state college. The garage apartment was located in the backyard of a two-story, three unit apartment house. The yard separating the two buildings was approximately thirty-five to forty feet wide and was unfenced, with only a hedge along the alley on the west side of the lot.

The house apartments were rented and two upstairs apartments were occupied by college students. The upstairs apartments' entrance was located in the back, opening into the yard. Although the yard was available for the use of all of the tenants, it was only occasionally utilized by any of them.

On August 19, 1976, Mrs. Roberta Knox observed two planter boxes in the yard next to the hedge. Believing the plants growing in the boxes to be marijuana, she reported her observation to the police. After being shown a marijuana plant by the police, she executed an affidavit on August 20.

In her affidavit, 1 Mrs. Knox stated that she had observed "in Mr. Robinette's yard two wooden boxes," small enough to be moved easily, "containing several plants Madison police officer, Lester Seitz, also executed an affidavit 2 stating that he had read Mrs. Knox's affidavit and talked to other neighbors in the area who confirmed that they also observed the unusual traffic and the boxes in the yard, growing what they believed to be marijuana. Seitz stated his belief in Mrs. Knox's reliability and credibility.

that appeared to me to be marijuana;" that the plants appeared identical to a sample of marijuana shown to her by a Madison police officer. Mrs. Knox stated that she also observed "heavy traffic in and out of the Robinette residence." Based on these observations, Mrs. Knox's affidavit concluded that there was marijuana in the yard outside the Robinette residence and that there were illegal drugs inside the Robinette residence.

The two affidavits were presented to Clerk-Magistrate Anthony Benning, who put both affiants under oath and further examined them. Since no record was made of that examination, it is not clear what, if anything, was revealed that was not contained in the affidavits. Benning did testify, however, that to his recollection, the interrogation produced no information that was not contained in the affidavit. Benning also testified that he had recently lived in the apartment house and personally knew of its location, the existence of three apartments in the main house and the garage apartment, the common yard, and the distance between the two buildings. Based upon the affidavits and his personal knowledge, he issued the search warrant for the yard and the defendant's apartment.

The police placed the defendant's apartment under surveillance; when the defendant returned, the officers entered the yard and went directly to the defendant's apartment and served the search warrant on him. In searching the apartment, a growing marijuana plant and 1.22 ounces of marijuana seeds were discovered. The boxes in the yard were subsequently seized and the defendant was arrested for possession of a controlled substance.

SEARCH WARRANT

The defendant contends that the evidence seized by the law enforcement officers should have been suppressed because there was insufficient information in the affidavits to establish probable cause to justify the issuance of the search warrant.

The state does not contend that the yard was an area within the curtilage where there was no "reasonable expectation of privacy," 3 or an area open to the general The protection afforded by the Constitutions of the United States and South Dakota against unreasonable searches and seizures, United States Constitution, Amendment 4; South Dakota Constitution, Article VI, Section 11, has been thoroughly discussed by this court in State v. Cundy, 1972, 86 S.D. 766, 201 N.W.2d 236; State v. Kietzke, 1971, 85 S.D. 502, 186 N.W.2d 551; State v. Cochrane, 1970, 84 S.D. 527, 173 N.W.2d 495; State v. Hermandson, 1969, 84 S.D. 208, 169 N.W.2d 255.

public. People v. Hopko, 1978, 79 Mich.App. 611, 262 N.W.2d 877. We therefore address the issue on the basis that the search of the yard, as well as of the defendant's apartment, required a search warrant.

It can be said without resort to further citation that searches and seizures by law enforcement officers can be predicated only upon probable cause. Probable cause is generally defined as the existence of facts and circumstances as would warrant an honest belief in the mind of a reasonable, prudent man acting on all the facts and circumstances within the knowledge of the magistrate that the offense has been, or is being committed and that The property sought exists at the place designated. See State v. Hermandson, supra; 79 C.J.S. Searches and Seizures § 74; 68 Am.Jur.2d, Searches and Seizures, § 68. All evidence obtained by searches and seizures in violation of the constitution, i. e., without probable cause, is inadmissible in a state court. Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; State v. McCreary, 1966, 82 S.D. 111, 142 N.W.2d 240.

In reviewing the determination of probable cause, we must consider only the evidence presented in support of the search warrant. State v. Gerber, 1976, S.D., 241 N.W.2d 720. In South Dakota, probable cause must be found in the affidavit, SDCL 23-15-2, or duly transcribed sworn testimony given before the warrant is issued. SDCL 23-15-8 requires that "the magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the Facts tending to establish the grounds of the application or probable cause for believing that they exist." (emphasis supplied)

Defendant claims that the affidavits do not meet the requirement of Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, because they fail to recite the underlying facts and circumstances from which the magistrate can find that the affiants' conclusion that the evidence exists at the premises is warranted. 4 See also Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. We note, however, that the day before the search warrant was issued, Mrs. Knox observed planters appearing to contain marijuana plants located in the common yard. After confirming that the plants were marijuana, she recited both facts in her affidavit in support of the search warrant. This was sufficient to indicate that the "property sought exists at the place designated," State v. Hermandson, Nathanson v. United States, supra, and to justify the search of the common yard.

Although the affidavits would have been sufficient to justify the search of the common yard, they do not furnish probable cause for the search of the defendant's apartment for the following reasons: (1) The common yard separating the defendant's The state additionally relies upon the "heavy traffic" to the defendant's apartment as support for the conclusion that drugs would be found there. The existence of a large number of visitors to a college student's off-campus apartment during the school year can hardly be described as the type of conduct leading to the conclusion that drugs are located on the premises. This allegation is insufficient to establish probable cause to believe that a crime was being committed in defendant's apartment and it does not give additional weight to the other allegations contained in the affidavits. There must be a nexus between the heavy traffic and criminal conduct, and this nexus must appear in the affidavits in support of the search warrant. Even assertions that "known drug users and sellers" and "a known narcotics dealer" had made frequent visits to apartments later searched have been held invalid because they are merely a "bald and unilluminating assertion of suspicion . . . entitled to no weight in appraising the magistrate's decision." See Alexander v. Superior Court of Los Angeles County, 1973, 9 Cal.3d 387, 107 Cal. Rptr. 483, 508 P.2d 1131; Metze v. State of New York, 1969, D.C.N.Y., 303 F.Supp. 1359; Spinelli v. United States, supra. Innocent activity does not establish probable cause.

                apartment from the main apartment was approximately forty feet wide; (2) The box of marijuana plants was located about an equal distance from each building; 5  (3) Three apartments were located in the main house and occupied; (4) The yard was available for use by all of the residents of the apartments; (5) There was evidence that renters other than defendant used the yard at least as frequently as the defendant; 6  (6) The apartment was located within one block of the college campus; (7) The defendant attended college and worked; (8) No one had seen the occupants of the cars actually enter the defendant's apartment; (9) Neither Seitz nor Mrs. Knox had seen the defendant near the boxes.  Accordingly, we cannot infer that the facts relating to the presence of cultivated plants in the common yard indicate the existence of probable cause to search
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  • State v. Miller
    • United States
    • South Dakota Supreme Court
    • September 7, 1988
    ... ... State v. Decker, 317 N.W.2d 138, 141 (S.D.1982); State v ... Robinette, 270 N.W.2d 573 (S.D.1978). The State must show with reasonable probability that no tampering or substitution has occurred, but it need not negate every possibility of tampering or substitution. Decker, 317 N.W.2d at 141. Mere speculation is insufficient to establish a break in a chain of ... ...
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