State v. Schwartz

Decision Date10 November 2004
Docket Number No. 22932, No. 22933.
Citation2004 SD 123,689 N.W.2d 430
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Connie L. SCHWARTZ, Defendant and Appellant. State of South Dakota, Plaintiff and Appellee, v. Rick W. Schwartz, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.

Barry Vlasman, Brookings, SD, for defendants and appellants.

GILBERTSON, Chief Justice.

[¶ 1.] A circuit court found Rick and Connie Schwartz guilty of possession of methamphetamine and sentenced each to serve two years in the South Dakota State Penitentiary, with Connie's sentence suspended on various conditions. Both now appeal and raise the same substantive issues. First, the Schwartzes argue that the South Dakota Constitution prohibited the warrantless search and seizure of their trash. They also believe that the evidence used to support the issuance of a warrant to search their persons and residence was insufficient to establish probable cause. Finally, the Schwartzes contend that their statements made to law enforcement subsequent to the search of their home should be suppressed as fruit of an illegal search. We affirm.


[¶ 2.] In January 2003, a man by the name of Steve Prunty contacted the Drug Enforcement Administration and provided information concerning the use and distribution of illegal drugs by several individuals in Brookings, South Dakota. This information was then passed along to South Dakota law enforcement authorities. Shortly thereafter, on January 30, 2003, Agent Jason Even of the Division of Criminal Enforcement met with Prunty. During the meeting, Prunty related that his ex-wife was abusing methamphetamine and that she had confided in him about various people in the Brookings area who were using and selling methamphetamine and marijuana. Agent Even recognized the names of several of the individuals through other on-going drug investigations. In particular, Prunty mentioned that his ex-wife obtained methamphetamine from Rick and Connie Schwartz.

[¶ 3.] At the conclusion of the meeting, Prunty showed Agent Even where the Schwartzes resided in Brookings. Based upon his meeting with Prunty, Agent Even decided to conduct two searches of the Schwartzes' trash. On February 4, 2003, Agent Even removed a trash can from a curb in front of the Schwartzes' residence. A dark green City of Brookings trash can had been placed on the boulevard next to the curb for collection by the City of Brookings trash service. The trash contained literature addressed to Connie Schwartz. Along with approximately twenty-two pieces of tin foil with black burn marks on them, Agent Even found one yellow pen tube with apparent white powder residue inside and a small portion of a green, leafy substance. In Agent Even's experience, people involved in methamphetamine use commonly utilize tin foil as a means of smoking the drug, while pen tubes are used as a means to snort illegal drugs or to inhale fumes after methamphetamine is burned off tin foil. A field test identified the green, leafy substance as marijuana.

[¶ 4.] One week later on February 11, 2003, Agent Even conducted a second trash pull of the Schwartzes' garbage. This search yielded miscellaneous literature including a note pad addressed to "Rick," and approximately twenty-eight pieces of tin foil with black burn marks on them.

[¶ 5.] On February 12, 2003, Agent Even obtained a search warrant in order to search the Schwartzes' home and their persons. In support of issuing the search warrant, Agent Even detailed his meeting with Prunty and the results of the two trash pulls conducted on the Schwartzes' garbage. The next day, Agent Even and several other officers served the warrant on the Schwartzes and conducted a search of their residence. During the search, the officers found a white powder substance and razor blade on top of the Schwartzes' dresser. A search of Connie's purse revealed a snort tube and additional amounts of a white powder substance. The officers also obtained urine samples from the Schwartzes. Subsequent tests identified the white powder substance as methamphetamine. Both Rick's and Connie's urine samples tested positive for methamphetamine as well.

[¶ 6.] The next morning after the search, the Schwartzes voluntarily agreed to participate in an interview in Agent Even's office. During the course of the interview, the Schwartzes made several incriminating statements regarding the use of methamphetamine, and they admitted to possession of the methamphetamine found in the search of their residence.

[¶ 7.] On February 28, 2003, a Brookings County grand jury indicted the Schwartzes individually for possession of methamphetamine and marijuana. Before trial, the Schwartzes filed motions to suppress the State's evidence. They argued that evidence found during the trash pulls was obtained illegally without a search warrant, and they asserted that any evidence found in their residence was obtained through an invalid search warrant based on less than probable cause. The trial court denied these motions. After a trial before the court on June 11, 2003, the Schwartzes were found guilty of possession of methamphetamine in violation of SDCL 22-42-5. The trial judge sentenced both Rick and Connie to serve two years in the South Dakota State Penitentiary. Connie's sentence was suspended on several conditions.

[¶ 8.] The Schwartzes now appeal and raise the following issues:

1. Whether the warrantless search and seizure of the Schwartzes' trash violated the prohibition against unreasonable searches and seizures found in Article VI, Section 11 of the South Dakota Constitution.
2. Whether the search warrant was supported by sufficient evidence to establish probable cause.
3. Whether the Schwartzes' statements should have been suppressed as fruit of an illegal search.

[¶ 9.] We review motions to suppress based upon alleged constitutional violations de novo. State v. Christensen, 2003 SD 64, ¶ 7, 663 N.W.2d 691, 693-94 (citing State v. Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d 603, 610). "Factual findings by the trial court are reviewed under the clear error standard of review." Id. Application of legal standards to those findings, however, is a question of law reviewed de novo. State v. Rechtenbach, 2002 SD 96, ¶ 6, 650 N.W.2d 290, 292.


[¶ 10.] 1. Whether the warrantless search and seizure of the Schwartzes' trash violated the prohibition against unreasonable searches and seizures found in Article VI, Section 11 of the South Dakota Constitution.

[¶ 11.] The Fourth Amendment to the United States Constitution and Article VI, Section 11 of the South Dakota constitution prohibit unreasonable searches and seizures by government officials. Generally, "police officers must obtain a warrant based on probable cause issued by a judge in order to seize someone's property." Christensen, 2003 SD 64, ¶ 11, 663 N.W.2d at 694; see Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968)

. In order for the Fourth Amendment to apply, however, "[a]n individual must have a reasonable expectation of privacy in the place searched or the article seized." Id. (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

[¶ 12.] In this case, the Schwartzes contend the constitutional protection from unreasonable searches and seizures extended to their trash permanently, including after its deposit in the landfill, and, therefore, they argue Agent Even was required to obtain a warrant before conducting the two trash pulls on their garbage. The Schwartzes argue that any evidence found pursuant to the search of their trash should have been suppressed.

[¶ 13.] The United States Supreme Court squarely addressed the question of whether the Fourth Amendment extends to trash in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). In Greenwood, a police investigator received information suggesting that the respondent, Greenwood, was involved in drug use and trafficking. The investigator proceeded to conduct a search of Greenwood's trash, and she found items indicative of illegal drug use. After describing in an affidavit the items she found in Greenwood's trash, the investigator obtained a warrant and searched Greenwood's residence. The search yielded large quantities of marijuana and cocaine. A California court dismissed the charges against Greenwood on the grounds that the warrantless search of his trash violated the Fourth Amendment.

[¶ 14.] The Supreme Court reversed, concluding that the Fourth Amendment did not provide a blanket prohibition against "the warrantless search and seizure of garbage left for collection outside the curtilage of a home." Id. at 37, 108 S.Ct. 1625. Specifically, the Greenwood Court held such a search would only violate the Fourth Amendment if "respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable." Id. at 39, 108 S.Ct. 1625. Finding such an expectation lacking, the Supreme Court noted:

It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.

Id. at 40-41, 108...

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