State v. Shearer, 19210

• Decision Date: 14 February 1996
• Docket Number: No. 19210,19210
• Citation: 548 N.W.2d 792,1996 SD 52
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ronald S. SHEARER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 792

548 N.W.2d 792

1996 SD 52

STATE of South Dakota, Plaintiff and Appellee, v. Ronald S. SHEARER, Defendant and Appellant.

No. 19210.

Supreme Court of South Dakota.

Considered on Briefs Feb. 14, 1996.

Decided May 8, 1996.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.

Todd C. Miller, Beresford, for defendant and appellant.

MILLER, Chief Justice.

¶1 Ronald Shearer appeals his conviction for unauthorized possession of a controlled substance (methamphetamines), possession of marijuana, and possession of drug paraphernalia. He contends evidence admitted against him was obtained in violation of the Fourth Amendment. He also challenges the sufficiency of the evidence to support his conviction for possession of a controlled substance. We affirm in part, reverse in part and remand.

FACTS

¶2 On June 16, 1994, Shearer and Sean Nimick were passengers in a vehicle being driven by Angelic Cheek through Union County, South Dakota. The three were seated in the front seat of the car. They were on their way to a concert in Ames, Iowa. Highway Patrol Trooper Henningson observed the vehicle and radioed Highway Patrol Trooper Joffer "to take a look at it" when it went by. Trooper Henningson did not elaborate. Trooper Joffer stopped the vehicle because an object was dangling from the interior rearview mirror in violation of SDCL 32-15-6. As he spoke to Cheek, he noticed two coolers in the back seat. He also noted all three individuals had freshly lit cigarettes; the trooper believed it was a common practice to light cigarettes to conceal the smell of alcohol.

¶3 Trooper Joffer took Cheek back to his vehicle and gave her a warning ticket for the dangling object hanging from her rearview mirror. He asked if there were alcoholic beverages in the coolers. She said there were, but none were open. Trooper Joffer asked for consent to search the car for open containers and Cheek gave that consent.

¶4 Trooper Henningson arrived on the scene. The officers asked Shearer and Nimick to step out of the vehicle. Trooper Henningson spoke with Nimick while Trooper Joffer talked to Shearer. Joffer informed Shearer that Cheek had consented to a search of the vehicle and asked Shearer if there were any open containers in the car. Shearer said he was not aware of any. Trooper Joffer asked if Shearer had any weapons on his person and he responded that he did not. Trooper Joffer then conducted a pat search of Shearer for weapons. (Joffer stated a pat-down search was standard procedure to ensure officer safety during a vehicle search.) Shearer was not wearing a shirt at the time. Trooper Joffer felt what he believed to be a lighter in Shearer's left pants pocket. He asked Shearer, "Got a lighter in your pocket?" and Shearer said, "Yes." Then Joffer felt what he thought was a pill bottle in Shearer's right pocket. According to Joffer, it felt like a small cylindrical container. He knew it was not a weapon. Joffer asked what it was, and Shearer said it was a lighter. Joffer stated to Shearer, "Could you take it out, please." Joffer wanted Shearer to remove the bottle, because he suspected it contained "something." Shearer turned and faced the officer and placed both hands in his pockets. Then Shearer quickly removed a pharmaceutical bottle with a white cap and threw it in the ditch. Joffer immediately placed Shearer in handcuffs. When asked what was thrown in the ditch, Shearer responded "A lighter." After a very short time, Shearer told the officer the item thrown in the ditch was a small amount of marijuana in a pill bottle.

¶5 Joffer proceeded to search Cheek's vehicle. He found a blue and white canvas bag lying on the front passenger side floorboard. Joffer testified the bag was large enough to hold several open containers of alcohol. He zipped open the bag and found a clear plastic bag with a green leafy substance which appeared to be marijuana. Joffer also found a Camel cigarette pack full of rice in the bag. When he dumped the rice out, he found three bindles containing a white powder which he thought might be a controlled substance.

¶6 Joffer asked Shearer if the duffel bag was his. Shearer advised that the bag belonged to Nimick. Nimick agreed the bag was his, but was evasive about whether he owned all the contents of the bag.

¶7 Joffer subsequently found the pill bottle Shearer had thrown in the ditch. Chemical analysis indicated the green, leafy substance found in the plastic bag and in the pill bottle was marijuana and the white powder found in the three paper bindles was methamphetamine.

¶8 The State charged Shearer with unauthorized possession of a controlled substance, possession of marijuana, and possession of drug paraphernalia. Shearer moved to suppress the marijuana and methamphetamine confiscated by the officers, asserting that the search of his person and of Nimick's duffel bag was unlawful. The trial court denied the motion. A jury convicted Shearer of all three crimes charged and he appeals.

Issue I.

¶Did Cheek's consent to search her car for open containers authorize law enforcement to search inside a blue duffel bag found in the car?

¶10 The Fourth Amendment to the United States Constitution and Article VI, § 11, of the South Dakota Constitution guarantee the right of the people to be free from unreasonable searches and seizures. The state and federal constitutions "generally require searches of persons and places to be authorized by warrant and require such warrants to be based on probable cause to believe that the search will yield contraband or other evidence of a crime." State v. Zachodni, 466 N.W.2d 624, 627 (S.D.1991) (citations omitted).

¶11 There are a few specific and well-recognized exceptions to this rule. Minnesota v. Dickerson, 508 U.S. 366, 372-373, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334, 343-44 (1993). Consent given to law enforcement to conduct a search removes any necessity to obtain a warrant based on probable cause. State v. Fountain, 534 N.W.2d 859, 863 (S.D.1995) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973); Zachodni, 466 N.W.2d at 628). Although Shearer does not dispute that Cheek consented to a search of the vehicle, he challenges the scope of her consent. He contends Cheek's consent to search the vehicle for open containers did not extend to the blue bag owned by Nimick that was lying on the passenger side of the car.

¶12 When reviewing a trial court's legal decision on a suppression motion, we follow the abuse of discretion standard. Fountain, 534 N.W.2d at 862-63 (citing State v. Ramirez, 535 N.W.2d 847 (S.D.1995); State v. Flegel, 485 N.W.2d 210, 213 (S.D.1992)). "The ultimate decision of the trial court on suppression will be affirmed unless the defendant can demonstrate that such discretion has been exercised to an end or purpose not justified by, and clearly against, reason and evidence." Fountain, 534 N.W.2d at 863 (citing Ramirez, 535 N.W.2d at 849; State v. Almond, 511 N.W.2d 572, 574 (S.D.1994)). The presence or absence of consent to search is a question of fact. Fountain, 534 N.W.2d at 863. The trial court's finding regarding consent will be upheld unless, viewing the evidence in the light most favorable to the finding, it is clearly erroneous. Id. (citing Almond, 511 N.W.2d at 573-74).

¶13 Shearer argues that Cheek's consent to search the vehicle could not extend to Nimick's duffel bag and its contents. Shearer does not claim that the blue duffel bag belonged to him or that he owned any of the items contained in the bag.

¶14 Even if the search of Nimick's bag was unlawful, no relief could be afforded to Shearer. He may not assert the rights of another as a means of excluding evidence in his own case. "[S]uppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing." Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965, 22 L.Ed.2d 176, 185-86 (1969). There are sound reasons for this rule:

Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.... No rights of the victim of an illegal search are at stake when the evidence is offered against some other party. The victim can and very probably will object for himself when and if it becomes important for him to do so.... The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.

394 U.S. at 174-75, 89 S.Ct. at 966-67, 22 L.Ed.2d at 187.

¶15 We therefore hold the trial court did not abuse its discretion in admitting the fruits of the search of the duffel bag.

Issue II.

¶Did the trial court abuse its discretion in refusing to suppress evidence of the marijuana contained in the pill bottle, because troopers lacked constitutional authority to make a Terry-type stop and frisk of Shearer?

¶17 In addition to the search of the blue bag, Shearer also challenges the constitutionality of the pat-down search of his person by Trooper Joffer. He contends the marijuana contained in the pill bottle should have been suppressed due to the illegality of this search.

¶18 In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized another...