State v. Smith

Decision Date11 July 1979
Docket NumberNo. 12567,12567
Citation281 N.W.2d 430
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. William P. SMITH, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Kevin F. Manson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Judd Golden, Des Moines, Iowa, for defendant and appellant; Michael A. Lyons, Sioux Falls, on brief.

DUNN, Justice.

Defendant William P. Smith appeals from his conviction in the Circuit Court of the Second Judicial Circuit of possession of marijuana in violation of the Drugs and Substances Control Act embodied in SDCL 39-17. 1 We affirm.

On July 20, 1977, Smith was arrested by detectives of the Sioux Falls Police Department, and his truck and its contents were impounded. An affidavit was then executed for a search warrant for the impounded items. A search warrant was issued within hours upon a finding of probable cause by a magistrate. The ensuing search resulted in the seizure of suspected controlled substances which were sent to the State Chemical Laboratory in Vermillion, South Dakota, for scientific testing purposes. Testing resulted in identification of 66.57 ounces of marijuana, as well as cannabis residue, cannabis seeds and pentobarbital. On July 27, 1977, a Minnehaha County Grand Jury handed down an indictment for Smith on one count, to-wit: possession of marijuana in excess of one ounce in violation of SDCL 39-17-95. On August 29, 1977, Smith filed a motion to suppress evidence, and a hearing was held on that motion on September 28, 1977. On November 17, 1977, the trial court entered an order denying the motion to suppress evidence. Smith entered a plea of not guilty to the charge set forth in the indictment. Smith had previously waived the right to trial by jury, and the case proceeded to trial before the court on January 11, 1978. On April 3, 1978, the trial court found Smith guilty as charged in the indictment and ordered a presentence investigation. On August 15, 1978, the trial court sentenced Smith to four years in the state penitentiary.

On appeal, Smith contends that the trial court erred in denying his motion to suppress evidence for the reasons that there was a lack of probable cause for the warrantless arrest, that the affidavit in support of the search warrant was insufficient to meet the requirements for a showing of probable cause, and that the trial court permitted testimony in addition to that contained within the affidavit in support of the search warrant in the hearing on the motion to suppress the evidence.

With regard to Smith's contention that there was a lack of probable cause for the warrantless arrest, we note that the arrest could be valid only if a public offense was committed or attempted in the detectives' presence or if a felony had in fact been committed and the detectives had reasonable cause for believing that Smith committed the felony. SDCL 23-22-7(1), 23-22-7(3). In McGillivray v. Siedschlaw, 278 N.W.2d 796 (S.D.1979), we stated that this requirement of reasonable cause has been held to be equated with the Fourth Amendment's requirement of probable cause. In Klingler v. United States, 409 F.2d 299, 303 (8th Cir. 1969), probable cause was found to exist

where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime has been or is being committed.

Further, both reasonable cause and probable cause must be measured against an objective standard. McGillivray v. Siedschlaw, 278 N.W.2d 796 (S.D.1979).

With this standard in mind, we must review the facts that the arresting officers had before them in order to determine whether probable cause existed for the warrantless arrest.

In June of 1977, as a result of a continuing investigation by the Sioux Falls Police Department, detectives pieced together information from several sources regarding a drug-running operation from Des Moines, Iowa, to Sioux Falls, South Dakota, referred to as the "Jamaican Express." 2 Detectives learned that an individual by the name of Smith was in charge of the operation out of Des Moines and used a truck to transport drugs into Sioux Falls. The detectives received information that an unlimited quantity of marijuana could be received on any Wednesday evening or Thursday morning if an order were placed by the preceding Monday evening to a Des Moines phone number, i. e., Smith's number. Informant Isonhood provided information that he had known Smith for about two months prior to July 20, 1977, and that he had seen Smith with a suitcase containing marijuana at the residence of Dick Clark and Michael Hastings. 3 Isonhood also provided detectives with a description of Smith. Informant Isonhood further provided information that he personally made arrangements while under the employment of Avis Rent-A-Car of Sioux Falls for Smith to acquire a rental car on a cash basis for short-term use. The informant stated that he had driven Smith from Avis Rent-A-Car to Smith's truck while Smith picked up what was alleged to be the drugs from the trucking run from Des Moines. Detectives also learned that another "load" was coming in from Smith on Wednesday night, July 20, 1977. On that date, detectives staked out the Avis Rent-A-Car office and observed a truck with Iowa license plates pull into an adjoining parking lot. The driver walked from the truck to the Avis Rent-A-Car office, and moments later, the driver exited and drove a rental car over to the truck. The detectives ascertained from an employee at the Avis Rent-A-Car office that the driver was indeed William P. Smith. The detectives observed Smith as he drove the rental car to the driver's side of the truck, removed a number of articles from the cab and placed them on the ground. At that point, detectives made a warrantless arrest of Smith and impounded the truck, its contents, and the articles from the cab which were removed by Smith prior to the arrest.

On the basis of these facts before the detectives and after reading the record, we are convinced that the detectives had "reasonably trustworthy information" and that a "man of reasonable caution" could conclude that a crime had been or was being committed and that Smith was a prime actor in such criminal activity. Therefore, the requirement of probable cause was satisfied and the warrantless arrest was valid.

We next address Smith's contention that the trial court erred in permitting testimony in addition to the information contained within the affidavit in support of the search warrant in the hearing on the motion to suppress the evidence.

The trial court conducted a hearing on the motion to suppress evidence to ascertain the existence of probable cause for the issuance of the search warrant. In addition to considering the affidavit in support of the search warrant, the trial court heard the testimony of the affiant and another detective. While the testimony, in addition to the affidavit, could properly be considered by the trial court in its determination of probable cause for the warrantless arrest in the objective sense, such testimony is not to be considered in a determination of probable cause for the issuance of the search warrant. In South Dakota, probable cause must be found in the affidavit or duly transcribed sworn testimony given before the warrant is issued. SDCL 23-15-2 and 23-15-8. In reviewing the determination of probable cause by the magistrate, only the evidence presented in support of the search warrant must be considered. State v. Gerber, 241 N.W.2d 720 (S.D.1976). The state is not allowed to bolster the probable cause or lack thereof on the face of an affidavit in support of a search warrant on the basis of additional information known to the police at the time the search warrant was applied for. State v. Robinette, 270 N.W.2d 573 (S.D.1978). Therefore, the existence of probable cause for the search warrant must rise or fall on the affidavit itself which was the only evidence presented to the magistrate for his determination of probable cause.

We address Smith's final contention that the affidavit in support of the search warrant was insufficient to meet the requirement for a showing of probable cause. To make this determination, we look to the four corners of the affidavit which contains the sworn statement of a Sioux Falls detective. With the exception of the caption, the affidavit contained the following information:

1. That on June 15, 1977, your Affiant is aware, through a report filed by Detective RALLIS, of the narcotics Division, that an individual by the name of JEFFREY BURKMAN was arrested for Distribution of a Controlled Substance. This arrest was based, in part, according to Rallis, from an informant indicating that Burkman, Gary LaFrantz and Charles Wheeler were receiving shipments of narcotics from a trucking operation labeled "Jamacian (sic) Express", that narcotics received from this operation were received during late evening and early morning hours on Wednesday-Thursday. That an unlimited quantity of Columbian marijuana and Mexican Marijuana could be received from this source if an order were placed to a subject living in Des Moines on Monday evening. Rallis further indicated to your Affiant that he received information from CHARLES WHEELER, arrested at the same time as JEFFREY BURKMAN, approximately, that GARY LaFRANTZ was using this "Jamaican...

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