State v. Sorensen

• Decision Date: 29 September 2004
• Docket Number: No. 22852-a-JKK.,22852-a-JKK.
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. THOR JOHN SORENSEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

2004 SD 108

688 NW 2d 193

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. THOR JOHN SORENSEN, Defendant and Appellant.

No. 22852-a-JKK.

Supreme Court of South Dakota.

Argued On April 28, 2004

Reassigned July 12, 2004

Opinion Filed September 29, 2004

LAWRENCE E. LONG, Attorney General, JEFFREY J. TRONVOLD, FRANK E. GEAGHAN, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

LUCILLE M. LEWNO, Yankton Public Defender, Yankton, South Dakota, Attorneys for defendant and appellant.

KONENKAMP, Justice (on reassignment).

[¶ 1.] Defendant was convicted of possession of methamphetamine. The seizure of the methamphetamine occurred when a warrant was issued to search for stolen property at a residence. In addition to the home, the warrant authorized a search of "all vehicles parked on the property." When officers arrived to execute the search warrant, the vehicle in which defendant was a passenger was parked in the driveway. A search of the vehicle uncovered illegal drugs. The circuit court declined to suppress the evidence. We need not reach the question whether the "all vehicles" provision in the warrant was overbroad because the good faith exception to the exclusionary rule applies here, making the seized evidence admissible.

Background

[¶ 2.] In a theft report, Amanda Hoffman told police that she had taken her CD case containing approximately 240 CDs with her while riding in Leyna Luzier's vehicle. Luzier and Nicholas Leitch got out of the car and went into Luzier's home. Unknown to Hoffman, Leitch took the CD case with him. When Hoffman asked Luzier what had happened to the case, Luzier told her that Leitch had taken it into the house and when he left, the case and CDs "were gone." Hoffman described the CD case to the police. During the investigation, a witness told Officer Jeff Sorensen that she had seen Leitch and Joshua Gratzfeld in Gratzfeld's bedroom with the stolen CDs and the case at 2408 Cedar Terrace, Yankton, South Dakota, where Gratzfeld resided. The witness reported seeing the two individuals "going through a compact disk case, throwing out one they did not want."

[¶ 3.] In support of his request for a search warrant, Officer Sorensen submitted an affidavit reiterating the information he received from the witnesses concerning the theft and the location of the stolen items.¹ The officer requested a warrant to search the residence at 2408 Cedar Terrace and "all vehicles parked on the property." The Clerk Magistrate issued the search warrant as requested.

[¶ 4.] Officers Sorensen and Mike Burgeson went to the residence to execute the warrant. When they arrived, an automobile was parked in the driveway. Defendant, Thor John Sorensen, was a passenger. Gratzfeld was standing in the driveway next to the passenger window. The officers pulled in behind the vehicle, got out, and had a conversation with Gratzfeld. Officer Burgeson told defendant that they had a search warrant and that the vehicle was going to be searched. Despite protests from defendant and another passenger, the vehicle was searched. Burgeson spotted a CD case on the passenger side floor partially under the seat. The case was different from the one Hoffman reported as stolen. On unzipping the case, Burgeson found what appeared to be illegal substances and drug paraphernalia inside. Defendant later admitted his use of the methamphetamine in the CD case.

[¶ 5.] In circuit court, defendant moved to suppress. He claimed that, under the search warrant affidavit, no probable cause was shown to issue a search warrant for "all vehicles" on the premises. The trial court denied the motion. Defendant was found guilty of possession of methamphetamine in violation of SDCL 22-42-5 and SDCL 34-20B-16(6). On appeal, he contends that there was insufficient probable cause to justify an "all vehicles" provision in the search warrant.²

[¶ 6.] Defendant's challenge is based on the Fourth and Fourteenth Amendments of the United States Constitution and Article VI §11 of the South Dakota Constitution. Under the Fourth amendment, the people are "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause, . . . and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV; Maryland v. Pringle, 540 US 366, 124 SCt 795, 799, 157 LEd2d 769 (2003) (emphasis added).

[¶ 7.] Although we have not previously reviewed an "all vehicles" search warrant, we have approved of an "all persons" provision in a warrant. State v. Jackson, 2000 SD 113, ¶14, 616 NW2d 412, 417. Such a warrant can only issue if the supporting affidavit shows a sufficient nexus between "the criminal activity, the place of the activity, and the persons in the place." Id. ¶15. As this Court said in Jackson:

The question, therefore, is whether the affidavit gave sufficient particularity to conclude that there was good reason to believe that anyone present would probably be a participant in the illegal [] activities . . . . The key to assessing an "all persons" warrant is to examine whether there was a "sufficient nexus among the criminal activity, the place of the activity, and the persons in the place to establish probable cause."

Id. A similar analysis might well apply to an "all vehicles" warrant.³ However, we need not reach the question whether probable cause existed to authorize an "all vehicle" search here.

[¶ 8.] Even if the warrant was overbroad, the evidence seized under its authority need not be excluded. Suppression of evidence is not a personal constitutional right, but a judicially created remedy to deter constitutional violations by government officials. United States v. Leon, 468 US 897, 906, 104 SCt 3405, 3412, 82 LEd2d 677 (1984).⁴ In State v. Boll, we quoted Leon, explaining:

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care towards the rights of an accused.

2002 SD 114, ¶37, 651 NW2d 710, 720 (quoting 468 US at 919, 104 SCt at 3418). Because the goal of deterrence will not always be advanced by excluding relevant, though illegally seized, evidence, the Supreme Court has identified several exceptions to the exclusionary rule.

[¶ 9.] Under the "good faith" exception, "evidence is admissible when police officers reasonably rely on a warrant that is subsequently invalidated because a judge finds there was an insufficient basis for the issuing magistrate to find probable cause." State v. Saiz, 427 NW2d 825, 828 (SD 1988). When reviewing suppression rulings, we have the discretion to proceed directly to the good faith question without first deciding the issue of probable cause.⁵ We examine the good faith exception de novo. United States v. LaMorie, 100 F3d 547, 555 (8thCir 1996); State v. Belmontes, 2000 SD 115, ¶26, 615 NW2d 634, 641 (Konenkamp, J., concurring in result).

[¶ 10.] In Leon, the Supreme Court identified four situations in which the good faith exception to the exclusionary rule would not apply. First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false but for the affiant's reckless disregard for the truth. Second, the exception will not apply when the issuing magistrate wholly abandons the judicial role. Third, the good-faith exception will not apply when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Thus, the exception does not extend to situations in which the officer obtains a warrant based on a "bare bones" affidavit and then relies on good faith execution by innocent colleagues in order to sustain the warrant. Leon, 468 US at 923 n24, 104 SCt at 3420 n24. Fourth, the exception will not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid. TheLeon rule will not exclude evidence, however, when an officer's reliance on a technically sufficient warrant is objectively reasonable. Id. at 922, 104 SCt at 3420.

[¶ 11.] As to the first and second circumstances, there is no indication here that Officer Sorensen willfully or recklessly omitted pertinent information from the affidavit, or that the issuing magistrate was misled by any omission or misrepresentation, or that she wholly abandoned her judicial role. As to the third situation, there is no indication that the affidavit in support of the warrant was so lacking in indicia of probable cause as to render official belief in the existence of probable cause completely unreasonable. The affidavit in this case is far from what Leon envisioned as a affidavit so bereft of probable cause that it could not support issuance of a warrant notwithstanding good faith on the part of the executing officers.

[¶ 12.] On the fourth circumstance, our "inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Id. at 922 n23, 104 SCt at 3420 n23. This determination is to be made taking into account all the circumstances, and assuming that the executing agents "have a reasonable knowledge of what the law prohibits." Id. at 920 n20, 104 SCt at 3419 n20. Here, this exception does not apply because the warrant was not so facially deficient in failing to particularize the place to be searched or the things to be seized so that no officer could reasonably rely upon it. Id. at 923, 104 SCt at 3421. We think...