State v. Steingraber

• Decision Date: 17 September 1980
• Citation: 296 N.W.2d 543
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Gwendolyn STEINGRABER and Walter Kendal Myers, Defendants and Appellees. 13017.
• Court: South Dakota Supreme Court

Page 543

296 N.W.2d 543

STATE of South Dakota, Plaintiff and Appellant, v. Gwendolyn STEINGRABER and Walter Kendal Myers, Defendants

and Appellees.

13017.

Supreme Court of South Dakota.

Argued May 23, 1980.

Decided Sept. 17, 1980.

Gary F. Colwill, Deputy State's Atty., Pierre, for plaintiff and appellant.

Douglas E. Kludt of Bergren & Duffy, Fort Pierre, for defendants and appellees.

WOLLMAN, Chief Justice.

This is an intermediate appeal from an order suppressing certain evidence seized pursuant to a search warrant. We reverse and remand.

Acting pursuant to an informant's tip regarding drug-related activity, a search warrant was obtained authorizing a search of a residence at 328 North Grand in Pierre. At approximately 7:30 on the evening of September 17, 1979, several law enforcement officers, led by Hughes County Deputy Sheriff Charles Vollmer, undertook to serve the warrant. The officers positioned themselves at various places around the house. Deputy Sheriff Vollmer and two other officers approached the front door of the residence.

The residence is a brick structure with an enclosed porch attached to the front. Entry to the porch is obtained through a screen door. Deputy Sheriff Vollmer opened the screen door without first knocking, whereupon he and the other two officers entered the porch and approached the front door to the living quarters. Finding this door open and observing two occupants in the living room, one in possession of a marijuana pipe and a tray of what appeared to be marijuana, Deputy Vollmer entered the living room, announcing his purpose to execute the search warrant almost simultaneously with his entry, although he could not recall whether the announcement was made before or after he stepped into the living room. Immediately after entering the living room and ordering the two occupants to be seated on the Defendant Myers' affidavit in support of the motion to suppress states that upon looking up after hearing the screen door open he saw Deputy Vollmer standing in the living room waving a piece of paper and what appeared to be his badge and stating "this is the police, stay where you are, you are under arrest."

couch, Deputy Vollmer handed a copy of the search warrant to defendant Myers, one of the occupants.

SDCL 23A-35-8 states in part:

The officer executing a search warrant may break open any building, structure, or container or anything therein to execute the warrant if, after giving notice of his authority and purpose, he is refused admittance. . . .

As we stated in State v. Kietzke, 85 S.D. 502, 186 N.W.2d 551 (1971), this statute (then denominated as SDCL 23-15-14) is similar to 18 U.S.C.A. § 3109 and section 844 of the California Penal Code. As summarized by the Supreme Court of California in Duke v. Superior Court of Los Angeles, 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628 (1969):

The purposes and policies underlying section 844 are four-fold: (1) the protection of the privacy of the individual in his home . . . (2) the protection of innocent persons who may also be present on the premises where an arrest is made . . . (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice . . . and (4) the protection of police who might be injured by a startled and fearful householder.

82 Cal.Rptr. at 352-53, 461 P.2d at 632-33 (citations omitted). See also People v. Peterson, 9 Cal.3d 717, 108 Cal.Rptr. 835, 511 P.2d 1187 (1973), wherein the California Court pointed out that statutes requiring officers to announce their presence and purpose before demanding entry to execute a search warrant serve policies and purposes similar to statutes such as section 844 of the California Penal Code. 108 Cal.Rptr. 835, 839, n. 7, 511 P.2d 1187, 1191, n. 7. ^*

We first consider the question whether it was incumbent upon the officers to comply with the requirements of SDCL 23A-35-8 before entering the enclosed porch through the screen door. The State argues that such compliance is not required if the officers comply or clearly intended to comply at the front door to the living area. People v. Harvey, 38 Mich.App. 39, 195 N.W.2d 773 (1972). We agree. From the picture painted by the record, the porch in question was more in the nature of a foyer or natural entranceway for the general public than a part of the house proper. Absent a clear showing that such a porch is an integral portion of the living area of a residence, the statute does not dictate compliance with the knock and announce requirement at the entrance to the porch.

There remains the question whether Deputy Vollmer's failure to knock at the open door to the living quarters and to announce his presence and purpose constituted such a substantial noncompliance with the provisions of SDCL 23A-35-8 as to render the fruits of the subsequent search inadmissible.

Assuming that the provisions of SDCL 23A-35-8 apply to entrances made through an open door, cf. People v. Peterson, supra, 108 Cal.Rptr. at 839, 511 P.2d at 1191, we hold that Deputy Vollmer's announcement of his intention to execute the search warrant made simultaneously, or nearly so, with his entry into the living room constituted substantial compliance with the statute. Entry through an open door in full view of the occupants of the room is far different from the surreptitious, unexpected type of entry that the statute is designed to prevent.

We analogize the facts in the present case with those in People v. Peterson, supra. There, the officers had committed a technical The question then is whether Officer Kalm by delaying his announcement until after he had opened the screen door frustrated or made nugatory any of the purposes and policies previously enumerated. We note that the interior of the residence and the occupants therein were visible to any member of the public who, like the officers, had proper reason to enter onto the premises and approach the visibly open doorway. Thus, no right of privacy was infringed as the opening of the screen door revealed nothing more than was already exposed to the officers' view and they did not physically intrude into the home until after the announcement.

violation of section 1531 of the California Penal Code by opening an unlatched screen door before giving the notice of their authority and purpose required by that statute. In concluding that under the circumstances of the case there had been substantial compliance with section 1531 and with the purposes and policies set forth in Duke v. Superior Court of Los Angeles, supra, and Greven v. Superior Court of County of Santa Clara, 71 Cal.2d 287, 78 Cal.Rptr. 504, 455 P.2d 432 (1969), the court wrote:

It is equally clear that no greater risk of violence to any person on the premises was created, as at all times after approaching and knocking the officers could clearly observe the occupants within the interior and take precautionary measures if necessary. Nor can it be argued successfully that there was a greater risk that the occupant might respond violently by reason of ignorance of the officers' identity and purpose, as the officers were immediately visible and announced their purpose to the occupants who were thus made aware of the situation and its demands. Assuredly the personal safety of the officers, as in the case of the occupants, was not subjected to any increased danger. . . .

108 Cal.Rptr. at 840, 511 P.2d at 1192 (footnote omitted).

We conclude that the same reasoning applies to the facts in the present case. Standing where he had a right to be, Deputy Vollmer was visible to the occupants within the room. Likewise, the occupants, together with the interior of the premises, were visible to Deputy Vollmer and his colleagues. Even if we accept defendant Myers' version of the sequence of the events, Deputy Vollmer's announcement of his authority and purpose was so nearly contemporaneous with his entry into the living quarters that it constituted substantial compliance with SDCL 23A-35-8 and the purposes and policies that statute was designed to serve. Accordingly, we hold that the evidence seized pursuant to the warrant should not have been ordered suppressed.

Defendants' contention that the search violated their constitutional rights to be free from unreasonable searches and seizures is without merit. Defendants do not challenge the validity of the search warrant itself, and it follows from our holding above that the search conducted pursuant to the warrant was not unreasonable.

The order appealed from is reversed and the case is remanded to the circuit court for further proceedings.

DUNN, MORGAN and FOSHEIM, JJ., concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

I would affirm the lower court's ruling to suppress the evidence and therefore dissent.

The decision of the lower court was succinct, sound, not clearly erroneous and follows below:

FINDINGS OF FACT

I.

On September 17, 1979, a group of law enforcement officers led by Hughes County Deputy Sheriff Charles Vollmer armed with a search warrant, made their way up to a residence at 328 North Grand in Pierre, South Dakota.

II.

Deputy Vollmer led the way by opening a screen door on an enclosed porch of the dwelling without knocking and upon proceeding into the porch observed that the inner door to the living room was open and proceeded on into the living room without knocking or announcing his authority until he was within the living room of the dwelling. (Emphasis supplied.)

Upon the foregoing Findings of Fact, the court makes and enters the following:

CONCLUSIONS OF LAW

I.

SDCL 23A-35-8 clearly places the burden on an officer executing a search warrant to announce his authority and purpose before entering a structure or portion of a structure.

II.

The requirements of SDCL 23A-35-8 were not adhered to in the case at bar, and that therefore, defendant's motion to suppress evidence is...