State v. Thunder Horse

• Decision Date: 12 May 1970
• Docket Number: No. 10725,10725
• Parties: STATE of South Dakota, Plaintiff-Respondent, v. Charles Roland THUNDER HORSE, Defendant-Appellant.
• Court: South Dakota Supreme Court

Page 19

177 N.W.2d 19

85 S.D. 76

STATE of South Dakota, Plaintiff-Respondent, v. Charles Roland THUNDER HORSE, Defendant-Appellant.

No. 10725.

Supreme Court of South Dakota.

May 12, 1970.

David V. Vrooman, Sioux Falls, for appellant.

Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for respondent.

RENTTO, Judge.

In a joint information this defendant and Jessie Zimmerman, both Indians, were charged with having conjointly committed the crime of robbery in the first degree. They were tried jointly with separate appointed lawyers representing them. At the conclusion of the state's case a verdict of not guilty was directed as to Zimmerman. Defendant Thunder Horse was found guilty by the jury and sentenced to five years imprisonment in the penitentiary. He appeals.

His trial lawyer, who is not his appellate counsel, filed a timely motion asking that certain evidence which the state had in its possession be suppressed because it had been obtained by an unreasonable search and seizure. This motion was heard before trial on the testimony of two police officers. It was denied. This action by the court is the basis of his principal appellate complaints. He also urges as prejudicial error, testimony of a police officer concerning statements made to the officer by his codefendant Zimmerman, implicating him in the commission of the offense charged, and the admission of several exhibits.

During the evening of Saturday, November 20, 1968, the victim of the robbery, George Ebright, a construction worker, was in the Old Style Bar in Sioux Falls. He cashed his weekly pay check there and had a few drinks. The building occupied by this business is situated on the west side of Main Avenue at the 7th Street conrner. Its front door opened onto that thoroughfare. At the rear of the structure is a parking lot and an alley.

He left the bar at about 11 p.m. that evening going out the back door. The record suggests that he had a car back there. As he stepped out he saw the defendant Thunder Horse who was standing near a car. He spoke to Ebright and without provocation hit him alongside the head with his first. The blow stunned the victim and caused him to fall down. He claims to have been additionally beaten as he lay on the ground.

When he regained consciousness, which apparently was very soon after he was struck, he discovered that his wallet which he carried in his shirt pocket, was missing. When he left the bar it contained about $70 in cash. He also noticed a young man named Mager pouring water into the radiator of a car. Thunder Horse was standing alongside that car when Ebright first saw him. It drove away rather soon after Ebright regained his composure. As it did he saw Zimmerman going to the car. As the car left Ebright shouted at them to call the police.

At this juncture three young men appeared on the scene. They had just come from a club located directly north from this alley across 7th Street and were walking south to where their car was parked in the alley. Coming across the side street they heard a man hollering 'stop' and beating on a car that was leaving the area. It appeared to them to have three people in it. They then noticed the victim and tried to follow the car a short distance, but were unable to keep up with it. As they came back to the scene a police car drove up. This was officer McKelvey. He had been told about the beating going on behind the Old Style Bar by a citizen. He was then one-half block away and drove there promptly.

Officer McKelvey was stopped in the alley by these three youths. They reported their observations and told him that the victim had been beaten by three male individuals who left the scene in a light colored '55 or '56 Buick. They informed him that two of these men were Indians and one was white. Before talking with these boys McKelvey had observed the victim who bore evidence of having been beaten. He told the officer that two of the men who fled were Indians and that his billfold and its contents had been taken.

After hearing the description of the parties and the car they were in McKelvey, by police radio, promptly dispatched other policemen to the 400 block of North Spring Street in the residential area. He had a previous acquaintance with Zimmerman and knew that he had lived in that area. He then went to the area himself. When he arrived there a 1956 white Buick was parked in front of the residence at 406 N. Spring and two fellow officers were on the scene. Mager, the white man who owned the car, was out of it and Zimmerman was just getting out. Thunder Horse was still in it. The car fit the description of the automobile described to him and two of the occupants resembled the two Indians that he had been told about.

Thunder Horse had blood on his hands, jacket, pants and shoes. McKelvey arrested the three occupants of the car. At that time he looked into it briefly and searched Thunder Horse's pockets and clothing for weapons. It was then about 11:30 p.m., twenty minutes had elapsed since he reported the incident over the police radio. He arrested Thunder Horse and Mager for vagrancy and Zimmerman for vagrancy and public intoxication. Appaently a tow truck was summoned to haul the car away and McKelvey and another officer prepared to take the arrested individuals to the police station. After they arrived at the police station Thunder Horse was informed that he was being held for robbery.

As the two officers and the three under arrest were preparing to leave the scene another policeman, Officer Folkerts, searched the interior of the car. In the rear seat he found a leather billfold, stuck down between the seats, bearing the name of the victim. There was no money in it. Apparently it is a regular police practice in Sioux Falls to search a car for items of personal property before surrendering it to be towed away. This billfold was one of the items of evidence which Thunder Horse sought to have suppressed. It was admitted in evidence over his objection that it had been illegally obtained. The burden of establishing such illegality is on the party asserting the claim. State v. Merrill, 82 S.D. 152 N.W.2d 349.

The state admits this was a warrantless search and no claim is made that it was consented to. Consequently, if it is to be upheld it must be on the theory that it was incident to a lawful arrest. State v. McCreary, 82 S.D. 111, 142 N.W.2d 240. At the time of this occurrence our pertinent arrest provisions appeared as SDC 1960 Supp. 34.1609. They are now contained in SDCL 23--22--7 and 23--22--8. The first of these provides that a peace officer may arrest a person without a warrant:

'(1) For a public offense committed or attempted in his presence;

(2) When the person arrested has committed a felony, although not in his presence;

(3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it;'

The later section authorized such arrest at night on reasonable cause, even though it afterwards appears that a felony has not been committed.

Officer McKelvey after talking to Ebright and the three young men in the alley back of the Old Style Bar tha night, had reasonable cause to believe that the crime of robbery, a felony under our law, had been committed and that the one who committed it fled the scene in a light colored '55 or '56 Buick. About twenty minutes later when he saw the 1956 white Buick parked on North Spring Street and the three who had been occupants of the car, he had probable cause for believing that Thunder Horse had committed it. The facts and circumstances within his knowledge and those of which he had reasonably trustworthy information were sufficiently strong to warrant a reasonably cautious man in believing that he had probably committed the offense under investigation. State v. Hermandson, S.D., 169 N.W.2d 255.

Under our statutes when an officer arrests one without a warrant he should inform him of his authority and the cause of the arrest. SDCL 23--22--9. While officers would be well advised to honor these requirements, the failure to do so does not invalidate the arrest. In Re Application of Kiser, 83 S.D. 272, 158 N.W.2d 596, we held that this section did not prescribe a particular ritual to be followed. In Klingler v. United States, 8 Cir., 409 F.2d 299 involving a felony arrest by police officers of Sioux Falls, executed in a manner substantially similar to this one, that court said:

'The evident purpose of giving notice of the authority and cause for arrest is to establish a procedure that is likely to result in a peaceable arrest. Here, of course, Klingler knew that he was dealing with the Sioux Falls police. The officer stated a cause of the arrest. Even though the stated ground proved to be a mistake, Klingler had notice that the officers purported to act under authority of the law. Under these circumstances, we believe the requirements of the South Dakota statute were satisfied and that the arrest was, therefore, legal.'

Being satisfied the arrest was not made to create an excuse for a search, it held that the arrest was not rendered...