State v. Walter, 27162.

• Decision Date: 27 May 2015
• Docket Number: No. 27162.,27162.
• Citation: 864 N.W.2d 779
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. David A. WALTER, Defendant and Appellant.

864 N.W.2d 779

STATE of South Dakota, Plaintiff and Appellee

v.David A. WALTER, Defendant and Appellant.

No. 27162.

Supreme Court of South Dakota.

Considered on Briefs March 23, 2015.

Decided May 27, 2015.

Marty J. Jackley, Attorney General, Jared Tidemann, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Bryan T. Andersen, Pennington County Public Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant.

Opinion

GILBERTSON, Chief Justice.

[¶ 1.] David A. Walter appeals from a final judgment of conviction for possession of a controlled substance (methamphetamine). Walter asserts the circuit court erred in denying his motion to suppress drug evidence obtained during a “stop and frisk” initiated by a Rapid City police officer. According to Walter, the officer lacked a reasonable basis to conclude Walter had committed a crime. We reverse.

Facts and Procedural History

[¶ 2.] The parties stipulated the relevant facts of this appeal. On October 1, 2013, at approximately 6:15 p.m., Rapid City Police Officer Dale Ackland was dispatched to Roosevelt Park to investigate reports of a panhandler near the ice arena.¹ Officer Ackland received a detailed description of the alleged panhandler, including his clothing and direction of travel. After Officer Ackland arrived at the described location, he immediately identified Walter as matching the provided description. Walter stood alone on a sidewalk to the north of the arena.

[¶ 3.] After making contact with Walter, Officer Ackland noticed a bulge in Walter's front left pocket. Concerned that Walter might have a weapon, Officer Ackland informed Walter that he intended to pat him down. Before Officer Ackland conducted the frisk, Walter said, “You can't frisk me. I have needles on me.”² During the frisk, Officer Ackland observed an open bottle of liquor in one of Walter's pockets. When Officer Ackland grabbed the bottle, he felt Walter pull away and attempt to manipulate an object out of another pocket. A red box fell to the ground, which contained two syringes. Officer Ackland performed a field test, and one of the syringes tested positive for methamphetamine.³ Thereafter, Officer Ackland administered a preliminary breath test and arrested Walter for consuming alcohol in public.

[¶ 4.] On October 2, 2013, Walter was charged with one count of possession of a controlled drug or substance in violation of SDCL 22–42–5 and one count of consuming alcohol in public in violation of SDCL 35–1–5.3. Walter was indicted and later arraigned on April 10, 2014.⁴ The State also filed—but later dismissed—a habitual criminal information alleging Walter had a prior conviction in Wyoming for larceny in 2013. Walter moved to suppress the methamphetamine evidence, alleging Officer Ackland “did not have a reasonable suspicion of criminal activity to warrant the investigatory stop and frisk [.]” The circuit court denied the motion, and the parties proceeded with a court trial on June 9, 2014. Among other things, Walter stipulated that he had syringes on his person containing methamphetamine when Officer Ackland conducted the frisk. The circuit court found beyond a reasonable doubt that Walter was guilty of possessing methamphetamine in violation of SDCL 22–42–5 and sentenced him to three years imprisonment. However, the court suspended all three years on the condition that Walter successfully complete probation and abide by other restrictions.

[¶ 5.] Walter appeals, raising one issue: Whether Officer Ackland had a reasonable suspicion to stop and frisk Walter.

Standard of Review

[¶ 6.] “We traditionally review a [circuit] court's decision to suppress evidence under an abuse of discretion standard.” State v. Muller, 2005 S.D. 66, ¶ 12, 698 N.W.2d 285, 288. However, “[t]he Fourth Amendment demonstrates a ‘strong preference for searches conducted pursuant to a warrant [.]’ ” Ornelas v. United States,

517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) ). Because “the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches[,]” id., we review a motion to suppress evidence obtained in the absence of a warrant de novo, see State v. Stanga, 2000 S.D. 129, ¶ 8, 617 N.W.2d 486, 488 (citing Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663 ).⁵ Thus, we review the circuit court's factual findings for clear error but “give no deference to the circuit court's conclusions of law [.]” Gartner v. Temple, 2014 S.D. 74, ¶ 8, 855 N.W.2d 846, 850.

Analysis and Decision

[¶ 7.] “The Fourth Amendment of the United States Constitution and Article VI, § 11 of the South Dakota Constitution protect individuals from unreasonable searches and seizures.” State v. Burkett, 2014 S.D. 38, ¶ 44, 849 N.W.2d 624, 635. This protection generally requires “that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure[.]” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). However, “when a person is subject to an ‘investigative detention’ rather than a full-blown custodial arrest, the officer need only have reasonable suspicion for the detention rather than the probable cause typically required.” State v. De La Rosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 686 (citing Terry, 392 U.S. at 30, 88 S.Ct. at 1884–85 ). Although “[t]he factual basis needed to support an officer's reasonable suspicion is minimal[,]” State v. Mohr, 2013 S.D. 94, ¶ 14, 841 N.W.2d 440, 444, an investigatory stop is justified only if the totality of the circumstances reveals “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity[,]” United States v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), quoted in Navarette v. California, ––– U.S. ––––, 134 S.Ct. 1683, 1690, 188 L.Ed.2d 680 (2014), or “if there are reasonable grounds to believe that person is wanted for past criminal conduct[,]” Cortez, 449 U.S. at 417 n. 2, 101 S.Ct. at 695 n. 2.

[¶ 8.] Walter asserts the circuit court erred in denying his motion to suppress the methamphetamine evidence because “no evidence presented support[s] a reasonable inference ... that a crime was taking place or about to take place [.]” In response, the State asserts the investigative detention was warranted because it “was based on a complaint that Defendant was panhandling” and Walter fit the description given to Officer Ackland. The parties did stipulate that “Officer Dale Ackland was dispatched to a call ... in regard to a panhandler in Roosevelt park.” However, “panhandling” is not necessarily a crime under either South Dakota law or the Rapid City municipal code. On the contrary, soliciting⁶ is generally permitted in Rapid City—a fact the State readily asserts Officer Ackland knew⁷ —it is only prohibited under certain circumstances.⁸ While the parties also stipulated that the call included a detailed description of Walter, the report did not include any information regarding the manner in which the alleged panhandling was conducted. Furthermore, the State has not asserted that Officer Ackland personally witnessed Walter exhibit any suspicious behavior. Officer Ackland testified that Walter was standing alone, on a sidewalk, not near any entrance to a public building. In essence, the State asks us to uphold the seizure and search of an individual based only on an accurate description of the “suspect's” appearance and the statement that he is engaged in activity that might be criminal under certain conditions, but without any claim that those conditions are actually present or any other statement of alleged fact enabling the detaining officer to infer that those conditions might be present.

[¶ 9.] The United States Supreme Court's Fourth Amendment jurisprudence, as well as our own, suggests the information given to Officer Ackland was not sufficient to create a reasonable suspicion of criminal activity. We have previously had occasion to discuss the Supreme Court's Navarette decision in Burkett, 2014 S.D. 38, ¶¶ 48–51, 849 N.W.2d at 636–37, and again find it relevant to the present case. In Navarette, the Supreme Court “considered the sufficiency of an anonymous tip to conduct a traffic stop.” Burkett, 2014 S.D. 38, ¶ 48, 849 N.W.2d at 636. The 911 report stated: “Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8–David–94925. Ran the reporting party off the roadway and was last seen approximately five minutes ago.” Navarette, ––– U.S. at ––––, 134 S.Ct. at 1686–87 (internal quotation marks omitted). Based on this tip alone, California Highway Patrol officers located and—without observing any suspicious activity—stopped the described vehicle. While approaching the vehicle, the officers detected the odor of marijuana, and a subsequent search of the vehicle yielded 30 pounds of the drug. Id. at ––––, 134 S.Ct. at 1687. In upholding the traffic stop, the Supreme Court said:

The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver's conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.

Id. at ––––, 134 S.Ct. at 1691. In contrast, the report Officer Ackland received did not even assert a minor infraction of Rapid City's solicitation ordinance.⁹ To borrow the Supreme Court's language, the mere report of a panhandler is not a description of “conduct bear[ing] too great a resemblance to paradigmatic manifestations of [prohibited solicitation] to be dismissed [.]” Cf. id.

[¶ 10.] Our own...