State v. Weiker, 12537

• Decision Date: 24 April 1979
• Docket Number: No. 12537,12537
• Citation: 279 N.W.2d 683
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Kenneth R. WEIKER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 683

279 N.W.2d 683

STATE of South Dakota, Plaintiff and Respondent, v. Kenneth R. WEIKER, Defendant and Appellant.

No. 12537.

Supreme Court of South Dakota.

Considered on Briefs April 24, 1979.

Decided June 7, 1979.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Donald H. Breit, Sioux Falls, for defendant and appellant.

WOLLMAN, Chief Justice.

Appellant was found guilty of burglary in the third-degree on stipulated facts. Appellant challenges the sufficiency of the affidavit submitted in support of a request for the search warrant that produced evidence leading to the conviction. We affirm.

Detective Satterlee of the Sioux Falls Police Department stated in the affidavit that the manager of A-1 Appliance in Sioux Falls had reported to the Sioux Falls police that a two-way radio and a Black & Decker drill had been stolen from the store's van on December 11, 1977. The affidavit further showed that on December 16, 1977, one Ralph Criger had brought a certain two-way radio to the Sioux Falls Police Department and had stated that the radio had been stolen from an A-1 Appliance van and that he, Criger, had received the radio from two individuals who had told him to sell it for whatever he could get. The radio matched the description of the radio reported missing by the manager of A-1 Appliance. Mr. Criger was able to inform the police of the name of one of the individuals who brought him the radio to sell. Mr. Criger went on to state that the individuals wishing to sell the radio lived in a house directly across the street from Mr. Criger's residence. He further stated that he had observed the two individuals bring the radio from the house across the street to his house.

Upon further investigation, Detective Satterlee determined that the named individual who had brought the radio to Mr. Criger resided at 1131 North Phillips Avenue, and he further determined that the residence in question was being rented by one Rita Weiker. Believing that the Black & Decker drill that had been stolen from A-1 Appliance was located at the Weiker residence, the officer requested a search warrant be issued for a search of the premises.

Appellant contends that the information received by Detective Satterlee was too remote in time to be the basis for supporting probable cause for issuance of a search warrant. Appellant places great reliance upon the fact that Mr. Criger did not relate to the police the amount of time that had passed from his receipt of the two-way radio to the time he turned it over to the police. Appellant concludes that because of this uncertainty the information contained in the affidavit must be considered stale.

The state argues that the test to be followed is that the proof put before the magistrate must be "of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case." Sgro v. United States, 287 U.S. 206, 210-11, 53 S.Ct. 138, 140, 77 L.Ed.2d 260, 263 (1932). Staleness of information is not to be determined solely by computing the length of the delay between the events relied upon and the issuance of the warrant. United States v. Rahn, 511 F.2d 290 (10th Cir. 1975); State v. Bean, 239 N.W.2d 556 (Iowa 1976). The determination to be made is whether from the facts presented it is reasonably probable that the items to be seized are still on the premises. State v. Roth, 269 N.W.2d 808 (S.D.1978); State v. Haron, 88 S.D. 397, 220 N.W.2d 829 (1974). See also United States v. Dauphinee, 538 F.2d 1 (1st Cir. 1976) (information thirty days old); United States v. Rosenbarger, 536 F.2d 715 (6th Cir. 1976) (stolen goods information twenty-one days old); United States v. Rahn, supra (possession of stolen weapons information approximately two years old); State v. Bean, supra, (stolen goods information twenty-seven days old). See also Annot. 100 A.L.R.2d 525 (1965).

After drawing every reasonable inference possible in a manner supporting the determination of probable cause made by the magistrate, as we are required to do, State v. Wielgus, 278 N.W.2d 805 (S.D.1979); and State v. Kaseman,273 N.W.2d 716 (S.D.1978), we conclude that the information presented to the...