State v. Weiker

• Decision Date: 27 December 1983
• Docket Number: No. 13821,13821
• Citation: 342 N.W.2d 7
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kenneth R. WEIKER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 7

342 N.W.2d 7

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

No. 13821.

Supreme Court of South Dakota.

Argued Feb. 17, 1983.

Decided Nov. 23, 1983.

Rehearing Denied Dec. 27, 1983.

Richard H. Wendt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

James D. Leach, Rapid City, for defendant and appellant.

MORGAN, Justice.

This appeal arises from Kenneth Weiker's (Weiker), appellant, conviction on three counts of distribution of a controlled substance. Subsequently, Weiker was convicted of being a habitual offender and was sentenced to life imprisonment on each offense. Weiker appeals from these convictions. We affirm the convictions, strike the life sentences and remand for re-sentencing.

Robert Wooley (Wooley), who was working for the police department in Rapid City, South Dakota, bought controlled drugs on three occasions from Weiker. These purchases were on January 18, 1982 (cocaine), January 23, 1982 (cocaine), and February 1, 1982 (hashish). Following affidavits filed by Wooley and a deputy sheriff, a search warrant was issued on February 27, 1982, and Weiker's residence was searched the same day. Only one item seized in the search was admitted at trial. That item was a recipe box containing index cards showing accounts receivable. State maintained these accounts receivable were the amounts owed to Weiker by purchasers of drugs. On April 21-22, 1982, Weiker was tried before a jury and was convicted of three counts of distribution. Thereafter the court found Weiker guilty on the habitual offender count and sentenced him to life imprisonment on all three counts, the sentences to run concurrently.

On appeal, Weiker raises three issues. First, Weiker contends that the trial court should have suppressed the evidence seized in the search. Next, Weiker contends that the sentences he received are cruel and unusual punishment. Finally, Weiker argues that one of his previous felony convictions was unconstitutional and therefore the habitual offender conviction fails.

Initially, Weiker alleges that the recipe box and cards admitted as Exhibit 4 should have been suppressed because the search was a general search in violation of U.S. Const. amend. IV and S.D. Const. art. VI, Sec. 11, ¹ and because the evidence used to include the recipe box in the search warrant was stale.

These constitutional provisions require that search warrants be particular, not general. In State v. Clark, 281 N.W.2d 412 (S.D.1979), this court in discussing general searches stated that "[a] suggested test of the existence of the requisite particularity is whether the warrant places a meaningful restriction on the objects to be seized." Id. at 416. See People v. McEwen, 244 Cal.App.2d 534, 53 Cal.Rptr. 362 (1966). Such particularity requires that an officer does not have any discretion with regard to what is to be seized. Clark, supra; Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). Where, however, the search involves contraband or inherently illicit property, a lesser standard of particularity of description is required on the search warrant. Clark, supra. See United States v. DePugh, 452 F.2d 915 (10th Cir.1971).

The search warrant authorized a search for the following items:

[T]wo silver bars with the notation "Homestake 1980"; one double tiger eye ring, solid gold setting, one diamond ring with a diamond in the center of the ring and three smaller diamonds on the side, a solid gold setting; one small suitcase, red in color; one recipe box, beige in color with numerous cards inside; one black book approximately two inches by three inches in diameter; one stereo; one 30-30 rifle; tires, rims, and mag wheels.

(Emphasis added.) The search lasted approximately three and one-half hours during which time a recipe box, pieces of jewelry, stereo equipment, rifles, and a bag of "green leafy substance" were taken into custody. ² The officers were also told to watch for narcotics and drugs. State contends this is in keeping with the duty of officers to be alert for contraband when it is encountered.

Considering the lesser standard of particularity required for contraband or inherently illicit property, Clark, supra, the search here was reasonable in looking for the stolen property and drugs. Although numerous items were confiscated during the search and were the basis for charges later dismissed, only the recipe box containing accounts receivable was admitted at trial. This box is described in sufficient detail in the search warrant to meet any test of particularity.

Weiker also contends that the inclusion of the recipe box in the search warrant was based on stale information. He claims the probable cause on which a search warrant is based must exist at the time the warrant is issued, not at an earlier time. See United States v. Steeves, 525 F.2d 33 (8th Cir.1975) cited with approval in State v. Roth, 269 N.W.2d 808 (S.D.1978). The test for staleness of information "is whether from the facts presented it is reasonably probable that the items to be seized are still on the premises." State v. Weiker, 279 N.W.2d 683, 685 (S.D.1979). See State v. Roth, supra.

In Roth, supra, this court stated: "The likelihood that criminal activity is of a continuing nature rather than singular in occurrence depends upon the facts and circumstances of each case." 269 N.W.2d at 812. There, this court held the affidavits reflected that the defendants were involved in a series of drug transactions and thus the search warrants were properly executed. See also State v. Wielgus, 278 N.W.2d 805 (S.D.1979).

Here, in the affidavit attached to the search warrant, Wooley states that during the previous two months he had been in Weiker's home about ten times and nearly every time he saw the recipe box, which was used for drug transactions. Wooley further states in the affidavit that "[i]n the past two months I have made numerous purchases of drugs from Kenny Weiker."

Considering "the general rule that every reasonable inference possible should be drawn to support the determination of probable cause made by the magistrate," Wielgus, 278 N.W.2d at 806, we conclude the magistrate below properly inferred from the affidavits that the criminal activity, i.e., drug transactions, was of a continuing nature and thus the magistrate had probable cause to issue the search warrant of Weiker's premises.

We next turn to Weiker's contention that the sentences imposed upon his convictions constitute cruel and unusual punishment in violation of the federal and state constitutions. ³

SDCL 22-7-8 states: "When a defendant has been convicted of at least three prior convictions in addition to the principal felony, the sentence for the principal felony shall be enhanced to the sentence for a Class 1 felony." The punishment for a Class 1 felony is life imprisonment. In addition, a fine of $25,000 may be imposed. SDCL 22-6-1. Weiker admitted three prior felony convictions, all for third-degree burglary in South Dakota. These convictions occurred in 1970, 1974, and 1978. In the present action, the jury found Weiker guilty of three felony counts of distribution of a controlled substance. Then, according to SDCL 22-7-8, the trial court sentenced Weiker to life imprisonment on all three distribution counts with the sentences running concurrently. Accordingly, Weiker is not eligible for parole, SDCL 24-15-4, unless these life sentences are first commuted by the governor.

The constitutionality of SDCL 22-7-8, the habitual offender statute, was upheld in State v. O'Connor, 265 N.W.2d 709 (S.D.1978). Although a sentence within the statutory limits is not generally reviewable on appeal, State v. Helm, 287 N.W.2d 497 (S.D.1980); State v. Williams, 84 S.D. 547, 173 N.W.2d 889 (1970), a sentence may be constitutionally offensive if its length is so excessive as to "shock the conscience." State v. Bad Heart Bull, 257 N.W.2d 715 (S.D.1977). The United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reviewed the standards for determining whether a punishment is "excessive." A punishment is unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the pointless infliction of suffering; or (2) is grossly disproportionate to the severity of the crime. Id.

Recently the United States Supreme Court examined life sentence without parole under our recidivist statute in the case of Solem v. Helm, --- U.S. ----, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). This decision is particularly pertinent to the case before us.

The commonly accepted goals of punishment referred to in Gregg v. Georgia, supra, are denominated as (1) retribution, (2) deterrance, both individual and general, and (3) rehabilitation. A life sentence without parole certainly exacts retribution. It also deters the convict from committing further crime, and removes him from the street. Furthermore, it puts other would-be felons on notice that recidivism carries a high penalty. But it completely eschews the goal of rehabilitation.

As we stated, SDCL 22-7-8 mandates enhancement of a penalty to a sentence for a Class 1 felony and SDCL 22-6-1(2) fixes the maximum penalty for a Class 1 felony at life imprisonment with provision for an additional $25,000 fine. We point out, however, that such penalty is a maximum, it is not a mandatory penalty as was the case of Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). The recidivist statute is purely a mathematical exercise; one plus one plus one plus one equals the sentence for Class 1 felony. The sentence itself, however, is another matter for the Helm decision instructs us that the sentence must be proportional. ⁴ That analysis is guided by objective criteria: (1) the gravity of the offense and the harshness of the penalty; (2) sentence imposed...