State v. Wellner

• Court: South Dakota Supreme Court
• Writing for the Court: DUNN; WOLLMAN; FOSHEIM; WOLLMAN; FOSHEIM
• Citation: State v. Wellner, 318 N.W.2d 324 (S.D. 1982)
• Decision Date: 21 April 1982
• Docket Number: 13534,Nos. 13533,s. 13533
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Stanley WELLNER (# 13533) and Steven Wellner (# 13534), Defendants and Appellants.

Page 324

318 N.W.2d 324

STATE of South Dakota, Plaintiff and Appellee, v. Stanley WELLNER (# 13533) and Steven Wellner (# 13534) Defendants and Appellants.

Nos. 13533, 13534.

Supreme Court of South Dakota.

Argued Feb. 24, 1982.

Decided April 21, 1982.

Jon R. Erickson, 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 Steven Wellner.

Bruce Ellison, Rapid City, for defendant and appellant Stanley Wellner.

DUNN, Justice.

Defendants Steven and Stanley Wellner appeal from jury verdicts finding them guilty of the crime of possession of more than one ounce of marijuana. We affirm the convictions.

In the spring of 1980, George Wellner rented the Brandenburg farm near Miller, South Dakota. George and his sons, defendants, raised hay on the farm. Defendants occasionally stayed in the farmhouse.

On August 20, 1980, after receiving a tip from an informant, several law enforcement officers flew over the farm and saw several patches of growing marijuana. They obtained a search warrant and discovered about one and one-half tons of marijuana growing in two cultivated patches. The patches were surrounded by chicken wire and irrigated with water pumped through black plastic pipe which led from the dugout. Several marijuana plants were growing in black plastic pails and a roto tiller was found in one of the patches. A worn path, which led from the patches to the buildings, was noticed by the sheriff during the execution of the first search warrant.

A second search warrant was issued during the afternoon of August 20, 1980, which authorized the search of the house and the surrounding buildings for equipment used to manufacture hashish or other marijuana products. This search uncovered four cartons of black plastic pails and an empty carton. Steven Wellner's name was on each of these cartons. The black pails were identical to those found in the field. The search also uncovered an old dresser drawer, two wooden trays with 300 peat starter pots, a sprinkling can and four plastic buckets. A record book was found in the house which logged the time of planting and transplanting of the marijuana plants from the peat pots to the buckets.

At trial, evidence was introduced indicating that 450 feet of chicken wire was sold in the spring of 1980 to defendants, which wire was the same type as that found around the marijuana patches. The evidence also indicated that 1000 feet of pipe was sold to one of the defendants and that the pipe was similar to that found leading to the marijuana, but different couplings were on the pipe. The roto tiller was sold to Stanley Wellner in the spring of 1980.

Defendants contend that the evidence seized by the law enforcement officers under the second search warrant should have been suppressed because the affidavits in support of the search warrant were insufficient to meet the requirements for a showing of probable cause. We disagree.

In the context of search warrants, probable cause is defined as "the existence of facts and circumstances as would warrant an honest belief in the mind of a reasonable, prudent man acting on all the facts and circumstances within the knowledge of the magistrate that the offense has been, or is being committed and that the property sought exists at the place designated." State v. Robinette, 270 N.W.2d 573, 577 (S.D.1978) (emphasis omitted). See also State v. Smith, 281 N.W.2d 430 (S.D.1979). In reviewing the affidavits, we must remember that the search warrant should not be invalidated by interpreting the affidavits in a hypertechnical manner; rather, we should read each affidavit as a whole and interpret each in a common sense and realistic manner. State v. Smith, supra; State v. Clark, 281 N.W.2d 412 (S.D.1979); State v. Kaseman, 273 N.W.2d 716 (S.D.1978). "The resolution of a marginal showing of probable cause on an affidavit should be largely determined by the preference to be accorded to warrants." State v. Clark, 281 N.W.2d at 414. Thus, every reasonable inference possible should be drawn in support of the magistrate's determination of probable cause. State v. Smith, supra; State v. Clark, supra.

The second search warrant authorized the search of the house and all other buildings on the real estate in question for any and all equipment used in the manufacture of hashish or other substance derived from the marijuana plant. The magistrate issued the search warrant based on the affidavits of the Hand County Sheriff and an agent of the South Dakota Division of Criminal Investigation (DCI). The sheriff's affidavit contained the following information: that he personally observed two patches of cultivated marijuana plants; he saw buckets and a sprinkler "situated" near the plants for watering purposes; he believed several tons of marijuana were growing in these patches; he saw a well-worn path between the buildings and the two patches; he saw a green van registered to Steven Wellner and a red pickup registered to Stanley Wellner; he saw the air conditioner for the house running; that there is probable cause to believe that defendants were residing in the house; and "[t]hat considering the huge amounts of cultivated marijuana plants discovered and seized, [he] believes that the buildings ... could contain equipment used in the manufacture of hashish or other substance derived from the marijuana plant[.]" The affidavit incorporated by reference the affidavit of a DCI agent, which was the basis for the granting of the first search warrant to search the real estate and seize any and all growing marijuana plants. This affidavit alleged the existence of large quantities of marijuana on the real estate.

Defendants allege that the affidavits were insufficient to support the finding of probable cause, because they were based solely on suspicions which did not amount to probable cause for the issuance of a search warrant. State v. Robinette, supra. The sheriff's affidavit stated that the buildings could contain equipment used to manufacture hashish rather than stating that the equipment would be found in the buildings or that there was probable cause to believe that equipment would be found in the buildings. The affidavit, however, indicated that several tons of marijuana were found growing on the real estate, buckets and an irrigation system which were used to water the marijuana were found, and a well-worn path was noticed going from the patches to the buildings. It was reasonable for the magistrate to infer that the producer of several tons of marijuana would also have equipment in the buildings to manufacture marijuana products. The information before the magistrate was sufficient to show the probability of criminal activity and that the property sought existed in the buildings in question.

Following a suppression hearing, the trial court ruled admissible numerous items seized under the second warrant. The State was allowed to introduce into evidence: one two-gallon sprinkling can and four five-gallon plastic buckets found inside the barn; two wooden trays with 300 peat starter pots and one dresser drawer found outside the barn; and four cartons of five-gallon plastic utility buckets and one empty carton which were found in the machine shed. The cartons had Steven Wellner's name on them. Additionally, the State introduced into evidence a record book seized from the house. Defendants contend that these items were not admissible under the plain view exception. The trial court held that defendants had standing to challenge the search of the house, but they did not have standing to invoke the exclusionary rule with regard to the search of the grounds and buildings adjacent to the dwelling house. We disagree.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the United States Supreme Court established a test for determining standing to dispute a search and seizure. The test is whether government officials violated any legitimate expectation of privacy held by the defendant. See also United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); and State v. Thomale, 317 N.W.2d 147 (S.D.1982). In defining the scope of that interest, the Court stated that "arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas v. Illinois, 439 U.S. at 143, 99 S.Ct. at 430, 58 L.Ed.2d at 401. The Court recognized, however, that "[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." 439 U.S. at 143-44, n. 12, 99 S.Ct. at 430-31, n. 12, 58 L.Ed.2d at 401, n. 12. See also State v. Thomale, supra.

In determining whether a defendant has a legitimate expectation of privacy in the searched area, a number of factors should be considered. In Rakas v. Illinois, supra, the Court examined whether the petitioner had the right to exclude access to other persons from the searched area. See also Rawlings v. Kentucky, supra. In Rawlings, supra, the Court also examined whether the petitioner had sought or received access to the searched area prior to the placement of the seized items there and whether the petitioner took normal precautions to maintain his privacy.

In the present case, the Brandenburg farm is in an isolated location in the country with no other dwellings in the immediate vicinity. There is only one access road to the farm and the gate on the access road was closed when the police arrived to execute their first search warrant. The house and adjacent buildings, including the barn and machine shed, are surrounded by a grove of trees. George, the father of defendants, leased the farm from Larry Brandenburg. George...