State v. Wilkinson

• Citation: 2007 SD 79,739 N.W.2d 254
• Decision Date: 25 July 2007
• Docket Number: No. 24300.,24300.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Tod Allen WILKINSON, Defendant and Appellant.
• Court: Supreme Court of South Dakota

739 N.W.2d 254

2007 SD 79

STATE of South Dakota, Plaintiff and Appellee, v. Tod Allen WILKINSON, Defendant and Appellant.

No. 24300.

Supreme Court of South Dakota.

Considered on Briefs on May 21, 2007.

Decided July 25, 2007.

Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Clifton Katz, Katz Law Office, Huron, South Dakota, Attorney for defendant and appellant.

SABERS, Justice.

[¶ 1.] Tod Allen Wilkinson was indicted on a variety of drug charges arising from a search of his residence pursuant to a search warrant. He moved to suppress the evidence alleging the search warrant was deficient, but the motion was denied. A jury found him guilty on all counts and he appealed. We affirm.

FACTS

[¶ 2.] Wilkinson's arrest arises out of an ongoing drug investigation in Huron, South Dakota. He lived with his girlfriend, Charlene Herding, who was one of the primary targets in the investigation. She came under police suspicion after police arrested Patti Sumption for possession of methamphetamine. Sumption told police she received the drugs from "Cindy" at 1071 Kansas Ave. NE (1071 Kansas Ave.) in Huron and gave police Cindy's phone number. Police confirmed that Cindy Bordwell lived at that address and the phone number was Cindy's number.

[¶ 3.] Police also received information from a confidential source that Cindy and Angel Bordwell were distributing large quantities of methamphetamine and possibly cocaine in and around Huron. The police discovered Cindy had a criminal record that included an arrest for possession of amphetamines in Nebraska and Angel lived with Roy Reyna, who was subsequently arrested for possession of methamphetamines. When arrested, he admitted to being a distributor of methamphetamines.

[¶ 4.] During the investigation, the police observed Cindy and Angel Bordwell frequenting Herding's homes on a regular basis. They also observed several cars that Herding owns at Cindy Bordwell's 1071 Kansas Ave. residence. Finally, a confidential source told a police officer that Herding was renting vehicles in Huron and traveling to Rapid City frequently, although the source indicated it was possible Herding was traveling to another location.

[¶ 5.] At the time the search warrant was executed, Wilkinson and Herding were living at 1108 Dakota Ave. South (1108 Dakota Ave.) in Huron, but were previously living at 1055 Dakota Ave. South (1055 Dakota Ave.), also in Huron. They moved into the 1108 Dakota Ave. residence after the other home sustained fire damage. Despite their moving out, police continued to observe people coming and going from the residence at all hours of the day and night.

[¶ 6.] One evening, the police observed a truck with a Nebraska license at both the 1108 Dakota Ave. and 1071 Kansas Ave. homes. Shortly after the truck left, the police observed a great deal of short and long-term traffic at the 1108 Dakota Ave. residence. Included in this traffic were three individuals that were identified and known to be involved with drugs.

[¶ 7.] As part of this investigation, the police conducted trash pulls from the 1108 Dakota Ave. and 1071 Kansas Ave. residences. At the 1071 Kansas Ave. residence, the police found three scraps of paper that appeared to be "owe" sheets with the name "Char" on two of the sheets. The sheets also had the name Robin and the letter R, which the police were able to determine, stood for Roberta Johnson, residing at 120 Montana Ave. Southwest in Huron. The police conducted a trash pull on the Montana Ave. residence and found two plastic jeweler's bags which field-tested positive for methamphetamine.

[¶ 8.] A second trash pull was conducted at the 1071 Kansas Ave. address. This trash pull revealed a Wal-Mart sack containing the outer wrappings from four match boxes containing 50 matchbooks. The police found 199 of the matchbooks, which contained all of the matches, but none of the strike plates.¹ According to the police, Herding purchased a very large quantity of matches prior to July 4, 2005, from Manolis Grocery in Huron and was questioned at Coburn's Grocery in Huron regarding a recent purchase of a large quantity of matches on August 29, 2005.

[¶ 9.] The trash pull from the 1108 Dakota Ave. residence yielded a letter addressed to Charlene Herding at the 1055 Dakota Ave. address, a sheet of paper which read "4 oz," "5 oz," and "4830." In the application for a search warrant, the police indicated the street value for one ounce of methamphetamine is $1000-$1200 per ounce. The police also found a marijuana stem that field-tested positive for THC, a jeweler's bag that field-tested positive for methamphetamine and a broken, cylindrical glass tube. A second trash pull was conducted and this yielded mail addressed to Char Herding at the 1055 Dakota Ave. address, three plastic zip-lock bags with the corners removed, one package of Zig-Zag rolling papers and two short straws.

[¶ 10.] Special Agent James Legg of the Division of Criminal Investigation (DCI) applied for a search warrant, based on the above and more information included in an eleven-page affidavit in support of request for search warrant. Agent Legg included information received from confidential informants. However, he did not indicate whether these informants were reliable or the source credible. At most, Agent Legg indicated that he "was able to corroborate" some "other information provided" by one confidential informant. Circuit Court Judge Erickson issued the search warrant, which, among other things, authorized a search of the homes at 1055 Dakota Ave. and 1108 Dakota Ave. and all persons and vehicles present or arriving at both homes for property that constituted evidence of a crime.

[¶ 11.] When the police executed the search warrant, they found many drug-related items, including components of a methamphetamine lab. Specifically, at 1108 Dakota Ave. they found two safes containing drug-related contents including digital scales, a container containing .09 grams of powder containing methamphetamine, .003 ounces of marijuana, and a powder that looked like methamphetamine, but tested negative for controlled substances. The safe also contained documents addressed to Herding at the 1055 Dakota Ave. location. In addition, one safe contained glass pipes of the type typically used to smoke methamphetamine. These tested positive for methamphetamine residue. Baggies of marijuana, forceps, more pipes, water bongs and a brown vial typically used to conceal controlled substances were also found.

[¶ 12.] At 1055 Dakota Ave., the police located a methamphetamine lab. During the search, Agent Legg asked Agent Jason Even of the DCI if he had seen the lab over at 1055 Dakota Ave. Wilkinson interjected that it was all his. The house had a scanner to monitor police channels and a camera, which allowed someone to monitor the front door from a television in the basement. In a blue cooler, the police found soap bottles, a Gatorade bottle with red liquid inside, coffee filters, lye, two bottles of Heat, a spatula and funnel, other bottles containing unknown liquids and three bottles of cold medicine.²

[¶ 13.] In a closet near the blue cooler, police located a box which contained glassware and dishes that had white residue on them, a clear glass plate with a razor blade, a paint brush, two paint scrappers, one with white reside and one with a red substance on it, a spoon, syringe and a hypodermic needle. Two of the glass objects tested positive for amphetamine and methamphetamine. Some of the products tested positive for pseudoephedrine, which, according to the State, indicated they were used in the process of cooking methamphetamine. One of the agents testified that these products are typically used in the manufacturing of methamphetamine.

[¶ 14.] The police also found iodine, acetone, and napthol, which are chemicals commonly found in methamphetamine labs. Coffee grinders were found in a backpack and an agent testified these are used to grind pills so they dissolve more quickly. Also in this pack were a hypodermic needle, balloons, a funnel, and coffee filters. According to Agent Even all of the chemical components necessary for this type of methamphetamine lab were present the night of the raid except for the catalyst. He testified the catalyst needed is commonly acquired from match book strike plates and four grams of red phosphorus can be obtained from 500 strike plates, which allows for eight grams of methamphetamine to be produced.³ Additionally, the lab would need an enclosed can or 2-liter pop bottle and hydrogen chloride or rock salt, which were not found at the residence.

[¶ 15.] Wilkinson was charged with possession of two ounces or less of marijuana, possession of controlled substance, manufacture of a controlled substance, and conspiracy to manufacture a controlled substance. He moved to suppress the evidence alleging the affidavit contained false information⁴ and was insufficient to support probable cause. The motion was denied and Wilkinson and Herding were tried by a jury. The jury found both guilty of all four counts. Wilkinson appeals and raises the following issues:

1. Whether the affidavit in support of the request for a search warrant was sufficient to show probable cause.

2. Whether certain items seized at 1055 Dakota Ave. should be suppressed on the ground they were not described with sufficient particularity within the search warrant.

3. Whether sufficient evidence exists to convict Wilkinson of manufacturing a controlled substance and conspiracy to manufacture a controlled substance.

STANDARD OF REVIEW

[¶ 16.] In State v. Babcock, 2006 SD 59, 718 N.W.2d 624 (2006), we explained the standard when reviewing the sufficiency of a search warrant:

We review challenges to the sufficiency of search warrants in a highly deferential manner, examining the totality of the circumstances to decide if there was at...