State v. Zachodni

• Decision Date: 13 February 1991
• Docket Number: 16990,Nos. 16970,s. 16970
• Citation: 466 N.W.2d 624
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. John A. ZACHODNI and Linda W. Zachodni, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 624

466 N.W.2d 624

STATE of South Dakota, Plaintiff and Appellant, v. John A. ZACHODNI and Linda W. Zachodni, Defendants and Appellees.

Nos. 16970, 16990.

Supreme Court of South Dakota.

Argued Sept. 17, 1990.

Decided Feb. 13, 1991.

Craig M. Eichstadt, Asst. Atty. Gen., Pierre, for plaintiff and appellant; Roger A. Tellinghuisen Atty. Gen., Pierre, on brief.

Steve Miller, Sioux Falls, for defendant and appellee, John A. Zachodni.

Sidney B. Strange, Sioux Falls, for defendant and appellee, Linda W. Zachodni.

SABERS, Justice.

Trial court suppressed drug evidence on the ground that warrantless vehicle search violated Fourth Amendment. State appeals.

FACTS

On August 5, 1989, South Dakota Highway Patrol Trooper John Norberg noticed several motorcycles, a black pickup truck and a red van parked on the westbound shoulder of Interstate 90 near Sioux Falls. He pulled up behind the red van and got out to investigate.

The black pickup belonged to John and Linda Zachodni, who were on their way to a motorcycle rally in Sturgis, S.D. when a mechanical failure in one of the cycles ahead of them caused the procession to pull off the road.

Linda was sitting on the passenger side of the pickup cab with the door open when Trooper Norberg walked by and saw an open beer can on the cab floor. Norberg picked it up and noted a small amount of beer. Norberg asked for and obtained John's and Linda's driver's licenses and the vehicle registration, and separately took the two back to his patrol car, where he administered the Preliminary Breath Test (PBT). The tests showed that John, the driver, had not been drinking but that Linda had. While Linda was in the patrol car, Norberg noticed that her pupils were constricted, that she seemed talkative and that she used expansive hand gestures. ¹ At around the same time, another trooper, Olson, arrived on the scene. Olson observed in the red van a mirror with white powder residue on it, which he assumed to be cocaine, and he immediately informed Norberg.

Norberg decided not to place Linda under arrest for violating South Dakota's "open container" law, SDCL 35-1-9.1, but instead issued her a uniform traffic citation with a fine assessed and payable by mail.

Norberg held onto both driver's licenses and the vehicle registration. When John requested their return, Norberg asked him whether there were drugs in the pickup. John denied it. Norberg said, "Then you wouldn't mind if I looked in your truck?" John replied, "Nope."

When Norberg approached the pickup, he saw Linda again seated in the passenger seat, and he noticed that there were a number of small scabs on her legs. He took this as another possible indication of drug use. ²

Norberg began his search with Linda's purse, where he found a small amount of marijuana in a plastic baggie. There was conflict in the testimony about whether Linda consented to this search.

Next Norberg searched the cab of the pickup without result.

Lastly, Norberg came upon John in the cab of the pickup "doing something with" a blue soft vinyl suitcase Norberg had not seen before. Although John parted with this suitcase reluctantly, Norberg searched it after breaking its padlock with pliers. Inside, Norberg discovered 750 grams of cocaine, four hits of LSD, marijuana, various drug paraphernalia and rolls of numbered bills.

John, Linda, and three others were arrested and taken to the Minnehaha County Jail. Two additional vials of cocaine were discovered in Linda's purse during an inventory search.

John and Linda were indicted on August 10, 1989, on two counts of possession of controlled drugs and two counts of possession with intent to distribute in violation of SDCL 22-42-5 and 22-42-2. Both John and Linda moved to suppress all physical evidence gathered and all oral statements made as a result of the purse and suitcase searches. The trial court granted the motions to suppress and the State appeals.

1. DID THE OPEN CONTAINER VIOLATION JUSTIFY THE WARRANTLESS SEARCH OF THE VEHICLE AND ITS CONTENTS?

The Fourth Amendment to the U.S. Constitution and Article VI, Sec. 11 of the S.D. Constitution generally require searches of persons and places to be authorized by warrant and require such warrants to be based on probable cause to believe that the search will yield contraband or other evidence of a crime. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); State v. Peterson, 407 N.W.2d 221, 223 (S.D.1987).

There are, however, a number of recognized exceptions to this rule. United States v. Ross, 456 U.S. 798, 824-825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982). All of these exceptions dispense with the warrant requirement for valid searches under certain circumstances. A few of the exceptions even dispense with or modify the underlying probable cause requirement itself.

Based on increased mobility and decreased privacy expectations in a vehicle, both the United States and the South Dakota Supreme Courts have held that

when a law enforcement officer stops a vehicle, and the officer has probable cause to believe the vehicle contains contraband, the vehicle may be searched without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Peterson, [supra]. The search may include the interior of the car as well as the trunk. United States v. Ross, [supra]; Peterson, supra. ³

State v. Pfaff, 456 N.W.2d 558, 561 (S.D.1990). Under the vehicle exception, the Constitution permits a search to proceed without a warrant, but not without probable cause.

We affirm the trial court's determination in its Conclusions of Law that the open beer can Norberg saw on the cab floor of the pickup did not supply probable cause for the search of the purse and the suitcase. Unlike the trial court, however, we find it unnecessary to reach the question of whether the open beer can could have supplied probable cause for either of those searches. In point of fact, it did not. When Norberg saw the can and determined it had been recently emptied, he chose not to search the pickup further, but to administer the PBT to John and Linda. John passed the test, Linda did not, and Norberg wrote Linda a citation. That concluded the open container portion of the investigation of the pickup and its occupants, and there is nothing in the record to indicate that subsequent searches of the truck, the purse or the suitcase were in any way connected with the open beer can.

2. WAS THERE CONSENT TO THE WARRANTLESS SEARCH OF THE

PURSE?

Consent to be searched constitutes another exception to the Fourth Amendment warrant requirement. Once consent to a search has been voluntarily tendered to the State's agents, not only is a warrant unnecessary, but so is probable cause. Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043-2044.

The presence or absence of consent to a search is a question of fact. Id., 412 U.S. at 227, 93 S.Ct. at 2047-2048. As such, the trial court's resolution of that question will be upheld unless our examination of the evidence, construed in a light most favorable to the trial court's finding, convinces us that the finding was clearly erroneous. State v. Pfaff, 456 N.W.2d at 560; State v. Woods, 374 N.W.2d 92, 98 (S.D.1985), cert. denied sub nom. Woods v. Solem, --- U.S. ----, 110 S.Ct. 1952, 109 L.Ed.2d 314 (1990); State v. Hall, 353 N.W.2d 37, 40 (S.D.1984); United States v. Brown, 884 F.2d 1309, 1311 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 732, 107 L.Ed.2d 750 (1990). See also SDCL 15-6-52(a).

The trial court determined that John consented to the search of the pickup. That consent did not include Linda's purse. It is true that "the consent of one who possesses common authority over premises or effects is valid against the absent, nonconsenting person with whom that authority is shared" where there is "mutual use of the property by persons generally having joint access or control for most purposes[.]" United States v. Matlock, 415 U.S. 164, 170, 172 n. 7, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). A search may be valid even when the state's agents erroneously but "reasonably ... believe that the person who has consented" to the search possesses authority to do so. Illinois v. Rodriguez, --- U.S. ----, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148 (1990). That does not, however, describe the circumstances of this search. Linda was not absent from the scene of the alleged "consent." Nor does a husband have common authority or joint control over his wife's purse. It would have been unreasonable for Norberg to believe otherwise, and the record shows that Norberg did not, in fact, believe otherwise: he felt compelled to ask Linda's permission to search the purse even though John had already consented to a search of the truck.

There was disputed testimony about what transpired between Linda and Norberg immediately before Norberg searched Linda's purse. The trial court resolved that dispute against the State's version of events, finding that Linda did not consent to the search of her purse. We do not disturb that finding because it is not clearly erroneous. "Quite simply, this issue comes down to the trial court's judging credibility. It was in the position to observe the witness testifying, and we give due regard to its superior position to judge credibility." State v. Pfaff, 456 N.W.2d at 561 (citing Langerman v. Langerman, 336 N.W.2d 669 (S.D.1983)). Therefore, there was no consent to search the purse.

3. WAS THERE CONSENT TO THE WARRANTLESS SEARCH OF THE

SUITCASE?

The State bears the burden of proving that consent to a search has been freely and voluntarily given. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). While it is not necessary for the State to show that the consenting party knew of the right to refuse...