State v. Zahn
| Decision Date | 14 March 2012 |
| Docket Number | No. 25584.,25584. |
| Citation | 812 N.W.2d 490,2012 S.D. 19 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Elmer Wayne ZAHN, Jr., Defendant and Appellant. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Marty J. Jackley, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Thomas M. Tobin of Tonner, Tobin and King, LLP, Aberdeen, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Without obtaining a search warrant, police attached a global positioning system (GPS) device to Elmer Wayne Zahn, Jr.'s vehicle. The GPS device enabled officers to track and record the speed, time, direction, and geographic location of Zahn's vehicle within five to ten feet for nearly a month. Police used the information they gathered to obtain a search warrant for two storage units that Zahn frequently visited. Officers recovered drug paraphernalia and approximately one pound of marijuana from a freezer in one of the storage units. Before trial, the trial court denied Zahn's motion to suppress the evidence that the officers discovered during the execution of the search warrant. Zahn appeals his conviction of several drug possession charges, arguing that the trial court erred by denying his motion to suppress. We reverse.
[¶ 2.] Zahn and his wife, Ranee, lived in Gettysburg, South Dakota. In June 2008, Ranee passed away while visiting her daughter, Katie Circle Eagle, in Aberdeen. Because Ranee was not in the care of a physician when she died, police were called to Circle Eagle's residence to investigate the death. Zahn was present when the officers arrived but left before they interviewed him.
[¶ 3.] As part of the death investigation, the officers searched the bedroom where Ranee died. They found a large, brown suitcase in a bedroom closet. The suitcase contained a digital scale and approximately 120 quart-sized plastic containers. A strong odor of raw marijuana emanated from several of the containers. The officers also found $8,890 cash in a nylon shoulder bag in one corner of the bedroom. A drug dog later alerted to the cash as having the odor of marijuana or some narcotic. Their suspicions aroused, the officers attempted to contact Zahn, but they were unable to do so.
[¶ 4.] In November 2008, Zahn was arrested for driving while intoxicated. The arresting officers searched Zahn's vehicle. They found a black duffel bag in the backseat that contained an unmarked pill bottle filled with a green, leafy substance. Tests later confirmed that the substance was marijuana. The officers also recovered a large amount of cash from the duffel bag, from a purse in the cargo area of the vehicle, and from Zahn's person. In total, the officers discovered nearly $10,000 cash. Zahn was charged with and pleaded guilty to driving under the influence, possession of two ounces or less of marijuana, and possession of drug paraphernalia.
[¶ 5.] On March 3, 2009, Tanner Jondahl, a detective with the Aberdeen Police Department, attached a GPS device to the undercarriage of Zahn's vehicle while it was parked in the private parking lot of an apartment complex. The GPS device was attached to Zahn's vehicle with a magnet and did not interfere with the operation of his vehicle. Because the GPS device was battery-powered, it did not draw power from Zahn's vehicle. For twenty-six days, it continuously transmitted the geographic location of Zahn's vehicle, enabling officers to pinpoint his location within five to ten feet, monitor his speed, time, and direction, and detect non-movement. A computer at the Brown County Sheriff's Office recorded the movements of Zahn's vehicle.
[¶ 6.] Using the GPS device, Detective Jondahl tracked Zahn's movements for twenty-six days in March 2009. He observed that Zahn's vehicle traveled to a storage unit at Plaza Rental five times and a storage unit at Store–It four times. The visits to the storage units generally lasted only a few minutes. Detective Jondahl later confirmed that a Plaza Rental storage unit was rented to Ranee and that a Store–It storage unit was rented to Alan Zahn, Zahn's brother. Detective Jondahl represented that, based on his training and experience, he believed that Zahn kept controlled substances in the storage units and was involved in drug distribution.
[¶ 7.] On March 29, 2009, Zahn traveled to Gettysburg, South Dakota. Because Zahn was out on bond at the time, he was not permitted to leave Brown County. Officers used the GPS device to determine that Zahn left Brown County, and Zahn was arrested for the bond violation when he returned to Aberdeen. A search of his person revealed approximately $2,000 cash.
[¶ 8.] Later that day, Detective Jondahl submitted an affidavit in support of a search warrant for the Plaza Rental storage unit, the Store–It storage unit, and Zahn's person. A judge signed the search warrant, and Detective Jondahl, along with several other officers, executed the warrant. During the search of the Store–It storage unit, a drug dog alerted to a freezer that was hidden from view by a wall of empty cardboard boxes. In the freezer, the officers discovered two jars filled with nearly one ounce of a finely-ground, green substance that emitted a strong odor of raw marijuana. A large suitcase in the freezer contained five four-ounce plastic bags of a green, leafy substance. Tests later confirmed that the substance in both the jars and the plastic bags was marijuana. The freezer contained several other items, including a glass pipe, three empty plastic bags, and several unused plastic containers. Various boxes and cardboard tubes bearing Zahn's name were also recovered from the Store–It storage unit. No evidence was recovered from the Plaza Rental storage unit. A urine sample taken from Zahn that day tested negative for marijuana ingestion.
[¶ 9.] In April 2009, a Brown County grand jury indicted Zahn on one count of possession with the intent to distribute one pound or more of marijuana and one count of possession of one to ten pounds of marijuana. Additionally, Zahn was charged with possession of drug paraphernalia. Zahn filed a motion to suppress the evidence obtained through the use of the GPS device. The trial court denied the motion after a hearing on the matter. The case proceeded to a court trial in February 2010, and Zahn was convicted of all charges. Zahn appeals.
[¶ 10.] Our standard of review of motions to suppress is well settled. “A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo.” State v. Wright, 2010 S.D. 91, ¶ 8, 791 N.W.2d 791, 794 (quoting State v. Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d 373, 377). “The trial court's factual findings are reviewed under the clearly erroneous standard” of review. Id. (quoting Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377). However, “[o]nce the facts have been determined ... the application of a legal standard to those facts is a question of law reviewed de novo.” Id. (quoting Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377).
[¶ 11.] Zahn challenges the use of the GPS device to monitor his activities for nearly a month under the Fourth Amendment to the United States Constitution and Article VI, § 11, of the South Dakota Constitution. The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Similarly, Article VI, § 11, of the South Dakota Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.
[¶ 12.] While Zahn challenges the use of the GPS device to monitor his activities under Article VI, § 11, of the South Dakota Constitution, he has not asserted a basis to distinguish the protections that the South Dakota Constitution provides from those that the United States Constitution provides. See State v. Kottman, 2005 S.D. 116, ¶ 13, 707 N.W.2d 114, 120 . We thus decide this case on federal constitutional principles and will not address the question of whether the South Dakota Constitution affords South Dakotans greater protection against the use of GPS devices to monitor their activities over an extended period of time. See State v. Opperman, 247 N.W.2d 673, 675 (S.D.1976) ().
[¶ 13.] In the recent case of United States v. Jones, the United States Supreme Court addressed the issue of whether the attachment of a GPS device to an individual's vehicle, and the subsequent use of the device to track the vehicle's movements, constitutes a search under the Fourth Amendment. 565 U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). In Jones, the Government applied for and was granted a search warrant authorizing it to install a GPS tracking device on a vehicle that was registered to Jones's wife. Id. at ––––, 132 S.Ct. at 948. One day after the warrant expired, the Government...
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