GILBERTSON, Chief Justice
#27162-r-DG APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CRAIG A. PFEIFLE Judge MARTY J. JACKLEY
Attorney General
JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota
Attorneys for plaintiff
and appellee.
BRYAN T. ANDERSEN
Pennington County Public
Defender's Office
Rapid City, South Dakota
Attorneys for defendant and
appellant.
GILBERTSON, Chief Justice [¶1.] David A. Walter appeals from a final judgment of conviction for possession of a controlled substance (methamphetamine). Walter asserts the circuit court erred in denying his motion to suppress drug evidence obtained during a "stop and frisk" initiated by a Rapid City police officer. According to Walter, the officer lacked a reasonable basis to conclude Walter had committed a crime. We reverse.
Facts and Procedural History
[¶2.] The parties stipulated the relevant facts of this appeal. On October 1, 2013, at approximately 6:15 p.m., Rapid City Police Officer Dale Ackland was dispatched to Roosevelt Park to investigate reports of a panhandler near the ice arena. Officer Ackland received a detailed description of the alleged panhandler, including his clothing and direction of travel. After Officer Ackland arrived at the described location, he immediately identified Walter as matching the provided description. Walter stood alone on a sidewalk to the north of the arena. [¶3.] After making contact with Walter, Officer Ackland noticed a bulge in Walter's front left pocket. Concerned that Walter might have a weapon, Officer Ackland informed Walter that he intended to pat him down. Before Officer Ackland conducted the frisk, Walter said, "You can't frisk me. I have needles on me." and the parties proceeded with a court trial on June 9, 2014. Among other things, Walter stipulated that he had syringes on his person containing methamphetamine when Officer Ackland conducted the frisk. The circuit court found beyond a reasonable doubt that Walter was guilty of possessing methamphetamine in violation of SDCL 22-42-5 and sentenced him to three years imprisonment. However, the court suspended all three years on the condition that Walter successfully complete probation and abide by other restrictions. [¶5.] Walter appeals, raising one issue: Whether Officer Ackland had a reasonable suspicion to stop and frisk Walter.
The reliability of the tip is not disputed.
In ruling on Walter's motion to suppress evidence gathered by Officer Ackland in his search of Walter's person, the circuit court found that "Officer Ackland testified . . . that Defendant said 'you can't frisk me, I have needles on me' while Ackland was patting him down." (Emphasis added.) A review of Officer Ackland's testimony reveals no such statement. Even if Officer Ackland had so testified at the motion hearing, however, the parties stipulated for trial "[t]hat Officer Ackland informed the Defendant that he was going to quickly pat him down for weapons, due to officer safety." (Emphasis added.) The parties also stipulated "[t]hat the Defendant responded 'you can't frisk me because I have needles on me.'" (Emphasis added.) Therefore, the parties do not dispute that Officer Ackland's statement of intent to search Walter preceded Walter's announcement that he had needles on his person.
Subsequent testing by Richard Wold, a forensic examiner with the Rapid City Police Department, confirmed both syringes contained methamphetamine residue.
Walter failed to appear at his first arraignment on November 14, 2013.
Standard of Review
[¶6.] "We traditionally review a [circuit] court's decision to suppress evidence under an abuse of discretion standard." State v. Muller, 2005 S.D. 66, ¶ 12, 698 N.W.2d 285, 288. However, "[t]he Fourth Amendment demonstrates a 'strong preference for searches conducted pursuant to a warrant[.]'" Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527 (1983)). Because "the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches[,]" id., we review a motion to suppress evidence obtained in the absence of a warrant de novo, see State v. Stanga, 2000 S.D. 129, ¶ 8, 617 N.W.2d 486, 488 (citing Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663). Thus, we review the circuit court's factual findings for clear error but "give no deference to the circuit court's conclusions of law[.]" Gartner v. Temple, 2014 S.D. 74, ¶ 8, 855 N.W.2d 846, 850.
In State v. Stanga, we cited Ornelas v. United States for the general proposition that "[o]ur review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo." Stanga, 2000 S.D. 129, ¶ 8, 617 N.W.2d at 488 (citing Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663). We have often invoked this standard since Stanga. In Ornelas, however, the United States Supreme Court did not speak so broadly—it held only "that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." 517 U.S. at 699, 116 S. Ct. at 1663. The United States Court of Appeals for the Eighth Circuit has interpreted this statement to indicate, generally, that "warrantless searches . . . are reviewed de novo, and cases in which a search is conducted pursuant to a warrant . . . are given deference." United States v. Oropesa, 316 F.3d 762, 766 n.3 (8th Cir. 2003).
Analysis and Decision
[¶7.] "The Fourth Amendment of the United States Constitution and Article VI, § 11 of the South Dakota Constitution protect individuals from unreasonable searches and seizures." State v. Burkett, 2014 S.D. 38, ¶ 44, 849 N.W.2d 624, 635. This protection generally requires "that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure[.]" Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968). However, "when a person is subject to an 'investigative detention' rather than a full-blown custodial arrest, the officer need only have reasonable suspicion for the detention rather than the probable cause typically required." State v. De La Rosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 686 (citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884-85). Although "[t]he factual basis needed to support an officer's reasonable detected the odor of marijuana, and a subsequent search of the vehicle yielded 30 pounds of the drug. Id. at ___, 134 S. Ct. at 1687. In upholding the traffic stop, the Supreme Court said:
The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver's conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.
Id. at ___,
134 S. Ct. at 1691. In contrast, the report Officer Ackland received did not even assert a minor infraction of Rapid City's solicitation ordinance.
To borrow the Supreme Court's language, the mere report of a panhandler is not a description of "conduct bear[ing] too great a resemblance to paradigmatic manifestations of [prohibited solicitation] to be dismissed[.]"
Cf. id. [¶10.] Our own decisions also support the conclusion that Officer Ackland did not have a reasonable suspicion of criminal activity. In
Graf v. South Dakota Department of Commerce & Regulation, 508 N.W.2d 1 (S.D. 1993), we reviewed the
corroborate the report's conclusory assertion by personal observation of Walter. The State has not asserted Officer Ackland had any preexisting knowledge regarding Walter's particular brand of panhandling or that the area in which Officer Ackland found Walter generally suffered from prohibited solicitation. Here, unlike
Navarette, Burkett, and
Mohr, the totality of the circumstances upon which to find reasonable suspicion is therefore limited to the simple and conclusory report given to Officer Ackland by the dispatcher. Rather, as in
Graf, "[t]he requirement of specific and articulable facts was simply not met."
508 N.W.2d at 4.
In this context, soliciting is defined as: "Asking for money or objects of value, with the intention that the money or object be transferred at that time, and at that place." Rapid City, S.D., Mun. Code § 9.08.020(A)(2) (2015).
The State does not assert that Officer Ackland committed a good faith mistake of law.
Rapid City prohibits soliciting under the following circumstances:
1. No person shall solicit in an aggressive manner in any public place.
2. No person shall solicit on private or residential property without having first obtained permission from the owner or other person lawfully in possession of the property.
3. No person shall solicit within 20 feet of any entrance or exit of any financial institution or 20 feet of any automated teller machine without the consent of the owner of the property or another person legally in possession of the facilities.
4. No person shall solicit an operator or other occupant of a motor vehicle.
5. No person shall solicit any operator or occupant of a motor vehicle on a public street in exchange for blocking, occupying or reserving a public parking space, or directing the operator or occupant to a public parking space.
6. No person shall solicit while under the influence of alcohol or a controlled substance.
7. No person shall solicit by stating that funds are needed to meet a specific need, when the solicitor has the funds to meet that need, does not intend to use funds to meet that need, or does not have that need.
8. No person shall solicit in any public transportation vehicle or at any bus stop or in any public parking lot or structure.
9. No person shall solicit within 6 feet of an entrance to a building.
10. No person shall solicit within 20 feet of any pay telephone, provided that when a pay telephone is located within a telephone booth or other facility, the distance shall be measured from the entrance or exit of the telephone booth or facility.
11. No person shall solicit anytime before sunrise or anytime after sunset.
12. No person shall solicit within 20 feet of any public restroom facility.
There is a useful analogy between panhandling and driving. While both are generally permitted, either act may be unlawful if conducted under particular circumstances—e.g., for panhandling: aggressively soliciting in public, soliciting after sunset and before sunrise, soliciting within six feet of a public building's entrance, etc.; e.g., for driving: driving at a speed in excess of the posted limit, driving under the influence of an intoxicant, ignoring traffic signals, etc. To decide that a report of "panhandling" alone is sufficient to give rise to a reasonable suspicion of prohibited solicitation would be akin to deciding a report of simply "driving" is sufficient to give rise to a reasonable suspicion of drunk driving—a conclusion clearly contrary to the Fourth Amendment. See Navarette, ___ U.S. at ___, 134 S. Ct. at 1691 (indicating even some reports of actual driving infractions like "driving without a seatbelt or slightly over the speed limit" might be insufficient to form a reasonable suspicion of drunk driving).
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Conclusion
[¶14.] Officer Ackland did not have a reasonable suspicion of criminal activity; therefore, the methamphetamine evidence was the product of an illegal search. The circuit court erred in denying Walter's motion to suppress. We reverse. [¶15.] ZINTER, SEVERSON, WILBUR and KERN, Justices, concur.
Rapid City, S.D., Mun. Code § 9.08.020(B) (2015).