#26806-rev & rem-LSW

2014 S.D. 50

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellant,

      v.

RASHUD JAUNTEL SMITH,                     Defendant and Appellee.

      and

STATE OF SOUTH DAKOTA,                    Plaintiff,

      v.

CRICKET LEANNE CORPUZ,                    Defendant.

                                ****
                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SIXTH JUDICIAL CIRCUIT
                    LYMAN COUNTY, SOUTH DAKOTA
                               ****
                  THE HONORABLE PATRICIA J. DEVANEY
                               Judge
                                 ****

MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff and
                                          appellant.

AMY R. BARTLING of
Johnson Pochop Law Office
Gregory, South Dakota                     Attorneys for defendant and
                                          appellee Smith.

                                 ****
                                          ARGUED ON APRIL 30, 2014
                                          OPINION FILED 07/16/14
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WILBUR, Justice

[¶1.]         The State of South Dakota appeals the circuit court’s suppression of

cocaine found on Rashaud Smith’s person. We reverse and remand.

                  FACTS AND PROCEDURAL BACKGROUND

[¶2.]         At approximately 1:38 P.M. on November 30, 2012, South Dakota

Highway Patrol Trooper Brian Biehl stopped a vehicle driven by Crickett Corpuz for

following another vehicle too closely on Interstate 90 in Lyman County, South

Dakota. Smith was a passenger in the vehicle. As he approached, Trooper Biehl

could smell the odor of marijuana 1 coming from the vehicle. Trooper Biehl informed

Corpuz that he intended to write her a warning ticket for the driving infraction and

he asked her to come to his patrol vehicle.

[¶3.]         Trooper Biehl had Corpuz join him in his patrol vehicle. He asked

Corpuz for her driver’s license and what her travel plans were. She indicated that

she and Smith, who she referred to as her boyfriend, were traveling from

Washington to the east coast, where Smith attended school. Corpuz also informed

Trooper Biehl that Smith’s wallet and identification card had been stolen from her

purse preventing Smith from boarding an airplane. During this encounter, Trooper

Biehl detected the smell of marijuana coming from Corpuz’s person. He informed

Corpuz that he could smell marijuana on her. Corpuz then admitted to using

marijuana, but that it had been awhile, probably days. She denied smoking




1.      The record indicates that there is some discrepancy as to whether Officer
        Biehl smelled the odor of burnt marijuana or the odor of raw marijuana.

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marijuana in the vehicle. Trooper Biehl told Corpuz that he intended to talk with

Smith and search the vehicle.

[¶4.]         For a second time, Trooper Biehl approached the vehicle and again

smelled marijuana. Trooper Biehl asked Smith, who was still sitting in the

passenger side of the vehicle, to produce a form of identification. Smith informed

Trooper Biehl that his wallet had been stolen and that he did not have an

identification card. When Trooper Biehl asked whether Smith attended school on

the east coast, Smith replied that he did not, but that he and Corpuz were going to

the east coast to visit family. At that point, Trooper Biehl informed Smith that he

could smell marijuana on Corpuz and that he could also smell marijuana emanating

from the car. Smith then admitted that there was “half a blunt” 2 in the back of the

car. Trooper Biehl requested that Smith exit the car for the purpose of searching

the vehicle. Trooper Biehl also called for another officer to come and assist him

with the stop.

[¶5.]         Once Smith exited the car, Trooper Biehl handcuffed Smith and stated,

“I’m just gonna put you in handcuffs for my safety.” As he was placing Smith’s

hands in the handcuffs behind Smith’s back, Trooper Biehl informed Smith that he

was not under arrest and that he was being detained until Trooper Biehl could “find

out what [was] . . . going on[.]” When Smith asked why he was being detained,

Trooper Biehl responded, “because there’s marijuana in the vehicle.” Trooper Biehl

also asked whether Smith had any weapons on his person and Smith replied that he

did not.


2.      Officer Biehl testified that a “blunt” is a “cigar with marijuana in it.”

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[¶6.]        At approximately 1:48 P.M., Trooper Biehl patted down Smith’s

person. In conducting the search, Trooper Biehl lifted Smith’s pant leg and found a

bulge in his sock. Trooper Biehl testified that he was not able to immediately

identify the bulge, but that he “assumed it was probably some of the marijuana that

they had been talking about that he had admitted that they had marijuana in the

vehicle.” Trooper Biehl then removed the bulge and discovered it to be a package of

white powder. He asked Smith what the substance in the package was and Smith

stated that it was “coke.”

[¶7.]        Trooper Biehl then ordered Smith to sit in the ditch while Trooper

Biehl searched the vehicle. He found a small plastic bag with 0.1 ounce of

marijuana in Corpuz’s makeup bag in the rear area of the vehicle, three TracFones

with the batteries removed, a bullet, and Smith’s wallet containing his

identification card, which was located underneath the passenger seat. Another

officer arrived on the scene and Trooper Biehl asked that Smith be placed in the

other officer’s patrol vehicle. Trooper Biehl then returned to his vehicle to speak

with Corpuz and advised her that he had found marijuana in her makeup bag.

Corpuz responded, “so clearly that’s where he [Smith] put it.” Trooper Biehl then

asked, “It’s not yours?” Corpuz again stated that she had not smoked marijuana in

several days. During his search, Trooper Biehl also noticed that the kick panel on

the rear door of the passenger side was out of place. He requested that the vehicle

be towed for further investigation.

[¶8.]        Trooper Biehl advised Corpuz that she was under arrest for possession

of marijuana and that he was going to arrest Smith for possession of cocaine. At


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approximately 2:15 P.M., Trooper Biehl placed Smith under arrest for possession of

cocaine. Smith asked Trooper Biehl why Corpuz was under arrest. When Trooper

Biehl told Smith that Corpuz was being arrested for the marijuana in her makeup

bag, Smith claimed that it was his marijuana. At approximately 2:17 P.M., Trooper

Biehl advised the law enforcement officer transporting Smith to let the jail know

that Smith was being arrested for possession of cocaine and possession of

marijuana.

[¶9.]        A subsequent search of the passenger door revealed eight, vacuum-

sealed, one-half pound packages of marijuana. The driver’s side door had also been

tampered with, and a search of that door panel revealed eight more, vacuum-sealed,

one-half pound packages of marijuana.

[¶10.]       On December 3, 2012, Smith was charged by criminal complaint with

possession of a controlled substance, possession of marijuana with intent to

distribute, possession of marijuana (less than ten pounds), and possession of drug

paraphernalia. A grand jury indicted Smith on the same charges.

[¶11.]       Smith filed a motion to suppress the evidence obtained from the traffic

stop. A hearing on that motion was held on May 22, 2013. At the hearing, Trooper

Biehl testified that he conducted the pat-down of Smith for safety reasons because

he was the only officer present and he was concerned about someone standing

behind him while he conducted a search of the vehicle. He further testified that a

safety concern was only part of the reason why he searched Smith—he was also

searching for contraband because he believed he had probable cause to do so after




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smelling marijuana in the vehicle, on Corpuz’s person, and after Smith admitted

that there was marijuana in the vehicle.

[¶12.]       The circuit court suppressed the cocaine seized from Smith’s person

determining that the State had failed to establish that the warrantless search of

Smith’s person was justified as a search incident to arrest or as a valid pat-down

search. The circuit court also denied the application of the inevitable discovery

doctrine to admit the cocaine as evidence. The court denied suppression as to the

evidence found in the vehicle. The court filed its memorandum decision on June 27,

2013, and its findings of fact and conclusions of law on August 13, 2013.

[¶13.]       The State filed a motion to reconsider the suppression of the cocaine

based on the automobile exception to the search warrant requirement on August 1,

2013. The circuit court denied the motion concluding that the automobile exception

was inapplicable. Thereafter, the State filed its petition for intermediate appeal

and this Court granted that petition on October 11, 2013.

                             STANDARD OF REVIEW

[¶14.]       We review the circuit court’s grant or denial of a motion to suppress

involving an alleged violation of a constitutionally protected right under the de novo

standard of review. State v. Leigh, 2008 S.D. 53, ¶ 7, 753 N.W.2d 398, 401. “The

[circuit] court’s findings of fact are reviewed under the clearly erroneous standard,

but we give no deference to the [circuit] court’s conclusions of law.” State v. Mohr,

2013 S.D. 94, ¶ 12, 841 N.W.2d 440, 444. And “[a]s a general matter[,]

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.” State v. Hirning, 1999 S.D. 53, ¶ 9, 592 N.W.2d 600, 603 (quoting


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Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911

(1996)).

                                     DECISION

[¶15.]       “The Fourth Amendment’s prohibition against unreasonable searches

and seizures requires generally the issuance of a warrant by a neutral judicial

officer based on probable cause prior to the execution of a search or seizure of a

person.” Mohr, 2013 S.D. 94, ¶ 13, 841 N.W.2d at 444 (quoting State v. Sound

Sleeper, 2010 S.D. 71, ¶ 15, 787 N.W.2d 787, 791). “Warrantless searches are per se

unreasonable, apart from a few, [well-delineated] exceptions.” Hirning, 1999 S.D.

53, ¶ 10, 592 N.W.2d at 603. Search incident to lawful arrest is one of the well-

delineated exceptions to the warrant requirement. State v. Zahn, 2012 S.D. 19, ¶

30, 812 N.W.2d 490, 499. “Reasonableness of a search depends on balancing the

public’s interest in preventing crime with the individual’s right to be free from

arbitrary and unwarranted governmental intrusions into personal privacy.”

Hirning, 1999 S.D. 53, ¶ 11, 592 N.W.2d at 603.

Search Incident to Lawful Arrest

[¶16.]       The State asserts that the search of Smith’s person was valid incident

to his lawful arrest. The State contends that even though the search of Smith’s

person occurred prior to his arrest, the search is justified under Rawlings v.

Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).

[¶17.]       The circuit court determined that the search of Smith’s person did not

fall within the search incident to arrest exception to the warrant requirement. It

reasoned that Smith was not physically arrested until 27 minutes after the search


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of his person. The court noted that Smith was initially arrested for the cocaine

found in his sock during the search of his person and not for possession of

marijuana found in the vehicle. Additionally, the circuit court concluded that

“[e]ven if the subsequent arrest was found to be sufficiently contemporaneous to the

search of his person under Rawlings v. Kentucky, Biehl clearly did not believe he

had probable cause to arrest Smith for possession of marijuana at the time the pat-

down search was conducted[.]”

[¶18.]       “The validity of . . . a [warrantless] search . . . [incident to an arrest] is

dependent initially upon” the legality of the arrest itself—“the lawfulness of which

is to be determined by state law insofar as the arrest is not violative of the

Constitution.” Klingler v. United States, 409 F.2d 299, 302 (8th Cir. 1969). See also

SDCL 23A-3-2(2) (providing that a valid arrest without a warrant for a felony or

Class 1 misdemeanor must be based upon probable cause that such crime was

committed and the person arrested committed it). “The constitutional validity of an

arrest is dependent upon the existence of probable cause.” Klingler, 409 F.2d at

303.

[¶19.]       “Probable cause . . . exists where the facts and circumstances within

the . . . officers’ knowledge and of which they have reasonably trustworthy

information are sufficient in themselves to warrant a belief by a person of

reasonable caution that a suspect has committed or is committing an offense.”

Hirning, 1999 S.D. 53, ¶ 13, 592 N.W.2d at 604 (quoting State v. Hanson, 1999 S.D.

9, ¶ 13, 588 N.W.2d 885, 889). “Probable cause deals with probabilities that are not

technical but only the factual and practical considerations of everyday life on which


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reasonable and prudent persons, not legal technicians, act.” Id. “When determining

if probable cause existed under various conditions, it makes little difference

whether we examine probable cause needed to search or probable cause needed to

arrest[,]” because “[g]enerally, ‘the same quantum of evidence is required’ in either

circumstance.” Id. (quoting 2 Wayne R. LaFave, Search and Seizure § 3.1(b), at 6

(3d ed. 1996)).

[¶20.]       Additionally, probable cause is measured against an objective

standard. In re H.L.S., 2009 S.D. 92, ¶ 15, 774 N.W.2d 803, 808 (stating that “[o]ur

totality of the circumstances approach to examining probable cause requires us to

look at all the facts present before the detaining officer to determine whether a

‘particularized and objective basis for suspecting legal wrongdoing’ existed at the

time of the arrest”) (quoting State v. Noteboom, 2008 S.D. 114, ¶ 6, 758 N.W.2d 457,

459). See also State v. Engesser, 2003 S.D. 47, ¶ 20, 661 N.W.2d 739, 746 (stating

that “the trial court must measure [probable cause] against an objective standard”).

The officer’s “subjective beliefs . . . about . . . whether he had probable cause are

individual factors to be considered in the totality of [the] circumstances.” Engesser,

2003 S.D. 47, ¶ 20, 661 N.W.2d at 746. “The conditions justifying an officer’s

actions need not be the circumstances forming the officer’s state of mind at the time

the action is taken.” Id. ¶ 20, 661 N.W.2d at 746-47. “‘As long as the

circumstances, viewed objectively, justify the action,’ probable cause may be found.”

Id. ¶ 20, 661 N.W.2d at 747 (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.

Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)).




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[¶21.]       Based on the totality of the circumstances, when viewed objectively,

probable cause existed for Trooper Biehl to arrest Smith for possession of marijuana

prior to the search of Smith’s person. Trooper Biehl detected the smell of marijuana

emanating from Corpuz and the vehicle. When questioned by Trooper Biehl, Smith

admitted that there was “half a blunt” in the back of the car. And while Trooper

Biehl testified that he believed he had probable cause to search Smith’s person

based on the circumstances of the stop, Trooper Biehl’s subjective belief is just one

fact considered in the totality of the circumstances. Furthermore, the same

quantum of evidence is required to establish both probable cause to arrest and to

search. Hirning, 1999 S.D. 53, ¶ 13, 592 N.W.2d at 604. When taken together, we

conclude that probable cause existed to arrest Smith for possession of marijuana

prior to the search of his person.

[¶22.]       Because probable cause existed to arrest Smith for possession of

marijuana, the next inquiry is whether the search incident to lawful arrest

exception to the warrant requirement applies to this case when the search of

Smith’s person preceded his arrest and when the arrest was for a crime other than

the crime that formed the probable cause to arrest. “A search incident to an arrest

must be substantially contemporaneous with, and confined to, the immediate

vicinity of the arrest.” State v. Heumiller, 317 N.W.2d 126, 129 (S.D. 1982). “The

warrantless search is justified in order to prevent the removal of weapons which

might be used to resist arrest or to effect an escape and to prevent concealment or

destruction of evidence.” State v. Rice, 327 N.W.2d 128, 130 (S.D. 1982). The

arrest, however, does not need to occur prior to the search, but the search cannot be


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“remote from [the arrest] either in time or place.” State v. Thunder Horse, 85 S.D.

76, 82, 177 N.W.2d 19, 22 (1970). In Rawlings, the Supreme Court of the United

States concluded: “Where the formal arrest followed quickly on the heels of the

challenged search of petitioner’s person, we do not believe it particularly important

that the search preceded the arrest rather than vice versa[,]” 448 U.S. at 111, 100 S.

Ct. at 2564, so long as “[t]he fruits of the search of petitioner’s person were . . . not

necessary to support probable cause to arrest[.]” Id. at 111, n.6, 100 S. Ct. at 2564,

n.6.

[¶23.]        The fruit of the subsequent search (cocaine) was not necessary to

support probable cause to arrest Smith, because probable cause already existed to

arrest Smith for possession of marijuana. Thus, the cocaine seized by Trooper Biehl

during the search of Smith’s person cannot be said to be “necessary to support

probable cause to arrest.” Id.

[¶24.]        In addition, Rawlings does not place an arbitrary limit on how soon an

arrest should be made after a search, but the Court did instruct that the arrest

should “follow[ ] quickly on the heels of the challenged search[.]” Id. at 111, 100 S.

Ct. at 2564. Clearly, there is a limit to the amount of time that can elapse between

a search and an arrest that will render the subsequent arrest not contemporaneous

to the search. We cannot say, under the facts of this case, that an arrest that

occurred 27 minutes after the search exceeds the outer limit, especially when the

search was a part of a continual transaction leading to the arrest. See United States




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v. Sanchez, 555 F.3d 910 (10th Cir. 2009). 3 However, even if the subsequent arrest

was not sufficiently contemporaneous to the search under the Rawlings precedent,

the cocaine is admissible because the evidence would have been ultimately

discovered in a search of Smith’s person incident to his arrest for possession of

marijuana.

Inevitable Discovery Doctrine

[¶25.]         “Under the exclusionary rule, illegally obtained evidence must be

suppressed.” State v. Shearer, 1996 S.D. 52, ¶ 21, 548 N.W.2d 792, 796, rejected on

other grounds by State v. Jucht, 2012 S.D. 66, ¶ 27 n.1, 821 N.W.2d 629, 636 n.1.

The inevitable discovery doctrine is an exception to the exclusionary rule. Id. This

exception “applies where evidence may have been seized illegally but where an

alternative legal means of discovery . . . would inevitably have led to the same

result.” State v. Boll, 2002 S.D. 114, ¶ 21, 651 N.W.2d 710, 716 (quoting State v.

Wagoner, 24 P.3d 306, 311 (N.M. Ct. App. 2001)).

[¶26.]         In this case, Trooper Biehl smelled marijuana on Corpuz and in the

vehicle, and Smith admitted to the presence of marijuana in the back of the vehicle.

Trooper Biehl had probable cause to arrest Smith for possession of marijuana before



3.       The Tenth Circuit in Sanchez commented that a formal arrest that occurred
         an hour after the search “seem[ed] to be at the outer limits of ‘substantially
         contemporaneous,’ if not beyond.” Id. at 920-21 (discussing a situation where
         the defendant was searched immediately upon apprehension but formal
         arrest occurred an hour later after the search warrant was executed on the
         premises where the defendant had been occupying prior to fleeing, the court
         stated that “[a]n hour would seem to be at the outer limits of ‘substantially
         contemporaneous,’ if not beyond[,]” but then deemed the arrest “to have
         occurred before the formal announcement to a suspect that he is under
         arrest”).

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the search of Smith’s person. And a search of his person conducted incident to the

lawful arrest for possession of marijuana would have inevitably revealed the

presence of the cocaine in Smith’s sock. Accordingly, the cocaine evidence is

admissible under the inevitable discovery doctrine.

                                  CONCLUSION

[¶27.]       We reverse the suppression of the cocaine and remand to the circuit

court for proceedings consistent with this opinion.

[¶28.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

SEVERSON, Justices, concur.




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