
2005 SD 116
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MICHAEL JOSEPH CHRISTOPHER KOTTMAN, Defendant and Appellant.
No. 23443
Supreme Court of South Dakota.
Argued on October 3, 2005
Opinion Filed November 22, 2005
LAWRENCE E. LONG, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
JOHN R. HINRICHS, Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
Hon. GLEN A. SEVERSON, Judge, Hon. WILLIAM J. SRSTKA, Jr., Judge.
KONENKAMP, Justice.
[¶ 1.] As a condition of his release on parole, defendant signed a waiver allowing warrantless searches of his home and person by parole agents or law enforcement officers, whenever a reasonable suspicion arose that he was violating a condition of his parole. Sioux Falls police suspected defendant in a burglary that appeared to have been an "inside job." Defendant had recently been fired from the burglarized business. Because the officers knew defendant had signed a waiver, they searched his home without a warrant. They found a methamphetamine pipe, and defendant was charged and convicted of possession of a controlled substance. In this appeal, defendant contends that the warrantless search was illegal, and even if his waiver allowed for this type of search, there was still no reasonable suspicion to justify it. We affirm.

Background
[¶ 2.] Defendant, Michael J. Kottman, signed a supervision agreement in 2000, allowing a parole agent to search his "person, property, place of residence, vehicle and personal effects" when "reasonable cause is ascertained." (emphasis added). Then in 2002, as a result of the United States Supreme Court decision in United States v. Knights, 534 US 112, 122 SCt 587, 151 LEd2d 497 (2001), the South Dakota Department of Corrections amended the terms of the waiver condition in South Dakota parole agreements. First, reasonable cause was changed to reasonable suspicion, and, second, both parole agents and law enforcement officers were permitted to conduct warrantless searches.[1] Kottman signed his new parole supervision agreement on March 6, 2002.
[¶ 3.] On November 16, 2003, the security alarm went off at Empire Plastics, a Sioux Falls business. The alarm sounded at 2:52 p.m., and two Sioux Falls police officers arrived four minutes later. Officers Kurtis Daughters and Travis Olsen noticed a broken exterior window. They contacted the business owner, Doug Edwards, and foreman, Nick Swier, who assisted them in examining the premises. The owner, Edwards, identified the location of the motion sensors and indicated that only one had been activated. He also told the officers that nothing seemed out of place and that the only thing missing was "the metal cash box, which contained between $200 and $300, and which had been kept inside a back office closet." Because the business had multiple motion sensors and only one was activated and also because the cash box was in the closet of an interior office, where there were no motion sensors, Edwards told the officers that the "intruder must have had knowledge of the layout of the building, and about where this cash box had been stored."
[¶ 4.] Other officers joined Daughters and Olsen and assisted in the remainder of the search of Empire Plastics. After the search, Officer Daughters asked Edwards if he had any suspects in mind. Edwards responded that he had a good relationship with all his past and current employees except one, Michael Kottman. Edwards said that he had fired Kottman just five days earlier and that Kottman knew where the cash box was located because he had recently stocked the storage room. Thereafter, Daughters spoke with the foreman, Swier, who indicated that Kottman had worked for Empire Plastics for only two weeks. In addition, he "emphasized that [Kottman] had even said that he had a `methamphetamine problem' and that he `was a user.'"
[¶ 5.] In response to this information, Daughters went to his squad car and performed a preliminary background check on Kottman. The check revealed that Kottman was on parole and had previously been convicted of four burglaries and other theft crimes. When Daughters attempted to contact Kottman's parole agent, he was unable to reach him and instead spoke with another parole agent, John Schultz. During this conversation, Daughters confirmed that Kottman was on parole for burglary and theft convictions and as a condition of parole he had signed a search and seizure waiver. Then Daughters obtained the address Kottman reported as his residence and informed Schultz that he planned to "go to Kottman's residence and conduct a warrantless search of the premises and his vehicles." Because Daughters was familiar with the waiver provision in the parole supervision agreements, he did not obtain a copy of Kottman's agreement before conducting the search.
[¶ 6.] When the officers arrived at Kottman's home, his girlfriend, Shannon Weiss, let them inside, and then she went downstairs to get Kottman, who was showering. Thereafter, the officers explained to Kottman that they suspected him of burglarizing Empire Plastics and that they would be searching his home and vehicles. "Daughters began his search of the premises by going downstairs first to the basement section of [Kottman's] split-level home, which had four floors." He noticed that the shower had recently been used and that a pile of clothes were on the floor in the north-east bedroom. While in the bedroom, Daughters also noticed a "karate-type shirt" located about two feet from the pile of clothes and it was "nicely rolled up." When he picked up the shirt, a glass methamphetamine pipe containing "a white powdery residue" rolled out onto the carpet. Daughters concluded that the bathroom and bedroom he had just searched belonged to Kottman, who was upstairs waiting with Officer Mike Iverson.
[¶ 7.] During the officers' search of the remainder of the home and all the vehicles, they did not find any other drugs or paraphernalia. However, they found and seized several items as possible evidence connecting Kottman to the burglary.[2] Kottman was thereafter charged with possession of methamphetamine and he moved to suppress the evidence because the officers did not have a warrant and there were no "exigent circumstances necessitating their entrance and search of [Kottman's] home." Kottman also claimed that the officers did not have enough information to conclude with reasonable suspicion that Kottman burglarized Empire Plastics.
[¶ 8.] His motion was denied, and, after a jury trial, he was convicted of possession of a controlled substance. Kottman appeals, claiming (1) the warrantless search of his home was illegal because it violated his Fourth Amendment right to be free from unreasonable searches and seizures, (2) the United States Supreme Court case, US v. Knights, 534 US 112, 122 SCt 587, 151 LEd2d 497 (2001), does not apply and does not make this search reasonable because it violated the "stalking horse doctrine," and (3) if Knights applies, the search was illegal because reasonable suspicion did not exist.

Standard of Review
[¶ 9.] "`A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review.'" State v. Hess, 2004 SD 60, ¶9, 680 NW2d 314, 319 (quoting State v. Herrmann, 2002 SD 119, ¶9, 652 NW2d 725, 728). The circuit court's application of a legal standard is also reviewed de novo, while its factual findings are reviewed under the clearly erroneous standard. Id.; State v. Ballard, 2000 SD 134, ¶9, 617 NW2d 837, 840 (citations omitted).

Analysis and Decision
[¶ 10.] Even though Kottman maintains that the officers needed a warrant to enter his home or that the entry without a warrant must have been supported by exigent circumstances, Kottman sacrificed substantial Fourth Amendment rights when he signed the supervision agreement as a condition of his parole. The constitutionality of these conditional waivers has previously been upheld by this Court. See State v. Ashley, 459 NW2d 828, 830 n1 (SD 1990); State v. Cummings, 262 NW2d 56, 61 (SD 1978). Specifically, we recognized that "[a] probationer's expectations of privacy are less than those of the average citizen, and a condition of probation such as that imposed in [a conditional waiver] does not run afoul of [a probationer's] Fourth Amendment rights."[3]Cummings, 262 NW2d at 61. Thus, the mere fact the officers searched Kottman's home without a warrant or exigent circumstances does not mean his Fourth Amendment rights were violated.
[¶ 11.] Nevertheless, Kottman insists that the existence of this conditional waiver does not negate the officers' violation of the stalking horse doctrine, which "prevents law enforcement officers from unfairly exploiting search and seizure waivers in probation and parole agreements to skirt Fourth Amendment rights." Kottman cites Ashley, where we adopted the stalking horse doctrine. 459 NW2d at 830. In further support, Kottman requests that we apply decisions from the District Court of South Dakota and Eighth Circuit Court of Appeals, which also recognized the doctrine. See United States v. Scott, 945 FSupp 205, 209 (DSD 1996) (stating "searches must be used for rehabilitative and security purposes and not as a mechanism for solving crimes and circumventing the proscriptions of the Fourth Amendment"); United States v. McFarland, 116 F3d 316, 318 (8thCir 1997) (invalidating a parole search that was "nothing more than a ruse for a police investigation").
[¶ 12.] In response, the State asserts that "the United States Supreme Court's analysis in US v. Knights supersedes Ashley." In Knights, the defendant signed a probationary agreement with waiver language almost identical to Kottman's supervision agreement. See 534 US at 114, 122 SCt at 598, 151 LEd2d 497. Similar to Kottman's contention here, the defendant in Knights relied on a recognized distinction between a probation-related and an investigation-related search and moved to suppress the evidence because it was not probation related. Id. at 116, 112 SCt at 590, 151 LEd2d 497. But the conditional waiver mentioned nothing about a purpose requirement, and, as a result, the Supreme Court rejected the defendant's claim. Id. at 116-18, 122 SCt at 590, 151 LEd2d 497. Consequently, the Supreme Court refused to apply a purpose-related review and adopted a traditional Fourth Amendment analysis. Id. at 118-22, 122 SCt at 590-91, 151 LEd2d 497.
[¶ 13.] Even though Kottman's claims are similar, he insists that Knights does not apply and that this Court should continue to regard Ashley as the controlling authority. Kottman argues that Knights "should not reflect the law and policy in South Dakota with respect to parole searches" because South Dakota "acknowledges a higher degree of Fourth Amendment protection than that offered by the United States Constitution." See State v. Opperman, 247 NW2d 673, 675 (SD 1976). First, Opperman's holding has been seriously curtailed. State v. Hejhal, 438 NW2d 820 (SD 1989). Second, it is not sufficient to simply invoke Opperman with a suggestion that we interpret a provision in our State Constitution to grant a higher standard of protection than a similarly worded provision in the Federal Constitution. A bare disagreement with the United States Supreme Court's interpretation of the Federal Constitution "imparts no sound doctrinal basis to impose a contrary view under the pretext of separately interpreting our State Constitution. Our Constitution is more than just a device to reject or evade federal decisions. . . ." State v. Schwartz, 2004 SD 123, ¶34, 689 NW2d 430, 438 (Konenkamp, J., concurring). Counsel advocating a separate constitutional interpretation "must demonstrate that the text, history, or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision." Id. ¶57. No such analysis was presented here.
[¶ 14.] We think it significant that after Knights the Eighth Circuit Court of Appeals, and most other appellate courts, rejected the previously accepted stalking horse doctrine. United States v. Brown, 346 F3d 808, 810 (8thCir 2003).[4] In particular, the Eighth Circuit agreed that a traditional Fourth Amendment analysis would sufficiently balance "the degree to which a search intrudes upon an individual's reasonable expectation of privacy against the degree to which the government needs to search to promote legitimate interests." Id. at 811 (citing Knights, 534 US at 119, 122 SCt at 591, 151 LEd2d 497).[5] This Court has already applied a Fourth Amendment balancing test and upheld the constitutionality of these conditional waivers when the search was probation related. See Cummings, 262 NW2d at 61; Ashley, 459 NW2d at 830 n1. And today we align ourselves with those courts that have decided in the wake of Knights that the Supreme Court's traditional Fourth Amendment analysis precludes the continued viability of the stalking horse doctrine. See, supra n4. Today, we overrule Ashley's adoption of this doctrine.
[¶ 15.] Because the stalking horse doctrine no longer applies, we are left to evaluate Kottman's claim that the officers did not have reasonable suspicion to justify the search.[6] What showing must be made by parole agents and law enforcement officers to uphold a warrantless search and seizure under a conditional waiver requiring a threshold determination of reasonable suspicion? This Court has not yet addressed this question, and a review of Knights and the Eighth Circuit's analysis in Brown provide little guidance because the parties in those cases conceded the existence of reasonable suspicion. See 534 US at 122, 122 SCt at 593, 151 LEd2d 497; 346 F3d at 812.[7] In addition, relatively few state or federal courts have specifically addressed the question of what constitutes reasonable suspicion as applied to these conditional waivers in the wake of Knights. However, those courts that have answered the question largely chose to apply the reasonable suspicion standard as defined in investigatory stop cases.[8] After reviewing the case law, we conclude that the determination of reasonable suspicion in this case should be analyzed under the same standard for reasonable suspicion in investigatory stop cases.
[¶ 16.] Here, the circuit court found that the circumstances supported the existence of reasonable suspicion based on the information the officers obtained and the inferences the officers could have reasonably drawn. Even though the trial court's findings are reviewed under the clearly erroneous standard, "[i]t is our duty to make our own legal assessment of the evidence to decide under the Fourth Amendment whether the officers' actions were `objectively reasonable.'" State v. Chavez, 2003 SD 93, ¶49, 668 NW2d 89, 103 (Konenkamp, J., concurring); State v. Lamont, 2001 SD 92, ¶21, 631 NW2d 603, 610. See also Hess, 2004 SD 60, ¶9, 680 NW2d at 319 (citing State v. Almond, 511 NW2d 572, 573-74 (SD 1994)). "In deciding whether particular facts give rise to an objectively reasonable suspicion the officer must have more than `an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause.'" Ballard, 2000 SD 134, ¶13, 617 NW2d at 841 (quoting State v. Anderson, 605 NW2d 124, 132 (Neb 2000)).
[¶ 17.] Kottman claims that "[i]t is difficult to believe that [his] parole status and prior employment justified individualized suspicion . . . to such a high degree that law enforcement could forgo the inconvenience of investigating further and simply raid [Kottman's] home." However, reasonable suspicion does not implicate the individualized suspicion required under ordinary Fourth Amendment analysis. See State v. Hirning, 1999 SD 53, ¶13 592 NW2d 600, 604 (identifying a requirement of individualized suspicion when describing the standard for probable cause). Instead, we are presented with a situation where Kottman expressly agreed to limit his rights under the Fourth Amendment by accepting early release on parole from the penitentiary, with the condition that parole agents and law enforcement officers would have the power to search without a warrant as long as there is reasonable suspicion. Imposing this limitation does "not run afoul of [Kottman's] Fourth Amendment rights." Cummings, 262 NW2d at 61.
[¶ 18.] Thus, we review the particular facts surrounding the officers' actions and determine whether they support an "objectively reasonable suspicion" that Kottman burglarized Empire Plastics. See Ballard, 2000 SD 134, ¶13, 617 NW2d at 841. In this case, the officers arrived four minutes after the alarm sounded and no perpetrators were in the structure or nearby. Only one motion sensor was activated, even though there were several located throughout the building. The circuit court found that this information could reasonably lead the officers to believe that "the person who stole [the cash box] must have had knowledge of its exact location in order to enter, locate, remove it and depart the premises in less than four minutes," and that the "person who entered the building must have had knowledge of where the motion sensor alarms were positioned and had gone directly to where the cash box was hidden."
[¶ 19.] The officers were able to identify a suspect after they spoke with the owner and learned that Empire Plastics had a good working relationship with all its past and current employees, except Kottman. The officers' suspicion was strengthened when they learned that Kottman knew where the cash box was located and had been fired only five days earlier. Further, Officer Daughters performed a background check and learned that Kottman "was a multiple previously convicted felon including convictions for offenses such as burglary and grand theft and that [he] was then released from the Penitentiary on parole supervision." With these facts, the circuit court ruled that the officers had reasonable suspicion to search Kottman's home. We conclude that the officers' knowledge based on their investigation "taken together with rational inferences" constitutes reasonable suspicion under these circumstances. See State v. Lockstedt, 2005 SD 47, ¶19, 695 NW2d 718, 723 (citations omitted).
[¶ 20.] Affirmed.
[¶ 21.] GILBERTSON, Chief Justice, and SABERS, ZINTER and MEIERHENRY, Justices, concur.
NOTES
[1]  The exact language of the waiver condition states: "I will submit my person, property, place of residence, vehicle and personal effects to search and seizure at any time, with or without a search warrant, whenever reasonable suspicion is determined by a parole agent or law enforcement."
[2]  A lock box was seized but it could not be identified later as the one taken in the burglary. The State voluntarily dismissed the charge of third-degree burglary on June 11, 2004.
[3]  "Probation" and "parole" are used interchangeably, but we have not addressed whether there is a difference between parolees or probationers. However, the Third Circuit stated that there

is "no constitutional difference between probation and parole for purposes of the fourth amendment." United States v. Harper, 928 F2d 894, 896 n1 (9thCir 1991) [(citations omitted)]. In fact, parole may be an even more severe restriction on liberty because the parolee has already been adjudged in need of incarceration. See United States v. Cardona, 903 F2d 60, 63 (1stCir 1990), cert denied, 489 US 1049 (1991).
United States v. Hill, 967 F2d 902, 909 (3dCir 1992). See also United States v. Williams, 417 F3d 373, 376 n1 (3dCir 2005).
[4]  See, e.g., Williams, 417 F3d at 377-78 (specifically adopting Knights and rejecting claims under stalking horse doctrine); United States v. Wilson, 105 FedAppx 498 (4thCir 2004) (unpublished) (holding only reasonable suspicion is required for search under conditional waiver as a result of Knights); United States v. Keith, 375 F3d 346 (5thCir 2004) (adopting the theory that Knights removes the distinction between parole and investigatory related searches); United States v. Loney, 331 F3d 516 (6thCir 2003) (stating Knights removed the requirement to consider purpose behind search when conditional waiver exists); United States v. Hagenow, 423 F3d 638 (7thCir 2005) (recognizing Knights and rejecting the requirement for special need to search without a warrant); Brown, 346 F3d at 810 (rejecting the stalking horse doctrine); United States v. Stokes, 292 F3d 964 (9thCir 2002) (approving Knights invalidation of the claim the search was a "subterfuge for a criminal investigation"); United States v. Tucker, 305 F3d 1193 (10thCir 2002) (recognizing the validity of a search because it was reasonable under the Fourth Amendment); United States v. Yuknavich, 419 F3d 1302 (11thCir 2005) (holding only reasonable suspicion is required as a result of Knights).
[5]  The Court in Knights recognized that "[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined `by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" 534 US at 119, 122 SCt at 591, 151 LEd2d 497 (quoting Wyoming v. Houghton, 526 US 295, 300, 119 SCt 1297, 1300, 143 LEd 408 (1999)).
[6]  The language of Kottman's conditional waiver requires reasonable suspicion and Kottman is not claiming that probable cause or reasonable cause should be required before a warrantless search can be conducted.
[7]  While it is true the Eighth Circuit used Knights'" traditional Fourth Amendment balancing test to determine the search's constitutionality," it did so in order to reject the distinction between probation and investigatory related searches and not to define what constitutes reasonable suspicion. Brown, 346 F3d at 811-12.
[8]  For example, when the North Dakota Supreme Court modified its method of review for the validity of probationary searches after Knights, it applied a reasonable suspicion standard adopted from its investigatory and traffic stop cases. See State v. Maurstad, 2002 ND 121, ¶35, 647 NW2d 688, 697 (requiring an "objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity") (citing City of Devils Lake v. Lawrence, 2002 ND 31, ¶8, 639 NW2d 466, 469; City of Fargo v. Ovind, 1998 ND 69, ¶9, 575 NW2d 901, 903-04).

New Mexico also applied a reasonable suspicion standard based on its previous decisions in investigatory stop cases. See State v. Baca, 90 P3d 509, 521-22 (NMCtApp 2004) (citing State v. Urioste, 2002-NMSC-023, 52 P3d 964 (requiring" articulable facts that . . . would lead a reasonable person to believe criminal activity occurred or was occurring")); State v. Galvan, 560 P2d 550, 552 (NMCtApp 1977).
Similarly, the Supreme Court of Illinois aligned its reasoning with an investigatory stop case. See People v. Lampitok, 798 NE2d 91, 106-07 (Ill 2003) (requiring "`articulable facts which, taken together with the rational inferences from those facts, . . . warrant a reasonably prudent officer' to investigate further") (quoting Maryland v. Buie, 494 US 325, 110 SCt 1093, 108 LEd2d 276 (1990)); People v. Scott, 594 NE2d 217 (Ill 1992).
In contrast, Pennsylvania and New Jersey applied specific statutes which defined reasonable suspicion under warrantless searches based on conditional waivers. See Commonwealth v. Moore, 805 A2d 616, 621 (Pa 2002) (citing 61 PA STAT ANN § 331.27b(d)(6)); Stave v. Maples, 788 A2d 314, 316 (NJ 2002) (citing NJ STAT ANN § 10A:26-1.3). But the court in Pennsylvania also referred to investigatory stop cases when reviewing the adequacy of reasonable suspicion under the circumstances. See Moore, 805 A2d at 621 (citing Commonwealth v. Wimbush, 750 A2d 807 (Pa 2000); Commonwealth v. Lohr, 715 A2d 459, (Pa 1998); Commonwealth v. Tate, 346 A2d 570 (Pa 1975)).
In addition to state courts, a review of the federal courts reveals that most circuits also adopted a reasonable suspicion standard derived from previous investigatory stop cases. Williams, 417 F3d at 376 (requiring" a particularized and objective basis for suspecting legal wrongdoing") (quoting United States v. Arvizu, 534 US 266, 122 SCt 744, 151 LEd2d 740 (2002)); Wilson, 105 FedAppx 498 (unpublished) (same as Third Circuit); Loney, 331 F3d at 520 (requiring "`articulable reasons' and `a particularized and objective basis'") (quoting United States v. Payne, 181 F3d 781, 788 (6thCir 1999) (quoting United States v. Cortez, 449 US 411, 101 SCt 690, 66 LEd2d 621 (1981))); Hagenow, 423 F3d at 642 (requiring" something less than probable cause but more than a hunch") (quoting United States v. Baskin, 401 F3d 788, 791 (7thCir 2005)); Tucker, 305 F3d at 1200-01 (requiring" a particularized and objective basis for suspecting criminal activity") (citing United States v. Treto-Haro, 287 F3d 1000, 1004 (10thCir 2002); United States v. Sokolow, 490 US 1, 7, 109 SCt 1581, 1585, 104 LEd2d 1 (1989); Alabama v. White, 496 US 325, 330, 110 SCt 2412, 2416, 110 LEd2d 301 (1990)).
