#27339-a-GAS

2015 S.D. 78

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

ANTONIO M. RUNNING SHIELD,                  Defendant and Appellant.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                     THE HONORABLE WALLY EKLUND
                                Judge

                                   ****



MARTY J. JACKLEY
Attorney General

JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.

TODD A. LOVE
Rapid City, South Dakota                    Attorney for defendant
                                            and appellant.


                                   ****



                                            ARGUED OCTOBER 7, 2015
                                            OPINION FILED 10/28/15
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SEVERSON, Justice

[¶1.]        Antonio Running Shield was searched pursuant to a search warrant

with an “all persons” provision. He was found in possession of illegal drugs and

subsequently convicted of possession of a controlled substance and possession of

marijuana. On appeal, he asserts that the affidavit in support of the search

warrant lacked probable cause for the “all persons” provision and therefore the

circuit court erred by failing to suppress evidence obtained as a result of the search.

We affirm.

                                    Background

[¶2.]        On November 6, 2012, a confidential informant approached law

enforcement in Rapid City and indicated that the informant could purchase

methamphetamine from Travis Maho. The informant stated that he or she had

purchased such drugs in the past and that Maho currently resided on Haines

Avenue but he also stayed at motels and hotels around Rapid City. As a result, law

enforcement directed the informant to arrange a controlled buy with Maho. On

November 6, 2012, the informant met Maho at the Super 8 Motel in Rapid City and

bought methamphetamine. On November 29, 2012, another controlled buy was

arranged and successfully completed, this time at Maho’s residence on Haines

Avenue. The confidential informant told law enforcement that he or she always

enters the Haines residence from the alleyway, as was done on this occasion.

Further, the informant told law enforcement that Brandi White also lived at this

house and that she used drugs, but the informant did not think that she was selling

drugs.


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[¶3.]         On December 17, 2012, Maho was arrested during a traffic stop and

taken into custody. Evidence of drug items and drug sales were found on Maho’s

person. In his car, law enforcement found a needle and plastic baggie that

contained suspected methamphetamine. The next day, law enforcement contacted

the informant and learned that Maho had moved within the past week or two from

Haines Avenue to Anamosa Street. Law enforcement sought a search warrant of

Maho’s current and former residences and “any people present at the time the

search warrant is executed that have a social nexus with Travis Allan Maho and

Brandi Star White.”

[¶4.]         When law enforcement arrived at the residence on Haines Avenue,

officers blocked the exits of the alley behind the house and initiated a stop of

Running Shield’s vehicle, which was in the alley. 1 When Running Shield opened

the door of his car, an officer could smell marijuana. The officer searched Running

Shield and placed him in handcuffs. Thereafter, a search of the vehicle revealed

bags of marijuana, a plastic case that contained a straw with residue, and a

container with residue. The residue was determined to be methamphetamine.

Thereafter, Running Shield was convicted of possession of a controlled substance

and possession of marijuana.

[¶5.]         Prior to trial, Running Shield moved to suppress evidence from the

stop, asserting that the affidavit lacked a sufficient factual basis to establish



1.      Nothing in the record indicates where along the alley Running Shield’s
        vehicle was located. Running Shield’s counsel represented at oral argument
        that Running Shield was pulling away from the Haines residence in the alley
        when officers blocked the exits and initiated the stop.

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probable cause to search “any people present at the time the search warrant is

executed that have a social nexus with Travis Allan Maho and Brandi Star White.”

The court denied the motion, holding that the affidavit adequately established

probable cause for issuance of a warrant with the “any people” provision. Running

Shield now appeals, asserting that his rights under the Fourth Amendment of the

United States Constitution as incorporated by the Fourteenth Amendment and his

rights under Article VI, § 11 of the South Dakota Constitution were violated.

                                       Analysis

[¶6.]         We need not reach the issue of whether the affidavit was sufficient to

support the warrant’s provisions. The State argued to the circuit court and asserts

again on review that, even if the affidavit is determined to be deficient, this search

was conducted pursuant to a warrant and therefore the good-faith exception to the

exclusionary rule applies. Under the good-faith exception, evidence may be

admissible, even when a warrant is subsequently invalidated, if law enforcement’s

reliance on the warrant was objectively reasonable. See State v. Sorenson, 2004

S.D. 108, ¶ 9, 688 N.W.2d 193, 197. “When reviewing suppression rulings, we have

the discretion to proceed directly to the good-faith question without first deciding

the issue of probable cause. We examine the good-faith exception de novo.” 2 Id.

(footnote omitted).




2.      A discussion of good faith rather than probable cause does not indicate that
        this Court found that the affidavit did not establish probable cause to issue a
        warrant. Rather, it simply addresses whether the evidence would be
        suppressed even if we were to find a lack of probable cause established by the
        affidavit.

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[¶7.]        We have previously explained that “[s]uppression of evidence is not a

personal constitutional right, but a judicially created remedy to deter constitutional

violations by government officials.” Id. ¶ 8, 688 N.W.2d. at 196 (citing United States

v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 3412, 82 L. Ed. 2d 677 (1984)). The

United States Supreme Court has described the exclusionary rule as a “last resort”

appropriate when “the deterrence benefits of suppression . . . outweigh its heavy

costs.” Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419, 2427, 180 L. Ed. 2d.

285 (2011) (quoting Herring v. United States, 555 U.S. 135, 137, 129 S. Ct. 695, 172

L. Ed. 2d 496 (2009)) (citation omitted).

             When the police exhibit “deliberate,” “reckless,” or “grossly
             negligent” disregard for Fourth Amendment rights, the
             deterrent value of exclusion is strong and tends to outweigh the
             resulting costs. But when the police act with an objectively
             “reasonable good-faith belief” that their conduct is lawful, or
             when their conduct involves only simple, “isolated” negligence,
             the “deterrence rationale loses much of its force,” and exclusion
             cannot “pay its way.”

Davis, 131 S. Ct. at 2427-28 (citations omitted). Therefore, suppression “remains an

appropriate remedy if [(1)] the magistrate or judge in issuing a warrant was misled

by information in an affidavit that the affiant knew was false or would have known

was false except for his reckless disregard of the truth”; (2) “the issuing magistrate

wholly abandoned his judicial role”; (3) the affidavit is “so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable”;

and (4) the warrant is “so facially deficient—i.e., in failing to particularize the place

to be searched or the things to be seized—that the executing officers cannot

reasonably presume it to be valid.” Leon, 468 U.S. at 923, 104 S. Ct. at 3421

(citation omitted); see also Sorenson, 2004 S.D. 108, ¶ 10, 688 N.W.2d at 197. “In

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the absence of an allegation that the magistrate abandoned his detached and

neutral role, suppression is appropriate only if the officers were dishonest or

reckless in preparing their affidavit or could not have harbored an objectively

reasonable belief in the existence of probable cause.” Leon, 468 U.S. at 926, 104 S.

Ct. at 3422.

[¶8.]          Defendant concedes that neither of the first two scenarios above is

applicable in this case. Instead, Defendant asserts that the affidavit was “so

lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable.” See Leon, 468 U.S. at 923, 104 S. Ct. at 3421. Defendant

asserts that there were no facts establishing a “sufficient nexus among the criminal

activity, the place of the activity, and the persons in the place,” a necessary

requirement to support an “all persons” warrant. See State v. Jackson, 2000 S.D.

113, ¶ 15, 616 N.W.2d 412, 418 (quoting People v. Johnson, 805 P.2d 1156, 1159

(Colo. Ct. App. 1990)).

[¶9.]          The facts as set forth in the affidavit are not so deficient that an

executing officer could not reasonably believe that it was valid. “What amount of

evidence is required to form probable cause is not a question susceptible to

formulaic solutions. Probable cause ‘is a fluid concept – turning on the assessment

of probabilities in particular contexts – not readily, or even usefully, reduced to a

neat set of legal rules.’” Jackson, 2000 S.D. 113, ¶ 22, 616 N.W.2d at 420 (citation

omitted) (quoting State v. Farndon, 488 N.E.2d. 894, 898 (Ohio Ct. App. 1984)).

Law enforcement arranged two controlled purchases from Maho and confirmed

through field tests that the substance Maho was selling was methamphetamine.


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Defendant insists that only one purchase occurred at the Haines Avenue residence,

as recited in the affidavit. However, as stated in the affidavit, the informant told

law enforcement that the informant had purchased drugs in the past, that Maho

had been residing there for three to four months, and that the informant “always

entered the house through the alleyway access.” “Reasonable inferences may be

drawn from the information in the affidavit.” Jackson, 2000 S.D. 113, ¶ 11, 616

N.W.2d at 416. It was reasonable to infer from the informant’s statements that the

controlled buy was not the first instance where the informant had entered the

residence from the alleyway to purchase drugs from Maho.

[¶10.]       The affidavit also indicated that Maho was currently being held in the

county jail due to a traffic stop on December 17, 2012. Defendant asserts that a key

factor to consider in this case is that Maho was in custody when the warrant was

sought. The affidavit lists the items found in Maho’s vehicle, which included a

baggie of marijuana, a baggie of suspected methamphetamine, a scale, and a large

amount of currency mixed in with baggies. These items indicated Maho’s continued

involvement in illegal drug activities. Although the informant believed that Maho

had moved within the past week or two to a different location, the informant also

relayed that Maho stayed at motels and hotels and, as confirmed by the controlled

buy, he sold drugs at different locations. There was no indication that Maho had

broken all ties with the Haines residence. See also Jackson, ¶ 21, 616 N.W.2d at

419 (“That some of these [drug] activities occurred at [defendants’] previous

dwellings does not weaken the probable cause for an “all persons” search at their




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latest home; it strengthens it, as it shows persistent illegal enterprise no matter

where [defendants] resided.”).

[¶11.]         Despite Defendant’s contentions that there is no evidence that people

present or arriving at the residence would be engaged in any on-going criminal

activity, the affidavit explained that based on the officer’s “training, experience and

participation in narcotic investigations . . . [he knew:] . . . [t]hat illegal drug

traffickers commonly have people at their residence or arriving at their residence

purchasing illegal substances.” 3 In addition, White, who the informant believed

used drugs and who had been at the residence when the informant purchased

drugs, still lived in the home at the time the search warrant was sought. “[T]he

nature of the criminal activity [drug dealing] was such that participants constantly

shifted or changed[,] making it practically impossible for law enforcement to predict

that any specific person or persons would be on the premises at any given time.”

Jackson, 2000 S.D. 113, ¶ 25, 616 N.W.2d at 420. Defendant also points out that a



3.       Defendant relies on Iowa precedent in support of his position that the “all
         persons” warrant was deficient. In State v. Prior, the Supreme Court of Iowa
         held that “[t]here must be evidence that gives rise to an inference that all
         persons on the premises would necessarily be involved in the illegal activity.
          Thus, ‘all persons’ warrants meet the particularity and probable cause
         requirements of the Fourth Amendment only in limited circumstances where
         there is probable cause to believe that the premises are confined to ongoing
         illegal activity and that every person within the orbit of the search possesses
         the articles sought.” 617 N.W.2d 260, 265 (Iowa 2000) (citations omitted).
         This is a stricter standard than we employ. We have explained: “[T]o hold
         that an affidavit must contain facts showing that nothing but illegal activity
         is taking place in a location before an ‘all persons’ warrant may be issued
         ‘would simply deny government a needed power to deal with crime, without
         advancing the interest the Fourth Amendment was meant to serve.’”
         Jackson, 2000 S.D. 113, ¶ 23, 616 N.W.2d at 420 (quoting State v. De Simone,
         288 A.2d 849, 851 (N.J. 1972).

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few weeks had elapsed between the controlled drug purchases and between the last

drug purchase and the search warrant being sought and executed. However, “drug

activities are ordinarily a regenerating and continuous activity, which occur over a

protracted time.” State v. Wilkinson, 2007 S.D. 79, ¶ 24, 739 N.W.2d 254, 261.

Therefore, the affidavit in support of the warrant executed in this case is not “so

lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable.” See Leon, 468 U.S. at 923, 104 S. Ct. at 3421.

                                      Conclusion

[¶12.]       Based on the facts as enumerated in the affidavit and the reasonable

inferences drawn from those facts, the officers’ good-faith reliance on the warrant,

specifically its “all persons” provision, was objectively reasonable; thereby making

suppression an inappropriate remedy in this case. We affirm.

[¶13.]       GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,

Justices, concur.




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