#26102-aff in pt, rev in pt & rem-JKK

2012 S.D. 57

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

TYLER TILLMAN,
VINCENT ROSSI, and
JESSICA WALLACE,                               Defendants and Appellees.

                                ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FOURTH JUDICIAL CIRCUIT
                    LAWRENCE COUNTY, SOUTH DAKOTA
                                ****

                   THE HONORABLE WARREN G. JOHNSON
                                Judge

                                        ****

MARTY J. JACKLEY
Attorney General

TIMOTHY J. BARNAUD
Assistant Attorney General
Pierre, South Dakota                           Attorneys for plaintiff
                                               and appellant.

MATTHEW J. KINNEY
Spearfish, South Dakota                        Attorney for defendant
                                               and appellee Rossi.
BRADLEY T. BORGE
Rapid City, South Dakota                       Attorney for defendant
                                               and appellee Wallace.
DAVID L. CLAGGETT
Spearfish, South Dakota                        Attorney for defendant
                                               and appellee Tillman.

                                        ****
                                               ARGUED ON APRIL 18, 2012
                                               OPINION FILED 07/11/12
#26102

KONENKAMP, Justice

[¶1.]        A neighbor’s complaint about marijuana directed Spearfish police

officers to an apartment unit, where the officers smelled the odor of burnt

marijuana outside the door. One tenant let the officers inside, but when the officers

observed raw marijuana in plain view, another tenant demanded that the officers

obtain a search warrant before they conducted any search. While the officers

sought a warrant, they secured the apartment and detained all the tenants at the

police station. On a motion to suppress, the circuit court found that the officers had

probable cause to arrest two of the three tenants and search their apartment, but

the detention at the station was unreasonable and violated their constitutional

rights. The court suppressed all evidence. We granted an intermediate appeal to

review the suppression order.

                                    Background

[¶2.]        On September 13, 2010, the Spearfish Police Department dispatched

Corporal Verla Little and Officer Patrick Johnson to an apartment house at 740

University Street in response to a neighbor’s complaint about the smell of burning

marijuana from Unit 4. When the officers entered the house, they went upstairs

toward Unit 4, where they too could smell burnt marijuana. They knocked, and

Vincent Rossi opened the door. Rossi permitted the officers to enter. They asked

Rossi if there was anyone else in the apartment. He went back and got Jessica

Wallace. The officers then asked Wallace and Rossi if anyone else lived in the

apartment. Wallace told the officers that her boyfriend, Tyler Tillman, also lived

there, but was not home at the time.


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[¶3.]        While the officers were inside the apartment, Corporal Little observed

a rolled up towel by the entry door on the floor, which she knew to be commonly

used to keep the smell of marijuana from drifting out of a room. She also observed a

small amount of raw marijuana on a dresser and what she suspected to be burnt

marijuana residue. Corporal Little noticed several bottles of air freshener, which

she knew from her training and experience were used to mask the odor of burning

marijuana. Officer Johnson also made several observations, namely, some rolling

papers next to the television. Rossi claimed that he rolled his own cigarettes, but

could not produce smoking tobacco when asked. Officer Johnson saw a package of

commercial cigarettes on the table.

[¶4.]        Corporal Little and Officer Johnson advised Rossi and Wallace that

they received a complaint that someone smelled the odor of burnt marijuana. Both

denied using any illegal substance. Officer Johnson asked Rossi if there were any

drugs in the apartment and requested a consent to search. Wallace, as the

leaseholder, asked that the officers obtain a search warrant. After Wallace refused

consent, the officers chose to detain Rossi and Wallace and secure the scene while

they obtained a warrant. Neither one was formally arrested. But the officers

searched them for weapons, handcuffed them, and placed them in the back of the

patrol cars. To secure the scene, Officer Candi Birk stayed outside the apartment

unit to prevent anyone from entering.

[¶5.]        At 1:45 p.m., Officer Johnson and Corporal Little transported Wallace

and Rossi to the police station and placed them in individual holding rooms. Officer

Johnson began the process of obtaining a search warrant. This was his first time


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#26102

preparing a warrant affidavit. Special Agent Steven Ardis and Detective Jason

Deneui helped Officer Johnson by reviewing the affidavit after it was prepared.

Although much of the language he used was boilerplate, Officer Johnson took three

hours and nine minutes to fax a completed warrant affidavit and other documents

to Magistrate Judge Michelle Percy. Wallace and Rossi remained detained at the

station. At 4:17 p.m., Tillman was detained when he returned to the apartment,

and he too was taken to a holding room at the station.

[¶6.]        Judge Percy granted the warrant request, and, at 5:45 p.m., the

warrant was executed. In addition to marijuana, the officers found psilocybin

mushrooms and prescription drugs. Following the search, Agent Ardis returned to

the station to interview Rossi, but first a urine sample was taken from him. The

interview began at 6:30 p.m. Agent Ardis read Rossi his Miranda rights, and Rossi

agreed to answer questions. He made several incriminating statements about the

evidence in the apartment.

[¶7.]        Shortly after he concluded his interview with Rossi, Agent Ardis was

told that the warrant did not include psilocybin mushrooms, prescription drugs, or

cell phones. He recommended that those items be added to the search warrant as a

precaution, after which, Officer Johnson called Judge Percy and made an oral

amendment request. At 8:00 p.m., Judge Percy orally granted the amendment. The

officers concluded the search of the apartment at 8:15 p.m.

[¶8.]        Around 8:00 p.m., Agent Ardis interviewed Tillman. Tillman waived

his Miranda rights. He spoke with Agent Ardis and made incriminating statements

about the evidence found in the apartment. He also provided a urine sample. The


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interview concluded at 9:30 p.m. Agent Ardis then attempted to question Wallace.

She declined to speak. All three were released at 10:00 p.m.

[¶9.]        Rossi and Tillman were indicted for possession of a controlled drug or

substance in violation of SDCL 22-42-5 and SDCL 22-3-3, and possession of

marijuana (less than two ounces) in violation of SDCL 22-42-6. Wallace was

indicted for possession of a controlled drug or substance with intent to distribute in

violation of SDCL 22-42-2, and two counts of possession of a controlled drug or

substance in violation of SDCL 22-42-5. Rossi, Tillman, and Wallace moved to

suppress the evidence. At the hearing, the defendants collectively argued that the

seizure of their persons and apartment violated their constitutional right against

unreasonable searches and seizures. They relied on Illinois v. McArthur, in which

the United States Supreme Court assessed the reasonableness of a home seizure

pending the application for a search warrant. See 531 U.S. 326, 121 S. Ct. 946, 148

L. Ed. 2d 838 (2001).

[¶10.]       The circuit court issued a memorandum decision, findings of fact and

conclusions of law, and an order. In assessing the reasonableness of the officers’

actions, the court applied the four-part test endorsed in McArthur. That test asks

the following questions:

             1. Did law enforcement officers have probable cause to believe
             that the apartment “contained evidence of a crime and
             contraband, namely, unlawful drugs”?

             2. Did the officers have “good reason to fear that, unless
             restrained, [the defendants] would destroy the drugs before [the
             officers] could return with a warrant”?

             3. Did the officers make “reasonable efforts to reconcile their law
             enforcement needs with the demands of personal privacy”?

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             4. Given the nature of the intrusion, did the officers impose a
             restraint for a period of time “no longer than reasonably
             necessary for the police, acting with diligence, to obtain the
             warrant”?

Id. at 331-33, 121 S. Ct. at 950-51.

[¶11.]       The circuit court found that the first two elements were “clearly

satisfied in this case.” But the last two were “much more difficult.” On the third

element, the court faulted the officers for removing the defendants from their

apartment without formally arresting them. It opined that a lesser restraint would

have been simply to prevent them from entering the apartment, as was done in

McArthur. Because the court found the intrusion to be excessive, it ruled that the

officers did not make reasonable efforts to reconcile their needs with the demands of

personal privacy.

[¶12.]       On the fourth element, the court noted that “the State did not provide

any authority supporting a detention at a police station for at least five hours while

police obtained a search warrant.” Thus, it ruled that the officers failed to “act with

the requisite diligence in obtaining the search warrant for the apartment[.]” The

court held that the detention was unreasonable and that “[t]he seizure of these

defendants violated their constitutional rights.” Accordingly, the court suppressed

“any evidence discovered and seized by law enforcement or any statements made by

the defendants after Rossi and Wallace were initially detained by Corporal Little

and Officer Johnson[.]”




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                                Analysis and Decision

[¶13.]         We granted the State’s petition for intermediate appeal to consider

whether the circuit court erred as a matter of law when it suppressed defendants’

statements and the evidence seized under the search warrant.* We address each of

the defendants’ cases separately, as their circumstances differ. Rossi and Wallace

were detained for eight hours, and Tillman, for five and one half hours. The officers

questioned Rossi and Tillman while they were detained, but did not question

Wallace because she refused to answer questions. Tillman was not at the

apartment when the officers smelled the odor of burnt marijuana and saw

marijuana in plain view.

               1. Jessica Wallace

[¶14.]         The circuit court suppressed all evidence pertaining to Wallace seized

after she was initially detained. She made no statement after she was detained, so

there was no statement to suppress. Therefore, we review only whether the court

erred when it suppressed the evidence discovered during the search of the

apartment after Wallace was detained. On that point, McArthur controls.

[¶15.]         In McArthur, the defendant moved to suppress evidence taken from his

trailer as the “fruit” of an unlawful seizure. On a tip that his home contained




*        “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
         S.D. 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Herrmann, 2002 S.D. 119,
         ¶ 9, 652 N.W.2d 725, 728 (citations omitted)); State v. Tofani, 2006 S.D. 63, ¶
         24, 719 N.W.2d 391, 398. Findings of fact are reviewed under the clearly
         erroneous standard. Tofani, 2006 S.D. 63, ¶ 24, 719 N.W.2d at 398; State v.
         Stevens, 2007 S.D. 54, ¶ 5, 734 N.W.2d 344, 346.

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contraband, police officers prevented McArthur from entering his trailer

unaccompanied while the officers were obtaining a search warrant. McArthur, 531

U.S. at 328-29, 121 S. Ct. at 948-49. It was undisputed that preventing McArthur

from entering his trailer was a seizure of property under the Fourth Amendment,

and therefore, the Court assessed whether the restriction was reasonable. After

applying its four-part test, the Court concluded that the restraint was reasonable

and not in violation of McArthur’s Fourth Amendment rights. Id. at 337, 121 S. Ct.

951.

[¶16.]        Applying the four-part McArthur test here, we likewise conclude that

the seizure was reasonable and constitutional. First, Officer Johnson and Corporal

Little had probable cause to believe that the apartment contained evidence of a

crime. Corporal Little spotted raw marijuana on a dresser in plain view. Both

officers smelled the odor of burnt marijuana. Second, the officers had good reason

to fear that unless they prevented Wallace from remaining in the apartment, she

would destroy the evidence before the officers could return with a warrant. As the

circuit court recognized, “[d]rugs and drug paraphernalia can easily be discarded or

destroyed.”

[¶17.]        Third, although at first impression it might seem that the officers did

not make reasonable efforts to reconcile their law enforcement needs (keep Wallace

out of the apartment) with the general demands of personal privacy (right not to be

de facto arrested and kept in a holding room at the police station), the

circumstances of Wallace’s detention did not implicate general privacy rights.

Indeed, at the time the officers detained Wallace, they had probable cause to arrest


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her based on their observation of an illegal substance in plain view. This is in

contrast to McArthur, 531 U.S. at 329, 121 S. Ct. at 949, United States v. Christie,

570 F. Supp. 2d 657, 668-69 (D. N.J. 2008), and United States v. Nguyen, 2008 W.L.

346114 (D. Mass.) (unpublished), where the courts found compelling the fact that

the officers did not physically restrain the defendants, but merely prevented them

from accessing the property.

[¶18.]       Here, on the other hand, we must account for the fact that the officers

had probable cause to arrest Wallace, even if they did not effect a formal arrest. See

State v. Nguyen, 1997 S.D. 47, ¶ 22, 563 N.W.2d 120, 125; State v. Davidson, 479

N.W.2d 513, 516 (S.D. 1992) (failure to formally arrest “does not vitiate the legal

effect of a de facto arrest where the officer takes the suspect into his physical

custody and control at the scene”). Moreover, Wallace’s detention did not become

unreasonable simply because the officers could have, as the circuit court declared,

“easily imposed a restraint similar to that used in McArthur by removing [Wallace]

from the apartment and not allowing [her] reentry until after the premises had

been searched.” Wallace’s detention at the police station for eight hours in a room

alone where she was not questioned was not unreasonable in light of her de facto

arrest.

[¶19.]       Finally, given the nature of the intrusion, the officers’ restraint of

Wallace was no longer than reasonably necessary for the officers, acting with

diligence, to obtain a warrant. While the circuit court found that the officers did not

act diligently, that conclusion related not to the fact that it took Officer Johnson

approximately three hours to draft the warrant request, but to the court’s finding


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that the officers acted unreasonably when they detained Wallace at the police

station. But as we recognized, that the officers could have restricted Wallace’s

access to the apartment as in McArthur does not make Wallace’s restraint

unreasonable. The nature of the intrusion must be viewed in light of the fact that

the officers had probable cause to arrest her. Given these circumstances, the

seizure was no longer than reasonably necessary.

[¶20.]       In conclusion, because the officers (1) had probable cause to believe the

apartment contained evidence of a crime, (2) reasonably feared that Wallace, if

unrestricted, would destroy the evidence, (3) balanced their needs against Wallace’s

privacy rights, and (4) imposed a restraint that was not unreasonable given the

circumstances, the seizure of the apartment did not violate Wallace’s Fourth

Amendment right against unreasonable searches and seizures. The court’s order

suppressing the evidence seized from the apartment as it relates to Wallace is

reversed.

             2. Vincent Rossi

[¶21.]       As in Wallace’s case, probable cause existed to arrest Rossi when the

officers seized the apartment and obtained the search warrant. Therefore, our

analysis of the McArthur elements applied to Rossi are the same: the officers (1)

had probable cause to believe the apartment contained evidence of a crime, (2)

reasonably feared that Rossi, if unrestricted, would destroy the evidence, (3)

balanced their needs against Rossi’s privacy rights, and (4) imposed a restraint that

was not unreasonable given the circumstances. The seizure of the apartment and

ultimate search did not violate Rossi’s Fourth Amendment right against


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unreasonable searches and seizures, and the court’s suppression of the evidence

seized during the search of the apartment is reversed.

[¶22.]       Unlike Wallace, Rossi made incriminating statements while detained

and gave a urine sample. Therefore, we must review the court’s suppression of

those statements and the urinalysis. It is undisputed that the officers had probable

cause to arrest Rossi for the marijuana in plain view and the odor of burnt

marijuana. Because the officers had probable cause to arrest Rossi, their detention

of him at the police station was reasonable. See Nguyen, 1997 S.D. 47, ¶ 22, 563

N.W.2d at 125; Davidson, 479 N.W.2d at 516 (failure to formally arrest “does not

vitiate the legal effect of a de facto arrest”). Under South Dakota law, Rossi was

entitled to a probable cause determination within 48 hours. See State v. Larson,

2009 S.D. 107, ¶ 11, 776 N.W.2d 254, 258. He was released after eight hours. His

detention was not illegal. Moreover, Rossi’s statements were made after he

voluntarily waived his Miranda rights. Because his statements and urinalysis were

not the product of an illegal detention, we reverse the court’s suppression order.

             3. Tyler Tillman

[¶23.]       The officers detained Tillman after he arrived at the apartment while

it was being secured pending a search warrant. Tillman was denied access to the

apartment, handcuffed, and brought to the police station. After several hours,

Agent Ardis read Tillman his Miranda rights, obtained his waiver, and questioned

him about the evidence found in the apartment. Tillman gave incriminating

statements and provided a urine sample, and was released after five and one half




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hours. The court suppressed Tillman’s statements and the results of the urinalysis,

as well as the evidence seized from search of the apartment.

[¶24.]       Unlike Wallace and Rossi, Tillman was not at the apartment when the

officers observed marijuana in plain view and smelled the odor of burnt marijuana.

Moreover, at the time the officers detained Tillman, the warrant had yet to be

issued. Therefore, the officers did not have probable cause to arrest Tillman. The

only support the State offered for detaining Tillman was its need for officer safety

and to secure the apartment.

[¶25.]       Tillman’s detention at the police station for five and one half hours

while the officers obtained a warrant was unreasonable and unconstitutional. The

officers had no probable cause to arrest him and no articulable suspicion to justify

detaining him. See United States v. Escobar, 389 F.3d 781, 784 (8th Cir. 2004);

State v. Haar, 2009 S.D. 79, ¶ 22, 772 N.W.2d 157, 167. Because the statements

made by Tillman and the results of the urine sample were the product of his illegal

detention, the court properly suppressed those statements and the urinalysis. It is

of no legal consequence that Tillman voluntarily waived his Miranda rights, or that

a valid search warrant authorized the seizure of his urine. “Under the doctrine of

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the

exclusionary rule generally makes inadmissible, evidence that is the product of an

unconstitutional arrest.” State v. Spotted Horse, 462 N.W.2d 463, 469 (S.D. 1990);

see also State v. Ludemann, 2010 S.D. 9, ¶ 18, 778 N.W.2d 618, 623. “Once the

exclusionary rule is triggered, ‘indirect as well as direct evidence; physical tangible

materials obtained either during or as a direct result of an unlawful invasion, come


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at by exploitation of the illegal search; and testimony of matters observed during an

unlawful invasion’ are excluded.” Ludemann, 2010 S.D. 9, ¶ 18, 778 N.W.2d at 623

(quoting Spotted Horse, 462 N.W.2d at 469). Tillman’s incriminatory statements

were a direct product of his illegal detention. Additionally, despite the fact that a

valid warrant authorized Tillman’s urinalysis, the results obtained were also the

product of his illegal detention.

[¶26.]       The circuit court also suppressed the evidence seized as a result of the

search of the apartment. McArthur controls because the apartment was seized and

Tillman was detained without a warrant. See 531 U.S. at 330-31, 121 S. Ct. at 949-

50. The first element asks: Did law enforcement officers have probable cause to

believe that the apartment contained illegal substances? This is easily answered in

the affirmative. Second, did the officers have good reason to fear that Tillman, if

left unrestrained, would destroy the evidence before they could return with a

warrant? The answer again is yes: if the officers would have allowed Tillman to

enter the apartment, Tillman would have had unbridled access to the illegal

substances throughout the apartment and the ability to destroy the evidence before

the warrant could be executed.

[¶27.]       The next two McArthur elements are more problematic. Law

enforcement officers must make “reasonable efforts to reconcile their law

enforcement needs with the demands of personal privacy.” 531 U.S. at 332, 121 S.

Ct. at 950. Here, the officers did not need to detain Tillman to keep the evidence in

the apartment secure. They could have simply denied him access to the apartment.

See id. at 329, 121 S. Ct. at 949 (did not arrest defendant, but merely prevented


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unaccompanied access); United States v. Legette, 260 F. App’x 247, 251 (11th Cir.

2008) (detention in home for four hours, although probable cause existed for an

arrest, found reasonable). Moreover, because there was no probable cause to arrest

Tillman, detaining him at the police station was a significant intrusion of his

privacy rights. On this element, the circuit court was correct in concluding that the

officers failed to balance their need to keep the apartment secure against Tillman’s

right to be free from unreasonable seizures. Similarly, on the fourth element, given

the nature of the intrusion — de facto arrest — the officers’ detention and seizure of

Tillman for five and one half hours was longer than reasonably necessary for the

officers to obtain a warrant. Thus, the officers violated Tillman’s Fourth

Amendment rights under McArthur. See 531 U.S. at 337, 121 S. Ct. at 953.

[¶28.]       Nonetheless, the remedy does not demand suppression of the evidence

seized as a result of the search of the apartment. The officers searched the

apartment under a valid search warrant, a fact Tillman does not dispute. Also, the

information used to secure the warrant did not come from either Tillman’s illegal

detention or the illegal seizure of the apartment as it relates to Tillman. Rather,

Officer Johnson secured the warrant based on information learned during his and

Corporal Little’s first encounter with Rossi and Wallace — the raw marijuana in

plain view and the odor of burnt marijuana detected when they arrived at the

apartment.

[¶29.]       In Segura v. United States, police officers illegally entered an

apartment, conducted a protective search, and stayed in the apartment until a

warrant could be obtained. 468 U.S. 796, 801, 104 S. Ct. 3380, 3383, 82 L. Ed. 2d


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599 (1984). A warrant was ultimately issued and evidence seized. Although the

warrant was deemed valid, the evidence seized with the warrant was suppressed as

“fruit” of the illegal initial entry. On appeal, the Supreme Court reviewed the

limited question “whether drugs and the other items not observed during the initial

entry and first discovered by the agents the day after the entry, under an

admittedly valid search warrant, should have been suppressed.” Id. at 804, 104 S.

Ct. at 3385. Recognizing that evidence discovered as a direct result of an

unconstitutional search or seizure “is plainly subject to exclusion,” the Court

explained that “[i]t has been well established for more than 60 years that evidence

is not to be excluded if the connection between the illegal police conduct and the

discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint[.]’”

Id. at 805, 104 S. Ct. at 3385 (quoting Nardone v. United States, 308 U.S. 338, 341,

60 S. Ct. 266, 268, 84 L. Ed. 307 (1939)).

[¶30.]       A home is sacrosanct “not primarily because of the occupants’

possessory interests in the premises, but because of their privacy interests in the

activities that take place within.” Id. at 810, 104 S. Ct. at 3388. Indeed, “the

Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S.

347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967). Moreover, “a seizure affects

only possessory interests, not privacy interests. Therefore, the heightened

protection we accord privacy interests is simply not implicated where a seizure of

premises, not a search, is at issue.” Segura, 468 U.S. at 810, 104 S. Ct. at 3388.

[¶31.]       Here, the search is not at issue, as it was indisputably based on a valid

warrant. Further, none of the information Officer Johnson used to secure the


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warrant related in any way to the seizure of the apartment. Had the officers never

seized the apartment, “but instead conducted a perimeter stakeout to prevent

anyone from entering the apartment and destroying evidence, the contraband now

challenged would have been discovered and seized precisely as it was here.” See id.

at 814, 104 S. Ct. at 3390. The evidence seized was not the “fruit of the poisonous

tree.”

[¶32.]       Tillman argues that the evidence must be suppressed “as a direct

result of the constitutional violation.” See United States v. Song Ja Cha, 597 F.3d

995, 1003 (9th Cir. 2010). In Song Ja Cha, although supported by a valid warrant,

the evidence seized was suppressed because the police conduct was deliberate,

systematic, and culpable. Id. at 1004-06. The court emphasized that the police

conduct must be sufficiently deliberate that it can be deterred, and such review is

based on an objective standard. Unlike the officers in Song Ja Cha, who denied the

defendant access to his house for 26.5 hours while they nonchalantly delayed their

application for a warrant, the conduct of the officers here was not “sufficiently

culpable that . . . deterrence is worth the price paid by the justice system.” See id.

at 1004 (quoting Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 702,

172 L. Ed. 2d 496 (2009)).

                                     Conclusion

[¶33.]       We reverse (1) the order suppressing the evidence seized in the search

of the apartment as against Wallace, Rossi, and Tillman and (2) the suppression of

Rossi’s statements and his urinalysis. We affirm the suppression of Tillman’s

statements and the results of the analysis of his urine.


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[¶34.]      Affirmed in part, reversed in part, and remanded.

[¶35.]      GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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