#27817-a-GAS

2016 S.D. 83

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

JAMES LEWIS ROGERS, JR.,                    Defendant and Appellant.

                                   ****

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

                                   ****

                    THE HONORABLE RANDALL L. MACY
                                Judge

                                   ****


MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


PAUL EISENBRAUN
ELLERY GREY of
Grey & Eisenbraun
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.



                                   ****
                                            ARGUED NOVEMBER 7, 2016
                                            OPINION FILED 11/22/16
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SEVERSON, Justice

[¶1.]        A jury convicted James Rogers of first-degree murder. The circuit

court sentenced him to life imprisonment without parole. On appeal, Rogers asserts

that the court erred by failing to suppress evidence that was obtained without a

warrant and failing to suppress statements Rogers made prior to law enforcement

informing him of his Miranda rights. We affirm.

                                   Background

[¶2.]        On August 17, 2015, Deborah Burrows called the Lead Police

Department and asked that an officer come to her home. The Department assigned

Officer Jandt to answer the call. When Officer Jandt arrived at Deborah’s house, he

activated a tape recorder. Deborah reported that her ex-husband, Ken Burrows,

had informed her that someone, later identified as James Rogers, wanted help

getting rid of a body. Ken told Deborah that Rogers’ girlfriend was the victim and

that her body was in a suitcase in the apartment. Ken observed blood in the

kitchen of Roger’s apartment. Deborah reported that Ken was still in her home,

and Officer Jandt asked to speak directly with Ken.

[¶3.]        Ken Burrows came outside to speak with Officer Jandt. He informed

Officer Jandt that Rogers told Ken that Rogers had killed Caitlin Walsh. Rogers

lived in apartment 303 of the Galena Street Apartments, where he still had Walsh’s

body in a suitcase that was wrapped in plastic. Rogers wanted Ken’s help disposing

of the body, but Ken refused, fearing that he would be an accessory to murder. Ken

had been in the apartment just fifteen minutes prior. Rogers had been crying, and

there was blood on the floor of the apartment. Ken relayed that he had grabbed the


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suitcase in an attempt to lift it and that it was heavy. Rogers told Ken that Walsh

barely fit inside. Rogers also told Ken that he had beaten and stabbed Walsh. Ken

told Officer Jandt several times that he was not sure if Rogers was telling him the

truth or if the whole thing was a hoax. He never saw a body, but he wanted police

to look into the situation immediately.

[¶4.]        Officer Jandt contacted the Lead Chief of Police, John Wainman, and

asked Chief Wainman to meet him in person at the Galena Street Apartments

where Rogers lived. The two met at the rear entrance, and Officer Jandt relayed

what the Burrows had reported. Chief Wainman knew of Rogers and Walsh’s

relationship and that it was volatile. The two entered the third floor of the

apartment complex. As they walked down the hall towards apartment 303, they

heard a male subject, later identified as Rogers, crying. The crying became louder

the closer the officers moved towards apartment 303. They also heard Rogers

saying “I’m sorry.” Hearing that, the officers thought that someone else may be in

the apartment. They believed it was possible that Walsh was still alive or that

Rogers may be injured. They knocked on the door to apartment 303, asking if

Rogers was okay and that he open the door. The officers asked Rogers several times

to open the door. Rogers did not open the door, and the crying stopped. When

Rogers went silent, Chief Wainman attempted to forcibly open the door. Chief

Wainman contacted the property manager for a key to the apartment, but she was

out of town and unable to obtain a key for him. Therefore, he directed Officer Jandt

to get tools from one of their police vehicles. Chief Wainman began taking the

molding off of the door.


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[¶5.]        Eventually, Rogers came to the door and unlocked it. When he did so,

Chief Wainman asked him multiple times to come outside. Rogers did not comply,

and Chief Wainman pulled him from the apartment and asked Rogers what he had

done. Rogers responded that he “did something very wrong.” Chief Wainman

entered the apartment and could detect the smell of decomposition, but did not see

a suitcase. He came back to the hallway and asked Rogers where Walsh was.

Rogers indicated that she was “in the closet.” Chief Wainman entered the

apartment a second time and opened the closet. At that point, he discerned that the

strong odor of decomposition was coming from the closet. He also saw the suitcase

and that there was liquid oozing out of it and onto the carpet. Upon pulling on the

suitcase, he noted that it contained something heavy, consistent with a body. He

took a picture of the suitcase, left the apartment, and directed Officer Jandt to take

Rogers to the Lawrence County Jail.

[¶6.]        Chief Wainman asked another officer of the Lead Police Department to

come to the scene and take pictures. After additional pictures were taken, officers

left the apartment and requested assistance from other law enforcement agencies.

Approximately five hours later, law enforcement obtained a search warrant and

returned to the apartment to retrieve the suitcase. The remains of Caitlin Walsh

were found inside the suitcase.

[¶7.]        At the Lawrence County Sherriff’s Office, law enforcement interviewed

Rogers. Before officers were able to read Roger his Miranda rights, Rogers stated “I

never meant to hurt her.” As Agent Garland was reading a Miranda warning to

Rogers, Rogers interrupted and stated, “I’ll tell you anything you want to know.” In


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response, Agent Garland started reading the Miranda warnings from the beginning.

At the end of the advisement, Agent Garland asked Rogers: “Do you understand

those rights James?” Rogers replied, “I think so, yes.” For a second time, Agent

Garland asked, “Do you understand those rights?” This time, Rogers replied, “Yes,

sir.” Agent Garland then asked, “Keeping those rights in mind, is it okay if

[another officer] and I ask you some questions?” Again, Rogers replied, “Yes.” Law

enforcement proceeded to question Rogers, and Rogers admitted to stabbing Walsh

with a machete.

[¶8.]        Prior to trial, Rogers moved to suppress all evidence obtained from the

search of his apartment because law enforcement had entered and searched his

apartment without first obtaining a search warrant. Rogers also moved to suppress

the statements made by him that he had done “something very wrong” and that

Walsh was “in the closet.” The circuit court denied Rogers’ motion, concluding that

exigent circumstances existed justifying the warrantless search and that the

community caretaker doctrine applied. It also found that suppression of Rogers’

statements was not warranted because Rogers was not in custody when he made his

statements. The case proceeded to trial, and a jury found Rogers guilty of first-

degree murder. The court sentenced Rogers to life imprisonment without parole.

Rogers appeals the circuit court’s denial of his motion to suppress. In this appeal,

he contends that the court erred when it found that exceptions to the warrant

requirement existed. He also contends that the court erred by failing to suppress

his statements made to law enforcement prior to receiving Miranda warnings.




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                                Standard of Review

[¶9.]        “We review the 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. The court’s findings of fact are reviewed under the clearly

erroneous standard, but we give no deference to the court’s conclusions of law.”

State v. Fischer, 2016 S.D. 12, ¶ 10, 875 N.W.2d 40, 44 (quoting State v. Fierro, 2014

S.D. 62, ¶ 12, 853 N.W.2d 235, 239).

                                       Analysis

[¶10.]       1.     Whether an exception to the warrant requirement exists.

[¶11.]       We first consider whether the trial court erred by denying Rogers’

motion to suppress the evidence obtained from the warrantless search of his

apartment. “Warrantless searches are per se unreasonable, apart from a few, well-

delineated exceptions, and it is the State’s burden to prove that the search at issue

falls within a well-delineated exception to the warrant requirement.” Id. ¶ 13,

875 N.W.2d at 45 (quoting Fierro, 2014 S.D. 62, ¶ 15, 853 N.W.2d at 240). The

State must prove by a preponderance of the evidence that the warrantless search

satisfied an exception. State v. Deneui, 2009 S.D. 99, ¶ 14, 775 N.W.2d 221, 230.

The State sets forth three exceptions that it contends are applicable to this case:

exigent circumstances, inevitable discovery, and the community caretaker doctrine.

[¶12.]       “The exigent circumstances exception is one of the well-delineated

exceptions to the warrant requirement.” Fischer, 2016 S.D. 12, ¶ 13, 875 N.W.2d

at 45 (quoting Fierro, 2014 S.D. 62, ¶ 17, 853 N.W.2d at 240). “Exigent

circumstances exist when a situation demands immediate attention with no time to


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obtain a warrant.” State v. Bowker, 2008 S.D. 61, ¶ 19, 754 N.W.2d 56, 63 (quoting

State v. Dillon, 2007 S.D. 77, ¶ 18, 738 N.W.2d 57, 60). “The need to protect or

preserve life or avoid serious injury presents that kind of situation.” Id. “In

determining whether exigent circumstances exist[,] we ask, ‘Whether police officers,

under the facts as they knew them at the time, would reasonably have believed that

delay in procuring a search warrant would gravely endanger life, risk destruction of

evidence, or greatly enhance the likelihood of a suspect’s escape.’” Dillon, 2007 S.D.

77, ¶ 18, 738 N.W.2d at 60-61 (quoting State v. Hess, 2004 S.D. 60, ¶ 25, 680 N.W.2d

314, 325). We consider “the facts as perceived by the police at the time of entry, not

as subsequently uncovered.” State v. Meyer, 1998 S.D. 122, ¶ 23, 587 N.W.2d 719,

724.

[¶13.]       In this case, Officer Jandt received information that a potential

homicide had taken place. Ken indicated that he had been asked to help remove a

body. Ken had lifted a heavy suitcase that allegedly contained a body. However, as

the circuit court found, Ken did not know whether someone had actually been

injured. He saw no body and could not tell Officer Jandt for sure whether a

homicide had already occurred. However, Ken relayed that he thought there was

blood on the floor of Rogers’ apartment. Therefore, Officer Jandt was unaware

whether an alleged victim was already deceased or badly injured.

[¶14.]       Officer Jandt conveyed this information to Chief Wainman, and the

two decided to follow up by going to Rogers’ apartment. The circuit court found that

they believed there was a possibility that Walsh could still be alive, but seriously

injured. Upon their arrival in the hallway outside of Rogers’ apartment, they heard


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Rogers crying and saying that he was “sorry.” The court also found that the officers

believed that Rogers was talking to someone in the apartment, supporting the belief

that Walsh could still be alive. Thus, the officers were faced with a situation where

they believed immediate action was necessary to protect or preserve Walsh’s life.

Upon getting Rogers out of the apartment, Chief Wainman entered the apartment

looking for Walsh. When Chief Wainman could not find her, he came out and asked

Rogers where she was. Rogers indicated that she was in the closet. Once Chief

Wainman entered the apartment again and determined for himself that the smell of

decomposition was coming from the closet and that liquid was oozing from the

suitcase—wrapped in plastic, in the closet— he left the apartment. Law

enforcement did not investigate the contents of the suitcase until after they had

secured a search warrant.

[¶15.]       We cannot say that the circuit court’s findings of fact are clearly

erroneous. Therefore, we conclude that the officers’ actions in this case were

objectively reasonable in light of the information they possessed. “The need to

protect or preserve life or avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency.” Brigham City v. Stuart, 547

U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650 (2006) (quoting Mincey v.

Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978)). Here, the

officers acted reasonably to determine whether Walsh needed immediate medical

attention. Not knowing her condition and aware that they had a report of blood in

Rogers’ apartment, there was a risk that she would die in the time it took to obtain

a warrant. Because exigent circumstances existed justifying the officers’


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warrantless entry of Rogers’ apartment, we do not address the alternative warrant

exceptions asserted by the State.

[¶16.]       2.    Whether the circuit court erred when it denied Rogers’ motion to

             suppress statements to law enforcement.


[¶17.]       Rogers also maintains that the court erred by failing to suppress the

statements that he made to law enforcement in the hallway of his apartment

building before he received the Miranda warnings. At Rogers’ apartment, he told

officers that he “did something very wrong.” He also indicated that Walsh was “in

the closet.” According to Rogers, he was in custody at that point and his statements

were thus obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694 (1966).

[¶18.]       Admission of Rogers’ statements was proper. We need not determine

whether Rogers was in custody. Officers were responding to a situation that

demanded immediate attention, and Chief Wainman’s questions were “general on-

the-scene” ones intended to quickly ascertain where Walsh was located and whether

she was in danger and needed assistance. See State v. McCahren, 2016 S.D. 34, ¶

32, 878 N.W.2d 586, 600. Furthermore, even if the statements were obtained in

violation of Miranda, their admission was harmless. “The harmless error rule

governs even constitutional violations, not requiring the automatic reversal of a

conviction, provided the [C]ourt is able to declare a belief beyond a reasonable doubt

that the error was harmless and did not contribute to the verdict obtained.” State v.

Berget, 2013 S.D. 1, ¶ 114, 826 N.W.2d 1, 36 (quoting State v. Younger, 453 N.W.2d

834, 838 (S.D. 1990)). “[A]dmission of evidence in violation of the Fifth Amendment

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is subject to harmless error analysis.” Id. ¶ 115 (citing Neder v. United States,

527 U.S. 1, 18, 119 S. Ct. 1827, 1838, 144 L. Ed. 2d 35 (1999)).

[¶19.]       “Harmlessness must be determined on the basis of the remaining

evidence.” Id. ¶ 117 (quoting State v. Zakaria, 2007 S.D. 27, ¶ 19, 730 N.W.2d 140,

146). In this case, there was sufficient evidence introduced at trial that this “Court

is able to declare beyond a reasonable doubt” that those statements were harmless.

See id. ¶ 114. On two separate occasions, law enforcement interviewed Rogers, and

he agreed to speak with them. In each interview, Rogers admitted to stabbing

Walsh with a machete. The jury heard his admissions. Testimony at trial

established that Walsh had at least two fatal stab wounds. Rogers’ palm print was

discovered in the blood on the handle of the machete used to stab Walsh. And the

blood found in his apartment matched that of Walsh. Accordingly, in light of this

other evidence, even if they were not otherwise admissible, introduction of Rogers’

statements at his apartment was harmless.

                                     Conclusion

[¶20.]       Exigent circumstances justified the warrantless entry into Rogers’

apartment by law enforcement. In addition, Rogers’ statements to law enforcement

at his apartment do not require reversal. Therefore, we affirm.

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

Justices, concur.




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