#26170-rev.-GAS

2012 S.D. 59

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****

STATE OF SOUTH DAKOTA                     Plaintiff and Appellee,

      v.

COURTNEY JO KOCH,                         Defendant and Appellant.

                                 ****

                    APPEAL FROM THE CIRCUIT COURT
                       SECOND JUDICIAL CIRCUIT
                    LINCOLN COUNTY, SOUTH DAKOTA

                                 ****

                   THE HONORABLE LAWRENCE E. LONG
                               Judge

                                 ****


MARTY J. JACKLEY
Attorney General

MAX A. GORS
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.
DREW C. DUNCAN
DANIEL K. BRENDTRO of
Zimmer, Duncan & Cole, LLP
Sioux Falls, South Dakota                 Attorneys for defendant
                                          and appellant.

                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON MAY 21, 2012

                                          OPINION FILED 08/01/12
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SEVERSON, Justice.

[¶1.]         Courtney Koch was arrested for DUI on February 27, 2011. The

magistrate judge entered an order suppressing all evidence obtained from the initial

traffic stop. The State appealed to the circuit court. Koch moved to dismiss the

appeal, which the circuit court denied. This Court granted Koch’s petition for

intermediate appeal. The issue is whether the circuit court had jurisdiction to

entertain the State’s appeal from the magistrate’s order suppressing the evidence.

Because the magistrate’s order does not finally dispose of the case, it is not a final

order appealable to the circuit court.

                           Facts and Procedural History

[¶2.]         The facts of this case are not in dispute. On February 27, 2011, Sioux

Falls police responded to a report of a vehicle stuck in a snow bank. By the time

they arrived, the vehicle had been pulled out of the snow. The vehicle’s driver,

Koch, was in the passenger seat of the pickup that had pulled her vehicle from the

snow. The responding officer noted the odor of alcohol on Koch, not the driver of the

pickup. The police investigated Koch for driving under the influence and eventually

arrested her for that offense.

[¶3.]         At a suppression hearing, the magistrate judge entered an order

suppressing all evidence obtained from the stop of the vehicle. This included the

results of all fluid tests and field-sobriety tests. * The State appealed to the circuit



*       The magistrate court’s order stated:

              That any and all evidence, including all physical and eye witness
              evidence obtained pursuant to the stop and detention of the Defendant,
                                                                  (continued…)
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court. Koch moved to dismiss the appeal, arguing that the circuit court lacked

jurisdiction to hear an appeal from the magistrate’s intermediate order. The circuit

court disagreed and denied Koch’s motion to dismiss the appeal. Koch sought

intermediate appeal from this Court of the order denying her motion to dismiss.

This Court granted the petition for intermediate appeal.

                                       Analysis

[¶4.]        The issue presented is whether the circuit court has jurisdiction to

hear an appeal by the State from a magistrate court’s order suppressing evidence.

Issues of jurisdiction are reviewed de novo. Sazama v. State ex rel. Muilenberg,

2007 S.D. 17, ¶ 9, 729 N.W.2d 335, 340.

[¶5.]        Koch and the State agree that the relevant statutes contemplate

appeal from magistrate to circuit court of final orders only. The relevant statutes

provide:

             Except where an appeal is denied by law, there shall be a right
             of appeal to the circuit court from any final order or judgment of
             the magistrate court. Appeals from such final orders and
             judgments must be taken within ten days after the attestation
             and filing of the order or judgment appealed from.

SDCL 15-38-22. “The circuit court has jurisdiction of appeals from all final

judgments, decrees or orders of all courts of limited jurisdiction, inferior officers or

____________________
(…continued)
            any bodily fluid samples taken from the Defendant and any test
            results obtained thereto, any and all statements received from the
            Defendant or from the driver, Steven Keinholz, by law enforcement
            following the stop of the vehicle, and all other photographs, test
            results, and other fruits of the arrest, search, or other action by law
            enforcement officers of the Defendant’s actions, person or property, is
            suppressed and cannot be used by the State of South Dakota at trial
            under any circumstance.

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tribunals, in the cases prescribed by statute.” SDCL 16-6-10. “Unless appeal is

denied by law, there is a right of appeal to the circuit court from any final order or

judgment of the magistrate court, and such appeal shall be taken in the manner

prescribed by law or rule for appeals to the circuit court.” SDCL 16-12A-27.1.

[¶6.]        Koch first argues that the order suppressing evidence is not a “final

order” pursuant to these statutes because it is not dispositive—the criminal charge

against Koch still exists after the magistrate court’s order. On the other hand, the

State argues that the order effectively disposes of the case, and is therefore a final

order. As stated in the State’s brief: “As a practical matter, the Order also acquits

Koch because the Order leaves the State with no evidence upon which to obtain a

conviction.” The circuit court determined that the order, “which suppressed nearly

all of the State’s evidence, constitutes a ‘final order’ under SDCL 15-38-22.” If the

order is final, the motion to dismiss was properly denied; if not final, the circuit

court erred in exercising jurisdiction over the appeal. This precise issue has not

been explicitly addressed by this Court.

[¶7.]        Defining “final” for purposes of appealability is not an effortless task.

“Of course appealability of a judgment depends on its being ‘final’ in the legalistic

sense. But there is no more ambiguous word in all the legal lexicon.” Fed. Trade

Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 215, 73 S. Ct. 245,

251, 97 L. Ed. 245 (1952) (Black, J., dissenting). Koch quotes Black’s Law

Dictionary 1206 (9th ed. 2009) for the following definition of “final order:” “An order

that is dispositive of the entire case.” Koch argues that such a definition requires

that the case be finally disposed of, meaning there is nothing further to be done.


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Koch argues that here, after the motion to suppress was granted, the case

remained. The State could dismiss the charges, proceed with the evidence

remaining, or attempt to find new evidence to bolster the prosecution. The State

counters by arguing that the suppression order effectively disposed of the case,

rendering the suppression order dispositive and therefore final.

[¶8.]        Koch cites authority from Nebraska, Arkansas, and Idaho regarding

finality of orders. But none of those cases define a “final order” in the context of

orders suppressing evidence. See Villines v. Harris, 208 S.W.3d 763, 766 (Ark.

2005) (finding an order not final because the amount of damages in a dispute over

damage to property had yet to be decided and a later hearing would be conducted to

accomplish that task); Williams v. State Bd. of Real Estate Appraisers, 239 P.3d

780, 783 (Idaho 2010) (finding a denied motion to dismiss an administrative

complaint alleging improper conduct by a real estate appraiser was not final

because it “did not determine or dismiss the issues of misconduct alleged in the

complaint.”); Donscheski v. Donscheski, 771 N.W.2d 213, 219 (Neb. App. 2009)

(determining that a journal entry in a child custody dispute was not final because it

did not dispose of all issues, the issues of parenting time and child support were

taken under advisement). When addressing its appellate jurisdiction as conferred

by Congress, our Territorial Supreme Court discussed “final decisions” as follows:

             In that section is plainly expressed the power to hear and
             determine writs of error and appeals from final decisions of the
             district courts in all cases; not from interlocutory orders or
             decisions, nor from orders made or decisions pronounced during
             the progress of the cause, but from final decisions, or, what is
             the equivalent term, when applied to an action, from final
             judgments. No judgment is final which does not terminate the
             litigation between the parties to the suit.

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Harris Manufacturing Co. v. Walsh, 3 N.W. 307, 308-09 (Dakota 1879).

[¶9.]        The State provides authority holding that orders suppressing evidence

and effectively disposing of the case are sufficiently final as to be appealable. The

State first cites a United States Supreme Court decision that identified an order

suppressing evidence as a “final judgment.” New York v. Quarles, 467 U.S. 649, 651

n.1, 104 S. Ct. 2626, 2629 n.1, 81 L. Ed. 2d 550 (1984). The order at issue was final

because later review of the suppression issue would be impossible if the case

continued (if the defendant was acquitted, the State could not appeal; if the

defendant was convicted, the suppression issue would be moot). Id. But here,

appealability of the order is not the concern. The South Dakota Legislature has

provided a mechanism for appellate review of magistrate orders granting

suppression. SDCL 23A-32-5. This section provides:

             An appeal by a prosecuting attorney may be taken to the
             Supreme Court from:
             (1) An order of a circuit court or a magistrate suppressing or
             excluding evidence or requiring the return of seized property in
             a criminal proceeding;
             (2) An order of a circuit court or a magistrate sustaining a
             motion to dismiss a complaint on statutory grounds or
             otherwise.
             An appeal under this section may not be taken after a defendant
             has been put in jeopardy and is not a matter of right but of
             sound judicial discretion. Appeals from such orders shall be
             taken in the same manner as intermediate appeals in
             subdivision 15-26A-3(6). No appeal taken under this section
             shall delay any trial unless a stay be granted in the discretion of
             the Supreme Court.

The mechanism available for a prosecutor to appeal a magistrate court’s

suppression order is precisely the same as that available to appeal the same type of

order from circuit court. Id. The availability of appellate review in the present


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context distinguishes this situation from that faced by the Supreme Court in

Quarles.

[¶10.]       The State then cites authority from other states holding that orders

suppressing evidence are sufficiently final as to be appealable. Commonwealth v.

Bosurgi, 190 A.2d 304 (Pa. 1963); State v. Williams, 445 N.E.2d 582 (Ind. 1984);

State v. Davidson, 477 N.E.2d 1141, 1144 (Ohio 1985). These cases are also

distinguishable. In Bosurgi, the order suppressing evidence was either final, and

therefore appealable, or not appealable at all. Bosurgi, 190 A.2d at 308 (“The

evidence suppressed may well mark the difference between success and failure in

the prosecution; to deny the Commonwealth its only opportunity of securing an

appellate review to determine whether the evidence was properly suppressed is

highly unfair to the Commonwealth and the interests of society which it

represents.”). As in Quarles, if the Bosurgi court did not determine the suppression

order to be final, there would be no avenue for appellate review.

[¶11.]       In both Davidson and Williams, state statutes authorized appeal when

the prosecutor certified the order suppressing evidence would prevent prosecution.

The issue in those cases was whether the order suppressing evidence “destroys the

ability of the State to prosecute.” Davidson, 477 N.E.2d at 1145. In Davidson, a

state statute allowed an appeal from the motion to suppress as of right when “the

prosecuting attorney certifies that . . . the granting of the motion has rendered the

state’s proof with respect to the pending charge so weak in its entirety that any

reasonable possibility of effective prosecution has been destroyed.” Id. at 1144.

Likewise in Williams, a state statue provided that the state could appeal “from an


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order granting a motion to suppress evidence, if the ultimate effect of the order is to

preclude further prosecution.” Ind. Code § 35-1-47-2(5) (Burns 1982 Supp). In both

Davidson and Williams, the relevant code sections specifically authorized appeal by

the State when the order suppressing evidence precluded prosecution. No such

statute exists in South Dakota.

[¶12.]       Here, as discussed above, the State had an avenue for appealing the

suppression order. See SDCL 23A-32-5. That the Legislature specifically provided

an avenue for appeal, independent of appeal by right due to the order’s finality,

indicates the Legislature did not intend for the appealability of suppression orders

to hinge on their “finality.” Otherwise, there would have been no reason to allow

the State to petition for intermediate review of the magistrate’s order suppressing

evidence; such orders would have been appealable to the circuit court if sufficiently

final. Because the magistrate court’s order did not dispose of the case, it is not

“final” for purposes of appeal to the circuit court. The State’s avenue to appeal the

magistrate court’s decision was through SDCL 23A-32-5.

[¶13.]       The State argues, and the circuit court found, that State v. Roadifer,

supports the proposition that the order suppressing evidence is final. 346 N.W.2d

438 (S.D. 1984). In Roadifer, this Court considered an appeal in a similar context

as that presented. Defendant moved to suppress certain evidence from a DUI stop.

Id. at 439. The magistrate court granted the motion to suppress. Id. The circuit

court affirmed. Id. After granting intermediate appeal, this Court reversed the

circuit court’s decision affirming the magistrate court’s order suppressing the

evidence. Id. at 441. The Court did not comment on the jurisdictional propriety of


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the appeal from magistrate to circuit court, but the jurisdictional question was not

presented. “It is the rule in this state that jurisdiction must affirmatively appear

from the record and this [C]ourt is required sua sponte to take note of jurisdictional

deficiencies, whether presented by the parties or not . . . .” Decker ex rel. Decker v.

Tschetter Hutterian Brethren, Inc., 1999 S.D. 62, ¶ 14, 594 N.W.2d 357, 362 (citation

omitted). But the combination of this language, and this Court’s silence in a

similar, but not identical context, does not override the constitutional declaration

that the appellate jurisdiction of the circuit court is only as provided by the

Legislature.

[¶14.]         The South Dakota Constitution provides for appellate jurisdiction of

the circuit courts:

               The circuit courts have original jurisdiction in all cases except as
               to any limited original jurisdiction granted to other courts by the
               Legislature. The circuit courts and judges thereof have the
               power to issue, hear and determine all original and remedial
               writs. The circuit courts have such appellate jurisdiction as may
               be provided by law.

S.D. Const. art. V, § 5. In the context of appealing orders of a magistrate court

suppressing evidence, the Legislature granted this Court appellate jurisdiction to

entertain such appeals, not the circuit court. See SDCL 23A-32-5. This Court’s

silence on an issue should not be read so as to interpret the relevant statutes as

providing circuit courts appellate jurisdiction to consider magistrate orders

suppressing evidence—especially in light of the constitutional questions inherent in

such an interpretation.




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                                    Conclusion

[¶15.]       Because the relevant order does not finally dispose of the criminal

charges against Koch, the order suppressing evidence is not a final order. The

circuit court was without jurisdiction to consider the State’s appeal from the

magistrate’s order suppressing evidence. Denial of Koch’s motion to dismiss is

reversed.

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

WILBUR, Justices, concur.




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