#27916-a-SLZ
2017 S.D. 6

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

SUEELLAN G. KLINE,                        Defendant and Appellant.

                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                  BROOKINGS COUNTY, SOUTH DAKOTA

                                 ****

               THE HONORABLE GREGORY J. STOLTENBURG
                              Judge

                                 ****


MARTY J. JACKLEY
Attorney General

GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


TIM HOGAN of
Ribstein & Hogan Law Firm
Brookings, South Dakota                   Attorneys for defendant
                                          and appellant.



                                 ****
                                          CONSIDERED ON BRIEFS
                                          FEBRUARY 13, 2017
                                          OPINION FILED 03/08/17
#27916

ZINTER, Justice

[¶1.]        Douglas Strong, a parolee, and his girlfriend Sueellan Kline lived

together in a motel room. Strong’s parole agent Connie Johnson came to the room

to obtain a urine sample from Strong. When the sample field tested positive for

methamphetamine, Johnson removed Strong from the room and detained him.

Johnson then reentered the room and asked Kline if there were any drugs or drug

paraphernalia in the room. Kline produced a methamphetamine pipe from her

purse and handed it to Johnson, who subsequently turned it over to law

enforcement. The pipe was used to obtain a search warrant for Kline’s urine, which

tested positive for methamphetamine and amphetamine. The circuit court denied

Kline’s motion to suppress the evidence, and Kline was convicted of ingestion of a

controlled substance. She appeals the denial of the suppression motion. We affirm.

                           Facts and Procedural History

[¶2.]        Kline, her five children, and Strong resided together in a motel room in

Brookings. Kline knew that Strong was on parole. Parole Agent Johnson,

accompanied by Deputy Sheriff Charles Umberger, went to the motel room to obtain

a urine sample from Strong in accordance with Strong’s parole agreement. Strong’s

urine field-tested positive for methamphetamine, and he admitted to smoking the

substance. Johnson removed Strong from the room and detained him in the

hallway, away from Kline’s children. There is a dispute whether the door was

completely closed when Johnson, Umberger, and Strong left the room. Johnson

then asked Strong whether there were any drugs or drug paraphernalia in the

room. Strong said there were not.


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[¶3.]         After two to three minutes, Johnson reentered the room without

knocking or requesting permission. She then asked Kline if there were any drugs or

drug paraphernalia in the room. Johnson informed Kline that the “room was open

for search and seizure under [Strong’s] parole” and that Kline should be honest with

her. 1 In response, Kline removed a methamphetamine pipe from her purse and

handed it to Johnson. Johnson left the room and turned the pipe over to Umberger,

who observed a white powdery residue on the pipe. Strong stated the pipe was his,

and he later admitted that both he and Kline had smoked methamphetamine.

[¶4.]         Umberger used the pipe and Strong’s admission to obtain a search

warrant for a urine sample from Kline. Kline provided the sample, which tested

positive for methamphetamine and amphetamine. Kline was subsequently indicted

for unauthorized ingestion of a controlled substance.

[¶5.]         Kline moved to suppress all of the evidence, arguing that it was

obtained as the result of an illegal search in violation of the Fourth Amendment to

the United States Constitution and Article VI, section 11, of the South Dakota

Constitution. The circuit court denied the motion, ruling that Johnson had

reasonable suspicion to search the room and that Kline voluntarily produced the

pipe. Kline stipulated to the facts at a court trial and was convicted and sentenced

to probation. She appeals, alleging that Johnson unlawfully reentered Kline’s



1.      According to Kline, Johnson threatened to bring search dogs if Kline did not
        cooperate. Kline also alleged that Johnson told Kline that she would lose her
        children if she did not cooperate but that she would not be in trouble or go to
        jail if she cooperated. Johnson admitted she did inform Kline of the potential
        to bring drug dogs in, but she denied stating Kline would lose her children or
        that Kline would not get in any trouble.

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residence without a warrant after having removed Strong; that any authority to

search the residence did not extend to Kline’s purse; and that Kline did not

voluntarily consent to a search of her purse. 2

                                        Decision

[¶6.]         Kline first argues that Johnson had no authority to search the motel

room because Kline had a reasonable expectation of privacy in the room—which was

her residence—even though she shared it with a parolee. It is well settled that a

parolee has a diminished expectation of privacy in their residence. State v.

Kottman, 2005 S.D. 116, ¶ 10, 707 N.W.2d 114, 118. Parole agents may search a

parolee’s residence if they have reasonable suspicion that the parolee has

committed a crime. Id. ¶ 15, 707 N.W.2d at 120-22; see also United States v.

Knights, 534 U.S. 112, 121, 122 S. Ct. 587, 592-93, 151 L. Ed. 2d 497 (2001). We

have not, however, determined when the parolee’s diminished expectation of privacy

extends to third parties who cohabit with the parolee. Kline acknowledges that

based on the field test of Strong’s urine, Johnson could have immediately searched

the residence without a warrant because Johnson had reasonable suspicion that

Strong committed a crime. But Kline contends that once Johnson and Umberger

removed Strong and detained him, Johnson could not reenter without a warrant.

See State v. Bowker, 2008 S.D. 61, ¶ 18, 754 N.W.2d 56, 62-63 (noting that the

heightened expectation of privacy in one’s residence generally demands that law

enforcement obtain a warrant prior to entering a home or dwelling).


2.      We review a motion to suppress evidence based on the violation of a
        constitutional right de novo. State v. Medicine, 2015 S.D. 45, ¶ 5, 865 N.W.2d
        492, 495. The circuit court’s factual findings are reviewed for clear error. Id.

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[¶7.]        However, the circuit court found that Johnson’s reentry was a

continuation of the parole search rather than an independent law enforcement

investigation that may have required a warrant. The evidence supports this

finding. Johnson only removed Strong from the room to detain him outside the view

of the children. Johnson subsequently remained outside the room for only two to

three minutes to briefly question Strong. Then, following the questioning, Johnson

reentered the room to follow up on Strong’s admitted use of controlled substances.

Kline’s argument about the nature of the search is not supported.

[¶8.]        We next determine whether the parole search was unlawful as against

Kline. Because the motel room was her home, we agree that Kline had the

expectation of privacy necessary to challenge the search. See State v. Thunder,

2010 S.D. 3, ¶ 16, 777 N.W.2d 373, 378 (stating that a reasonable expectation of

privacy requires a defendant to have “an actual subjective expectation of privacy in

the area searched” and that “society is prepared to recognize that expectation of

privacy as reasonable”). However, Kline’s Fourth Amendment rights were impacted

by her cohabitation with Strong, a parolee who had common authority over the

residence and had substantially “sacrificed” his Fourth Amendment rights. See

Kottman, 2005 S.D. 116, ¶¶ 10, 15, 707 N.W.2d at 118, 120-22; State v. West,

517 N.W.2d 482, 490-91 (Wis. 1994). When a parolee’s residence is subject to a

parole search and the residence is shared with a third party, the “parole search may

extend to all parts of the premises to which the probationer or parolee has common

authority.” West, 517 N.W.2d at 491-92; see also People v. Schmitz, 288 P.3d 1259,

1266 (Cal. 2012) (noting that a search of a probationer’s residence is limited to


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areas where “the probationer has complete or joint control over”). “So long as the

authorities have reasonable cause for the search and a reasonable basis for

believing that the premises or items searched belong to or are used in common by

the parolee, there is no violation of the Fourth Amendment either against the

parolee or against the nonparolee.” West, 517 N.W.2d at 492. Therefore, we affirm

the circuit court’s conclusion that Johnson lawfully reentered the motel room

without a warrant to conduct a parole search based on reasonable suspicion. 3

[¶9.]          Kline next argues that even if Johnson lawfully reentered the room to

conduct a parole search, Johnson could not lawfully search Kline’s purse. However,

Johnson did not search Kline’s purse. Upon reentering the room, Johnson only

asked if there were drugs in the room, and she informed Kline that the “room was

open for search and seizure under [Strong’s] parole.” (Emphasis added.)

Additionally, Kline responded to Johnson’s question regarding the room by

retrieving a methamphetamine pipe from her purse. Therefore, the issue in this

case involves the question of consent rather than authority to search the purse. The

remaining question is whether Kline voluntarily consented to production of the

pipe.

[¶10.]         “Consent to conduct a search satisfies the Fourth Amendment, thereby

removing the need for a warrant or even probable cause.” State v. Medicine,

2015 S.D. 45, ¶ 7, 865 N.W.2d 492, 495. Consent to search must be voluntary and

free of coercion. To determine whether consent was voluntary, we consider the


3.       Our holding does not, as Kline claims, mean that anyone who associates with
         a parolee will be subject to warrantless searches. Only areas that a parolee
         has common authority over may be subject to search.

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totality of the circumstances. Id. Specifically, we consider the accused’s age,

maturity, education, intelligence, and experience; “the conditions wherein the

consent was obtained, including the officer’s conduct and the duration, location, and

time of the event”; as well as whether the defendant was aware of his or her right to

consent. Id. ¶ 7, 865 N.W.2d at 496. When an officer asserts authority to search

such that an individual feels they have no right to resist the search, the coercive

effect of this show of authority may render the consent involuntary. Bumper v.

North Carolina, 391 U.S. 543, 550, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968).

[¶11.]       Kline contends that her consent was involuntary because she believed

she had no right to resist the search after Johnson stated that the room was subject

to a parole search. As previously noted, however, Johnson correctly declared that

she had the right to search the room without a warrant. Additionally, Johnson did

not claim any authority to search Kline’s purse. She only asked for Kline’s

cooperation. We therefore conclude that Johnson’s show of authority to search the

room could not have rendered Kline’s consensual production of the pipe involuntary.

[¶12.]       Kline, however, also claims that she was very susceptible to coercion.

She testified that she has a low IQ and a learning disability. She also stated that

she did not know she could refuse to consent and believed she was coerced.

However, the circuit court rejected these factual claims of susceptibility to coercion,

noting that her testimony was not credible. We do acknowledge that Kline’s

boyfriend had just been detained, and Johnson had informed Kline that she had the

lawful authority to search Kline’s residence. However, the circuit court found that

Johnson did not threaten Kline with physical force or detention. The court also


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found that Kline’s recollection of the events was clouded by her recent drug use and

self-interest. Ultimately, the record indicates that rather than objecting to

Johnson’s presence or authority to search, Kline chose to assist Johnson with the

parole search by voluntarily producing the methamphetamine pipe from her purse.

Cf. State v. Sheehy, 2001 S.D. 130, ¶ 12, 636 N.W.2d 451, 454. “When a court ‘bases

a finding of consent on the oral testimony at a suppression hearing, the clearly

erroneous standard is particularly strong because the court had the opportunity to

observe the demeanor of the witnesses.’” Medicine, 2015 S.D. 45, ¶ 9, 865 N.W.2d

at 496 (quoting State v. Castleberry, 2004 S.D. 95, ¶ 12, 686 N.W.2d 384, 388). The

circuit court did not clearly err in finding that Kline voluntarily consented to

production of the pipe.

[¶13.]       We hold that Johnson lawfully reentered the residence and that Kline

voluntarily consented to production of the methamphetamine pipe. Because the

evidence was not obtained in violation of the Fourth Amendment, the circuit court

properly denied Kline’s motion to suppress.

[¶14.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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