#27062-a-DG

2016 S.D. 1

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

BRYON JAMES FISCHER,                      Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                 ****

                    THE HONORABLE BRADLEY G. ZELL
                               Judge

                                 ****
MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

KENNETH M. TSCHETTER of
Nicholson, Tschetter, Adams
 & Nicholson
Sioux Falls, South Dakota                 Attorneys for defendant and
                                          appellant.

                                 ****


                                          CONSIDERED ON BRIEFS ON
                                          AUGUST 31, 2015
                                          OPINION FILED 01/06/16
#27062

GILBERTSON, Chief Justice

[¶1.]        Bryon Fischer appeals his conviction by a jury of possession of

methamphetamine, possession of two ounces or less of marijuana, and possession of

drug paraphernalia. He asserts the evidence of methamphetamine presented to the

jury was the product of an illegal search and that the circuit court erred when it

denied his motion to suppress the same. He also asserts the jury was not presented

with sufficient evidence to conclude beyond a reasonable doubt that he knowingly

possessed methamphetamine and that the circuit court erred when it denied his

motion for a judgment of acquittal. We conclude that the circuit court did not err by

denying Fischer’s motion to suppress and that the evidence presented at trial was

sufficient to sustain Fischer’s conviction for the knowing possession of

methamphetamine. Therefore, we affirm.

                          Facts and Procedural History

[¶2.]        On November 16, 2011, at approximately 7 p.m., Sioux Falls Police

Officer Pat Mertes observed an automobile parked on Spring Avenue, between 10th

and 11th Streets, in Sioux Falls, South Dakota. The vehicle was parked under a

sign that read: “No Parking on This Side of the Street.” Fischer sat in the driver’s

seat of the vehicle, and an unidentified woman sat in the front passenger’s seat.

Officer Mertes decided to initiate a traffic stop because of the placement of the

vehicle in the no-parking zone. Upon approaching the vehicle, Officer Mertes saw

an open can of beer on the floor between the front driver’s and passenger’s seats.

Officer Mertes asked Fischer to accompany him to his patrol car, and Fischer

complied.


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[¶3.]         Officer Mertes and Fischer both sat in the front seat of Officer Mertes’s

patrol car. Fischer produced a South Dakota driver’s license and vehicle

registration. The registration revealed that Fischer was not the owner of the

vehicle, 1 and Officer Mertes learned that Fischer’s license had been revoked.

Officer Mertes placed Fischer under arrest, placed him in handcuffs, and conducted

a search of his person. The resulting search produced a wooden box containing

what Officer Mertes recognized to be a marijuana pipe. The pipe contained burnt

marijuana.

[¶4.]         Upon discovery of the pipe, Officer Mertes asked Officer Chris

Bauman, who had arrived at the scene during Officer Mertes’s questioning of

Fischer, to conduct a search of the vehicle. Officer Bauman discovered a collectible

tin box underneath the front passenger’s seat containing hollowed-out lightbulbs,

hollow pen tubes, tweezers, a bottle cap, and some paper towels. Officer Bauman

also noticed residue on several of the items, indicating the possible presence of a

controlled substance. 2

[¶5.]         The State charged Fischer with possession of methamphetamine, two

ounces or less of marijuana, and drug paraphernalia. Fischer moved the circuit

court to suppress all evidence produced from the search of the vehicle, and the

circuit court denied the motion. At trial, after the State concluded its case-in-chief,

Fischer asked the circuit court to enter a judgment of acquittal, and the circuit court


1.      Officer Mertes testified that the vehicle was registered to a resident of
        Minnesota, not to Fischer.

2.      Subsequent testing by a forensic specialist at the Sioux Falls Crime Lab
        confirmed the presence of methamphetamine residue in one of the lightbulbs.

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also denied that motion. After the trial concluded, a jury found Fischer guilty of all

three charges. The circuit court sentenced Fischer to ten years for possession of

methamphetamine with three years suspended, one year to be served concurrently

for possession of two ounces or less of marijuana, and thirty days to be served

concurrently for possession of drug paraphernalia.

[¶6.]        Fischer now appeals to this Court, raising the following issues:

             1.     Whether the circuit court erred by denying Fischer’s motion to
                    suppress evidence obtained from the search of the vehicle.

             2.     Whether the circuit court erred by denying Fischer’s motion for
                    judgment of acquittal.

                               Analysis and Decision

[¶7.]        Fischer asserts Officer Mertes did not have probable cause to arrest

him for driving with a revoked license. According to Fischer, Officer Mertes did not

observe him—and Fischer did not admit to—operating the vehicle. Thus, Fischer

reasons, any search conducted subsequent to that arrest was invalid. Additionally,

Fischer asserts that the subsequent search of the vehicle was improper under

Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), because he

had already been placed under arrest, because “[i]t would not be reasonable to

believe the vehicle contained any evidence of [driving with a revoked license,]” and

because “it was not reasonable to believe that there would be further evidence of

possession of marijuana in his vehicle.” Additionally, Fischer asserts “the record is

lacking evidence which, if believed, could be sufficient to sustain a finding of guilt

beyond a reasonable doubt as to Possession of Controlled Substance.” According to

Fischer, the State did not prove that he knowingly possessed methamphetamine.


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[¶8.]        1.     Whether the circuit court erred by denying Fischer’s
                    motion to suppress evidence obtained from the search of
                    the vehicle.

[¶9.]        Although “[w]e traditionally review a circuit court’s decision to

suppress evidence under an abuse of discretion standard[,] . . . we review a motion

to suppress evidence obtained in the absence of a warrant de novo[.]” State v.

Medicine, 2015 S.D. 45, ¶ 5, 865 N.W.2d 492, 495 (quoting State v. Walter, 2015 S.D.

37, ¶ 6, 864 N.W.2d 779, 781-82). “Thus, we review the circuit court’s factual

findings for clear error but ‘give no deference to the circuit court’s conclusions of

law.’” Id. (quoting Walter, 2015 S.D. 37, ¶ 6, 864 N.W.2d at 782).

[¶10.]       Fischer first asserts that Officer Mertes did not have probable cause to

arrest him for driving with a revoked license. The State argues that Fischer is

precluded from challenging “either the propriety of his arrest or the resulting search

of his person” because he failed to raise these issues below. Although Fischer

asserts his challenge was preserved below, he further asserts that the circuit court’s

decision is reviewable as plain error. We agree with the State that Fischer did not

preserve his argument challenging the validity of the arrest itself, and we disagree

with Fischer that the circuit court plainly erred by admitting evidence gathered in

the searches subsequent to the arrest.

[¶11.]       a.     Whether Fischer may directly challenge his arrest on
                    appeal.

[¶12.]       Fischer asserts the language included in his motion to suppress was

“broad enough to include a challenge to the propriety of his arrest and the resulting

search of his person.” “Ordinarily an issue not raised before the trial court will not

be reviewed at the appellate level.” Lindblom v. Sun Aviation, Inc., 2015 S.D. 20,

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¶ 8 n.2, 862 N.W.2d 549, 552 n.2 (quoting Ronan v. Sanford Health, 2012 S.D. 6,

¶ 14, 809 N.W.2d 834, 837). “To preserve issues for appellate review litigants must

make known to trial courts the actions they seek to achieve or object to the actions

of the court, giving their reasons.” State v. Dufault, 2001 S.D. 66, ¶ 7, 628 N.W.2d

755, 757 (quoting State v. Nelson, 1998 S.D. 124, ¶ 7, 587 N.W.2d 439, 443)

(emphasis added). Consequently, even if the language of Fischer’s motion is broad

enough to constitute a challenge to the arrest itself, the scope of the motion is

necessarily limited by the argument offered to support the motion. Therefore, we

consider not only the request made but also Fischer’s stated reasons for it.

[¶13.]       In his motion to suppress, Fischer asked the circuit court to exclude

the following items:

             all physical evidence, whether tangible or intangible; any
             statements or admissions of the Defendant; any and all
             observations of law enforcement officers and any other tangible
             or intangible evidence obtained during, or directly or indirectly
             derived from, the stop of the vehicle Mr. Fischer was riding in on
             or about November 26, 2011, in Sioux Falls, Minnehaha County,
             South Dakota[.]

(Emphasis added.) Standing alone, a challenge to the effect of an arrest—e.g., the

result of an incidental search—might be sufficiently broad to be viewed as a

challenge of the arrest itself. Regardless, Fischer’s rationale provides essential

context. According to Fischer, the circuit court should have granted his motion for

the following reason:

             [T]he vehicle was searched in violation of Arizona v. Gant . . . as
             after placing Mr. Fischer under arrest for driving while revoked
             and possibly open container, the officers [sic] further search of
             the vehicle is invalid as they could not expect to find offense-
             related evidence under the front passenger seat of this vehicle
             given the offense for which the defendant was arrested. See
             State v. [Overbey, 2010 S.D. 78, 790 N.W.2d 35] . . . .
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(Emphasis added.) Not once does this statement assert that the arrest was invalid;

the only mention of the arrest is made to establish a temporal frame of reference for

the search. Further, Gant and Overbey dealt with challenges to the scope of a

search incidental to arrest, not challenges to the arrests themselves. See Gant, 556

U.S. at 336-37, 129 S. Ct. at 1715; Overbey, 2010 S.D. 78, ¶ 15, 790 N.W.2d at 40-41.

Thus, while Fischer’s motion to suppress preserved his right to challenge the

validity of the vehicle search under Gant and Overbey, Fischer did not preserve his

arguments regarding the validity of his arrest and the subsequent search of his

person.

[¶14.]        b.     Whether the circuit court plainly erred by not excluding all
                     evidence obtained incident to Fischer’s arrest.

[¶15.]        Nevertheless, Fischer asserts that our review of his arrest is still

proper under the plain error rule. Under SDCL 23A-44-15 (Rule 52 (b)), this Court

is permitted to notice “[p]lain errors or defects affecting substantial rights . . .

although they were not brought to the attention of a court.” “We invoke our

discretion under the plain error rule cautiously and only in ‘exceptional

circumstances.’” Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d at 443 (quoting State v.

Henjum, 1996 S.D. 7, ¶ 14, 542 N.W.2d 760, 763). Among other conditions, a

defendant asserting plain error must prove the asserted error was prejudicial. State

v. Whitfield, 2015 S.D. 17, ¶ 16, 862 N.W.2d 133, 139. “To show such prejudicial

error an appellant must establish affirmatively from the record that under the

evidence the jury might and probably would have returned a different verdict if the

alleged error had not occurred.” Supreme Pork, Inc. v. Master Blaster, Inc., 2009

S.D. 20, ¶ 58, 764 N.W.2d 474, 491 (quoting Sander v. Geib, Elston, Frost Prof’l

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#27062

Ass’n, 506 N.W.2d 107, 113 (S.D. 1993)). In order to assert prejudice, then, Fischer

would have to argue that in the absence of the circuit court’s conclusion that the

arrest was valid, the jury would have returned a different verdict—i.e., that the

evidence obtained subsequent to the arrest would not have been otherwise admitted

into evidence. Fischer makes no such claim; instead, he merely states, “[T]he plain

error affects a fundamental, substantial right: Fischer’s Fourth Amendment

constitutional right against unreasonable searches and seizures.” Even if we

assume this conclusory statement is true, a constitutional violation alone is not

enough to warrant reversal under the plain error rule—the alleged violation must

prejudice the appellant. Id.

[¶16.]       Even if Fischer had made the required assertions for review under the

plain error rule, it is evident that the alleged error—if there was any—was not

prejudicial. Because a showing of prejudice in this case relies on a showing that the

circuit court would have excluded the challenged evidence in the absence of the

alleged error, any alternate justification for the search necessarily defeats a claim of

prejudice. “Whether probable cause [to arrest] exists depends upon the reasonable

conclusion to be drawn from the facts known to the arresting officer at the time of

the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 593, 160 L. Ed.

2d 537 (2004). Consequently, where probable cause otherwise exists to arrest for

another offense, “an officer’s statement of an unsuitable ground for arrest neither

voids the arrest nor a search incidental thereto.” State v. Klingler, 84 S.D. 466, 473,

173 N.W.2d 275, 279 (1969) (quoting Klingler v. United States, 409 F.2d 299, 305

(8th Cir. 1969)). Even if we accept Fischer’s assertion that Officer Mertes did not


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have probable cause to arrest him for driving with a revoked license, Officer Mertes

observed an open container of alcohol—in plain view—inside the vehicle. 3

Possession of an open container of alcohol inside a vehicle on a public street is a

Class 2 misdemeanor. SDCL 35-1-9.1. An officer of the law can arrest a person,

without a warrant, for committing or attempting any public offense other than a

petty offense in the officer’s presence. SDCL 23A-3-2. Therefore, although the

Sioux Falls Police Department typically only issues a written citation for a violation

of SDCL 35-1-9.1, Officer Mertes nevertheless had probable cause to arrest Fischer

for possessing an open container of alcohol in a vehicle on a public street.

Consequently, a lack of probable cause to arrest Fischer for driving with a revoked

license is not sufficient to invalidate the search incident to Fischer’s arrest. As a

result, Fischer would be unable to show prejudice even if he had argued such.

Therefore, the circuit court did not plainly err by declining to exclude all evidence

obtained incident to Fischer’s arrest.

[¶17.]         c.    Whether the vehicle search conducted after Fischer’s arrest
                     was invalid.

[¶18.]         We next turn to Fischer’s assertion that the vehicle search was a

violation of the Fourth Amendment. An individual is protected “against

unreasonable searches and seizures[.]” U.S. Const. amend. IV; S.D. Const. art. VI,

§ 11. “This protection ‘requires generally the issuance of a warrant by a neutral

judicial officer based on probable cause prior to the execution of a search or seizure

of a person.’” Medicine, 2015 S.D. 45, ¶ 6, 865 N.W.2d at 495 (quoting State v.


3.       Fischer does not allege Officer Mertes lacked the reasonable suspicion
         necessary to initiate the stop.

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Fierro, 2014 S.D. 62, ¶ 15, 853 N.W.2d 235, 240). “[S]earches conducted outside the

judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few specifically

established and well-delineated exceptions.” Gant, 556 U.S. at 338, 129 S. Ct. at

1716 (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed.

2d 576 (1967)). When law enforcement conducts a search in the absence of a

warrant, the State has the burden of proving such an exception applies. Medicine,

2015 S.D. 45, ¶ 6, 865 N.W.2d at 495. “Among the exceptions to the warrant

requirement is a search incident to a lawful arrest.” Gant, 556 U.S. at 338, 129 S.

Ct. at 1716. Another exception “applies . . . to searches of vehicles that are

supported by probable cause.” United States v. Ross, 456 U.S. 798, 809, 102 S. Ct.

2157, 2164, 72 L. Ed. 2d 572 (1982) (discussing Carroll v. United States, 267 U.S.

132, 45 S. Ct. 280, 69 L. Ed. 543 (1925)); see also State v. Peterson, 407 N.W.2d 221,

223 (S.D. 1987).

[¶19.]       Although the State does argue the search was justified under the

incident-to-arrest exception addressed in Gant, the State primarily relies on the

automobile exception to the warrant requirement as justification for the search. “It

is well settled that an officer having probable cause to believe that an automobile

which he has stopped contains contraband or evidence of a crime may search the

vehicle without a warrant under the automobile exception.” Peterson, 407 N.W.2d

at 223. Probable cause is defined as “evidence which would ‘warrant a man of

reasonable caution in the belief’ that a [crime] has been committed[.]” Wong Sun v.

United States, 371 U.S. 471, 479, 83 S. Ct. 407, 413, 9 L. Ed. 2d 441 (1963) (quoting


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Carroll, 267 U.S. at 162, 45 S. Ct. at 288). After approaching the vehicle, Officer

Mertes observed an open container of alcohol between the driver’s and passenger’s

seats. As noted above, possession of an open container of alcohol inside a vehicle on

a public street is a Class 2 misdemeanor. SDCL 35-1-9.1. Under the facts of this

case, this direct observation of an open container was necessarily “evidence which

would ‘warrant a man of reasonable caution in the belief’ that a [crime] ha[d] been

committed[.]” See Wong Sun 371 U.S. at 479, 83 S. Ct. at 413 (quoting Carroll, 267

U.S. at 162, 45 S. Ct. at 288). Therefore, Officer Mertes had probable cause to

search “every part of the vehicle and its contents that [might have] conceal[ed] the

object of the search.” Ross, 456 U.S. at 825, 102 S. Ct. at 2173.

[¶20.]       Fischer offers no argument against application of the automobile

exception. His only answer to the State’s primary argument is that the search was

invalid because—according to Fischer—it was not authorized under the Gant

decision. However, the Gant decision deals primarily with vehicle searches

conducted incident to arrest—an exception to the Fourth Amendment’s warrant

requirement distinct from the automobile exception. See Gant, 556 U.S. at 347, 129

S. Ct. at 1721 (contrasting the scope of searches authorized under the two

exceptions). Fischer has not suggested—or offered authority indicating—that the

Gant decision disposed of the “specifically established and well-delineated

[automobile] exception[].” See id. at 338, 129 S. Ct. at 1716 (quoting Katz, 389 U.S.

at 357, 88 S. Ct. at 514). The Gant decision itself militates against such a

conclusion. See id. at 347, 129 S. Ct. at 1721 (“Unlike the searches permitted by

[the incident-to-arrest exception, the automobile exception] allows searches for


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evidence relevant to offenses other than the offense of arrest, and the scope of the

search authorized is broader.”). In conflating the incident-to-arrest and automobile

exceptions, Fischer has essentially ignored the State’s primary argument.

[¶21.]         Even if we were not convinced that the search was justified by the

automobile exception, we also conclude the search was justified under Gant’s

incident-to-arrest exception. In contrast to the automobile exception, the incident-

to-arrest exception permits a warrantless search of a vehicle “incident to a lawful

arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest

might be found in the vehicle.’” Gant, 556 U.S. at 343, 129 S. Ct. at 1719 (quoting

Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 2137, 158 L. Ed. 2d

905 (2004) (Scalia, J., concurring in result)). 4 Fischer asserts “that the officer did

not have probable cause to search his vehicle, because it was not reasonable to

believe that there would be further evidence of possession of marijuana in his

vehicle.” According to Fischer, “there was no indication that [he] had been

consuming alcohol or drugs.”

[¶22.]         While the language used by the Supreme Court in Gant bears a

resemblance to the definition of probable cause, see supra ¶ 20, courts generally

agree that the quantum of information required to justify a vehicle search incident

to arrest is something less than probable cause. See, e.g., United States v. Rodgers,



4.       The Gant decision also permits a law enforcement officer to “search a vehicle
         incident to a recent occupant’s arrest . . . when the arrestee is unsecured and
         within reaching distance of the passenger compartment at the time of the
         search.” 556 U.S. at 343, 129 S. Ct. at 1719. However, the State does not
         dispute that at the time the vehicle search occurred, Fischer had already
         been placed under arrest and secured in Officer Mertes’s police vehicle.

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656 F.3d 1023, 1028 n.5 (9th Cir. 2011) (“[T]he search incident to arrest exception to

the warrant requirement . . . appears to require a level of suspicion less than

probable cause . . . .”); United States v. Vinton, 594 F.3d 14, 25 (D.C. Cir. 2010)

(“Presumably, the ‘reasonable to believe’ standard requires less than probable

cause, because otherwise Gant’s evidentiary rationale would merely duplicate the

‘automobile exception’ . . . .”). 5 Whatever the precise level of suspicion required to


5.    A number of courts have concluded that an officer needs only reasonable
      suspicion to conduct a warrantless search incident to arrest. See Vinton, 594
      F.3d at 25 (“[T]he ‘reasonable to believe’ standard probably is akin to the
      ‘reasonable suspicion’ standard required to justify a Terry search.”); People v.
      McCarty, 229 P.3d 1041, 1046 (Colo. 2010) (en banc) (“[B]y using language
      like ‘reasonable to believe’ and ‘reasonable basis to believe,’ the Supreme
      Court intended a degree of articulable suspicion commensurate with that
      sufficient for limited intrusions like investigatory stops.”); Rose v.
      Commonwealth, 322 S.W.3d 76, 80 (Ky. 2010) (“[A]n officer may search a
      vehicle even when the arrestee is secured if he has a reasonable suspicion
      that the vehicle harbors evidence of the crime of arrest . . . .” (emphasis
      omitted)); State v. Mbacke, 721 S.E.2d 218, 222 (N.C. 2012) (“[W]e conclude
      that the ‘reasonable to believe’ standard set out in Gant parallels the
      objective ‘reasonable suspicion’ standard sufficient to justify a Terry stop.”).
      At least one justice on the Supreme Court shares this view. Megginson v.
      United States, 556 U.S. 1230, 1230, 129 S. Ct. 1982, 1982, 173 L. Ed. 2d 1288
      (2009) (Alito, J., dissenting) (“This case thus appears to present an important
      question regarding the meaning and specificity of the reasonable suspicion
      requirement in Gant.”).
      On the other hand, Justice Scalia—the author of the concurring opinion in
      Thornton adopted by the Gant majority—suggests another view. Concurring
      in a separate opinion in Gant, he stated: “I would hold that a vehicle search
      incident to arrest is ipso facto ‘reasonable’ only when the object of the search
      is evidence of the crime for which the arrest was made, or of another crime
      that the officer has probable cause to believe occurred.” 556 U.S. at 353, 129
      S. Ct. at 1725. Some have recognized this “suggests a purpose or nature-of-
      the-offense test, totally divorced from any inquiry into the likelihood that the
      evidence is there[.]” 3 Wayne R. LaFave, Search & Seizure: A Treatise on the
      Fourth Amendment § 7.1(d) (5th ed. 2012). To some extent, the majority
      opinion in Gant also supports this view. “In many cases, as when a recent
      occupant is arrested for a traffic violation, there will be no reasonable basis to
      believe the vehicle contains relevant evidence. But in others . . . the offense
                                                              (continued . . .)
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justify a vehicle search under Gant’s reasonable-to-believe standard might be, the

Supreme Court has already endorsed a vehicle search incident to arrest in a factual

scenario substantially similar to the present case.

[¶23.]       In Gant, the Supreme Court specifically identified Thornton as one

case in which a vehicle search incident to arrest was justified. Gant, 556 U.S. at

344, 129 S. Ct. at 1719. In Thornton, a police officer driving an unmarked police car

became suspicious that the driver of another vehicle knew he was a police officer

and that the driver was deliberately avoiding pulling up next to him. A check of the

vehicle’s license plates revealed they were issued to another vehicle. Before the

officer could initiate a stop, the driver parked and got out of his vehicle. The officer

parked his vehicle, initiated a stop of the driver, and conducted a defensive

patdown, which revealed the presence of controlled substances on the driver’s

person. The officer placed the driver under arrest and searched his vehicle.

Thornton, 541 U.S. at 617-18, 124 S. Ct. at 2129. The Supreme Court identified this

situation as one in which “the offense of arrest will supply a basis for searching the

passenger compartment of an arrestee’s vehicle and any containers therein.” Gant,

556 U.S. at 344, 129 S. Ct. at 1719. Thus, Gant seems to authorize a vehicle search

incident to the arrest of even a recent occupant of the vehicle when the arrestee is

found to have personal possession of a controlled substance. See Thornton, 541 U.S.


________________________
(. . . continued)
         of arrest will supply a basis for searching the passenger compartment of an
         arrestee’s vehicle and any containers therein.” Gant, 556 U.S. at 343-44, 129
         S. Ct. at 1719 (citations omitted). Regardless, we need not—and do not—
         decide today which approach to follow.


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at 617-18, 124 S. Ct. at 2129. 6 Similarly, once Officer Mertes discovered marijuana

and associated paraphernalia in Fischer’s pocket, it was reasonable for Officer

Mertes to believe the vehicle in which he found Fischer might contain further

evidence of those crimes. Therefore, the vehicle search was justified under both the

automobile exception (because there was probable cause to believe additional

evidence of the open-container violation would be found in the car) and the search-

incident-to-arrest exception (because it was reasonable to conclude the car might

contain evidence of controlled-substance possession) to the Fourth Amendment’s

warrant requirement, and the circuit court properly admitted evidence gathered in

the search.




6.    We acknowledge that in Thornton, possession of a controlled substance was
      the initial basis for arrest. In contrast, Officer Mertes initially identified
      driving with a revoked license as the basis for arresting Fischer and then
      discovered contraband during a subsequent search incident to arrest.
      However, this distinction is not material. The crime of arrest is defined by
      the objective facts known to the officer rather than the officer’s subjective
      view of those facts. See Devenpeck, 543 U.S. at 153, 125 S. Ct. at 594 (“[T]he
      fact that the officer does not have the state of mind which is hypothecated by
      the reasons which provide the legal justification for the officer’s action does
      not invalidate the action taken as long as the circumstances, viewed
      objectively, justify that action.” (quoting Whren v. United States, 517 U.S.
      806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996))). We see no
      indication that Gant was meant to prohibit a search for evidence of crimes
      contemporaneous to that articulated as the basis for arrest when the officer
      has probable cause to arrest for those crimes at the time the search occurs—
      even when the officer has not articulated such as a basis for arrest. Indeed,
      the Constitution does not even require a law enforcement officer “to inform a
      person of the reason for his arrest at the time he is taken into custody[.]” Id.
      at 155, 125 S. Ct. at 595. Therefore, “Gant generally protects against
      searches for evidence of past crimes . . . [and] restricts broad searches
      resulting from minor crimes such as traffic violations.” Riley v. California,
      ___ U.S. ___, 134 S. Ct. 2473, 2492, 189 L. Ed. 2d 430 (2014) (emphasis
      added).

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[¶24.]          2.    Whether the circuit court erred by denying Fischer’s
                      motion for judgment of acquittal.

[¶25.]          Fischer argues “the record is lacking evidence which, if believed, could

be sufficient to sustain a finding of guilt beyond a reasonable doubt as to Possession

of Controlled Substance.” Fischer was convicted of unauthorized possession of a

controlled substance under SDCL 22-42-5, which states: “No person may knowingly

possess a controlled drug or substance unless the substance was obtained directly or

pursuant to a valid prescription or order from a practitioner, while acting in the

course of the practitioner’s professional practice or except as otherwise authorized

by chapter 34-20B.” (Emphasis added.) Fischer denied that the contraband found

in the vehicle belonged to him, and the vehicle itself was titled to someone else.

Therefore, according to Fischer, “[t]he State did not prove the knowledge element of

the statute.”

[¶26.]          “We review the denial of a motion for judgment of acquittal as a

question of law under the de novo standard.” Overbey, 2010 S.D. 78, ¶ 12, 790

N.W.2d at 40. Therefore, we give no deference to the circuit court’s determination

regarding the sufficiency of the evidence. On appeal, then, “the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789, 61 L. Ed. 2d 560 (1979); Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d at 40. “The

State may . . . prove all elements of an offense through circumstantial evidence.”

State v. LaPlante, 2002 S.D. 95, ¶ 30, 650 N.W.2d 305, 312. However, “[v]erdicts

cannot be allowed to rest on mere suspicion, or upon a state of facts not shown to

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exist.” State v. Lee, 48 S.D. 29, 35, 201 N.W. 703, 705 (1924) (quoting State v.

Meyer, 164 N.W. 794, 797 (Iowa 1917)); see also United States v. Plenty Arrows, 946

F.2d 62, 65 (8th Cir. 1991) (“Although the government is entitled to all reasonable

inferences supporting the verdict, we cannot sustain a conviction ‘based on a mere

suspicion or possibility of guilt.’” (quoting United States v. Robinson, 782 F.2d 128,

129 (8th Cir. 1986))). Therefore, “we will set aside a jury verdict only when ‘the

evidence and the reasonable inferences to be drawn therefrom fail to sustain a

rational theory of guilt.’” State v. Guthrie, 2001 S.D. 61, ¶ 47, 627 N.W.2d 401, 420-

21 (quoting State v. Hage, 532 N.W.2d 406, 410 (S.D. 1995)).

[¶27.]       In order to meet its burden of proving knowing possession, the State

must offer evidence establishing that the accused exercised “dominion or right of

control over a controlled substance . . . with knowledge of its presence and

character.” State v. Barry, 2004 S.D. 67, ¶ 9, 681 N.W.2d 89, 92 (per curiam). A

defendant’s dominion or right of control over a controlled substance does not have to

be exclusive and can either be actual—i.e., when the controlled substance is found

on the defendant’s person—or constructive—i.e., when the defendant “has dominion

or control over . . . the premises upon which the [controlled substance was] found[.]”

State v. Goodroad, 442 N.W.2d 246, 251 (S.D. 1989); see also Overbey, 2010 S.D. 78,

¶ 28, 790 N.W.2d at 43 (“The fact that the methamphetamine was not on

defendant’s person when found by the police does not negate a finding of

possession.” (quoting State v. Deneui, 2009 S.D. 99, ¶ 69, 775 N.W.2d 221, 248)). It

is clear on the facts of this case that Fischer had dominion or control over the

vehicle in which the methamphetamine was found. However, he asserts the State


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did not present evidence sufficient to prove that he knew the methamphetamine

was present in the vehicle. Although the State did not offer any direct evidence

establishing that Fischer knew the methamphetamine was in the vehicle, the State

asserts that Fischer’s knowledge of the methamphetamine’s presence may be

inferred because: (1) the methamphetamine was located in a vehicle operated by

Fischer, (2) Fischer had marijuana in his pocket, and (3) Fischer refused to submit

to a urinalysis.

[¶28.]        First, citing State v. Jahnz, 261 N.W.2d 426 (S.D. 1978), the State

asserts that knowledge may be inferred because the methamphetamine was found

inside a vehicle controlled by Fischer. In Jahnz, law enforcement officers acting

under a warrant found 133 pounds of marijuana after searching the trunk of an

automobile owned by the defendant in that case. Id. at 427. In rejecting the

defendant’s assertion that the State failed to prove knowing possession, we said,

“[P]ossession alone suffices to permit the inference that the possessor knows what

he possesses, especially[] if it is in his hands, on his person, in his vehicle[,] or on

his premises.” Id. at 428.

[¶29.]        Jahnz is not dispositive because it typifies a class of cases to which the

present one does not belong. As the owner of the vehicle, the defendant in Jahnz

had exclusive access to the trunk of his vehicle. When a defendant has exclusive

access to the premises in which the controlled substance is found—in contrast to

Fischer’s nonexclusive, shared access to the premises in this case—nothing more

must be proved for a jury to reasonably infer the defendant knew the controlled

substance was present. See Overbey, 2010 S.D. 78, ¶ 28, 790 N.W.2d at 43; Barry,


                                           -17-
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2004 S.D. 67, ¶ 9, 681 N.W.2d at 92-93; State v. Reeves, 209 N.W.2d 18, 22 (Iowa

1973). Such an inference is not automatically reasonable when—as here—the

defendant had only joint access to the premises. Barry, 2004 S.D. 67, ¶ 10, 681

N.W.2d at 93 (quoting Reeves, 209 N.W.2d at 22). Unlike the defendant in Jahnz,

Fischer did not have exclusive access to the vehicle at issue in this case. To hold

that Fischer’s nonexclusive access to the vehicle “suffices to show knowledge that it

[contained contraband] would essentially render the . . . knowledge requirement

superfluous and expose individuals possessing [a controlled substance] to strict

liability[.]” See United States v. Howard, 214 F.3d 361, 364 (2d Cir. 2000).

Therefore, Jahnz was merely an application of the exclusive-possession-of-premises

inference and is not sufficient—standing alone—to support a reasonable inference of

knowledge in a joint-possession-of-premises case like the present one.

[¶30.]       Similarly, Fischer’s knowledge of the methamphetamine’s presence in

the vehicle cannot be inferred solely from his refusal to submit to a urinalysis.

Citing State v. Mattson, 2005 S.D. 71, ¶ 54, 698 N.W.2d 538, 554, abrogated on other

grounds by State v. Edwards, 2014 S.D. 63, ¶¶ 18-19, 853 N.W.2d 246, 253-54, the

State asserts that “Defendant’s refusal allows an inference that he had knowledge

that the urinalysis would have shown possession.” In Mattson, law enforcement

officers stopped a speeding vehicle and initiated a search of the vehicle after a drug

dog alerted to the presence of a controlled substance. The search produced several

empty syringes as well as one syringe containing methamphetamine. Although

each of the vehicle’s five occupants disavowed knowledge of the methamphetamine,

the defendant had noticeable track marks on one arm, which he claimed were


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merely the result of a spider bite. Id. ¶¶ 3-9, 698 N.W.2d at 542-43. Among other

things, we had to determine “whether [d]efendant’s refusal to submit to the

urinalysis could be used to infer whether [d]efendant was in knowing possession of

methamphetamine on the date in question.” Id. ¶ 53, 698 N.W.2d at 554.

[¶31.]       The State misreads Mattson. Unlike the present case, in Mattson the

State sought to “establish knowing possession of the controlled substance under a

theory that [the d]efendant had ingested some of the methamphetamine purchased

by the occupants of the vehicle.” See id. ¶ 56, 698 N.W.2d at 555 (emphasis added).

Consequently, we noted that “in the context of a charge of knowing possession of a

controlled substance, a positive urinalysis that reveals the presence of a controlled

substance in a [defendant’s] urine is sufficient in and of itself to support a conviction

due to the language of SDCL 22-42-1(1).” Mattson, 2005 S.D. 71, ¶ 54, 698 N.W.2d

at 554 (emphasis added). We did not hold that a defendant’s refusal to submit to a

urinalysis is sufficient in and of itself to support a conviction of knowing possession.

Furthermore, SDCL 22-42-1(1)’s definition of a controlled drug or substance

“includes an altered state of a drug or substance listed in Schedules I through IV

absorbed into the human body[.]” (Emphasis added.) Because a defendant is

generally considered to have exclusive access and control over substances on his

person, see Jahnz, 261 N.W.2d at 428, the same can generally be said of substances

absorbed into his person. Thus, an inference of knowing possession in Mattson was

reasonable on the same basis as the inference of knowing possession in Jahnz: the

defendant had exclusive access to the premises in which the controlled substance

was found. Consequently, while it is reasonable to infer that a defendant with a


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positive urinalysis knows that methamphetamine is present in his body, it does not

follow that it is reasonable to infer that a defendant who refuses a urinalysis knows

that methamphetamine is present in a collectable tin hidden under another

passenger’s seat in a car owned by a resident of another state.

[¶32.]         Finally, citing LaPlante, the State asserts that “evidence of marijuana

use renders it more likely that [Fischer] possessed the [methamphetamine] and

knew what he possessed.” In LaPlante, husband and wife defendants were both

convicted under SDCL 22-42-10 for maintaining a home in which their sons used,

possessed, and sold marijuana, cocaine, and methamphetamine. LaPlante, 2002

S.D. 95, ¶ 15, 650 N.W.2d at 309-10. On appeal, we held that the LaPlantes’

knowledge of their sons’ use, possession, and sale of marijuana in their home was

relevant to establishing that the LaPlantes also knew their sons used, possessed,

and sold methamphetamine and cocaine in their home. Id. ¶ 38, 650 N.W.2d at 314.

This relevancy determination was made in the context of the defendants’ knowledge

of their sons’ prior drug use spanning several years. Id. ¶ 29, 650 N.W.2d at 312

(“This pervasive odor [of marijuana] would clearly suggest to parents with this

history that illegal drug activity was occurring.” (emphasis added)). We did not hold

that it was reasonable to infer the LaPlantes knew controlled substances were

present in their home because they knew of a third party’s marijuana activity in

their home. 7 Rather, “the marijuana evidence was only used as one circumstantial



7.       The LaPlantes argued “that the evidence of marijuana use, storage, and sale
         in the home was insufficient to sustain a finding of guilt” because, they
         argued, “marijuana is not a ‘controlled substance’ within the meaning of
         SDCL 22-42-10.” LaPlante, 2002 S.D. 95, ¶ 20, 650 N.W.2d at 310. We
                                                              (continued . . .)
                                           -20-
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‘brick’ to suggest it was more probable that LaPlantes had knowledge of controlled

drug activity in the lower level of their home.” Id. ¶ 38, 650 N.W.2d at 314.

[¶33.]       Like Jahnz and Mattson, LaPlante is not dispositive of the present

case. Nevertheless, “upon judicial review[,] all of the evidence is to be considered in

the light most favorable to the prosecution.” Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. Moreover, while two or more facts may be insufficient on their own to permit

a reasonable inference of knowledge, the combination of those facts may

nevertheless give rise to a reasonable inference of knowledge. Cf. United States v.

Arvizu, 534 U.S. 266, 274-75, 122 S. Ct. 744, 751, 151 L. Ed. 2d 740 (2002) (rejecting

“divide-and-conquer” approach of isolating and discounting individual facts in

totality-of-the-circumstances review of probable-cause determinations). Here,

Fischer was in control of the vehicle. When asked to do so, he produced the vehicle’s

registration. He had another illegal substance and paraphernalia in his pocket.

When asked to submit to chemical testing, he refused. Although this body of

evidence is not overwhelming, it is not so scant as to prevent even a single, rational

trier of fact from finding beyond a reasonable doubt that Fischer knew there was

methamphetamine in the vehicle he was operating. Therefore, the record contains

sufficient evidence to sustain a conviction for knowing possession of




________________________
(. . . continued)
         agreed that marijuana is not a controlled substance under SDCL 22-42-10.
         However, rather than hold that the marijuana evidence was nevertheless
         sufficient to sustain a finding of guilt, we instead upheld the conviction
         because of “the other substantial evidence of controlled drug use, storage, and
         sale in [the LaPlantes’] home.” Id. ¶ 21, 650 N.W.2d at 310.

                                          -21-
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methamphetamine, and the circuit court did not err by denying Fischer’s motion for

judgment of acquittal.

                                     Conclusion

[¶34.]       Fischer did not properly preserve his argument that Officer Mertes

lacked probable cause to arrest him for driving with a revoked license, and the

circuit court did not plainly err by denying the motion to suppress because the

motion indicated it was based entirely on Fischer’s arguments under Gant and

Overbey. Regardless, Officer Mertes had other bases upon which to justify a search

of Fischer and the vehicle: (1) under the vehicle exception, and (2) under the search-

incident-to-arrest exception. Furthermore, Fischer’s conviction is supported by

sufficient evidence. Therefore, we affirm.

[¶35.]              ZINTER and WILBUR, Justices concur.

[¶36.]              SEVERSON and KERN, Justices concur in part, dissent in part.



KERN, Justice (concurring in part and dissenting in part).

[¶37.]       I concur in Issue 1, but dissent from the majority opinion’s conclusion

in Issue 2. The trial court erred by denying a judgment of acquittal as the evidence

was insufficient to support the Defendant’s conviction for knowing possession of

methamphetamine.

[¶38.]       On appeal, it is our objective to determine “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);


                                          -22-
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State v. Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d 35, 40. While the State may prove

all elements using circumstantial evidence, verdicts cannot rest upon mere

suspicion or possibility of guilt. State v. LaPlante, 2002 S.D. 95, ¶ 30, 650 N.W.2d

305, 312; State v. Lee, 48 S.D. 29, 35, 201 N.W. 703, 705 (1924).

[¶39.]       The circumstantial evidence considered by the jury in this case in

support of the conviction is summarized as follows. Fischer was driving a vehicle

that belonged to an out-of-state resident, and Fischer’s possession of the vehicle was

not exclusive. The owner of the vehicle was not identified, and no evidence was

presented regarding Fisher’s relationship or involvement with the owner. At the

time of Fischer’s arrest, he had a pipe containing marijuana residue in his pocket,

and he refused a urinalysis. A tin containing paraphernalia with

methamphetamine residue was found under the passenger seat of the vehicle.

Fischer and the female passenger denied knowledge of the tin. The officers released

the passenger without searching her or determining her identity.

[¶40.]       Fischer’s guilt beyond a reasonable doubt cannot be reasonably

inferred from consideration of these facts individually or collectively. Other courts,

when considering similar scenarios, have found such evidence insufficient to

withstand a motion for a judgment of acquittal. In United States v. Aponte,

defendants were stopped for a traffic violation and convicted of possession with

intent to distribute drugs found inside a cooler in the vehicle’s cargo area. 619 F.3d

799, 800 (8th Cir. 2010). Defendants, who did not own the vehicle, argued “the

evidence was insufficient for a jury to reasonably conclude [defendants] knew of the

drugs[.]” Id. Both defendants lacked criminal backgrounds or warrants, submitted


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valid identification, and provided nearly identical stories regarding their

destination. Id. at 801. Additionally, Aponte testified he did not notice the cooler

and did not know it contained drugs. Id. at 803. The court emphasized that in

cases where the defendant did not own the vehicle and was in possession of the

vehicle for a short time, additional proof was required to show “that the defendant

was aware of drugs concealed in the vehicle.” Id. at 804. Upon consideration of “all

of these circumstances in their totality, [the court concluded the] evidence [was]

insufficient to prove [defendants’ knowledge] beyond a reasonable doubt.” Id. at

809.

[¶41.]       In State v. Salas, law enforcement stopped defendant’s vehicle after

receiving a tip he was in possession of cocaine. 820 P.2d 1386, 1386-87 (Utah Ct.

App. 1991). Two passengers were present in defendant’s vehicle, one in the front

passenger’s seat and one in the backseat. Id. at 1387. Defendant denied possessing

cocaine and consented to a search of his vehicle, which uncovered cocaine “in the

crack of the backseat on the driver’s side, where the bottom of the cushion fits the

back.” Id. The court found defendant not to be in constructive possession of the

cocaine, stating such possession requires “a nexus between the accused and the

drug sufficient enough to allow an inference that the accused had both the ability

and the intent to exercise dominion and control over the drug.” Id. at 1388

(emphasis added).

[¶42.]       In the present case, no evidence was submitted at trial to establish

Fischer’s knowledge of the tin containing paraphernalia and methamphetamine

residue. Fischer’s mere occupancy of the vehicle in “which the drugs [were]


                                         -24-
#27062

found . . . especially when occupancy is not exclusive” is insufficient to create the

necessary nexus to establish constructive possession. Id. (quoting State v. Fox, 709

P.2d 316, 319 (Utah 1985)).

[¶43.]       When examining the evidence we consider an actor’s “acts, conduct and

inferences [that] are fairly deducible from the circumstances surrounding the

offense.” LaPlante, 2002 S.D. 95, ¶ 30, 650 N.W.2d at 312. “Sufficient proof may

include incriminating statements or actions accompanying discovery of the illicit

substance, finding the substance with or near the accused’s personal belongings,

and any other circumstances linking the accused to the substance.” State v.

Wheeler, 2013 S.D. 59, ¶ 10, 835 N.W.2d 871, 873. None of the foregoing types of

proof are present in this case. The record does not reflect that Fischer said or did

anything incriminating in response to the officers’ discovery of the tin containing

paraphernalia with methamphetamine residue. Fischer did not appear to be under

the influence of drugs or alcohol. The State did not offer any evidence—such as

fingerprint analysis—directly linking Fischer to the container. Likewise, the State

did not produce any items proved to belong to Fischer that were intermingled with

the offending items. With reference to the inference that Fischer refused to submit

to a urinalysis because he had used methamphetamine, it is equally fair to presume

he did not want to take the test because he had used marijuana or simply wished to

invoke his right not to submit to testing.

[¶44.]       The evidence in this case is so scant that it cannot be said that a

rational trier of fact could conclude beyond a reasonable doubt that Fischer knew of

the presence of the tin under the passenger’s seat in a vehicle he didn’t own. To


                                          -25-
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hold otherwise would be to create a strict liability standard for any person found in

a motor vehicle with an illegal substance. The evidence in this case merely infers

the possibility “that this appellant may have committed this offense. Beyond this

possibility, resort must be had to surmise, speculation, and suspicion to establish

the appellant’s criminal agency in the offense charged. No rule is more

fundamental or better settled than that convictions cannot be predicated on such

bases.” Nguyen v. State, 580 So. 2d 122, 123 (Ala. Crim. App. 1991) (quoting Parker

v. State, 198 So. 2d 261, 268 (Ala. 1967)) (emphasis added). I respectfully dissent.

[¶45.]       SEVERSON, Justice, joins this special writing.




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