*1
Stephen Petitioner Appellant, Warden, WEBER,
Douglas South Penitentiary,
Dakota State Appellee.
Respondent and
No. 22742.
Supreme Court of South Dakota. Aug.
Considered Briefs
Decided Dec. *2 Falls, SD, Thompson,
Michael B. Sioux appellant. petitioner and *3 General, Long, Attorney E. Lawrence General, Cremer, Attorney Assistant Paul Pierre, SD, respondent appellee. and ZINTER, Justice. the de- Stephen appeals Cordell alleges of habeas corpus.
nial of a writ He constitutionally trial counsel was that his affirm We the trial court’s ineffective. corpus of habeas relief. denial AND HISTORY FACTS PROCEDURAL Rachel Cordell married to 2.] [¶ couple “Shelly” Brandriet 1980. The marriage. during three children their had house together built a near Wa- They also tertown. Shelly April left Cordell and filed for divorce. The divorce contested. threatened highly Cordell if the house it was awarded
to burn children marital home Shelly. The and were, however, Pro- Shelly. awarded to fact posed findings of and conclusions mailed to Cordell and received law were That him same on October and a the house day, October severely by fire. damaged shed were car, simi- A saw a white 4.] witness [¶ Cordell, leaving to the one driven lar Immediately house. there- the area of the after, shed witness saw a fire respond- fire department house. The observed evidence of arson ed and house. There was an odor shed and heavy damage, areas petroleum, smoke floors, heavy petroleum liquid like on the areas, fire in but certain concentrations spread that the shed fire had no evidence the house. ground on the corpus habeas writ of of law enforce- request Upon (1) in: was ineffective trial counsel office his ment, contacted the sheriffs Cordell effectively challenge the failing to voluntarily sub- afternoon and that same results, suppress failing to waiving his test interview. After mitted to an during the made statements that he Cordell’s admitted: rights, Miranda Following ev- office interview. that morn- sheriffs papers divorce had received the hearing, the habeas court denied identiary house at the was alone ing; that he relief. time; of no one else who that he knew house; to burn the have wanted
would *4 and, morning. that that he left the house OF STANDARD REVIEW/BURDEN interviewing officer also noticed The OF PROOF Cordell, petroleum on Cordell. smell a has re Whether defendant however, any involvement denied of counsel is ineffective assistance ceived fire. question of law and essentially a mixed During course of the inter- [¶ 6.] clearly of a errone fact. the absence view, officer determined Cordell court, by the circuit ous determination appeared de- potentially suicidal was findings on such must defer to its we result, placed was As a Cordell pressed. regarding facts what defense primary evening. health hold on a mental in preparation not do counsel did or did jail Cordell was re- policy, Pursuant attorney’s] presenta for trial and [the jail jumpsuit. into a Cor- quired change court, at trial. This of the defense tion removed and dell’s was however, judg own may substitute its by jail Cordell personnel. into a locker court as to for that of the circuit ment by a medical subsequently interviewed or in- defense counsel’s actions whether emergency mental doctor and held for assistance actions constituted ineffective health commitment. of counsel. ¶ wore was The Cordell Weber, 128, 28, Rodriguez v. SD the next morn- by
seized
law enforcement
(citations omitted).
132, 142
Cor-
N.W.2d
26, 1999, while Cordell was
ing, October
establishing an ineffective
dell’s burden for
to the Human
waiting
transportation
for
well established.
assistance claim is also
for the
com-
Center
Services
to obtain habe-
[petitioner]
In order for
to a state
mitment. The
was sent
as
grounds
relief on the
of ineffective
as
object-
laboratory
testing.
Trial counsel
counsel,
pass
he must
sistance of
results,
to the introduction of the test
ed
for such a claim. See Davi
two-part test
however,
objection
was overruled be-
¶
Class,
30, 16, 609 N.W.2d
v.
2000 SD
failed to raise the issue
cause counsel had
107, 112
for ineffec
(recognizing the test
suppress.1
motion to
The
pre-trial
presented
as
tive assistance of counsel
presence
possible
test
indicated the
results
Washington,
v.
Strickland
accelerant,
ignita-
of an
but no identifiable
2052,
different outcome. reasonable The Fourth bility probability is a sufficient to under- Amendment guarantees mine confidence in outcome.’ See Constitution citizens Class, 107, protection from unreasonable searches and (quoting Loop id. SD ¶ [(1996)]). by government seizures actors. 554 N.W.2d U.S. *5 Const, IV, Const., VI, amend. S.D. art. Weber, ¶ 5, 21, v. 2002 640 Knecht SD § 11. provisions “[n]ormally, Under these 491, respect N.W.2d 495. With to ineffec police officers must obtain a warrant based tive counsel on Fourth Amendment claims: by judge cause issued a in liti- Where defense counsel’s failure to property.” order to seize someone’s State a claim gate compe- Fourth Amendment ¶ Christensen, 11, 64, v. 2003 SD 663 tently principal allegation the of is inef- 691, In N.W.2d 694. the event a warrant- fectiveness, the defendant must also conducted, less search is it is the State’s claim prove that his Fourth Amendment per burden to show that the search was a is meritorious and there is reason- ¶ However, missible. Id. “[a]n indi probability able that the verdict would vidual expectation must have reasonable have been different the excluda- absent of in privacy place the searched or the in ble evidence order to demonstrate article seized before the Fourth Amend prejudice. actual ¶ apply.” priva ment will Id. 11. “[T]his (S.D. Solem, 656, Luna v. 411 659 N.W.2d cy two-prong is interest determined 1987). (1) test: whether the defendant has exhib subjective expectation ited an actual of ISSUE ONE (2) privacy society willing whether is trial counsel was inef- [¶ 9.] Whether expectation being to honor this as reason failing in fective to contest the search Lowther, 747, able.” v. 434 State clothing and seizure of Cordell’s at a (S.D.1989). This case focuses on the time when the search could be chal- prong: expecta second whether Cordell’s lenged. privacy clothing tion of in in a police his trial Cordell contends that his objectively locker is reasonable. counsel was ineffective because he failed to effectively challenge argues the search and sei- The State the sei- clothing. Although subsequent zure of the zure and chemical search acknowledges that a in- search was reasonable valid, generally protective custody. to a lawful arrest it was incident to We cident is examining begin inquiry he contends that a search incident to an first permitting mental commitment violates basis for warrantless searches the Fourth Amendment. incident to arrest. Collins, v. 63 P.3d cert denied State v. Ed In United States 2003). (Utah Collins,
wards,
the defendant
(1974),
Supreme
custody
Court
at the
placed
protective
L.Ed.2d 771
may
prisoner’s
that a
professional
determined
after Col-
request of medical
without a warrant
and seized
be searched
that could have led
lins acted
a manner
This
if it
incident
to lawful arrest.
is
Id. at 957.
injury of others.
to serious
the reasonableness
holding was based on
protective
Before Collins
instruments
searching
weapons,
a pat-down
officers conducted
custody, the
per
crime when a
escape, and evidence of
a knife sheath and meth-
search and found
custody and law
is taken into official
son
at 955.
person.
on his
Id.
amphetamine
809,
Edwards and Dakota’s involun South involuntary is suffi- for an commitment recognize also tary commitment statutes a ciently permit similar to an arrest to com provide protection to to the the need custody. argument search incident to This ch. person public. mitted and the SDCL (1) of two issues: requires a consideration Therefore, pro when 27A-10. subject involuntary an person whether a to ex custody, person’s tective a reasonable searched; lawfully commitment can be curtailed for these pectation privacy is (2) and, so, if to extent items seized what contrary A conclusion would purposes. subsequently searched without a can be preserv intent of legislative frustrate the warrant. ing safety public of the and the individ custody. We protective ual taken into issue, considering In the first rationale, a agree that under Collins Appeals held that “a the Utah Court protective and limited search reasonable custody, just protective search incident to arrest, per commitment is incident incident to lawful is as search mentally ill protect in order to State v. mitted allowed under the Constitution.” (Utah A Collins, 953, person’s custodians. App.2002) individual and 53 P.3d 956 Therefore, of Collins does not reading protective purpose. it was for a fair purpose protective proposition consistent with the support that such a search is That search was made detention. without constraint.
55
protective custody,
step following
reasonable administrative
person placed
while
expecta-
having
not
the same diminished
his detention. See United States v. Gal-
arrestee,
(9th Cir.1979) (hold-
836,
as an
does have
privacy
lop,
tion
606 F.2d
839
privacy
than the aver-
expectation
lesser
ing
police
that the reasons for a
inventory,
age citizen on the street.
which were outlined
South Dakota v.
364,
3092,
Opperman, 428 U.S.
Moreover,
limited
1000,
property
L.Ed.2d
un-
apply
taken
circumstances is con
search under these
police protection
der
when the owner of
permitting
sistent with South Dakota law
property
police
is ‘detained’ under
cus-
inventory
person
after a
is taken
searches
arrested.).
tody but not
custody.
previously
into
This Court has
recognized
person
property
that when a
or
We now turn to the sec
[¶21.]
faith,
custody “a
nonin-
good
is taken into
police
ond issue to determine whether the
inventory
permissi
vestigatory
search” is
could extend the seizure of the
820,
Hejhal,
ble. State v.
438 N.W.2d
by having
a search for chemical traces
(S.D.1989)
Flittie,
(quoting State v.
425 clothing sent to the state crime lab for
(S.D.1988)).
1, 5-6
“A so-called
issue,
testing.
addressing
this
inventory
independent
is not an
search
Supreme
North Dakota
Court concluded
legal concept but rather
incidental ad
that, when a detainee’s wallet was taken
step.”
administrative
ministrative
Id. This
pursuant
inventory search,
to an
it was
(1)
step
supported by a need to
safe
is
suspect
reasonable for officers to submit a
(2)
guard property;
insulate the
piece
paper contained therein for chemi
groundless
property
from
claims that
if
testing
cal
“there is
cause to
and,
the deten
protected;
secure
associate the
with criminal activi
property
facility by preventing
tion
introduction of
Gelvin,
302,
ty.” State v.
318 N.W.2d
id.;
weapons or contraband. See
Illinois
(N.D.1982) cert. denied Gelvin v. North
Lafayette,
U.S.
S.Ct.
Dakota,
S.Ct.
(1983).
4. The court that indicated that crime. Because these "had officers the record contained no evidence that the probable property cause to associate the with any emitted detecta- odor defendant’s ble activity,” governed by criminal this case is by the human sense of smell. Id. at 1014. Gelvin, 307, 308, 318 N.W.2d at rather than special writing's The omission of this critical Joyce. fact it to the erroneous that leads conclusion Joyce the facts in are similar to the facts we counsel, unprofessional the errors of in Cordell’s case The facts 24.] [¶ that of have proceeding cause to believe result the would the established ¶ Weddell, of an accel- clothing contained evidence been different.” SD the Here, and was evidence at erant or other chemical 604 N.W.2d there was tes interrogating a The officer other over- prejudice of crime.5 because the evidence during his interview with Cor- whelmingly guilt. tified that established Cordell’s dell, of a chemical presence smelled the he fire the at the site of the
similar to one ISSUE TWO a of “resembling that to fuel smell be in- Whether trial counsel was distinguishes This alone fact some sort.” failing challenge in effective to Joyce meets the test Gelvin. rights his of Miranda and subse- waiver addition, that officers were aware these quent statements to law enforcement. papers the divorce had received Cordell that argues also [¶27.] Cordell previously he threat morning, that had a he on mental hold because was home, at he was present to burn ened enforcement, law after his interview with a morning, that and vehicle simi the home rights waiver of Miranda and subse his leaving the scene lar was seen to Cordell’s voluntary. He quent statements were circum fire. Under all these trial counsel was constitu contends to stances, had,,probable cause the officer tionally failing challenge ineffective to contained chemi believe statements.7 does those Cordell result, the fire. a cals associated with As engaged that law not contend enforcement was subsequent testing reasonable securing any coercion the statements. failed Consequently, Cordell facts.6 these Rather, mental only argues he that his coun to assistance of establish ineffective state, by com as evidenced prevailed on he not have sel would mitment, a and intelli prevented knowing pretrial motion suppress. to rights and ren gent waiver of Miranda note if we finally even 25.] We [¶ involuntary. his statements dered in fail counsel erred to assume that were recently This Court ing challenge the seizure to establishing a waiv trial, the burden of with the habeas clarified prior agree to we must rights. of Miranda “The State not entitled to habeas er court that Cordell is only by rights a waiver of Miranda prove prejudice. as he has not established relief State v. relief, of the evidence.” preponderance Cordell must es To obtain habeas ¶ Tuttle, that, 2002 SD probability “a but tablish reasonable important are no to note that there exigent whether circum It is 5.We do not address justify the warrantless sei that the health allegations stances existed to mental clothing. fact, not set of Cordell’s has unsupported zure mere or a detention concerning any rates of dissi evidence forth clothing. possession pretext obtain pation the evanescent nature of accelerants or contrary, decision hold Cordell On danger evi that such demonstrate real finding. supported medical *9 Engesser, State would be lost. See v. dence 47, (holding 661 739 a blood SD N.W.2d 2003 specifically consid- testified that he 7. Counsel exigent permissible when circum draw is proceed challenge, but chose not to ered a exist without for and cause stances during interview stead- the Cordell because Buchholz, arrest). See State v. 1999 also mal fastly any denied involvement in the fire. 18, 899, 903; ¶ 110, v. N.W.2d SD 598 885, 9, ¶ 28, Hanson, 1999 SD 157, psycho- not ‘with moral and (citing Connelly, concerned Colorado 473, logical pressures emanating 93 L.Ed.2d to confess (1986)). knowing, be The waiver must from other than official sources coer- ¶ voluntary. Id. 7. In de- intelligent and cion.’ The voluntariness of waiver of valid, if a “a court termining waiver is always privilege depended this has age, experi- should consider defendant’s police overreaching, the absence ence, intelligence, background, and includ- any on ‘free choice’ in broader sense of familiarity justice criminal ing with the (The relinquishment the word. system, and mental physical as well as voluntary in right must have been Here, only argues condition.” Cordell Id. product sense that it was the of a free that his mental condition undermined the and deliberate choice rather than intimi- subsequent of his waiver and voluntariness dation, deception. coercion or The rec- statements. any suggestion ord is devoid of that course, or police physical psychologi- “Of a waiver must at a resorted
[¶ 29.]
‘voluntary’
minimum
to be effective
cal
to elicit the
pressure
be
statements.
Connelly,
against
accused.”
U.S.
was not
down
The defendant
worn
Connelly,
at
Colorado erred into this corpus as relief is affirmed. area of constitutional law notions of ‘free place will’ have no there. There is GILBERTSON, Justice, Chief obviously require no reason to more in KONENKAMP, Justice, concur. way inquiry of ‘voluntariness’ Miranda waiver context than MEIERHENRY, [¶ 33.] SABERS Fourteenth Amendment confession con- Justices, concur in result. text. The sole concern of the Fifth result). SABERS, (concurring Justice Amendment on which Miranda was based, join I Meierhenry’s spe- In- Justice governmental is coercion. deed, Fifth privilege writing Amendment is cial for the reasons stated therein. *10 submitting his clothes to concluded for the offi- was no reason simply There The court analysis chemical was a search. clothing and seize Cordell’s to search cers the circumstances did further determined obtaining a warrant. first without any exceptions not fall within of the allow- of the in the result I concur [¶ 35.] Joyce search. The court ing a warrantless proba- there was because majority opinion may have had recognized that the officers and therefore a warrant ble cause for suspect Joyce to but held probable cause in this habeas prejudice has been shown warrant that the officers needed search corpus proceeding. The court held “that clothing. to test the analysis [Joyce’s]'-clothing of the chemical MEIERHENRY, (concurring in Justice it suppressed” have should been result). search “the result of a warrantless was on Issue I. specially I write [¶ 36.] circumstances or unsupported by exigent majority that I with the agree [¶37.] exception to the war- any recognized other of initial seizure Id. at 1016-1017. requirement.” rant protective him into officers took when the Joyce facts in are similar to The not in violation custody a mental hold is in this case. the facts we have before us However, the rights. of his constitutional Joyce, holding In the officers were burned analysis at the State chemical subsequent from the defendant when clothing removed a search without Laboratory was Crime hospital. Here transported he was to recog- -within a and does fall warrant he held Cordell’s clothes when the officers require- warrant exception to the nized hospital. a mental transported to cites State v. majority opinion The ments. cases, the officers had cause both (1994) A.2d 1007 Joyce, Conn. committing of suspect to the defendant police the issue was whether which clothing to submitting the arson before possession lawfully custodial who were testing. chemical under required were suspect’s of a get to a search warrant the constitution reasoning of adopt I would tested for chem- having before important It is note Joyce court. analyzed the consti- Joyce The court icals. nor had not under arrest that Cordell was tutionality of the search as follows: The offi- charged with a crime. he been (1) there whether We must determine questioned him were concerned cers who privacy expectation a reasonable to hold and decided that he was suicidal (2) testing clothing; whether the A citizen protection. for his own him laboratory clothing at the state of the certainly has on a mental hold so, search; if constituted clothing. own privacy his expectation of this case whether the circumstances Here, clothing before took his the officers recognized exception fall within Human Services transported to the he was requirement. purposes For warrant in a lock- They placed the clothes Center. that the analysis, we assume our they clothes remained until There the er. time of the probable cause at the had later. The to the Lab sometime were sent the defen- test to believe that chemical get time to a warrant ample officers had started the fire. dant fall The does not clothing. search test at 1012-1013. to the consti- any exceptions within obtaining a war- requirement tutional Joyce found the sus- The court n rant. expectation privacy had an pect *11 I would find that Cordell’s coun- sel failing was ineffective for to seek sup-
pression clothing. I can- upon
not conclude based the record that prejudiced. The trial court
concluded that state had “presented
overwhelming evidence other than the
clothing” showing guilt. I agree Cordell’s
with the trial court there was over-
whelming supporting evidence Cordell’s
conviction without the chemical test of the
clothing. I with agree majority
result deny and would petition. SD 142
ESTATE Brian E. OF WATSON.
No. 22662.
Supreme Court of South Dakota.
Considered on Briefs Oct. Dec.
Decided