State v. Ashley

Dakota, Plaintiff of South STATE Appellee, Gen., Pierre, Geaghan, Atty. Frank Asst. ASHLEY,

Gary Defendant Roger A. Tellin- appellee; plaintiff for Appellant. Pierre, Gen., Atty. brief. ghuisen, No. 16944. Andera, Rabuck & R. Smith of Steven Dakota. Supreme Court of South Chamberlain, Smith, defendant for May 1990. on Briefs pellant. Considered Aug. Decided WUEST, Chief Justice.

Rehearing Sept. Denied appeals from Gary Ashley (Ashley), a Degree for Third conviction

Burglary. We affirm. approximately 7:30 in (Plank), morning, Deputy Lester Plank Lyman County, for received tele- Sheriff Police De- phone call from the Chamberlain advising burglary him had been partment at the Union Oil Com- committed Farmer’s Reliance, Plank pany in South Dakota. burglary shortly scene of the arrived He a window the thereafter. discovered Oil Com- side of the south Farmer’s building had out. He pany been broken of black leather also discovered glass caught broken had been which subsequently this window. Plank building and found several searched open. pried had His cash drawers been investigation approximately revealed ($8500)in eighty-five hundred dollars cash building. stolen Also had been from the system. missing security awas Novar very burglary day On the same had reported Bill Hamilton (Hamilton), parole agent, contacted the requested Department Mitchell Police finding Ashley. Hamil- their assistance supervising parole ton was attempting Ashley. He had been to con- days at his for tact home several unsuccessful. Hamilton was in- but was by police formed he would be contacted immediately police ascertained the Ashley. The record whereabouts also time, about this Hamilton was in- reveals they suspected Ashley formed guns neighbor- stealing involved ing counties. days later Hamilton

Five was contacted the coat. Hamilton did Shortly so. there- Dispatcher after, the Mitchell Police Hamilton concluded his search. proximately Ashley’s 5:00 a.m. and advised search, After the the evidence found at parked vehicle had been seen outside Ash- Ashley’s apartment was evaluated. The ley’s Upon apartment. receiving this infor- Laboratory Crime Ashley’s examined mation, Hamilton asked officer black leather coat and the black leather accompany him Ashley’s apart- would string found at the scene of the crime. verify ment as he Ashley wanted to that Ilya Zeldes, Doctor who conducted this ex- complying pa- was with terms of his amination, concluded that due pre- request, role. to this Pursuant Detective ponderance of matching characteristics and McCray (McCray)agreed accompa- Mark discrepancies, lack of the black leather ny Hamilton to residence. string originated from the left sleeve cuff approximately a.m., At 6:00 Hamilton coat. McCray arrived at residence. investigation An money wrappers Upon meeting Ashley, inquired Hamilton revealed the initials contained wrap- on the as to whether he could conduct a search pers were those of Rhonda Augspurger, an Ashley’s apartment. Ashley responded, employee of Tri-County State Bank in began “Go ahead.” Hamilton then Chamberlain, South Augspurger Dakota. Ashley’s apartment. search McCray, stated she wrote the though present, wrap- did dates on these part not conduct pers search, (April During May 1, 1989) the search. 1989 and his Hamilton money wrappers explained found cupboard represented two these dates when the located on Ashley’s apart- wrappers the east wall of and their placed contents were wrappers ment. The were marked “1000.” the bank investigation vault. Further re- The initials “R.A.” were written on one vealed these wrappers were similar to wrapper along April with the date given those which had been to Connie Su- The same initials were written on the other (Surat), rat bookkeeper at the Farmer’s wrapper along 1,May with the date 4,1984. Company, May Oil Surat strange Hamilton found it Ashley gone stated she had to the Tri-County money wrappers would have these since he State Bank on to cash several unemployed result, was at the time. As a checks. She returned to work that after- gave Hamilton the wrappers McCray approximately noon with thirty-six hundred placed bag who them in a tagged them ($3600) dollars in cash. for identification. When asked what he information, the basis all this Ash- doing wrappers, was with the Ashley said ley subsequently charged was Third brought wife must have them home Degree Burglary in violation of SDCL 22- from work. Ashley 32-8. jury waived a trial on this searching After Ashley’s apartment, matter and therefore a trial was scheduled conducted a search of to be held before the circuit court on No- search, Through automobile. Hamil- trial, vember 1989. Prior to Ashley ton discovered a black leather coat. He suppress moved the trial court to the coat gun pocket found a stun of this coat. seized at his grounds it According to the terms of parole, was seized in violation of his Fourth prohibited was from possessing rights. Amendment The trial court held guns dangerous or weapons. Considering and, proper result, seizure was this, placed the black coat on suppress motion to was denied. boulevard next to the McCray automobile. coat, then A noticed this trial was held to the particularly the court. At the end strings black leather hung of the State’s moved for a sleeves of this Knowing judgment acquittal. that a black This was denied. was found in After completed, the broken the trial window the Farmer’s Compa- Union Oil Degree Burglary of Third ny, McCray suggested that Hamilton judgment seize of conviction was entered. police partic rights due to Amendment from this appeals now has this issue ipation re- the search. While erred two the trial court

alleging by this previously addressed spects. First, he contends extensively Court, dealt admitted into other courts have not have been coat should occasions, it violation On a number issue. evidence because Appeals has Second- Ninth Circuit Court of of his Fourth in court erred has determined ly, contends the trial issue and he addressed this to sus- sufficient runs afoul parole the evidence was search that a warrantless Degree Burglary rights charge of Third parolee’s tain the Fourth Amendment of the of ‘stalking for denying in his motion a parole and the officer “acts as when acquittal. investigations by police to facilitate horse’ requirement.” circumventing the warrant of the the issue whether first address We Jarrad, 1451, v. States 754 F.2d United refusing suppress in to the erred trial court (9th Cir.1985), cert. denied 474 U.S. 1453 leather coat of admission see 96, (1985); 830, 106 S.Ct. 88 L.Ed.2d condition that as a Initially, we note trial. Fitzharris, 246, v. 521 F.2d also Latta agreed to submit gaining parole, of denied, 897, (9th Cir.1975), cert. U.S. reasonable to seizure whenever search and (1975). 200, In 46 L.Ed.2d 130 96 S.Ct. agent. by parole his cause was ascertained elaborating principle, the Ninth Cir agree- Ashley’s parole in is embodied This Appeals has cuit Court of stated: states: ment which stalking horse my parole I A officer is not a Seizure: will submit Search and residence, he, police, than the initiates the person, place of ve- rather property, performance of personal effects to search search in his duties hicle any When, a other parole time with or without officer. seizure at ... warrant, hand, whenever reasonable a parole search a ... officer conducts agent. aby parole request prior cause ascertained search on of and parole ... officials, with enforcement concert law dispute validity the of this Ashley does not [parole] case officer is in such a the Instead, that, provision.1 he contends un- guardian, acting, supervising not as the circumstances, the of his der seizure these speak, parolee, but as the so the rights Fourth Amendment coat violated his authority upon agent very whom merely underlying the search was because requirement a warrant is the for search subterfuge police investiga- for a a front or constitutionally imposed. In contends that tion. essence for acting agent as an the Richardson, 439, Hamilton was United States 849 F.2d denied, police a of his Cir.1988) when he conducted search (9th cert. 488 U.S. Ashley's he seized and when 171, (1988) 102 L.Ed.2d 141 S.Ct. Ashley, According police did (citations omitted). The aforementioned right a and seize not have search for principles upon reasoning are based sound Ashley’s apartment or vehicle Hence, items apply and are established. well we Therefore, under these circumstances. them to the facts in the case to Hamilton, police, acting agent as an for resolve the issue of whether the search and right did have either. clearly question seizure violated rights. Fourth Amendment Court, time, is for the first parole Applying the facts of this case to the called on to determine whether principles, agent’s parolee’s search aforementioned it is clear that warrantless acting parolee’s residence violated the Fourth Hamilton was not as any previously upheld year during police these which time officer ... This Court has waiver provisions. Cummings, may, prior In N.W.2d oral consent Defen- written (S.D.1978), following Officer, Court declared the dant’s Probation search Defendant suspended condition of a sentence not vio- day premises anytime night or rights: Fourth Amendment lative defendant’s gambling for machines. right to Defendant waives his be free [T]he period from search and seizure for a of one police agreed, they parol- he later or when searched the horse” apartment and seized parole agent ee’s searched residence while mere- reflects that Ashley’s coat. record ly present. Shotgun shells were spoke to the he before during the search and these shells Ashley’s compliance concerned about shotgun were later linked to used one Furthermore, parole conditions. it is Jar- bank robberies. The Court undisputed requested police rad held the court did district not err accompany him on a search of admitting shotgun shells into evidence Although apartment. police informed as the search and seizure was not conduct- Hamilton, apart- Ashley had returned to his appellant’s ed in violation Fourth morning ment on the It reasoned that the suggest did not to Hamilton parole search was initiated officer in manner that he should conduct a search of thus, performance of his duties Ashley’s apartment. Additionally, we note contrary contention, appellant’s McCray specifically that testified he was parole acting “stalking officer was not as a anything careful not to search for at Ash- agent horse” or Id. at 1454. police. of the ley’s apartment and it was Hamilton who shotgun For the same reasons the shells significant conducted the search. It is also properly were held to be admitted in Jar- Hamilton, through that his contact with the rad, Ashley’s hold that proper- we coat was had learned had been sus- ly present admitted in the case. Hamilton pected participating of in certain thefts. only search, not initiated the but he con- coat, McCray suggested After he seize the Hence, ducted it as well. we find no error may properly Hamilton have concluded this as to this issue. may coat related to thefts of have been suspected. Finally, which was we Ashley’s argument final concerns that only note the coat whether there is sufficient evidence upon suggestion McCray, of he was not present support finding guilty case to of ordered to seize the coat. beyond a reasonable doubt. con clearly support All of these facts presented tends the evidence at trial was conclusion had initiated the support finding, insufficient to such a Ashley’s apartment per- search of therefore, the trial court should have parole formance of his duties as officer and granted judgment acquit his motion for acting he was not horse” or tal offered at the end of the State’s case. agent when he searched Ash- disagree. We ley’s and seized jurisdiction It is settled in this well that a Therefore, we conclude the seizure of Ash- acquittal proper motion for is ley’s coat did not violate Fourth ly denied if the State has introduced evi Hence, the trial court which, fact, dence believed the trier of admitting did not err in this coat into evi- guilt is sufficient to sustain dence. Halverson, beyond a reasonable doubt. State v. sup- Our conclusion as to this issue is 886, (S.D.1986); 4 N.W.2d 39 ported by Ap- the Ninth Circuit Court of Wellner, State v. 324, 318 N.W.2d Jarrad, supra. peal’s decision The facts (S.D.1982). presented against The evidence Jarrad are much similar to those in the Ashley here is circumstantial. This Court case, except in Jarrad the law en- previously has stated: forcement officials conducted the search [Wjhere circumstantial evidence alone is parolee’s apartment. Specifically, the any on relied as one or more of the Jarrad parole agent facts in reveal that a elements, the had made essential circumstance or subjects been aware one of his suspected participating entirely circumstances must was a bank be consist- robbery. guilt ent with wholly later asked certain defendant’s accompany detectives to him on hypothesis a search of inconsistent with rational parolee’s apartment. The detectives defendant’s innocence and so convine- after until other did leave this bank doubt exclude a reasonable ing as to 28, 1989. April of the offense was defendant charged. guilt is the fact Consistent Surat, an of the Farmer’s employee 245, Best, 227, 232 N.W.2d 89 S.D. v. State Company, to the Tri-Coun- Oil went Union stated (S.D.1975). have also We get on cash. Bank ty State circum support a conviction that “to time, according given cash was She necessary to evidence, it is not stantial testimony, this cash was to her hypothesis of innocence.” every exclude wrappers similar to those found (S.D. Robb, N.W.2d State apartment. Also consistent with 1981); N.W.2d Schafer, leather guilt was fact that a black (S.D.1980). string found in the where window burglar gained into the Farmer’s entrance in this Upon of the record review Company building. expert An Oil present- are satisfied that the evidence we Laboratory examined from the State Crime entirely consistent ed in this case compared it to piece of leather and wholly inconsistent with Ashley’s guilt and strings leather coat.2 hypothesis his innocence. any rational that a black His examination revealed Ashley could not be record reflects string pulled had off of Ash- parole during the time by his officer coat, ley’s the black Pursuant to burglary was committed. scene crime matched found at the to con- agreement, parole length strings other coat going if he to be absent tact Hamilton string placed missing where the when extended his home Mitchell for an Further, report pulled expert’s off. the did so here. period Ashley of time. never discrep- examination indicated a lack of this Further, money wrappers were discov- two string ancies between wrap- Ashley’s apartment. These ered of the crime and the leather on the scene “1000,” indicat- pers contained number Ashley’s coat. wrappers ing $1000.00. once contained money Ashley’s possession wrap- Ashley’s possession wrappers is of these him pers question associates with the unemployed clearly unusual since he was cash stolen from the Farmer’s Union Oil present- time of the at the search. Company. leather coat and absolutely explaining no ed evidence found at bur- the black possession wrappers. of these On cross building him glarized associate with the Hamilton, it was revealed examination factors, of the crime. These con- scene Ashley told that his wife light evidence, the other sidered all brought wrappers home must have guilt. consistent with Al- are explanation, how- from work. every hypothesis though may of innocence ever, contrary testimony is to of Hamil- trial, this is not have been excluded at not testified wife had moved ton who sufficiently the test. evidence here is during early convincing out of residence so as to exclude reasonable of Third Further, doubt De- part May. Hamilton testified gree Burglary. a number of he visited residence May 5, 1989, prior times no one was but court, is When a trial held to the this Therefore, highly this residence. it is give must Court due deference trial wrap- unlikely Ashley’s brought wife weigh judge as the ultimate trier of fact to work, pers home from it is clear one since credibility the evidence determine the wrappers did the Tri-Coun- Macy, leave of the witnesses. 1,1989, (S.D.1980). Giving until ty Bank vault after while N.W.2d this appeal complains peal, complain about the founda- evidence about this admitted expert’s findings. expert for the set pursuant stipula- tion to and accordance with finding regarding examination in out report. Burke, tion. State v. 239, 225 Neb. 408 N.W.2d Ashley stipulated to the admission of (1987). cannot, Therefore, report. judge deference to the trial conclude it erred we cannot

Ashley guilty Degree Burglary. Third

Judgment affirmed.

MORGAN, HENDERSON and JJ.,

MILLER, concur.

SABERS, J., specially. concurs

SABERS, (concurring specially). Justice specially point

I out that if this write depended upon pa

search and seizure agent’s

role ascertainment reasonable

cause, completely. it would fail “Reason “probable

able cause” and cause” are com terms,

parable Dictionary Black’s see Law (5th ed.1979), lacking wholly here.

However, Ashley consented to this search money wrap discovery

and the of the two

pers provided reasonable cause to search Therefore,

the automobile. the extended concerning

discussion horse” unnecessary.

is generally See Schneck Bustamonte,

loth U.S. 2041, 2043-44,

S.Ct. 36 L.Ed.2d

(1973) (“It equally well settled that one specifically exceptions established requirements of both a warrant and

probable is a search that is conduct cause consent”). pursuant

ed Garrett,

Glen GARRETT and Elizabeth wife;

husband and and Michael Gar

rett, Garrett, Brad Garrett Jeff Appellants,

Plaintiffs and

BANKWEST, INC., a South Dakota cor BankWest, N.A.),

poration (formerly, Lynass, individually

and Jack and as BankWest, Inc.,

an officer of Defen Appellees.

dants and

No. 16691.

Supreme Court of South Dakota.

Argued Jan. Aug.

Decided

Case Details

Case Name: State v. Ashley

Court Name: South Dakota Supreme Court

Date Published: Aug 1, 1990

Citation: 459 N.W.2d 828

Docket Number: 13944

Court Abbreviation: S.D.