State v. Johnson

Dakota, Plaintiff of South STATE Appellee, Christy JOHNSON, aka

Christy Carrow, Defendant and

Appellant. Dakota, Plaintiff of South

STATE Appellee, JOHNSON, Defendant

Brent Appellant.

Nos. 18060.

Supreme Court of South Dakota. Aug. on Briefs 1993.

Considered

Decided Dec. 1993.

Rehearing Granted Feb. Barnett, Gen., Atty. Bogue,

Mark Scott Gen., Pierre, Atty. plaintiff Asst. for appellee. McCulloch, Minick

James E. and McCul- loch, Vermillion, appellant, for Johnson. Groe,

Wayne Groe, Stickney D. Elk Point, appellant, Brent Johnson. SABERS, Justice. delivery

aAs result of a controlled drugs by agents, DCI Defendants were con- drugs appeal. victed of We affirm.

Facts On November a United States Express package Postal Service Mail ad- (Christine), dressed Christine Johnson Rt 12A, Beresford, 1 Box South Dakota from (Davis) inadvertently Chris Davis deliv- by post ered to Citibank Sioux Falls office personnel. following day, per- Citibank opened package sonnel discovered powdery “white substance” inside. Sioux substance, Falls were notified. The weighed slightly grams, more than two positive methamphetamine. field-tested Investigation State Division of Criminal (DCI) agents decided to make controlled Agent to Christine. Barry Mennenga (Mennenga) up bindles, approximately gram fake each (Exhibit 8). weight One of the bindles con- inositol, “cutting agent.” tained mostly other bindle contained inositol with a methamphetamine. small amount of the attempt After an unsuccessful to deliver day, Agent DCI John Dal- (Dalziel) ziel left a note at Christine and indicating Brent Johnsons’ mobile home would be delivered before 10:00 a.m., Tuesday, November Shortly Tuesday, before 10:00 a.m. on Dal- ziel, posing employ- as a U.S. Postal Service determinations, ee, any discretion. As to factual to the Johnsons’ delivered scope clearly on the met Dalziel our of review is the residence. Christine erroneous identi- porch appeal, front of the mobile home. She standard. On this court must deter accepted con- findings fied herself and mine whether the trial court’s taining weight Within seconds af- the two bindles. of the evidence.” (S.D. accepted package, Brings Plenty, Dalziel ter Christine 459 N.W.2d 399 1990) (citations omitted). possession of metham- arrested Christine “This court will package phetamine retrieved the suppress overturn the trial court’s decision to suppress her. or not to if we find the trial court has exercised its discretion to an end or went inside the mobile home to Christine purpose justified by, clearly against (Brent), husband, Brent Johnson tell her Zachodni, reason and evidence.” v. State accompanied Dalziel she had been arrested. (S.D.1991) (citations 466 N.W.2d her, carrying Agent package. DCI Har- omitted). (Harvison), vison who followed Christine and home, argue Dalziel into the mobile found and un- the fruits of the shotgun lying suppressed a inside the front door. loaded search should be because the in- Defendants refused to consent to a search of tentional omission of material facts in the the mobile home.1 affidavit invalidated the warrant. claimed omission is the fact that the was taken Beresford containing methamphetamine longer was no package in placed the station. Dalziel the Johnson residence. “The affidavit the trunk of his car and returned to Vermil- only support need show facts sufficient to a lion with Harvison to obtain search war- finding probable Therefore, cause. omis- Gillespie Mennega rant. and Officer Dave misrepre- sions of other facts would not be stayed inside and secured the mobile home sentations unless cast doubt on the exis- destroyed so that evidence was not while probable tence of cause.” United States v. obtaining Dalziel and Harvison were Dennis, (8th Cir.1980) 625 F.2d in the search warrant. Brent remained mo- (citations omitted). question “The then be- hours, approximately bile home. After 1½ alleged comes whether the omissions would Dalziel returned to the mobile home and probable cast doubt on the existence of executed the warrant. Brings Plenty, cause.” 459 N.W.2d at 401. guilty possession Christine was found justifying Probable cause a search is pound than and more present where the facts found the court marijuana. guilty Brent was found magistrate or the would lead a reasonable pound of more than one of mari- prudent person fairly to believe it

juana. ap- Defendants raise five issues on probable that a had committed crime been peal. We affirm. and that evidence relevant to the crime 1. Search Warrant would be uncovered the search. Al- Suppress Defendants filed Motions to though supporting probable the evidence police in the evidence obtained cause determination must be more than a According search of their mobile home. suspicion, proof bare it need not establish Defendants, failure to in the affida state beyond proof a reasonable doubt or even longer in vit that was no by preponderance. which, if residence was material omission Zachodni, (citations 466 N.W.2d at 629 omit-

included, prevented finding would have ted). instance, probable In this cause means upon probable cause which the search war reason to believe that contraband will be rant was issued. The motions were denied. located on the when the search scope sup- place. generally v. “Our of review on a motion to takes See United States Garcia, (2nd Cir.1989), press is whether the trial court abused its 882 F.2d 12, Magistrate sign morning the deliv- 1. On the of November would not the warrant until after Mary Cody request Dell had denied Dalziel’s ery was made. stating anticipatory search warrant that she Dalziel, denied, then into taken the mobile home cert. Bay officer, also arresting See L.Ed.2d 336 because Christine (S.D.1991); singer, 470 N.W.2d go wanted to back into the home to tell Brent 465 N.W.2d had she been arrested. The evidence was delivered and seized outside home of the fact that the omission illegal entry. in the residence does not rise and was not the result of an longer nowas misrepresentation of a because to the level While the affidavit states that doubt on the existence of does not “cast residence,” was “delivered to her which was Dennis, 625 F.2d at 791. cause.” true, way depended the warrant in no interception reported the of a The affidavit during securing pro- observations made containing grams of metham Habbena, cess. See State to phetamine addressed Christine Johnson (S.D.1985) (“[T]he in evidence this case in fact received that at and that she preparation shows that the of the affidavit accompanying the listed address. The letter prior securing was commenced and the knowledge her that she would be established information as to the address and the fact A receiving package. reasonable infer buy money and additional cocaine not an inci ence was that this was isolated present were in the house was obtained from dent and that the home contained other con person prior a third outside the house and to substances, incriminating trolled as well as entry[.]”); generally Segura See v. Unit- 840; Baysinger, 470 evidence. N.W.2d En States, 796, 814, 3380, ed 104 S.Ct. Clearly, gel, 465 787. the affidavit 3390, (1984).2 599, Here, 82 L.Ed.2d 614-15 together attached letter to with the Habbena, inas the warrant arose from a prudent person would a reasonable and lead legal source of and information therefore was fairly probable to that contraband believe valid. The evidence seized thereunder need in home and that would be located rele Habbena, suppressed. not be 372 N.W.2d at vant would be uncovered 455-56. fact search. Id. Because the omitted cause, finding not to a material Mennenga Gillespie stayed and inside need not consider whether its omission we the mobile home and secured it so that evi Dennis, was intentional. 625 F.2d at 792 destroyed dence was not while Dalziel and (citation omitted). Harvison returned to Vermillion to obtain the argue also Defendants the evi search occurring warrant. Conversations in during dence seized the search was tainted during side the home taped this time were upon affidavit which the because the search played jury during the trial. warrant was issued contained fruits of an argue tape was inadmis entry illegal into their home. While informa sible because it is the direct fruit of the illegal entry may the result of an tion that is illegal “securing” process. securing pro The not used to obtain a search warrant not, however, illegal. cess was entry placing of that fruits the search [Sjecuring dwelling, prob- affidavit, the basis of the statement warrant “delivered to cause, prevent able the destruction or her residence” the affidavit is not informa removal of illegal evidence while a search warrant entry. tion obtained as a result of an being sought given is not itself an unreason- Christine outside dwelling the mobile home where she was able seizure of either the arrested. or its point was retrieved at that contents. According Segura: entry occupation apartment the Court in initial or agents was needed or used to secure the None of the information on which the war- beyond dispute warrant. It is therefore rant was secured was derived from or related possessed by agents the information any way entry petitioners' before to the initial into apartment entered the apartment; constituted an in- the information came from sources dependent wholly discovery entry source for the and seizure unconnected with the and was agents challenged. known to the well of the evidence now before initial entry. during No information obtained 468 U.S. at 104 S.Ct. at 3390. asserted,” the truth of the matter 19- SDCL 16-1, except provid and “is not admissible exigent cir- entry in the absence [A]n 19-18, by chapters ed law or 19-9 to illegal.... who [0]fficers cumstances is inclusive, prescribed by other rules probable cause and who are Supreme Court.” SDCL 19-16-4. These obtaining have no process of a warrant not, however, prove letters were offered to reason to enter the truth of the matter asserted and there issues, exigent absent circum- warrant fore, hearsay. They do constitute course, which, justify would stances offered, rather, to show Christine’s knowl entry. of, with, sender, edge familiarity 810, 812, Segura, 468 at 104 S.Ct. at U.S. Davis, drug terminology, trade and the (emphasis 82 L.Ed.2d fact that Christine knew the contents of the omitted).3 added) (citations Clearly, exigent package delivered to her. United States v. If officers had circumstances existed. (4th Cir.1988), Safari, 849 F.2d cert. it, the home and secured it is not entered denied, U.S. probable that Brent have re highly would L.Ed.2d 363 The trial court did not destroyed Segu moved or the evidence. See overruling objection err Christine’s ra, 468 U.S. at 104 S.Ct. admissibility. their Id. (cit J., (Stevens, dissenting) L.Ed.2d at 618 3. Motions for Severance Louisiana, ing 90 S.Ct. Vale (1970) (authorities may 26 L.Ed.2d 409 argue that the trial court erred in enter a residence without a warrant order denying in their motions severance. preserve if there exists a demon to provides: SDCL 23A-6-24 of imminent destruction of that strable threat may charged Two or more defendants be evidence)). Additionally, the seizure was for information, in the same indictment or if period reasonable of time. This is not a they alleged in participated to have seizure, reasonable at its instance where act or in same transaction or the same inception, became unreasonable because of constituting series acts or transactions 823-24, 104 its duration. Id. 468 U.S. at an offense or offenses. Such defendants (while 3395-96, 82 L.Ed.2d at 620-22 may charged in or more counts may justify entry exigent circumstances together separately, and all the de- into, of, impoundment premises and charged each need not be in fendants warrant, must be pending a the duration added). (Emphasis count. reasonable). Therefore, entry and secur justified legal. ing was and The trial court must balance the against rights of the defendants to a fair trial Admissibility of Letters judicial efficiency, in the interests of argues that the court erred Christine government possible prejudice cludes to the in admitting statements contained letters time-consuming, expensive, because of two her, including addressed to the letter found Andrews, duplicitous trials. and Davis, did testi who (citations omitted). (S.D.1986) fy at trial. Christine claims the statements to is a matter within the The decision sever hearsay. are inadmissible of the trial court and we will sound discretion “ statement, sever ‘Hearsay’ other than one not reverse a denial of a motion for showing prejudice by testifying while at the ance absent a clear the declarant omitted). (citations hearing, prove of discretion. Id. trial or offered evidence to abuse not, securing procedure. mg however, State did court held 3. The Defendants claim this ruling. the trial court’s securing process illegal seek a review of is an Habbena that the that the trial act. A review of Habbena discloses went on to note in Habbena that "the This court securing process court found that the initial entry court found the to secure the trial sup- illegal exigent a violation of Habbena’s Fourth Amendment lack circumstances rights suppressed to the pressed a statement made defendant to the a statement made warrant, along officers before 372 N.W.2d at 454. Unlike Habbe- officers[.]” the arrival na, marijuana actually exigent existed here. dur- circumstances with seen officers After Dalziel read Christine her Miranda argues prejudiced that he Brent rights, he asked her whether she wished to joinder of his trial with Christine’s talk them at that testimony to time. amount of the only a small because “Uh, presented dealt with the mari and evidence Christine: no.” guilt trial to juana charge and the amounted “Okay. Why Dalziel: don’t we call the PD association, particularly since he is mar transport.?” to come down and “Admission of evidence ried to Christine. know, thing, anybody Brent: “You for one only one of several defendants does anything can a letter and send write prejudice its own create sufficient not on anybody. you I could sent one.” proper limiting instruc justify reversal when “Yeah, you Dalziel: could.” (citations Id. jury.” given tions are “Yeah, you Brent: know.” omitted). one, you expecting Dalziel: “But you?” though, weren’t objection during trial response to an “Uh, yeah, expect Brent: we our mail all photograph depicting materials contained the time.” Christine, delivered to “Okay. good. Dalziel: That’s That’ll stated, jury so the under- trial court “Just work.” stands, anything alleged to do with the meth- Bruton defines inculpatory statements as amphetamine only deals with Christine John- “powerfully incriminating extrajudicial state- certainly son not Brent Johnson. He ments.” Id. 135-36, 1627-28, 88 S.Ct. at methamphetamine posses- charged isn’t Contrary 20 L.Ed.2d at 485. to Christine’s sion, repeated is.” The court claim, was not she incriminated Brent’s during Jury In- that admonition the trial. “powerful- statements because were not relating that evidence struction No. 17 stated ly incriminating.” legal “In the absence of a had no bear- ground, there should be no order for sever- ing charge against on the issue of the Brent. Andrews, (citation ance.” 393 N.W.2d at 79 language that such is a “This court has held omitted). Christine has failed to “demon- cautionary sufficient instruction which affirmatively joint preju- strate trial guards against prejudice to an individual de- Id. possibility diced the of a fair trial.” (citation trial.” Id. joint fendant in a omit- (citations omitted). ted). an Brent has failed to show abuse of 4. Lesser Included Offense Instruction part the of the trial court. discretion on argue that the trial court Christine claims she incriminated jury should have instructed the on the lesser during Brent’s statements made the “se included offense of of less than v. under Bruton United curing” process pound marijuana. According of to De States, 123, 1620, fendants, separation 391 88 20 U.S. Dalziel’s of the stalks (1968) marijuana plant and of L.Ed.2d 476 in that the admission of stems the from the leafy marijua portions places quantity the damaged knowledge this evidence her on the Bruton, na into issue. In issue. the United States Su inculpatory preme state Court “held that an “There are two tests that must be satisfied defendant, ment as to the a code- determining whether the trial court should through party fendant and related a third submit a lesser included offense instruction trial, witness at violates the defendant’s Sixth jury. test, legal The first ais right Amendment to confront his accuser.” Black, second is factual.” 494 Leapley, Iron Shell v. 868, omitted), 503 N.W.2d (S.D.1993) (citations 377, Bruton, (S.D.1993) added) (emphasis (citing (S.D.1993). 'd, 506 N.W.2d 738 aff 476). 1620, 88 S.Ct. 20 L.Ed.2d test, to meet factual order there must be statements, however, A review of the fails to justify jury sufficient evidence which would part establish an abuse of discretion on the concluding greater offense was trial denying court in severance because not committed and that a lesser offense was. “[Tjhere inculpatory. conflicting statements are not must be evidence with greater question jury. testimony offense indicat- regard to the element of testing of the lesser.” State ed that that is not element after substance found Oien, determining 302 N.W.2d and it was methamphetamine, Agent Mennenga placed Department Falls Police chem- The Sioux a small amount of the weighed marijuana 1.39 ist testified not an with inositol. This is instance where 22-42-1(7) marijuana defines pounds. SDCL destroyed the State evidence it was before any genus parts plant canna- as “all chemically analyzed (spoilation inventoried or not, bis, growing or its natural whether evidence). Kietzke, of the See State v. state, except drying or unaltered (1971). (Evi- S.D. 186 N.W.2d (Em- crumbling.” curing crushing or destroyed dence which is it is invento- added.) simply in this ease phasis The facts chemically analyzed (spoilation ried or support lesser do not the submission evidence) an inference presump- “creates jury. included offense instruction to the De- tion that not supported it would have demonstrate error. fendants failed to defendant.”) charges against the The bin- Michigan,v. Marji, Mich.App. See destroyed, they were simply dles not (where (1989) delivery. not tested spoilation after doc- grams delivery of 476.92 of co- showed does apply trine not and the trial court was caine, support not the evidence did convic- refusing proposed correct Defendants’ in- delivery lesser amounts tions struction.5 failing trial court did err in instruct on offenses).

these We affirm. on Failure to

5. Instructions Test MILLER, C.J., AMUNDSON, J., trial, During the numerous items de concur. “green leafy scribed as substances” were placed in full marked as exhibits and view of HENDERSON, JJ., WUEST and dissent. objected jury. These exhibits were WUEST, (dissenting). Justice however, and not received into evidence be Affected Probable Cause Search as chemically cause had not been tested to Omissions From Affidavit their Exhibit determine substance. bindles, was also contained never Probable cause to search the resi- Johnson after the controlled but was tested is material dence affected omissions from into received evidence. support in the war- affidavit submitted Brings Plenty, rant. argue See State that were entitled Defendants (S.D.1990). A review of requested jury to their “failure to test” in- pertinent and omissions in order. facts is struction because these items never indicates, tested.4 A review of the record 9, 1991, Saturday, en- On November law however, Defendants, requesting in their forcement did not have a search officials instruction, jury argue proposed did not warrant for the Johnson’s residence any applicability of the instruction to exhibits Beresford, they attempted nor had to obtain Therefore, any than other Exhibit 8. Nevertheless, 9, the DCI one. on November exhibits other than Exhibit agents attempted two controlled deliveries preserve have failed the record. Express package holding “doc- Mail bindles, containing refusing an unknown As the trial court noted in Defen- tored” instruction, methamphetamine proposed jury amount of found dants’ whether intercept- original Express package Mail Exhibit 8 contained was a charges proposed supported De- jury provid- not have fendants, 4. Defendants' instruction ed: instead have favorable but would been to Defendants. preserve properly of the or test Failure evidence, purposeful certain concealment evidence, argument disposes that her 5. This of Christine's the State of certain creates an infer- acquittal judgment presumption motion for should had the been ence or trial, granted methamphetamine count. preserved, been on the tested or introduced it would ed via the mailroom. securing Citibank Both at- Brent and due to “exi- tempts delivery gent failed. Daiziel left a no- Basically, circumstances.” the affidavit indicating tice would be deliv- alleged that because Christine had been sent shortly Tuesday, ered before 10:00 a.m. on Express an package containing Mail 2.1 interim, 1991. In the November a deci- grams white, powdery of a substance consist- sion was made to obtain a search warrant. ing of quantity unknown some of metham- Monday evening, On November phetamine, there must be other controlled typed Daiziel a search warrant for the Beres- marijuana substances and in her residence. ford residence. At about 8:30 a.m. on Tues- No facts were contained the affidavit to day, Magis- November Daiziel went to show possessed that law enforcement officials Mary Cody trate Dell in Vermillion to obtain other probable evidence indicative of cause signature warrant. Daiziel testified that a crime had been committed.1 Magistrate Cody said she “would not “A only search warrant probable valid if sign delivery it until after the was made.” cause has been magistrate.” shown to the day, At 9:50 a.m. on the same Daiziel made Robinette, (S.D. State v. attempt the third Express deliver the Mail 1978). residence, package to the Johnson did hand generally Probable cause is defined as the residence, it to Christine outside the existence of facts and circumstances as immediately arrested her would warrant an honest belief in the mind methamphetamine. took Daiziel reasonable, of a prudent acting man on all Christine, back placed it in the locked the facts and circumstances within the car, trunk of his and returned to Vermillion knowledge magistrate that the of- to obtain a Magistrate search warrant from been, fense has being or is committed and Cody. upon Daiziel testified that his arrival property that the sought place exists at the Vermillion, “just court, he drove to the designated. in, it, signed went she and came back out.” Id. at 577. Dalziel’s affidavit stated that Christine “did Express receive” the Mail and that previously This court has reviewed the ex- it was “delivered to her residence” istence of conjunction cause facts, i.e., DCI. The affidavit omitted certain delivery controlled of a package containing opened was never or taken cocaine. Engel, 465 N.W.2d 787 by Christine, into the residence and that it Baysinger, See also State v. presently (S.D.1991) locked in the trunk of Dalziel’s N.W.2d (detailing the Magistrate Cody car. was not procedure told that used for a controlled of a already cocaine). Christine had been arrested tak- anticipato- en to police the Beresford ry station. Nor issued, search warrant was ordering the Magistrate Cody told that as Daiziel stood officers to search cocaine, her, agent DCI and Beresford but illegal also for drugs, parapherna- other home, lia, were inside the guarding Johnson or other evidence.2 465 789. Supreme affiant, 1. The North Dakota Court has having stated learned from other law special officers, protection given "[I]n that the view of experience enforcement in controlled deliveiy, the home” the Fourth Amendment to mail the U.S. believes that the residence will drugs Constitution and a similar contain drugs, state other or constitutional evidence of other provision, "something as paraphernalia, well as additional and more narcotics ob- notes and jective papers help identify than the facile will conclusion that the sender of contraband the package, possible ordinarily kept is required the evidence of home should be other crimes and violators, drug probable identities of other establish cause to as well as the search the cocaine [S]uspicion, package. in the above anything home.... specific, described without more Engel, added). (emphasis 465 N.W.2d at 789-90 probable does not amount to cause to Mische, Such additional information or statements the [a search of home].” State v. (N.D.1989). pres- affiant were absent from the affidavit in the Further, Engel, ent case. the officers were to 2. Engel The affidavit para- also contained a drugs search for the that were delivered to the graph providing probable the case, cause for the wider present residence. In the there was no search, apart delivery. from the controlled That drugs need to search for the “delivered” to the paragraph residence, stated: Johnson since Daiziel knew that the signed anticipatory search affidavit casts on judge that the ziel’s “doubt the existence not to orally probable Brings Plenty, the officer cause.” admonished of warrant package the warrant until after the Clearly, important execute N.W.2d at 401. it was Id. An officer was delivered. magistrate that the be delivered delivery of a dressed as package, a controlled premises a and on before search minutes, thirty agent. waiting After a not, UPS place. Johnson residence took If it were This court stat- the warrant was executed. signed warrant it she would when ed: presented to first her. was Reading affidavit in context and look- taken Note should be of the statements of realistically a ing with at the circumstances high regard of other courts states upholding probable cause toward view omissions from affidavits as this affects the possible, apparent if it is determination probable existence of cause: had of [the defendant] that once protection against constitutional war- [T]he hour, had cocaine for officers half privacy endangered invasions of rantless is cause not that the probable to believe by the concealment of from relevant facts premises, cocaine was on the but delivered court issuing district the warrant. delivery no to believe was also parte issuing ex issue and the Warrants associated mistake and other items rely upon court must the trustworthiness might drug use found there be before of the affidavit it. We believe the well. pertinent must have all the court facts added). (emphasis also noted at 790 We Id. in order to it determine whether that, cause the entire “Probable to search sufficient, properly there is obtained evi- drug-related cannot premises for other items providing probable dence cause for a war- separated artificially probable cause prosecutors Police rant to issue. owe the cocaine sub- to search for which was the court, duty particularly candor to of ject delivery.” of the controlled Id. parte light of the ex nature of these Engel materially distin- The facts proceedings, and must withhold not infor- present guishable from the case. may taint the source mation prem- delivered was still on the they put probable cause forth. was ises at the time search warrant Alaska, (Alaska 584 P.2d Cruse here, presented executed. Under facts omitted) added). 1978) (citations (emphasis opened the delivered was never Likewise, Supreme the Colorado Court stat- Christine, only momentarily, was held her ed: into from the and was taken and removed residence Dalziel. The was fact that an state- [T]he officer-affiant’s premises on the either the search war- when in warrant not false ments affidavit are obtained, rant executed. when was necessarily scrutiny judicial does not end subject affidavit_ Since the the controlled Be- the contents of the present premises, proba- was not judicial decision officer cause the of a ble cause to search entire to issue a warrant is the cornerstone asked drug-related separated other items must be our protections constitutional from the cause to search governmental priva- unlawful invasions trunk. safely in Dalziel’s cy, paramount importance —which it is of complete based on decision be Whether an omission from an affidavit factual determinations predicate. Probable cause finding probable to a of cause is a material invariably based on drawn question of law and fact and is re mixed inferences in Condo, language appearing warrant the 782 viewed de novo. United v. States from affidavits_ has, (9th therefore, Cir.1986) rec- 1502, It been (citing F.2d 1506 United (9th 1482, in some state- ognized that circumstances Ippolito, v. 774 F.2d 1485 States Cir.1985)). may mis- my opinion of officer-affiants be so It is that the omis ments leading of the of material facts from Dal because omission sion of the above-mentioned knowledge. Cody Magistrate was Express of his car. without that Mail was in the trunk 690 securing nearly the of premises known to the affiant at time the as

facts finding repugnant. was executed of affidavit that probable cause based on such statements may mere fact that [T]he law enforcement may be deemed erroneous. by more be made efficient can never itself Winden, 578, v. 689 P.2d 582-83 Colorado justify disregard of the Fourth Amend- (citations (Colo.1984) omitted) (emphasis add investigation The ment. of crime would ed). Kurland, See also 28 California always simplified if warrants were un- 376, 667, 671-72, Cal.Rptr. 168 618 Cal.3d necessary. But the Amendment Fourth (1980) 213, (stating that

P.2d 217-18 reflects view of those who wrote the “crucial, inference-drawing powers of the Rights privacy person’s Bill that of of by magistrate” are hindered as much omis property may totally home and not be by outright as misstatements an sions simplic- sacrificed the name of maximum affidavit). ity in enforcement of the criminal law. presented magistrate affidavit The Arizona, 385, 393, Mincey v. 98 pack- in this case withheld the fact that the 2408, 2414, (1978). 290, S.Ct. 57 L.Ed.2d 301 age longer no premises. was on the The that, Supreme The Court has also stated magistrate, when told that had pre- to designed “The Fourth Amendment is “delivered,” reasonably infer been could from vent, simply redress, not unlawful language that the was on 752, California, action.” Chimel v. U.S. 395 In premises. light of refusal her earlier 12, 2034, 12, 766 89 n. 2042 n. warrant, sign likely exactly it is that is (1969). L.Ed.2d 696 n. Complete what she did infer. candor on the event, any “exigent In no circumstances” part lawof enforcement officials would direct pack existed in this case. Express Mail magistrate provid- been should have age magistrate reasonably con regarding ed the whole set of facts —which templated would be search— the focus of the morning’s events. The omission these safely was locked the trunk Dalziel’s finding facts from affidavit affects the regard circumstances, exigent car. In this probable cause to search For the residence. noted may court has that the fact that “there reason, I dissent on this cause delay getting be some or inconvenience in determination. search warrant is not a valid reason for Securing “Exigent Cir- averting the requirements.” constitutional Premises — cumstances” Heumiller, 317 N.W.2d (S.D.1982). And, ap Iowa stated an majority opinion quotes language court, peals when [the] “the creation of exi proposition support securing of the gency was the officer’s announcement to. the officers, the Johnson residence while [defendant] he wished to ... search waiting warrant, legal. for a search Seg appropriate rule applied to be such a U.S., ura U.S. 104 S.Ct. profit is that may situation the State 3380, 3388-89, 82 L.Ed.2d 612-13 forego officer’s choice to the constitutional fact, language part this was not a process by attempting exigency to create an majority holding Segura. Part IV of the Sullivan, his own actions.” Latham v. opinion, quotations from which these are tak (Iowa App.1980). N.W.2d en, Burger, written Chief Justice joined writing. O’Connor Justice attempt accepted than Rather to follow an Thus, persuasive authority this is not procedure for a controlled as out- legality securing in this in lined in the officers Habbena, stance. See also State v. present in the case chose to a different follow (S.D.1985) (“We find the course. The State profit should not precedental decision be of little [sic] val by pleading exigent that choice circum- ue.”) justify stances —where none existed —to

Although proceed illegal securing did not with a of the residence. Johnson search, entry Thus, warrantless opinion’s the warrantless I majority dissent

691 capacity “... securing prem- does not to mind have determination appraise legal. keep, separate, collate and evidence ises was Andrews, to each See relevant Defendant.” Additionally, agree Justice I with N.W.2d 79. Recall number 393 joinder. writing on the issue of Henderson’s “simple” in this trial. and witnesses exhibits facts, separate trials should these Under objection raised Brent Johnson Counsel granted these defendants. have been exhibits introduced South Dakota to 36 HENDERSON, (dissenting). Justice methamphetamine charge; trial court ad- objections monished on first three but should reversed These convictions not the other jury trials for remanded for new the cases joinder Prejudicial effect of the this reason: it two-day Another trial —would have been single v. in a trial. State of both defendants consuming, expensive, duplicitous? so time (S.D.1988). Dixon, Both 419 699 N.W.2d Here, marijuana Surely charge not. in- timely for sever- made motions defendants just three and four volved witnesses exhibits. ance. SDCL 23A-8-3. in an engulfed avalanche Brent Johnson was testified. Neither Neither defendant My evidence. view- (therefore) and cross- able to confront were Dixon, supported by quote in 419 point is Out of court state- each other. examine Wright, to 1 N.W.2d which refers ments, defendant, hear- either were Procedure, Practice Federal Joinder of against the say admissible evidence and (1982), § I & 143 Offenses Best, 76 76 S.D. declarant. developing quote “... is that ‘the trend (1956). 913 N.W.2d important is whether evi- most consideration of one offense would been admis- days are dence jury trial reflected Two ” offense, ...’ at a trial of the other by the State sible with 48 exhibits offered record of law to this set of pertained Applying statement Dakota.* Twelve of South facts, Only answer marijuana charge. eight of these is NO. Perforce, the lion’s were admitted. twelve Lastly, of Brent the admission Johnson’s pertained to Possession share of evidence these both of defendants statements lodged charge a Controlled Substance right to confron Christine Johnson’s violated Thereby, Brent against Christine Johnson. us, have, a violation of tation. We rights fundamentally fair trial to a Johnson’s as the Rule. has become known Bruton what underlying purpose of devoured. The

were States, 391 88 Bruton v. United U.S. See system justice efficiency. judicial is —not (1968). 1620, 20 In Iron L.Ed.2d S.Ct. Here, one trial. trials were crowded into (S.D. Leapley, v. 503 N.W.2d Shell (S.D. Andrews, 1993), opinion a unanimous handed down 1986), majority opinion, there cited (just August 4 months this Court charges. Not in this common true wrote this Court: ago), Justice Amundson charged, as case. Brent Johnson was not purpose Clause’s the Confrontation Since wife, his Possession a Controlled receiving a fair to assist a defendant is Substance, namely methamphet II Schedule trial, although pollution perfect this amine. reliability certainly undermines scalpel sharp can A is a instrument which is prosecution prejudicial in this result cleanly. Not flesh in one stroke. And cleave Leapley, Shell. Adams to Iron ju-A in a criminal case. so with evidence finely scalpel; ror’s mind not a cannot to a criminal statements contributed These complicated exhibits excise evidence. Where It trial, was no harmless error. conviction. There re- produced and evidence Chapman v. prejudicial error. judge was frequent of a trial quiring admonitions Califor 824,17 nia, L.Ed.2d 705 U.S. pertains one defendant Evatt, defendant, juror’s Accord Yates v. not to other * simple not. portray It was attempts this as a trial. It State called 11 witnesses.

—, 114 L.Ed.2d believe delivered cocaine was premises, on but the also believe that the was no mistake and that other Phony The Postman drug might items associated with use Additionally, is a reversal warranted to found there as well. remedy alleged possession effects of the Engel, 465 N.W.2d at 790. DCI adhered to and Christine search procedure Baysinger, this in State v. of her home. (S.D.1991). agent a N.W.2d 840 After DCI morning, One Christine Johnson was delivery, was unable to make a UPS he left a standing home outside her mobile when a instructing pick up note the addressee postal approached employee United States Later, package at the UPS office. the defen- name, asking her. for her he After handed Thereafter, dant did so and returned home. Express Christine an Mail ad- request a search warrant was made and exe- accepted signed dressed to her. She for cuted before law officials. enforcement delivery, special a familiar task to most people. happened is not typi- next so What put Dalziel the cart before the horse. He Standing cal. holding front of her home a intuitively illegal activity knew an had oc- sealed, piece of fresh unopened mail from the curred, but blew his cover he had the hands, postman’s suddenly Christine heard I do not propose evidence. that Christine “You’re arrest.” words: under Johnson be exonerated from crime due to a disbelief, expressing post- After her technicality; protect I rather wish to citizens man, Dalziel, agent undercover DCI a/k/a Republic prosecution of this from facing remarked, you ‘“Cause know what’s inside merely accepting mail from U.S. Postal unopened package there.” took the He still Engel Baysinger, Service. In both revealing “what’s her without inside physical possession defendant had of the con- Following there.” so she could traband within his home and had sufficient arrest, inform husband her Dalziel packages’ time to check contents and act carried inside the In- house. delivery. on a mistaken Christine held for a side, neither Christine nor her husband few envelope moments cardboard decorat- package. agents touched the After two other ed logo with the U.S. mail of one of this premises, arrived to secure the Dalziel de- country’s great symbols: eagle. the bald At trunk, parted, placed in his no time did the State establish that she had obtained a search warrant the house knowledge system. misuse of mail our upon possession based Christine’s meth- Frankly, employee at Citibank who first amphetamine in her home. This is remarka- mistakenly opened and discover- possession ble. Only No such occurred. law ed drugs demonstrated more constructive agent possessed enforcement Dalziel possession possession than Her Christine. drug package within the Johnson home. In clearly against weight of the evidence. fact, pick up drugs Christine did not even Brings Plenty, State v. day. when she outside her home stood up picked She her mail! controlled substance was (S.D. house In State v. 465 N.W.2d 787 under Dalziel’s 1991), possession. controlled Chris- accepted Engel from an Express tine held the Mail for drug a few agency undercover enforcement officer acknowledged seconds and never posing deliveryman so much as a UPS and took package, containing cocaine, expecting inside. “I’ve been this” remark. re Engel’s issue, thirty mained in order for properly home for the warrant to minutes some before law took possession enforcement officers action evidence of constructive should Engel’s possession. upheld skipped We the arrest exist. Dalziel detail. Because stating: and warrant the trial decision court’s was “exercised to an Engel purpose justified by, [O]nce end or clearly had for half an hour, only against, evidence,” officers had cause not Fly- reason and (S.D.1990), Horse, ing discretion. its

abused Dakota, Plaintiff South

STATE Appellee, FRENCH, A. Defendant

Robert Appellant. 18135, 18139.

Nos.

Supreme Court of South Dakota. on Briefs Oct. 1993.

Considered Dec.

Decided

Case Details

Case Name: State v. Johnson

Court Name: South Dakota Supreme Court

Date Published: Feb 18, 1994

Citation: 509 N.W.2d 681

Docket Number: 18059, 18060

Court Abbreviation: S.D.