State v. Steingraber

sumed; then, Our first inquiry, party bearing line of should this of burden proof must that there be to determine if the communication in establish was a reck- disregard less truth of volved between interested individuals. Graff, the accused. Wollman The communication discussion be N.W.2d and/or (S.D.1979). real test of appellees Lyla “The whether a tween Orland and Sloat with defendant’s conduct is reckless so as six three to con- appellees the other teachers stitute actual is whether 8, 1978, malice he ‘in fact January parents on involved of entertained serious doubts as to the of truth children who attended school district ” publications.’ 106, Id. at citing St. employed It does appellant. which not take Amant v. Thompson, U.S. 88 S.Ct. deep to conclude logic exercise It L.Ed.2d 262 does not parents attending of children school in a appear meeting held on January supervision appellant district under the of therefrom, resulting or the document regards ap are “interested” individuals malice, any contained elements of nor pellant’s effect on that district. school Fur any of malice indication at the meet- ther, the topics by appellees discussed ings and which discussions occurred on Jan- January three teachers on as re uary 1978. resulting flected document from that meeting, dealt with actions appellant’s and We hold appellees’ communication system attitudes toward the school and its was between interested individuals and employees. Appellees distributed school made without malice. would be prepos- patrons and members of the school board terous to parents discussing foreclose from the document at the session executive of vitally school affairs that affect the welfare January Appellant 1978. contends that Therefore, their of children. we find appel- teachers, certain business school mana- lees’ privileged communication under SDCL two ger, principals copies received 20-11-5(3). also Appellant has raised is- other document. of the These teachers and ad- holding sues but our renders those conten- legitimate ministrators had a vested tions moot. The court’s entry trial to be operation concerned with the summary judgments proper. of district, necessarily school which in- judgments affirmed. are performance appellant. volved parties at the January meeting all All the Justices concur. are within the realm “interested” indi- appellees viduals. find all interested in

the communication herein involved.

Second, we must determine if the communication appellees made with Dakota, STATE of South Plaintiff so, If appellees’ qualified privilege malice. Appellant, 20-11-5(3) negated. under SDCL SDCL provides pro 20-11-5 that: “In the cases (3) (4) vided for subdivisions of this Gwendolyn STEINGRABER and Walter section, malice is not from the inferred com Myers, Kendal Defendants publication.”

munication or Appellant’s Appellees. complaint does general allegations set out 13017. in an attempt appellees’ malice to defeat Court South Dakota. However, qualified privilege. specific showing malice is Argued May 1980. raising genuine fact, of material issue Sept. Decided 1980. burden this was not met the com 29, 1980. Oct. Rehearing Denied plaint, deposition, Hughes- or affidavit. Co. v. Hospital, Johnson Dakota-Midland (1972); 195 N.W.2d 519 see also 15-6-56(e). pre- cannot be Malice Colwill, Atty., Deputy

Gary F. Pierre, appellant. plaintiff Duffy, Bergren & E. Kludt of Douglas appellees. for defendants Fort WOLLMAN, Chief Justice. from an appeal

This is an intermediate evidence seized certain suppressing order We reverse warrant. pursuant and remand. tip

Acting pursuant to an informant’s activity, a search regarding drug-related authorizing a search obtained Grand in Pierre. a residence at 328 North evening of approximately At 7:30 law enforce- September several County Depu- Hughes ment led Vollmer, undertook ty Charles Sheriff positioned The officers serve the warrant. around the places at various themselves Vollmer and two Deputy Sheriff house. door of approached the front other officers residence. with an is brick structure The residence En- to the front. attached enclosed through porch is obtained try to the Vollmer Sheriff door. screen first knock- screen door without opened the two offi- whereupon he and the other ing, approached the entered the cers living quarters. Finding door to the front observing two open and this door room, of a possession one in ap- tray of what pipe and marijuana Deputy Vollmer marijuana, to be peared room, announcing his entered the al- warrant to execute the search entry, al- simultaneously with his most whether the an- could not recall though he made before or after nouncement was Immediately living room. stepped into the ordering room and to be seated on two couch, copy similar to Deputy Vollmer handed statutes such as section 844 of the Myers, the search warrant to defendant one California Penal Code. occupants. n. n. 7.* support Myers’ Defendant affidavit first consider suppress

the motion to states that it whether was incumbent the officers looking up hearing after the screen door comply with requirements of SDCL open Deputy standing he saw Vollmer in 23A-35-8 before the enclosed living waving piece paper room and porch through the screen door. The State appeared badge stating what to be his and argues compliance that such is not required are, police, stay you you “this is the where if the comply intended to are under arrest.” living at the front door to the area. People 39, v. Harvey, Mich.App. 38 195 part: states in SDCL 23A-35-8 N.W.2d agree. 773 We Prom the The officer a search warrant record, picture painted by in open any building, break question foyer nature more or container or therein to exe- entranceway general or natural if, giving cute the warrant notice of public proper. than a of the house authority his and he is refused showing admittance. . Absent a clear that such a is integral portion an of the area of a As we stated in v. 85 residence, the statute does not dictate com (1971), 186 N.W.2d 551 this statute pliance with the knock and re announce (then 23-15-14) denominated quirement porch. at the entrance to the similar to 18 U.S.C.A. 3109 and section 844 of the California Penal Code. As sum- question There remains the Dep- whether marized the Supreme Court of California uty open Vollmer’s failure to knock at the Superior in Duke v. Angeles, Court of Los 1 living quarters door to the and to announce Cal.3d 82 Cal.Rptr. 461 P.2d 628 presence his purpose constituted such a (1969): noncompliance provi- substantial with the purposes policies underlying sec- sions of SDCL 23A-35-8 as to render the (1) protection tion 844 are four-fold: subsequent fruits of the search inadmissi- of the of the individual his ble. (2) home protection ... of in- Assuming provisions persons nocent present who also be apply SDCL 23A-35-8 to entrances made premises where an arrest is made through open People cf. v. Peter an (3) prevention . of situations son, supra, Cal.Rptr. at 511 P.2d at which are conducive to violent confronta- Deputy we hold an Vollmer’s tions occupant between the and individu- nouncement of his intention to execute the als who proper enter his home without simultaneously, search warrant made (4) protection notice . . and so, nearly entry with his into the might injured by who be a startled compliance room constituted substantial and fearful householder. Entry through with the statute. 352-53, Cal.Rptr. 461 P.2d at 632-33 door in full view of the of the (citations omitted). People See also v. Pe surreptitious, room is far different from the terson, 9 Cal.3d 108 Cal.Rptr. unexpected type entry that the statute (1973), P.2d 1187 wherein the California designed prevent. pointed requiring Court out that statutes analogize present officers to case presence pur announce their the facts pose Peterson, demanding entry People supra. before to execute a with those in v. policies There, search warrant purposes serve committed a techni officers had many respects the Peterson *The statute similar in 23A-35-8. to SDCL (section Code) 1531 of the California Penal was visible to the ty Califor Vollmer section 1531 of the cal violation of Likewise, occupants, an unlatched the room. nia Penal Code within of their giving the notice premises, before together screen door with the interior by that purpose required Vollmer and his were visible concluding under cir statute. accept colleagues. Even if we defendant there had been sub of the case cumstances sequence of Myers’ version of the 1531 and compliance with section Deputy Vollmer n stantial events, announcement of policies set forth in with the nearly so Angeles, Los Superior Court of Duke entry contemporaneous with his Superior Court supra, and Greven quarters that constituted substan- Clara, 71 Cal.2d County of Santa compliance tial with SDCL 23A-35-8 P.2d 432 the court that statute was policies and wrote: Accordingly, we hold designed to serve. Officer then whether pursuant to the that the evidence seized until his announcement by delaying Kalm sup- been ordered warrant should not have opened the screen door frus- after he had pressed. any pur- nugatory trated or made search Defendants’ contention that poses policies previously enumerated. and rights to be violated their constitutional the residence We note that the interior of searches and sei- free from unreasonable were visible to and therein do not is without merit. Defendants zures who, public like any member of the challenge validity of the search warrant officers, to enter onto proper had reason above itself, holding from our and it follows visibly premises approach pursuant to the the search conducted Thus, right open doorway. no not unreasonable. infringed was nothing more than revealed screen door reversed and appealed from is The order view already exposed to the officers’ to the circuit court for the ease remanded intrude into they physically not did proceedings. further the announcement. the home until after greater risk equally clear that FOSHEIM, DUNN, JJ., MORGAN any premises person of violence to concur. created, ap- all times after at knocking the officers could proaching and J., HENDERSON, dissents. clearly observe the measures precautionary interior and take HENDERSON, (dissenting). Justice necessary. argued if Nor can it be suc- ruling to I would the lower court’s affirm greater risk cessfully that there was dissent. suppress the evidence and therefore respond violently occupant might was suc- of the lower court ignorance of the officers’ decision by reason of cinct, sound, erroneous and fol- as the officers were not identity purpose, immediately visible and announced their lows below: occupants who were thus purpose to the de-

made of the situation and its aware FACT FINDINGS OF Assuredly personal safety mands. as in the ease of occu- I. subjected any increased pants, not danger. group law September On (foot Cal.Rptr. at by Hughes led enforcement omitted). note Charles Vollmer County Deputy Sheriff warrant, made their with ap- armed reasoning

We conclude the same 328 North Grand up to a residence at plies present way case. to the facts in the be, Depu- he South Dakota. Standing where had probable II. satisfied that there is cause to given believe if prior notice was by open- way Vollmer led the execution, property sought its ing a screen door on an enclosed easily be quickly destroyed dwelling knocking without of, disposed danger or or that to the life proceeding observed that or limb of the officer or another inner to the room was result, may include warrant a proceeded on into the executing direction that the officer it is knocking announcing room without give required not the notice until he was within the by 25A-35-8. In such dwelling. (Emphasis sup- room of the may, who executes the warrant without plied.) notice of his enter Fact, Upon foregoing Findings any portion of a structure or a following: court makes and enters the vehicle, therein, whatever means, including breaking therein. CONCLUSIONS OF LAW commonly These statutes are denominat- I. ed in the as the law “knock and announce” clearly places 23A-35-8 bur- apply rule. We must the facts of this case den on an officer a search war- to the “knock and announce” rule to deter- pur- rant to announce his appellate mine in our review whether the pose por- before a structure or trial court erroneous. tion of a structure. In reviewing testimony police the preliminary hearing together officers at the II. defendants, with the affidavits of the I am The requirements of SDCL 23A-35-8 firmly convinced that the record conclusive- bar, were not adhered to the case at ly shows that 23A-35-8 was not com- SDCL therefore, and that defendant’s motion to plied with when the officers executed the suppress granted. evidence is Further, appears warrant. to be no police The actions of the officers at the which, justify evidence in the record would time of the execution of the search warrant noncompliance.. or excuse their In review- did not with the requirements of warrant, ing application for the search 23A-35-8, provides: SDCL which warrant, well as there is no executing The officer a search warrant request “knock and and autho- announce” structure, open any building, break simply rization. The warrant did not au- or container or therein to exe- Thus, entry. thorize a “no-knock” if, giving cute the warrant notice of legal fantasy bring stretch of can the offi- his he is refused purview cers 23A-35-9. SDCL within admittance. An officer court Please bear in mind that the trial open any search warrant break found,, fact, as a that the officers did not building, any- or container or porch knock or announce at either the door thing therein for the of liberat- leading directly or the inner door into the ing who, person having entered to aid living room. Add this: counsel for the warrant, him in the execution of a state, court, therein, argument in his before this detained necessary or when his own conceded that the officers did not knock nor liberation. entering. announce I at either door before exceptions addition to the contained exception therefore take to the facts recited 23A-35-8, within that particular SDCL majority opinion and would hold that statute’s requirements can be avoided this was pri- an unlawful invasion into the following procedure set out in vacy of a home. 23A-35-9, provides: which If committing magistrate argument up can be summed who has State’s been asked issue a search warrant is forfeited their follows: the defendants

548 any following and announce” rule renders leaving the inner privacy by expectation have search and seizure unreasonable defendants should open and the Amendment to the meaning for that of the Fourth anyone else known that People Rog v. Constitution. matter, into an enclosed United States enter would ers, 396, 16 Ill.Dec. 375 Ill.App.3d 59 inner door. gain access order Mendoza, (1978); v. 104 Indeed, argued in oral N.E.2d 1009 State counsel for State v. (1969); 140 State to Ariz. officers did not have argument Vuin, 185 N.E.2d 506 89 Ohio L.Abs. door. Counsel based either knock Com.Pl.1962); v. Superior (Ohio the offi- Greven premise that upon the argument 71 County, the Court of Santa Clara Cal.2d activity inside could see criminal cers (1969). Any 455 P.2d 432 justified conduct 78 the officer’s home and this Amendment knocking. finding that the Fourth announcing in neither has been violat Constitution this out. Under United States do not bear facts construction, application of Exclusion are mean- ed mandates statutes Ohio, 81 ary Mapp v. U.S. position would com- Rule. The State’s ingless. (1961). con- L.Ed.2d legislative directives S.Ct. pletely negate “Generally statutes tained the statutes. Court of A recent case searches and sei- authorizing regulating Slezak, Island, R.I. Rhode of search warrants zures and the issuance (1976) supports my dissenting 350 A.2d state and against construed strictly are view. In the Rhode Island liberally in favor of individual.” State porch of the the back officer had entered Cochrane, 84 173 N.W.2d a screen house and observed defendant's Upon opening screen door. the inner door believe discovered would have this court officer The State that, As crossed porch” opened into the kitchen. that this is a “storm kitchen, iden- therefore, really struc- threshold not defendant a gave tified himself and the ture, the home. From namely defendants’ record, briefs, warrant. As this findings copy the search a of review of case, that court, the state contended there can be no South Dakota of of the lower fact to knock after sides would have been senseless porch is enclosed on all it doubt that the open found the inner permanently attached to house. and is The view the defendant. plain defense was in is made brick and The house Island would not porch Court of Rhode brief the counsel contends and held that reasoning such The brief countenance made of brick. likewise officer justification of the is not there was no this but the record does not refute “knock and an- wood, to with the porch failing is an inte- Brick or clear. right of had an rule and the represents house and nounce” gral part of the facts unconstitutionally invaded. The accept the home. I refuse been extension of strikingly simi- part Rhode Island case are porch is not a that an enclosed Marijuana was lar to the case at bar. fact that the inner door home. The home, just Rhode Island as suggests that found in the open by the defendants left Dakota, South porch the was found in they considered establish, through the tes- home. The facts home. Vollmer, that observation

timony of Officer People Rogers, supra, In house by porch. into the house was obstructed surrounded; case, surround- officers in this began with the castle The defendants’ innocent moth- and startled an ed the house door, the door at porch, not at the inner entered they er of of the defendants one protect- porch primary was the barrier that door, knocking; also without the back privacy to the outside ing the defendants’ handed Rogers, a world. officers announced police and the defendant only that their have held A number state courts case). The Su- (the as in this the “knock room same entry effected in violation of preme Court of Illinois reversed the convic- An unannounced intrusion into a dwell- tion. ing 3109 basically proscribes §—what —is no less an unannounced intrusion whether Harvey clearly distinguish I can door, officers break open down a force Michigan, State cited the ma- door, chain lock a partially open on Harvey, jority, from the case at bar. In a locked door by or, use of a passkey, officers knocked several times on the outer here, open a closed but unlocked door. screen door of the before entering. protection by, afforded and the val- Harvey porch. involved a “semi-closed” in, ues inherent “governed must be findings this of fact entered by something more than the fortuitous trial court established that circumstance (Ci- of an unlocked door.” enclosed. omitted.) tations By opening the screen without A Deputy Sheriff Barnes aided in this knocking announcing, there can be no invasion of a Pierre home. Barnes testified doubt under the case law of this state and that thing the first he could recall was a nation, police accomplished occupant command to an room Vierck, In State v. “breaking.” 23 S.D. to sit down. Barnes juve- testified that a 120 N.W. 1098 this Court held nile Myers and defendant were immediately that “breaking” was a together handcuffed and that the meaning burglary statute. We held of the house extremely were confused about “breaking” that a can consist of why officers were in the home. door which is shut but is neither locked nor latched. undisputed the screen I deplore this type of law enforcement door in the case at bar was shut. and all that it stands for. There is no so sacred to the people American as the majority opinion cites right to be secure in their homes. Without 502,186 N.W.2d 551 right, religiously guarded, peo- we as a Kietzke precedent principle ple subject are as being prey of state compliance strict with the “announce first” domestic intervention and terror as those statute is not exigent when cir- fellow human beings who live in the Soviet present. cumstances are There were no bloc. As Henry Patrick once said: Forbid exigent circumstances danger; here: no no it, Almighty God! threats; menace; weapons; no no hur- activity run, hide, ried escape, or secrete. Also,

Admittance was never refused. time of the Kietzke decision, 23A-35-9, which magistrate allows a to is-

sue a “no-knock” warrant under certain

circumstances, had not been enacted at the

time of the commission of the offense. (Olson) SMITH, Diane A. Plaintiff It appears to me that the enactment Appellee, SDCL 23A-35-9 indicates Legisla- ture desired law enforcement officers to OLSON, David L. Defendant have even less discretion to execute search Appellant, warrants. The enactment of this statute No. 12921. greater attaches importance to the “an- nounce first” rule than it did at the time of Supreme Court of South Dakota. the Kietzke decision. Considered on Appellant Brief of recognized this Court that our 27, 1980. May statute was similar to 18 U.S.C.A. § Sept. Decided 1980. being both In Sab- “no-knock” statutes. States,

bath v. United 391 U.S. S.Ct. L.Ed.2d

the United States Court stated:

Case Details

Case Name: State v. Steingraber

Court Name: South Dakota Supreme Court

Date Published: Sep 17, 1980

Citation: 296 N.W.2d 543

Docket Number: 13017

Court Abbreviation: S.D.