State v. Dreps

1996 SD 142, 558 N.W.2d 339, 1996 S.D. LEXIS 149

• Court: South Dakota Supreme Court
• Decided: December 11, 1996
• Docket: None
• Status: Published

Opinions

AMUNDSON, Justice.

[¶ 1] Joseph W. Dreps (Dreps) appeals his conviction of possession of a controlled substance and possession of marijuana. He claims evidence obtained in a consent search of his car and statements he made while seated in a patrol car which were tape recorded without his knowledge should have been suppressed. We affirm.

FACTS

[¶ 2] Dreps was stopped by highway patrol troopers Steve Swenson and Brian Bard on May 1, 1994. The troopers noticed a dangling object hanging from the rear view mirror of Dreps’ vehicle and heard an exhaust leak, which prompted them to stop the vehicle. Troopers Swenson and Bard approached Dreps’ vehicle, and asked him to produce his driver’s license, vehicle registration, and proof of insurance. Trooper Swen-son went back to the patrol car and activated a hidden audio tape recorder. Swenson then asked Dreps to bring his documentation to the patrol car and to sit in the front passenger side of the car. Once Dreps had joined Trooper Swenson in the patrol ear, Dreps was issued warning citations and his driver’s license and registration were returned to him.

[¶ 3] Immediately after completing the ticketing and returning Dreps’ documentation to him, Trooper Swenson told him the encounter had concluded but then started another line of inquiry:

SWENSON: Okay, you’re free to go.... I do have a question, if you don’t mind[.] [A]re you carrying any illegal weapons, drugs or contraband up in the car, are you?

DREPS: No sir.

SWENSON: Okay. Do you have a problem with ah Trooper Bard and myself searching the vehicle for those items?

DREPS: (Pause) Well, I really do need to get back to Rapid City.

SWENSON: Just take us a little bit.

DREPS: (Pause) Well, I suppose.

SWENSON: Okay.

Trooper Swenson then asked Dreps what his passenger had in the car. Dreps answered that the passenger might have a pistol, but he believed he had a permit to do so.¹ Trooper Bard then asked Dreps to sit in the back of the patrol car: “Okay, well for our own safety, would you just have a seat in the back. This is unlocked. Okay, so it is open. Just have a seat in there, and get your friend to come back here and get you on the road real quick here. Okay?”

[¶ 4] While Trooper Bard was having this exchange with Dreps, Trooper Swenson approached the passenger, Leonard Van Aus-dale, who was still seated in Dreps’ vehicle. Swenson advised Van Ausdale that Dreps had consented to the search of the vehicle. Trooper Swenson asked Van Ausdale if he could search his belongings and Van Ausdale said he did not have a problem with the search. Van Ausdale was asked to step out of the vehicle and take a seat in the back of the patrol car with Dreps. Van Ausdale did so, and the conversation he had with Dreps was recorded. Both men made inculpatory statements while the hidden tape recorded their conversation.

[¶ 5] Meanwhile, during the search of Dreps’ vehicle, Troopers Swenson and Bard found two black canisters in a coat. One contained marijuana, the other contained methamphetamine. Also found in another coat was a bag of marijuana. Dreps was arrested for possession of controlled substances, tried and convicted. He appeals, claiming the trial court should have suppressed evidence obtained in the search of his car and the surreptitiously recorded statements he made while seated in the patrol car.

ISSUES

[¶ 6] 1. Did the trial court abuse its discretion in denying Dreps’ motion to suppress evidence obtained in the search of his car to which he consented?

[¶ 7] Dreps contends that he was illegally detained by Trooper Swenson and as a result, his consent to the search of his car was invalid. He claims that as a consequence, the drugs found in the search of his car were inadmissible. In response, the State asserts that the findings made by the trial court amply support its conclusion that Dreps voluntarily consented to the search of his car.

[¶8] Dreps challenges the denial of his motion to suppress the evidence discovered in the consent search. The standard of review we apply to these preliminary evi-dentiary questions was fully set forth in State v. Baysinger, 470 N.W.2d 840, 843 (S.D.1991) (citations omitted):

A trial court’s findings of fact from a suppression hearing must be upheld unless they are clearly erroneous.... This court’s function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. In making this determination, we review the evidence in a light most favorable to the trial court’s decision.

To disturb a trial court’s ultimate decision to suppress evidence, this court must find that an abuse of discretion has occurred. This refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. In this regard, we do not determine whether we would have made a like decision but only whether a judicial mind, considering the law and facts, could have reached a similar decision.

Additionally, “the presence or absence of consent to search is a question of fact [and] the trial court’s finding regarding consent will be upheld unless, viewing the evidence in the light most favorable to the finding, it is clearly erroneous.” State v. Fountain, 534 N.W.2d 859,863 (S.D.1995) (citation omitted). Consent must be proven by the State by clear and convincing evidence. Id. “Clear and convincing evidence is evidence so clear, direct, weighty, and convincing as to allow the trier of fact to reach a clear conviction of the precise facts at issue, without hesitancy as to their truth.” Id. at 864 (citation and quotation marks omitted).

[¶ 9] In ruling on this evidentiary issue, the trial court was guided by the principle that consent given to law enforcement to conduct a search satisfies the Fourth Amendment search and seizure provisions and eliminates the necessity to obtain a warrant. Fountain, 534 N.W.2d at 863, citing Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973), and State v. Zachodni, 466 N.W.2d 624, 628 (S.D.1991). “Once consent to a search has been voluntarily tendered to the State’s agents, not only is a warrant unnecessary, but so is probable cause.” Zachodni, 466 N.W.2d at 628 (citation omitted). To determine if a consent search is valid, we must examine the totality of the circumstances to ensure that the consent was voluntarily given. State v. Almond, 511 N.W.2d 572, 573 (S.D.1994). An otherwise valid consent is vitiated if it was obtained during an illegal detention, and will invalidate a search based solely on such consent. Id.

[¶ 10] Dreps claims his consent was not voluntarily given because he was illegally detained. He argues that once Trooper Swenson told him he was free to leave, the Trooper was no longer entitled to ask him any questions. According to his logic, any additional questioning was a detention which must have been supported by probable cause to stop him. Since Trooper Swenson admitted he had no articulable suspicion at the time he asked whether Dreps had any illegal weapons, drugs, or contraband, and thus no probable cause to detain him, Dreps contends that he was illegally detained at the time Trooper Swenson asked for consent to search. Thus, he claims the trial court’s ultimate conclusion that he validly consented to the search is erroneous.

[¶ 11] First we address Dreps’ claim that probable cause was required before he could be asked to consent to a search of his car. The trial court correctly concluded that “[an] officer does not have to have probable cause to search before requesting consent to search.” Consent given to law enforcement to conduct a search satisfies the Fourth Amendment and removes any necessity for a warrant or even probable cause. Fountain, 534 N.W.2d at 868; Zachodni, 466 N.W.2d at 628.

[¶ 12] Dreps does not challenge any of the trial court’s factual findings.² Rather, he claims the facts here are like those in State v. Almond, 511 N.W.2d 572, and State v. Ramirez, 535 N.W.2d 847 (S.D.1995). He claims that, like Almond, he was stopped for a routine traffic violation, the Trooper issued a warning citation, returned his documents to him and, once that was completed, the Trooper then asked for permission to search. In Almond, we held there was a second arrest and illegal detention but we did so based on facts that do not exist in Dreps’ ease. In Almond, the defendant was issued a citation and warning ticket, exited the patrol vehicle, but was then commanded to stop and empty the contents of his pockets on the hood of the patrol vehicle. 511 N.W.2d at 573. Our decision there suppressing evidence from his pockets relied on the trial court’s specific findings that at no time was Almond advised that he was free to leave and, under the circumstances, a reasonable person would have thought he was in custody. 511 N.W.2d at 574-75. The totality of the circumstances in this case indicate that Dreps was free to leave and that he was not subjected to a second and illegal detention.³

[¶ 13] Likewise, Dreps’ reliance on Ramirez is misplaced. Dreps claims that when Trooper Swenson asked him to sit in the back of the patrol car during the search, he was in “back seat jail,” a custodial detention for which no probable cause existed. See Ramirez, 535 N.W.2d at 850 (highway patrol officer’s vehicle often serves as temporary jail). Dreps was not placed into the back seat of the patrol car until after Trooper Swenson asked for and received his permission to search his car. This is a significant distinction because the law will invalidate consent to search only “when an individual is under an illegal detention at the time when ... consent to search is givenfj” Almond, 511 N.W.2d at 576 (emphasis added; citation omitted).⁴

[¶ 14] Despite his contention that this is a unique set of facts which warrants suppression of the evidence found during the consent search, several other courts have considered similar cases and reached the same conclusion. For example, in United States v. Rivera, 906 F.2d 319, 320 (7th Cir.1990), an officer pulled over the defendant’s vehicle to investigate its erratic speed and an object obstructing the view of the front wind shield. The officer took the defendant’s license and, while both were seated in the patrol car, the defendant was issued a warning ticket for the obstruction. Id. The officer returned to defendant his license and warning ticket and said ‘That’s it.’ Id. Defendant had his hand on the door handle to exit the patrol vehicle when the officer asked if he was carrying any drugs, weapons, or contraband. Id. Following a negative response, the officer asked to look in the defendant’s car, and the defendant said ‘sure.’ Id. The officer required the defendant and his passenger to stand in a particular location during the search, which produced evidence of drug crimes. Id. at 320-21.

[¶ 15] On appeal, the defendant claimed the stop was pretextual and exceeded the proper scope of a traffic stop. The Seventh Circuit Court of Appeals rejected his arguments, holding no Fourth Amendment violation occurred which required suppression of the evidence. Id. at 322-23. See United States v. Deases, 918 F.2d 118 (10th Cir. 1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2859,115 L.Ed.2d 1026 (speeding stop, warning ticket issued and license returned, then consent to search sought and received); Rada v. State, 544 So.2d 1112 (Fla.App. 3 Dist.1989) (roadblock stop, officer advised defendant he was free to leave, then consent to search sought and received); State v. Clowney, 87 Md.App. 48, 589 A.2d 86 (1991) (speeding stop, warning ticket issued and license returned, advised he was free to leave, then consent to search sought and received); State v. Mercado, 105 Or.App. 582, 805 P.2d 744 (1991) (twice advised defendant free to leave, license and registration returned, then consent to search sought and received). But see State v. Bunnell, 517 So.2d 439 (La.App. 1 Cir.1987) (speeding stop, refused to consent to search, officer said search was routine and would look briefly into car then allow to leave, consent given after second officer arrived; evidence suppressed because defendant illegally detained when consent given).

[¶ 16] Dreps also urges this court to reject the trial court’s determination that his consent was voluntary. Dreps claims to have been coerced into consenting to the search because Trooper Swenson asked for permission to search his car immediately after returning to Dreps his driver’s license and vehicle registration and expressly stating “You are free to go.” Dreps argues these unique facts prove “[Trooper Swenson] was obviously exhibiting a show of authority, inducing Dreps to succumb and submit to that authority, and to ‘cave in.’ ” Again, the facts here are not as unique as he contends.

[¶ 17] Dreps advances no legal reasons to prove the trial court’s factual determination that his consent was voluntary is clearly erroneous. The trial court had an opportunity to view the witnesses and the evidence, including the tape recorded conversation. The evidence included the actual conversation in which Trooper Swenson asked to search, Dreps said he needed to get back to Rapid City, Swenson responded that it would take just a little bit, and Dreps said “Well, I suppose.” After hearing this evidence, as well as testimony about the general circumstances, the trial court found that he made a knowing, intelligent, and voluntary consent to search the car.

[¶ 18] We must view the evidence in a light most favorable to the trial court’s determination here that consent was voluntarily given and doing so, we cannot say that Dreps has met his burden to prove clear error. Dreps does not contend that the court overlooked any facts or point to any other basis to conclude that the finding of valid consent is clearly erroneous. Even if we would not have made the same decision, we cannot reverse a factual finding unless the error is clear. The decision of the trial court denying Dreps’ motion to suppress the evidence obtained pursuant to the consent search of his car was a proper exercise of discretion.

[¶ 19] 2. Did the trial court abuse its discretion in denying Dreps’ motion to suppress his statements made while seated in the patrol car?

[¶ 20] Dreps also contends that the inculpatory statements he made while seated in the patrol ear should have been suppressed because they were surreptitiously recorded. His argument is based on his contention that the “statements were all made subsequent to the illegal detention and search without valid consent.” He also claims that merely placing him in the back of the patrol car with Van Ausdale constituted an interrogation because Trooper Swenson knew it was likely “the two would converse and incriminating statements would be elicited[.]” See Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307-308 (1980).

[¶ 21] These arguments are based on Dreps’ contention that he was illegally detained when he was placed in the back seat during the search of his vehicle. We have rejected this contention. Additionally, in Ramirez, we decided that there is no reasonable expectation of privacy while an individual is seated in the back seat of a highway patrol vehicle such that would require suppression of secretly recorded statements. 535 N.W.2d at 850. There is no factual distinction which would justify a different result in this ease. The trial court properly concluded that the taped statements were admissible here. Thus, there was no abuse of discretion.

[¶ 22] This is the second time we have been presented with these surreptitious tape recordings. We noted in Ramirez, 535 N.W.2d at 850, that this type of conduct is offensive to personal sensibilities. It is obvious that this practice continues.⁵

[¶ 23] Affirmed.

[¶ 24] MILLER, C.J., and KONENKAMP and GILBERTSON, JJ., concur. [¶ 25] SABERS, J., dissents.

1 . Dreps asserts that at this point "[he] asked to accompany Swenson and Bard to witness the search, but was not allowed to.” He also claims "[he] was not allowed to, and was prevented from witnessing the search, therefore he had no opportunity to see what Swenson and Bard were doing.” Neither the settled record nor the transcript of the taped conversation support these bare assertions.

2 .Dreps does not challenge any finding of fact as clearly erroneous. The trial court made the following findings which are relevant to this issue:

3. Trooper Swenson had probable cause to stop the vehicle driven by [Dreps] on May 1, 1994, because the Trooper observed an object dangling between the view of the driver and the windshield in violation of SDCL 32-15-6 and heard what sounded to him to be a defective exhaust system on the vehicle in violation of SDCL 32-15-17.

4. Trooper Swenson issued warning tickets to Dreps and asked if he could search Dreps' car.

5. Dreps consented to the search of his car.

6. Trooper Swenson requested and [Dreps] gave his free, intelligent, unequivocal and specific consent to search his vehicle without any duress or coercion, actual or implied.

7. Trooper Bard requested and Defendant Van Ausdale gave his free, intelligent, unequivocal and specific consent to search his possessions in the vehicle without any duress or coercion, actual or implied.

8. The defendants were free to leave and Trooper Swenson told [Dreps] that he was free to leave and was not in custody or under arrest when Trooper Swenson asked [Dreps] for permission to search his automobile.

9. Dreps' consent to search was unequivocal and specific.

10. Nothing about the traffic stop, issuance of the warning ticket or request to search was coercive.

11. The troopers made no "show of force” (other than their uniforms, badges, guns and patrol vehicle) to obtain consent to search.

12. The evidence the defendants seek to suppress was found as a result of defendants’ valid consent to search.

3 . The United States Supreme Court has recently reaffirmed this "traditional contextual approach.” Ohio v. Robinette, — U.S. —, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). In Robinette, the Court held that the federal constitution does not “require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.” Id. at —, 117 S.Ct. at 421.

4 . Dreps also asserts that he asked to accompany the officers to watch the search, but his request was denied. As explained in footnote 1, there is no factual basis in the record for this claim. If he had made such a request, we might be presented with a different situation, such as that in Ramirez, where Trooper Swenson asked for and received the defendant's permission to search the car but the consent was withdrawn once the Trooper placed the defendant in the rear of the patrol car. 535 N.W.2d at 848. We need not consider Dreps’ assertion that he withdrew his consent or attempted to limit his consent to a search conducted in his presence because it is wholly unsubstantiated.

5 . Although I personally find this type of conduct offensive, that is not determinative of whether it is violative of an individual's constitutional rights. There are no cases which preclude this type of conduct; however, in my opinion, such behavior borders on overzealous conduct. Individuals who possess contraband and who, while seated in the back of a patrol car, make incriminating statements regarding such possession, are not entitled to call upon this court to relieve them from the consequences of their own ignorance.