#28941-r-JMK 2020 S.D. 35
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
MAKAYLA MOUSSEAUX, Defendant and Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE MATTHEW M. BROWN Judge
JASON R. RAVNSBORG Attorney General
ARMAN ZELJKOVIC Pennington County Deputy State’s Attorney Rapid City, South Dakota Attorneys for plaintiff and appellant.
JEFFREY J. FRANSEN of Pennington County Public Defender’s Office Rapid City, South Dakota Attorneys for defendant and appellee.
CONSIDERED ON BRIEFS NOVEMER 4, 2019 OPINION FILED 06/17/20 #28941
KERN, Justice
[¶1.] Makayla Mousseaux was charged with possession of
methamphetamine in violation of SDCL 22-42-5 and false impersonation in
violation of SDCL 22-40-1. She moved to suppress the evidence, arguing that she
was unconstitutionally detained because the police lacked reasonable suspicion to
stop her. The circuit court granted her motion and issued an order suppressing the
evidence. The State successfully petitioned this Court for an intermediate appeal.
We reverse.
Facts and Procedural History
[¶2.] For purposes of this appeal, the following facts are undisputed. In the
early morning of May 22, 2017, Rapid City Police Officer Bethany Coats and her
training officer, Garrett Loen, were on duty when they received a report from
dispatch directing units to 45 Neptune Drive to respond to a possible fight in
progress. The dispatch was based on an unidentified 911 caller who reported seeing
people at this address, likely in a vehicle, involved in the altercation.
[¶3.] Officers Coats and Loen immediately responded to the scene, arriving
in less than five minutes from receipt of the report. Upon arrival, they looked
around for signs of a disturbance. Officer Coats observed two women standing next
to a vehicle at the address provided by the reporting party. The individuals were
not fighting, nor did they appear distressed or injured.
[¶4.] Officer Coats exited her patrol car to investigate further. When she
approached the suspects to visit with them, one of the women, later identified as
Makayla Mousseaux (Mousseaux), stated that she wanted to put her black duffle
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bag inside her trailer, which was located directly next to the vehicle. Officer Coats
directed Mousseaux to wait outside the trailer while they investigated the reported
fight. Mousseaux ignored the instruction and began walking toward the trailer
with the bag in hand.
[¶5.] Officer Coats, with the help of Officer Loen, attempted to prevent
Mousseaux from entering the trailer by blocking the door. When Mousseaux
started to enter the trailer anyway, Officer Coats grabbed her by the arm. After
holding Mousseaux back, Officer Coats requested that she provide her name.
Mousseaux identified herself as Lucille Mousseaux and when asked for her date of
birth, stated that it was September 18, 1981.
[¶6.] The officers requested that dispatch run a records check. When no
records were found under that name, Officer Coats put Mousseaux in handcuffs
because she believed that Mousseaux had falsely identified herself. Shortly
thereafter, another officer identified that Mousseaux’s first name was actually
Makayla, rather than Lucille, by using a search based on name similarities and a
prior booking photo of Mousseaux on file. When dispatch ran the name “Makayla
Mousseaux” through the database, they discovered that she had an outstanding,
unrelated traffic warrant. Accordingly, Officer Coats placed Mousseaux under
arrest.
[¶7.] During the search incident to her arrest, officers found small jeweler’s
bags and a scale inside Mousseaux’s black bag. Residue on the scale tested
presumptively positive for methamphetamine. Mousseaux was charged with
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possession of a controlled substance under SDCL 22-42-5 and impersonation with
intent to deceive law enforcement in violation of SDCL 22-40-1.
[¶8.] Prior to trial, Mousseaux moved to suppress the evidence obtained as a
result of her interaction with police on the grounds that the officers lacked
reasonable suspicion to detain her. The State, in its responsive brief, refuted
Mousseaux’s claim, arguing the stop was constitutional. Alternatively, it argued
that even if the stop was improper, the discovery of a valid arrest warrant precluded
suppression of the evidence pursuant to the “attenuation doctrine,” an exception to
the exclusionary rule under the Fourth Amendment.
[¶9.] The circuit court held an evidentiary hearing and granted the motion
to suppress the evidence seized, concluding that Officer Coats lacked reasonable
suspicion to detain Mousseaux. Despite the State’s alternative argument and
motion for reconsideration asking the court to address this issue, the circuit court
did not analyze the applicability of the attenuation doctrine in either its oral
holdings or in its findings of fact and conclusions of law. Although the State raises
two issues for our review, we resolve this appeal solely upon the application of the
attenuation doctrine.
Standard of Review
[¶10.] Our standard of review for suppression motions is well established.
State v. Haar, 2009 S.D. 79, ¶ 12, 772 N.W.2d 157, 162. When examining a circuit
court’s ruling on a motion to suppress based on an alleged constitutional violation,
we review de novo the circuit’s decision to grant or deny the motion. Id. We review
a circuit court’s findings of fact under the clearly erroneous standard, giving “no
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deference to its conclusions of law [when] apply[ing] the de novo standard.” State v.
Condon, 2007 S.D. 124, ¶ 15, 752 N.W.2d 861, 866.
Analysis and Decision
[¶11.] Although the circuit court concluded that Officer Coats’s initial contact
with Mousseaux did not amount to a Fourth Amendment seizure, it held that the
situation “unquestionably ripened into an investigative detention the moment
[Officers] Coats and Loen prevented Mousseaux from entering her home.” The
circuit court found that Officer Coats failed to articulate “any particularized and
objective basis for suspecting Mousseaux of criminal activity” at that point in time
and therefore, lacked reasonable suspicion to detain her. On this basis, the court
suppressed the evidence seized. Even if we assume, without deciding, that the stop
was unconstitutional, the existence of a valid arrest warrant requires consideration
of whether the attenuation doctrine precludes suppression of the evidence seized in
this case.
[¶12.] “The Fourth Amendment protects a person from ‘unreasonable
searches and seizures.’” State v. Stanage, 2017 S.D. 12, ¶ 7, 893 N.W.2d 522, 525
(quoting U.S. Const. amend. IV). It “applies to all seizures of the person, including
seizures that involve only a brief detention short of traditional arrest.” United
States v. Brignoni–Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2578, 45 L. Ed. 2d 607
(1975). The remedy for unconstitutional searches and seizures is the suppression of
evidence. Utah v. Strieff, __ U.S. __, __, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d 400
(2016). This concept has been coined as the exclusionary rule. State v. Fierro, 2014
S.D. 62, ¶ 25, 853 N.W.2d 235, 244.
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[¶13.] But “[s]uppression of evidence . . . has always been our last resort, not
our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 2163,
165 L. Ed. 2d 56 (2006). Therefore, even in cases where a stop violates the Fourth
Amendment, evidence is sometimes admissible if an exception applies. The primary
reason we acknowledge exceptions is to account for “the [exclusionary] rule’s ‘costly
toll’ upon truth-seeking and law enforcement objectives[.]” Id. (quoting
Pennsylvania Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 364–65, 118 S. Ct.
2014, 2020, 141 L. Ed. 2d 344 (1998)). Indeed, as the United States Supreme Court
has repeatedly instructed, the costs associated with excluding evidence because an
officer lacked reasonable suspicion “presents a high obstacle for those urging [its]
application.” Id. Therefore, in order “[t]o trigger the exclusionary rule, police
conduct must be sufficiently deliberate that exclusion can meaningfully deter
it . . . .” Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 702, 172 L. Ed.
2d 496 (2009). This requires that we assess “the causal relationship between the
unconstitutional act and the discovery of evidence.” Strieff, __ U.S. at __, 136 S. Ct.
at 2061.
[¶14.] Of the legal doctrines used to assess the casual link between an
officer’s misconduct and the discovery of evidence, the State has placed only the
attenuation doctrine at issue here.∗ The attenuation doctrine applies “when the
∗ The three exceptions to the exclusionary rule all focus on the causal link between an unconstitutional act and the discovery of evidence. The first is the independent source doctrine. This “allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source.” Id. at __, 136 S. Ct. at 2061. The second, referred to as the inevitable discovery doctrine, permits admission of evidence when its discovery is inevitable despite the unconstitutional source. Nix v. (continued . . .) -5- #28941
connection between unconstitutional police conduct and the evidence is remote or
has been interrupted by some intervening circumstance, so that ‘the interest
protected by the constitutional guarantee that has been violated would not be
served by suppression of the evidence[.]’” Strieff, __ U.S. at ___, 136 S. Ct. at 2061
(quoting Hudson, 547 U.S. at 593, 126 S. Ct. at 2164). Because our case law with
respect to attenuation is undeveloped, we look first to the United States Supreme
Court’s recent decision in Utah v. Strieff, a case which bears similarities to the one
before us. Id.
[¶15.] In that case, an anonymous tip led a narcotics detective to conduct
intermittent surveillance outside a particular residence. Id. at ___, 136 S. Ct. at
2059. After watching the house for almost a week, the detective noticed an
unusually high amount of foot traffic coming and going from the residence, leading
him to suspect its inhabitants were drug dealers. Id. at ___, 136 S. Ct. at 2060.
[¶16.] At one point during the surveillance, the detective watched Edward
Strieff leave the house and walk over to a convenience store nearby. He followed
Strieff and detained him so that he could learn why he was in the residence. Id.
Strieff produced a Utah identification card. Dispatch ran Strieff’s name, uncovering
a valid, preexisting arrest warrant for a traffic violation. Id. The detective placed
Strieff under arrest and during the search that followed, found a baggie of
methamphetamine in Strieff’s possession. The State charged Strieff with
________________________ (. . . continued) Williams, 467 U.S. 431, 443–444, 104 S. Ct. 2501, 2508-09, 81 L. Ed. 2d 377 (1984). The last, the attenuation doctrine, is the legal concept addressed in this appeal.
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possession of methamphetamine and drug paraphernalia, and Strieff challenged the
constitutionality of the stop. Id. At a subsequent hearing, the State conceded that
the detective did not have reasonable suspicion to stop Strieff, instead arguing the
existence of the warrant saved the evidence from suppression. Id. The trial court
ruled in favor of the State. Id. Strieff appealed, and the Utah Supreme Court
reversed. Id. The case proceeded to the United States Supreme Court. Id.
[¶17.] In resolving the parties’ competing views of the exclusionary rule, the
Court held that when an officer’s initial stop is the product of a good faith error, the
defendant’s preexisting arrest warrant is “sufficiently attenuated” from the
unlawful stop, saving the evidence from exclusion. Id. at __, 136 S. Ct. at 2062. As
the Supreme Court explained, determining whether the attenuation doctrine
applies requires weighing three factors:
First, we look to the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider the presence of intervening circumstances. Third, and particularly significant, we examine the purpose and flagrancy of the official misconduct.
Id. at __, 136 S. Ct. at 2062 (citations and internal quotations omitted). Because no
single factor controls, we discuss each factor in turn. See Brown v. Illinois, 422 U.S.
590, 603–04, 95 S. Ct. 2254, 2261–62, 45 L. Ed. 2d 416 (1975).
i. Temporal proximity
[¶18.] Historically, the Supreme Court, in reviewing temporal proximity, has
declined to find “attenuation unless substantial time elapses between an unlawful
act and when the evidence is obtained.” Strieff, __ U.S. at __, 136 S. Ct. at 2062. In
Strieff, mere minutes passed between Strieff’s detention and the search incident to
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his arrest, leading the Court to conclude that the “short time interval counsel[ed] in
favor of suppression.” Id.
[¶19.] Here, the State concedes that a short time transpired between
Mousseaux’s detention and the evidence the police discovered during the search of
her bag. We see no meaningful distinction between the time that elapsed in Strieff
and the interval in Mousseaux’s case. As in Strieff, only a few minutes separated
Mousseaux’s detention and the discovery of the illegal drugs. Therefore, we
conclude that the first factor weighs in favor of suppression.
ii. Intervening circumstances
[¶20.] Regarding the second factor, the presence of intervening
circumstances, the State argues that the discovery of Mousseaux’s preexisting
warrant weighs against suppression. See United States v. Simpson, 439 F.3d 490,
495 (8th Cir. 2006). We agree.
[¶21.] As the Supreme Court noted in Strieff, when an officer discovers an
unrelated warrant that predates the stop, typically, the officer not only has the
authority to place the suspect in custody, but has an affirmative “obligation to
arrest [him or her.]” __ U.S. at ___, 136 S. Ct. at 2062. This is because, “[a] warrant
is a judicial mandate to an officer to conduct a search or make an arrest, and the
officer has a sworn duty to carry out its provisions.” Id. (quoting United States v.
Leon, 468 U.S. 897, 920 n.21, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). The
Supreme Court concluded that “once [the officer] was authorized to arrest Strieff, it
was undisputedly lawful to search Strieff as an incident of his arrest to protect [the
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officer’s] safety.” Id. at __, 136 S. Ct. at 2063. Therefore, the existence of such a
warrant, “strongly favors the State.” Id. at ___, 136 S. Ct. at 2062.
[¶22.] Mousseaux does not attempt to challenge the validity of the warrant
discovered by law enforcement. Nor does she argue that our state Constitution
provides additional Fourth Amendment protections beyond those provided in the
federal constitution. See State v. Kottman, 2005 S.D. 116, ¶ 13, 707 N.W.2d 114,
120 (requiring an affirmative demonstration that the “State Constitution . . .
supports a different interpretation[.]”). Therefore, we follow the guidance of the
United States Supreme Court and hold that discovery of a valid, preexisting
warrant is an intervening circumstance that weighs in favor of the State.
iii. Flagrancy of police misconduct
[¶23.] Despite the existence of a valid warrant, suppression may nevertheless
be warranted if the police engage in “a suspicionless fishing expedition ‘in the hope
that something w[ill] turn up.’” Strieff, __ U.S. at __, 136 S. Ct. at 2064 (quoting
Taylor v. Alabama, 457 U.S. 687, 691, 102 S. Ct. 2664, 2667, 73 L. Ed. 2d 314
(1982)). “Strieff did not announce a per se rule that the discovery of a warrant
would always vitiate subsequent searches.” United States v. Lowry, 935 F.3d 638,
644 (8th Cir. 2019). Instead, with regard to the purposefulness/flagrancy factor, we
review the circumstances of the stop for evidence of flagrant police misconduct. Id.
at 643–44. “The purpose and flagrancy of the official misconduct is ‘the most
important factor because it is directly tied to the purpose of the exclusionary rule-
deterring police misconduct.’” United States v. Herrera-Gonzalez, 474 F.3d 1105,
1110 (8th Cir. 2007) (quoting Simpson, 439 F.3d at 496) (considering misconduct as
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it related to an arrest rather than with respect to an investigatory detention, as is
the case here). In assessing this factor, we consider whether: “(1) the impropriety of
the official’s misconduct was obvious or the official knew, at the time, that his
conduct was likely unconstitutional but engaged in it nevertheless; and (2) the
misconduct was investigatory in design and purpose and executed ‘in the hope that
something might turn up.’” Simpson, 439 F.3d at 496 (quoting Brown, 422 U.S. at
605, 95 S. Ct. at 2262) (emphasis added).
[¶24.] To support her argument on appeal that this factor weighs in favor of
suppression, Mousseaux emphasizes the differences between her case and the
factual scenario the Supreme Court considered in Strieff. In particular, she
highlights that the detective in Strieff staked out the residence for nearly a week
before stopping Strieff to ask him about his purpose at the house. __ U.S. at ___,
136 S. Ct. at 2059. In contrast, Officer Coats spent, at most, a few minutes
assessing the surroundings before approaching Mousseaux.
[¶25.] Mousseaux, however, fails to account for the reason Officer Coats
arrived at the scene. The circuit court specifically found that Officer Coats was
responding to a reported fight. This is not a case in which the officers randomly
patrolled a neighborhood to question and seize unsuspecting citizens. Based on our
review of the record, there is nothing to suggest that Officer Coats had any
improper investigatory purpose when she responded to the call from dispatch
requesting that officers respond to the location of a fight in progress. As the circuit
court noted in its conclusions of law, when asked about her reason for following
Mousseaux to the trailer’s door, Officer Coats testified, “At this point I didn’t know
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if she was a suspect. I didn’t know if an assault had occurred. We had just arrived
so I didn’t have enough information to determine a crime had not occurred.” This
testimony supports Officer Coats’s explanation that she followed Mousseaux to the
trailer door to gather further information regarding a possible assault, particularly
when she did not know at that time whether Mousseaux was a suspect and
Mousseaux was not cooperating with her direction to wait outside the trailer.
[¶26.] Similar to the Court’s conclusion in Strieff, we consider Officer Coats’s
decision to pursue Mousseaux and detain her at the trailer door as “at most
negligent.” __ U.S. at ___, 136 S. Ct. at 2063. “For the violation to be flagrant, more
severe police misconduct is required than the mere absence of proper cause for the
seizure.” Id. at ___, 136 S. Ct. at 2064. Because this record lacks any evidence that
Officer Coats engaged in a “suspicionless fishing expedition,” this factor weighs in
favor of the State. See id.
[¶27.] In reviewing the attenuation factors in their totality, we conclude they
weigh in favor of the State. The circuit court erred when it refused to consider the
application of the attenuation doctrine and suppressed evidence obtained as a result
of Mousseaux’s arrest. Because the connection between Mousseaux’s detention and
the subsequent search incident to her arrest was interrupted by the existence of a
valid, preexisting warrant unrelated to this case, “the interest protected by the
constitutional guarantee that has [allegedly] been violated would not be served by
suppression of the evidence[.]” Hudson, 547 U.S. at 593, 126 S. Ct. at 2164. We
reverse.
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[¶28.] GILBERTSON, Chief Justice, and JENSEN, SALTER, and
DEVANEY, Justices, concur.
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