#29427-a-SPM 2021 S.D. 43
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KEVIN SLEPIKAS, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA
THE HONORABLE KENT A. SHELTON Judge
JASON R. RAVNSBORG Attorney General
JONATHAN K. VAN PATTEN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
TUCKER J. VOLESKY of Volesky Law Office Huron, South Dakota Attorneys for defendant and appellant.
CONSIDERED ON BRIEFS APRIL 26, 2021 OPINION FILED 07/21/21 #29427
MYREN, Justice
[¶1.] During a driving under the influence (DUI) investigation, law
enforcement asked Kevin Slepikas (Slepikas) if he would consent to a blood draw.
Slepikas twice answered, “okay” in response to the officer’s request to draw his
blood. His blood was then drawn without a warrant. Slepikas moved to suppress
the evidence obtained from the blood draw on the basis that it was taken without a
warrant or his valid consent. The magistrate court denied Slepikas’s motion to
suppress and subsequently found Slepikas guilty of driving a vehicle with alcohol in
the blood in violation of SDCL 32-23-1(1). Slepikas appealed his conviction to the
circuit court, and the circuit court affirmed the magistrate court’s decision.
Slepikas appeals the circuit court’s decision, arguing that the circuit court applied
an incorrect standard of review and erred in concluding that he provided valid,
voluntary consent to the blood draw. We affirm.
Facts and Procedural History 1
[¶2.] On September 28, 2019, Sergeant Phillip Van Diepen (Sergeant Van
Diepen) of the Huron Police Department stopped a vehicle driven by Kevin Slepikas
at around 2:05 a.m. After approaching the vehicle, Sergeant Van Diepen observed
an odor of alcohol and several other signs indicating that Slepikas was intoxicated.
Sergeant Van Diepen had Slepikas perform field sobriety tests. During the
investigation, several other law enforcement officers arrived at the scene. Law
1. Our facts involving the traffic stop are derived from the parties’ stipulations of facts and the magistrate court’s findings of fact. The record does not contain a transcript from the magistrate court’s proceedings nor a video of the arrest. -1- #29427
enforcement administered a preliminary breath test which indicated a .116%
breath-alcohol content. They arrested Slepikas around 2:25 a.m. on suspicion of
driving under the influence. Officers handcuffed Slepikas and performed a search
incident to arrest. During the search, officers offered to retrieve Slepikas’s
cellphone from his vehicle and to leave in his vehicle any items that would be
prohibited in the jail.
[¶3.] While officers were performing the search, Sergeant Van Diepen said
to Slepikas, “Kevin, I have a question for you. You understand that you are under
arrest for DUI, correct[?] Do you consent to a blood withdrawal by a medical
professional to determine your blood[-]alcohol content?” Slepikas responded,
“Okay.” Sergeant Van Diepen then asked, “Is that okay? All it is is one sample of
blood[.]” He proceeded to explain to Slepikas the booking procedure for a first-
offense DUI and then stated, “So you’re good to give a sample of blood.” Slepikas
again responded, “Okay.” Law enforcement then transported Slepikas to the jail,
where a medical professional drew his blood without a warrant. The blood draw
occurred at approximately 2:43 a.m., and subsequent testing indicated a .124 blood-
alcohol content.
[¶4.] The State filed a complaint and an information charging Slepikas with
driving a vehicle with alcohol in his blood (SDCL 32-23-1(1)). Slepikas asked the
magistrate court to suppress the test results obtained from the blood draw. In
support of his motion, Slepikas filed an affidavit relating facts about his personal
history. The affidavit states that he is a fifty-eight-year-old high school graduate
with no criminal record. It further states that he has a “learning disability” and
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receives both social security disability benefits and assistance from the Center for
Independence, an organization that provides aid to individuals with “developmental
disabilities.” Slepikas argued that suppression was warranted because law
enforcement performed the blood draw without a warrant or valid, voluntary
consent.
[¶5.] At the suppression hearing, Sergeant Van Diepen testified, and it
appears the magistrate court viewed a video of the incident. 2 In its findings of fact
and conclusions of law, the magistrate court noted that Slepikas “has certain
intellectual disabilities” but stated that Slepikas presented no evidence showing
that his limitations prevented him from understanding law enforcement’s request to
draw his blood. The court found that law enforcement did not inform Slepikas that
he had the right to refuse consent, but they also did not assert that they had
authority to take a blood sample without consent or suggest that he had impliedly
consented. The magistrate court noted that Slepikas was in custody but found that
Slepikas did not give consent under duress. The court denied the motion to
2. The parties stipulated to waiving the transcripts from the magistrate court proceedings. Accordingly, they are not available for our review. However, after the suppression hearing, but before the court trial, the parties filed a stipulation relating the information that had been presented at the suppression hearing. The stipulation states that Sergeant Van Diepen testified at the hearing. It further states that Slepikas did not testify and noted that he submitted facts through his prehearing affidavit. During the proceedings before the circuit court, Slepikas’s counsel, in response to a question from the court, indicated that the magistrate viewed a portion of the video of his arrest. The settled record before this Court does not contain any videos. The magistrate court’s findings of fact and conclusions of law and order do not reference viewing a video but do state that it reviewed the submitted files and records. Thus, based upon the record available to us, we can only say it appears the magistrate court viewed a video of the incident. -3- #29427
suppress after finding that Slepikas gave his consent knowingly, voluntarily, and
intelligently.
[¶6.] Before the court trial, the parties filed two stipulations. One
stipulation related the facts surrounding Slepikas’s blood draw and the results
obtained from the blood draw. The other stipulation related the facts that had been
presented at the suppression hearing. In each stipulation, Slepikas reserved the
right to object to the admission of the blood-alcohol test results on the basis that law
enforcement took his blood without a warrant or his valid, voluntary consent. The
magistrate court found Slepikas guilty of driving a vehicle with alcohol in his blood
in violation of SDCL 32-23-1(1) and imposed a suspended sentence. Slepikas
appealed the conviction to the circuit court. The magistrate court stayed his
sentence pending the outcome of the appeal. On appeal, Slepikas argued that the
magistrate court erred by denying his motion to suppress the evidence obtained
from the blood draw.
[¶7.] During oral arguments to the circuit court, Slepikas argued that the
circuit court’s standard of review for the issue was de novo. He asserted that,
because the parties stipulated to the facts leading up to the blood draw, all that
remained was the legal question of whether Slepikas provided voluntary consent.
The State responded that clearly erroneous was the standard of review for consent.
[¶8.] Slepikas next argued to the circuit court that he did not provide
voluntary consent based on his characteristics, including his lack of experience with
law enforcement’s procedures and his “intellectual” or “developmental” disability.
He further claimed law enforcement created a coercive environment by involving
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multiple law enforcement officers, subjecting him to field sobriety tests, asking him
to provide consent while searching and handcuffing him, failing to provide him
Miranda warnings, exerting a show of authority, and using leading questions. He
claimed his answers of “okay” were merely passive responses.
[¶9.] At the hearing, the circuit court noted that the magistrate court had
the benefit of listening to the witness’s testimony, reviewing a video of the arrest,
and determining the credibility of the witness and the truthfulness of his testimony.
It noted that Slepikas twice responded, “okay” to the question of whether he would
agree to a blood draw, and Slepikas did not present any evidence to the magistrate
court showing that his disability affected his ability to understand what law
enforcement was asking him at the time of his arrest. It affirmed the magistrate
court’s decision.
[¶10.] Slepikas appeals, raising two issues which we restate:
1. Whether the circuit court applied the correct standard of review to the magistrate court’s decision.
2. Whether the circuit court erred in affirming the magistrate court’s decision that Slepikas provided valid, voluntary consent to the blood draw.
Analysis and Decision
1. Whether the circuit court applied the correct standard of review to the magistrate court’s decision.
[¶11.] Slepikas notes that the parties stipulated to the factual record for the
court trial and for any subsequent appeal. He claims, due to their stipulations, the
sole legal issue before the circuit court and now this Court was whether Slepikas
provided valid, voluntary consent. Accordingly, he argues the circuit court erred by
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giving deference to the magistrate court’s determinations; specifically, it erred by
noting that the magistrate court had the benefit of viewing the video of the arrest.
He contends that both the circuit court and this Court should apply the de novo
standard of review because the facts are undisputed, and he challenged the search
under the Fourth Amendment.
[¶12.] “[W]e review a motion to suppress evidence obtained in the absence of
a warrant de novo[.]” State v. Medicine, 2015 S.D. 45, ¶ 5, 865 N.W.2d 492, 495.
However, we review a lower court’s underlying factual findings for clear error. Id.;
see also State v. Almond, 511 N.W.2d 572, 573–74 (S.D. 1994) (citing other
jurisdictions also applying the clearly erroneous standard to a determination of
voluntariness of consent). “Whether a valid consent to search exists is generally a
question of fact for the trial court.” State v. Akuba, 2004 S.D. 94, ¶ 25, 686 N.W.2d
406, 417 (citation omitted); see also Schneckloth v. Bustamonte, 412 U.S. 218, 227,
93 S. Ct. 2041, 2047–48, 36 L. Ed. 2d 854 (1973) (stating the issue of whether an
individual’s consent to a search was voluntary “is a question of fact to be
determined from the totality of all the circumstances”). “We will declare a finding of
fact clearly erroneous only if we are definitely and firmly convinced that a mistake
has been made.” Lien v. Lien, 2004 S.D. 8, ¶ 14, 674 N.W.2d 816, 822.
[¶13.] The magistrate court decided the factual issue of whether Slepikas
provided valid, voluntary consent after hearing the testimony of a live witness and
reviewing a video of the incident. Slepikas relies upon the parties’ stipulation to
argue that these factual findings can be reviewed de novo. His argument fails
because the magistrate court’s findings were based, at least in part, on live witness
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testimony and a video recording that was not made available for review by either
the circuit court or this Court. “When a court ‘bases a finding of consent on the oral
testimony at a suppression hearing, the clearly erroneous standard is particularly
strong since the [court] had the opportunity to observe the demeanor of the
witnesses.’” State v. Castleberry, 2004 S.D. 95, ¶ 12, 686 N.W.2d 384, 388 (quoting
United States v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)) (alteration in original).
Accordingly, our standard of review remains unaffected by the parties’ after-the-fact
stipulation regarding the evidence presented at the suppression hearing. See State
v. Fountain, 534 N.W.2d 859, 862–63 (S.D. 1995) (reviewing consent under clearly
erroneous standard, even though parties stipulated to facts for a court trial after a
defendant’s motion to suppress was denied after an evidentiary hearing involving
live witness testimony).
[¶14.] As to the video recording, it is true that this Court has applied the de
novo standard of review to the issue of consent when the trial court made no factual
finding on consent, and this Court had access to the same evidence as the trial
court. See Akuba, 2004 S.D. 94, ¶¶ 25-27, 686 N.W.2d at 417–18. Here, the
magistrate court made a finding on consent and neither the circuit court nor this
Court had access to the arrest video viewed by the magistrate court. Therefore, we
must apply the deferential standard of clearly erroneous to the magistrate court’s
factual determination on consent.
2. Whether the circuit court erred in affirming the magistrate court’s decision that Slepikas provided valid, voluntary consent to the blood draw.
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[¶15.] Slepikas argues that he did not provide valid, voluntary consent to the
blood draw. In support of his argument, he notes that he is a fifty-eight-year-old
man with no criminal history or familiarity with law enforcement’s procedures. He
contends that his learning disability impeded his ability to understand what was
occurring and made him vulnerable to succumb to law enforcement’s tactics. He
further claims that his consent was involuntary because it occurred at 2 a.m., the
arrest involved multiple law enforcement officers, law enforcement subjected him to
field sobriety tests, and he provided consent while law enforcement searched and
handcuffed him. He asserts that his responses of “okay” were not affirmative
responses but rather passive submissions to law enforcement’s show of authority.
He claims his first answer of “okay” was in response to Sergeant Van Diepen’s
statement that he was under arrest. Finally, he argues his consent was invalid
because law enforcement did not provide him with Miranda warnings or inform him
that he could deny consent.
[¶16.] Under both the Fourth Amendment to the United States Constitution
and South Dakota article VI, § 11, individuals are protected against “unreasonable
searches and seizures[.]” This requires a neutral judicial officer to issue a warrant
“based on probable cause prior to the execution of a search or seizure of a person.”
State v. Fierro, 2014 S.D. 62, ¶ 15, 853 N.W.2d 235, 240 (citation omitted). “If the
State fails to obtain a warrant prior to conducting a search, it is the State’s burden
to prove that the search at issue falls within a well-delineated exception to the
warrant requirement.” Medicine, 2015 S.D. 45, ¶ 6, 865 N.W.2d at 495 (citation
omitted) (internal quotation marks omitted). “A blood draw constitutes a search of
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the person such that the State must obtain a warrant or act under an exception to
the warrant requirement.” Id.
[¶17.] The parties concede that a judicial officer did not issue a warrant prior
to Slepikas’s blood draw. They dispute whether Slepikas’s blood draw meets the
consent exception to the warrant requirement. See Fierro, 2014 S.D. 62, ¶ 18, 853
N.W.2d at 241 (stating “consent to conduct a search satisfies the Fourth
Amendment, thereby removing the need for a warrant or even probable cause”
(citation omitted)). “The standard for assessing whether consent was coerced or
voluntary is one of objective reasonableness.” State v. Hemminger, 2017 S.D. 77, ¶
23, 904 N.W.2d 746, 754. “For consent to a search to be valid, the totality of the
circumstances must indicate that it was voluntarily given.” Akuba, 2004 S.D. 94, ¶
12, 686 N.W.2d at 412 (citation omitted). To determine whether the defendant
provided voluntary consent, “we consider the characteristics of the accused: age,
maturity, education, intelligence, and experience. We also consider the conditions
wherein the consent was obtained, including the officer’s conduct and the duration,
location, and time of the event.” Medicine, 2015 S.D. 45, ¶ 7, 865 N.W.2d at 496
(citation omitted). “A defendant’s knowledge of his right to refuse consent is also
relevant to, but not necessary for, an ultimate finding of voluntariness.” Id.
(citation omitted).
[¶18.] Due to the parties’ waiver of the magistrate court’s transcripts and
their decision not to place the video of Slepikas’s arrest into the record, we are
limited in our review of Slepikas’s consent. See Graff v. Child.’s Care Hosp. & Sch.,
2020 S.D. 26, ¶ 16, 943 N.W.2d 484, 489 (stating, we review a circuit court’s record
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“insofar as it exists”). We glean the facts surrounding the arrest from the
magistrate court’s factual findings and the parties’ factual stipulations.
a. Characteristics of Slepikas: age, maturity, education, intelligence, and experience
[¶19.] Whether a person is a “‘newcomer’ to the law” is a factor the Court can
consider. Castleberry, 2004 S.D. 95, ¶ 13, 686 N.W.2d at 388. Although Slepikas
told officers during the incident that he had a previous DUI arrest, his affidavit
claimed no criminal history nor history of arrest. As the magistrate court noted, the
discrepancies in Slepikas’s statements make this factor difficult to weigh.
[¶20.] Slepikas has some type of intellectual disability. But as the magistrate
court noted, Slepikas failed to provide evidence establishing that his disability
prevented him from understanding what was occurring during the arrest. Nor did
he present information that specifically identified the extent and nature of his
disability. Instead, the parties and the courts alternated between referring to his
disability as an “intellectual” or a “learning” disability. The two referenced
designations affect an individual’s cognitive functions in different manners, and the
interchange of the terms impedes our ability to ascertain the extent of Slepikas’s
disability. We know from the record that he functioned at a high enough level to
receive a high school diploma. But aside from the general statements that Slepikas
has a learning disability, neither the magistrate court, the circuit court, nor this
Court was presented with evidence establishing that his disability precluded him
from understanding and validly consenting to the officer’s request to draw his blood.
[¶21.] Finally, regarding whether Slepikas’s responses of “okay” constituted
affirmative consent to draw his blood, this Court examines “whether his conduct
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would have caused a reasonable person to believe that he consented.” State v.
Leigh, 2008 S.D. 53, ¶ 17, 753 N.W.2d 398, 404 (citation omitted). “[C]onsent need
not be explicit—it can be inferred from words, gestures, and other conduct.”
Hemminger, 2017 S.D. 77, ¶ 24, 904 N.W.2d at 754 (holding defendant provided
valid consent by using words indicating voluntariness, including, “okay”). “The
wording in a law enforcement officer’s question for consent is also relevant.”
Castleberry, 2004 S.D. 95, ¶ 10, 686 N.W.2d at 387 (stating a defendant’s response
of “sure” to law enforcement’s questions could have multiple meanings); see, e.g.,
Leigh, 2008 S.D. 53, ¶¶ 18-19, 753 N.W.2d at 404 (holding defendant’s response of
“yeah” did not constitute consent when asked if he would mind if law enforcement
patted him down).
[¶22.] Here, Slepikas responded, “okay” to the officer’s question asking
whether he consented to a blood draw by a medical professional to determine his
blood-alcohol content. Then he again responded, “okay” when asked if he was “good
to give a sample of blood.” The record further shows no evidence that Slepikas
objected to the blood draw. While “an absence of protest or objection alone does not
necessitate a conclusion that consent was given[,]” Leigh, 2008 S.D. 53, ¶ 19, 753
N.W.2d at 404, this Court has cited a defendant’s lack of protest as evidence to
support that a defendant’s actions constituted consent. See Castleberry, 2004 S.D.
95, ¶ 14, 686 N.W.2d at 389–90. At the suppression hearing, the magistrate court
had the ability to weigh the witness’s credibility and view a video of the arrest.
Nothing in the record undermines the magistrate court’s determination that
Slepikas’s words and actions constituted consent.
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b. Law enforcement officers’ conduct and the duration, location, and time of the event
[¶23.] The magistrate court determined that Slepikas was in custody. “[T]he
condition of being in custody, when combined with other relevant circumstances,
can invalidate a consent[,]” but custody alone is not enough to demonstrate coerced
consent. Medicine, 2015 S.D. 45, ¶ 15, 865 N.W.2d at 499 (citing United States v.
Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598 (1976)). According to
the magistrate court, while Slepikas was in custody, law enforcement officers were
polite and helpful to him. They offered to retrieve his cellphone and to leave in his
vehicle any items that would be prohibited in the jail. Slepikas’s arrest occurred
around 2:05 a.m., and his blood draw occurred around 2:43 a.m. Although the
initial investigation occurred in the early morning hours, it was relatively short-
lived. It also occurred on a public road where it was not “shielded from public
scrutiny[.]” State v. Kaline, 2018 S.D. 54, ¶ 14, 915 N.W.2d 854, 858. Based upon
the record, it appears law enforcement did not intimidate or coerce Slepikas so as to
render his consent “a mere submission to authority.” State v. Morato, 2000 S.D.
149, ¶ 25, 619 N.W.2d 655, 663.
[¶24.] Slepikas’s additional argument that police officers should have
provided him with Miranda warnings in light of his custodial status is based upon a
faulty reading of our decision in Medicine. There, we observed that law
enforcement officers are “not required to administer a Miranda warning to an
individual prior to requesting consent for a search, and the failure to give such a
warning does not invalidate consent.” Medicine, 2015 S.D. 45, ¶ 15 n.7, 865 N.W.2d
at 499 n.7 (emphasis added). “An officer’s request that a suspect consent to a
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search, [ ] is not [an] interrogation or its functional equivalent.” Morato, 2000 S.D.
149, ¶ 23, 619 N.W.2d at 662. In Medicine, we responded to the State’s factually
unfounded argument that the defendant had consented to the seizure of a blood
sample by stating that “advising an arrestee that he [or she] has the right to remain
silent might, in some cases, serve to mitigate the otherwise coercive nature of
custodial questioning.” 2015 S.D. 45, ¶ 15 n.7, 865 N.W.2d at 499 n.7. But we have
never held that failing to advise a defendant of his or her Miranda rights has any
significance to determining the voluntariness of his or her consent for a search
[¶25.] Here, even though law enforcement had handcuffed Slepikas, the
evidence establishes that the environment surrounding his consent was non-
coercive. Law enforcement never told Slepikas nor implied that he must consent to
the blood draw. On the contrary, Sergeant Van Diepen’s colloquy with Slepikas
shows a desire on the part of Sergeant Van Diepen to ascertain whether Slepikas
was providing consent. Sergeant Van Diepen appears to have started the
discussion by stating, “I have a question for you[,]” and then asked if Slepikas would
consent to “a blood withdrawal by a medical professional[.]” He continued after
Slepikas had already responded, “okay” to ask again, “Is that okay?” He finished
the discussion by saying, “so you’re good to give a sample of blood.” To which
Slepikas again responded, “okay.” Sergeant Van Diepen’s questioning supports the
court’s finding of voluntary consent.
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[¶26.] Based upon the totality of the circumstances, the magistrate court’s
finding that Slepikas provided valid, voluntary consent to the blood draw was not
clearly erroneous. We affirm the circuit court’s decision.
[¶27.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY,
Justices, concur.
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