State v. Watson

231 N.W.2d 839, 89 S.D. 184, 1975 S.D. LEXIS 135

• Court: South Dakota Supreme Court
• Decided: July 11, 1975
• Docket: File 11516
• Status: Published

Opinions

DUNN, Chief Justice.

The defendants appeal from a conviction in Bon Homme County Circuit Court of knowingly and intentionally inhabiting a room wherein any controlled drug or substance is being illegally stored or used on or about May 26, 1973, in contravention of SDCL 39-17-110.

The defendants in their appeal claim that there was an illegal search of the premises; that it was error to permit introduction of the hashish pipe and attached bags of marijuana because of failure to prove chain of custody; that defendant Randall Skorpik should have had his case dismissed as he was not in the room where the alleged drugs were found when arrested; and that the defendants were not inhabitants of the room at the time of arrest. We affirm.

This incident occurred at property owned by Charles Skorpik just east of Tyndall, South Dakota, which was supposedly unoccupied. Charles Skorpik had requested the sheriff some months before to keep an eye on the property because machinery had been stolen from the premises on various occasions. On the evening of May 26th, in response to a call from a neighbor that someone was “raising a little heck” on the Skorpik property, the sheriff investigated and found several unfamiliar cars in the yard and heard loud music emanating from the house. He returned to Tyndall for assistance and returned with several law officers. Finding the front door nailed shut, the sheriff proceeded around to the back door. As he passed a window where the shade was partially drawn, he looked in and saw six to eight persons sitting in the room in a circle with a cardboard box in the middle and what he recognized to be a waterbowl or hashish pipe (used for smoking marijuana) in the box. He then entered the back door, identified himself to one of the defendants (Randall Skorpik, son of the owner Charles Skorpik) in the kitchen, and, upon smelling marijuana, entered the living room where he arrested the persons present and confiscated the materials. '

The defendants were charged and convicted in a court trial of violating SDCL 39-17-110 which reads:

“Any person who knowingly or intentionally inhabits a room wherein any controlled drug or substance is being illegally stored or used shall be guilty of a misdemeanor and upon conviction therefor shall be sentenced to not more than one year in the county jail and fined not more than five hundred dollars, or by both such fine and imprisonment.”

Defendants first raise the issue of the unconstitutionality of the search and seizure. Both the defendants and the state argued the “plain view” doctrine as stated in Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. There the Supreme Court stated:

“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”

Resolution of this issue turns on whether the officer had a right to be in the position to have a view.

The state first contends that there was a breach of the peace because of the volume of the music heard at this time of night, and, that this being a misdemeanor committed in his presence, the sheriff had a right to lawfully enter the property in response to this violation. This argument would seem to lack merit, and it is difficult to imagine what or whose peace was breached by the loud music emanating from a supposedly abandoned and isolated house a couple of blocks east of Tyndall.

The second argument is on sounder ground. The sheriff had been requested to check the property by the owner, and he first came to the property this night in response to a complaint that someone was “raising a little heck” on the Skorpik property. Upon arriving, he found strange autos and loud music coming from a supposedly abandoned house. He then checked out the house, as was his duty. It would be an unreasonable and unwarranted restriction on his presence on the property that night to limit him to checking only the machinery as is suggested.

It is concluded that he had a lawful right to be on the property. As he passed the window, he had not only a right but a duty to look in and see what was there to be seen. For his own protection he would have the right to check on the situation he was getting into upon entering the house. We would thus hold under Harris, supra, that this was no illegal search or seizure under these circumstances.

The hashish pipe and marijuana were properly admitted in evidence. While the chain of testimony was not completely proven, there was substantial and credible testimony to establish that the pipe and marijuana were the same articles taken from the room and that they were in substantially the same condition at the time of trial. State v. Christmas, 1968, 83 S.D. 506, 162 N.W.2d 125, and cases cited therein. Further, the chain of custody was not in dispute up until the time the sheriff delivered the items to the state chemist. The number placed on the pipe by the chemist was still apparent at the time of trial. Any further foundation needed was furnished by photographs taken of the items on the evening they were seized.

Likewise, there is no merit that the case against defendant Randall Skorpik should have been dismissed because he was in the kitchen instead of the living room at the moment the sheriff entered. There is some evidence that Skorpik (son of the owner) was actually residing in the house at the time of the incident, and his presence and interest in the house are sufficient to circumstantially prove that he intentionally occupied the room where the marijuana and the hashish pipe were found.

This leaves the question of the definition of “inhabiting a room” as defined in the statute. The defendants contend that their mere presence in the room is not sufficient under the statute. Various definitions are cited, varying, from “regularly living there” to “mere presence.” Suffice to say that the trial court’s interpretation of habitation under this statute is not erroneous.

It is conceivable that some completely innocent person could appear at a “pot party,” and, while sensing that marijuana was in the room by smell or otherwise, could be arrested and convicted under this statute; however, statutes do not have to satisfy all hypothetical situations as long as they are not violative of the rights of the defendants in this case. Big Eagle v. Andera, 1975, 8 Cir., 508 F.2d 1293.

We are not dealing with this hypothetical situation here. The pipe (still warm and containing marijuana), as well as the bags of marijuana, was in the middle of the room with the defendants circled around it. It is true that the defendant Boggess did claim to the officers that he had not smoked “that evening” because he was to be involved in a wedding. But there is no contention or evidence that any one of the defendants was not a wilful participant in the party. The trial court did not err in finding that the defendants under these circumstances were knowingly inhabiting a room where a controlled substance was stored or used.

Affirmed.

WINANS, WOLLMAN and DOYLE, JJ., concur. CODER, J., dissents.