endomorphosis/Caselaw_Access_Project_JSON

1"{\"id\": \"4728096\", \"name\": \"STATE, Respondent v. RIGSBEE, Appellant\", \"name_abbreviation\": \"State v. Rigsbee\", \"decision_date\": \"1975-09-19\", \"docket_number\": \"File No. 11389\", \"first_page\": \"360\", \"last_page\": \"376\", \"citations\": \"89 S.D. 360\", \"volume\": \"89\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:47:23.519682+00:00\", \"provenance\": \"CAP\", \"judges\": \"WINANS and WOLLMAN, JJ., concur.\", \"parties\": \"STATE, Respondent v. RIGSBEE, Appellant\", \"head_matter\": \"STATE, Respondent v. RIGSBEE, Appellant\\n(233 N.W.2d 312)\\n(File No. 11389.\\nOpinion filed September 19, 1975)\\nPetition for rehearing denied October 27, 1975\\nFrederic R. Moulton, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Kermit A. Sande, Atty. Gen., Pierre, on the brief.\\nSidney B. Strange, Sioux Falls, for defendant and appellant.\", \"word_count\": \"5672\", \"char_count\": \"33548\", \"text\": \"DUNN, Chief Justice\\n(on reassignment).\\nDefendant was convicted of possessing more than one ounce of marijuana by the Circuit Court of Codington County sitting without a jury. He was sentenced to spend two years in the State Penitentiary. He assigns as error four aspects of the trial court's decision. The major issue is whether the trial court properly refused to suppress a large quantity of marijuana which defendant had in his vehicle at the time of his arrest.\\nThe record reveals that between 5 and 5:30 p. m. on March 16, 1973, Officer Durham of the Watertown police received information from a confidential informant that \\\"Mr. Rigsbee had-marijuana or a controlled substance in his vehicle and he normally went to the Club 20 between 6:20 and 7:00, and that he had been selling marijuana out there.\\\" Officer Durham considered the informant to be reliable, and defendant does not challenge that reliability here. In addition to this information, Officer Durham knew that defendant had previously been arrested for possession of less than one ounce of marijuana and that he had a reputation in Watertown as being a seller of controlled substances.\\nAs a result of the tip, Officer Durham, along with Officer Witt, waited in a patrol car several blocks from defendant's house until the defendant left in his car at approximately 7:10 p. m. The officers followed Rigsbee and stopped his car when he turned onto Highway 20 at about 7:15 p. m. Officer Durham told him that he \\\"had information to believe that [Rigsbee] had marijuana in his car .\\\" Rigsbee was asked several times if the officers could search his car and he was informed that if he refused the officers would'have to get a search warrant.\\nThe defendant refused to allow a search of his car at that time. He was then taken into'custody and driven to the police station by Officer Witt. Officer Durham drove the defendant's car to the station.\\nAt this point there is a conflict in the testimony. The defendant claims that when he arrived at the police station he was taken to the interrogation room where he was told that if he did not consent to a search of his car that the police would get a warrant and \\\"tear it apart.\\\" He says that he then went with the officers to the car- and retrieved three bags of marijuana from the glove compartment. He was then taken back to the interrogation room and later led the officers back to the car where he produced a larger quantity of marijuana from a compartment in the back of the car.\\nThe police version of what happened at the station is entirely different. They testified that as Rigsbee was being taken into the station through the garage that he told Officer Durham, \\\" 'You don't need a search warrant, I will get the stuff for you.' \\\" He then went to the car and produced three bags of marijuana which he got out of the glove compartment. Officer Durham also testified that he never told the defendant that he would tear his car apart if he had to get a search warrant or threatened the defendant in that manner.\\nThe pivotal issue in this case is whether the police had sufficient probable cause to stop the defendant's car on Highway 20 and take the defendant into custody. If the police had no probable cause to arrest the defendant, all that followed could be tainted by this illegal stop. Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Cf. Brown v. Illinois, 1975, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. The test to determine the sufficiency of an informant's tip as it relates to probable cause was set out by the United States Supreme Court in Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Although the case dealt specifically with the sufficiency of an affidavit for a search warrant, the test has been used in determining if probable cause exists where there is an arrest without a warrant. See McCray v. Illinois, 1967, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Beck v. Ohio, 1964, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.\\nMr. Justice Goldberg, writing for the majority in Aguilar, set out a two-prong test to determine the sufficiency of the information from an informant as it relates to probable cause:\\n\\\"Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was credible' or his information 'reliable.' \\\" 378 U.S. at 114-115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. (emphasis supplied)\\nThere is no question in the instant case that the second prong of the test was met. Officer Durham testified that the informant had supplied reliable information about criminal activity to him in the past. In addition, defendant concedes the credibility of the informant. The threshold question is whether the first prong of the Aguilar test was met. Simply stated, did Officer Durham at the suppression hearing supply \\\"underlying circumstances from which the informant concluded that the [marijuana was] where he claimed [it was]?\\\"\\nThe first part of the Aguilar test has come to be known as the \\\"basis of knowledge\\\" prong. It was clarified by the Supreme Court in Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. There the Court stated:\\n\\\"In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.\\n\\\"The detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides a suitable benchmark.\\\" 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.\\nIn Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, an informant named Hereford told federal narcotics agents that Draper had gone to Chicago and that he was going to bring back three ounces of heroin. He gave the agents Draper's description and told them that Draper would be arriving in Denver by train at a certain time on one of two days. He said that Draper habitually walked fast and that he would be carrying a tan zipper bag. When Draper did arrive by train he was arrested and the heroin was found in his possession. The court held that the informant's tip, plus the verification of the tip by the police, was sufficient to establish probable cause for Draper's arrest and the search of his person.\\n\\\" Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had 'reasonable grounds' to believe that the remaining unverified bit of Hereford's information \\u2014 that Draper would have the heroin with him \\u2014 was likewise true.\\\" 358 U.S. at 313, 79 S.Ct. at 333, 3 L.Ed.2d at 332.\\nIn examining whether there were underlying circumstances showing the informant's basis of knowledge of the criminal activity in this case we will use Draper v. United States, supra, as a benchmark as suggested by the Court in Spinelli v. United States, supra. The informant here told Officer Durham (1) that Rigsbee was in town, (2) that he usually went to Club 20 where he sold marijuana, (3) that he would leave for Club 20 between 6:30 and 7 p. m., and (4) that he would have a controlled substance in his car. Before making the arrest, Officer Durham personally verified most of the informant's tip: the defendant was at home; he did leave home within ten minutes of the time the informant said he would leave; and he was proceeding in the direction of Club 20 at the time he was stopped by the officers. The only bit of univerified information was that Rigsbee would have a controlled substance in the car.\\nConsidering the information given by the informant as a whole and the subsequent verification by the officers, we conclude that the informant did have firsthand knowledge of the defendant's criminal activity. We hold that this information, plus the proven credibility of the informant meets the two-pronged Aguilar test for 'probable cause. Therefore the officers were justified on the basis of the informant's tip in taking the defendant into custody.\\nThis holding is in complete accord with the latest pronouncer ment from the Eighth Circuit Court of Appeals regarding the Aguilar-Spinelli-Draper line of cases. In United States v. Cummings, 1974, 507 F.2d 324, a reliable unnamed informant notified law enforcement authorities that slot machines were being carried into Sioux Falls, South Dakota. He described the U-Haul truck that carried the slot machines, gave the license number of the truck, and stated that the driver was one James Christensen of Sioux Falls. On the basis of this tip a search warrant was issued by a municipal judge in Sioux Falls and slot machines were found in the described truck. The Court of Appeals examined the informant's tip and concluded that it contained enough self-verifying detail to allow a magistrate to believe that the informant had firsthand knowledge of the criminal activity and thus it met the first prong of the Aguilar test. The Court stated at p. 329:\\n\\\"The key question which must be asked by ' the magistrate is: 'Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's, tests without independent corroboration?' Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. at 588. In the instant case we are convinced that the answer must be in the affirmative.\\\"\\nWe are also convinced that the tip given to Officer Durham in this case was sufficient in detail and, like the Eighth Circuit Court of Appeals, we answer the above question in the affirmative.\\nDefendant next argues that the marijuana should have been suppressed because he involuntarily consented to the \\\"search\\\" of his vehicle. Defendant uses the word \\\"search\\\" in his brief, although, technically, no police search took place. The record reveals that on two different occasions defendant led the officers out to his car in the police garage and he himself entered the car and handed the bags of marijuana to the officers. Rather than speak of this as a \\\"search,\\\" we prefer to call what took place a \\\"seizure\\\" \\u00a1by the officers. However, in doing so we do not imply that the 'constitutional mandates of the Fourth and Fourteenth Amendments are any less strict for a seizure alone than they are for a search and seizure by law enforcement officers.\\nThe trial court made no determination as to whether defendant voluntarily produced the marijuana. Since the trial court did not rule on this question, we choose not to decide it on this appeal. Rather, we hold that the police had probable cause to search the car themselves and thus they were justified in seizing the marijuana which the defendant produced from the car. Viewed in this light, the question of voluntary consent by the defendant is irrelevant.\\nThe police officers had probable cause based on the informant's tip to stop the defendant on the highway. Since the informant told them that there was contraband in the car, they had probable cause to conduct a search on the spot or at the police station.\\nIn many respects the facts of this case are similar to those in Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. There the police, acting without a warrant but with probable cause, searched a vehicle which they believed was involved in an armed robbery and contained guns and money taken in the robbery. The Court upheld the warrantless search.\\n\\\" [T]he police had probable cause to believe that the robbers, carrying guns and the fruits of the crime, had fled the scene in a light blue compact station wagon which would be carrying four men, one wearing a green sweater and another wearing a trench coat. As the state courts correctly held, there was probable cause to arrest the occupants of the station wagon that the officers stopped; just as obviously was there probable cause to search the car for guns and stolen money.\\\" 399 U.S. at 47-48, 90 S.Ct. at 1979, 26 L.Ed.2d at 426.\\nThe Court went on to say that it made no difference that the vehicle was searched at the station house rather than on the highway.\\n\\\"On the facts before us, the blue station wagon could have been searched on the .spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained.\\\" 399 U.S. at 52, 90 S.Ct. at 1981, 26 L.Ed.2d at 428-429.\\nIn the instant case the police had the necessary probable cause to search for marijuana at the station house. The fact that the defendant produced the marijuana and they then seized it does not change the outcome. The warrantless seizure did not violate the Fourth and Fourteenth Amendments. Therefore, we conclude that the trial court committed no error in refusing to suppress the marijuana.\\nDefendant raises several other assignments of error which we feel to be without merit and they will not be discussed in this opinion.\\nThe conviction of the defendant is affirmed.\\nWINANS and WOLLMAN, JJ., concur.\\nDOYLE and COLER, JJ., dissent.\\nAn Informant's Tip as the Basis for Probable Cause: Modified Aguilar Standards, 20 S.D.L.Rev. 363, 367 (1975); Moylan, Hearsay and Probable Cause; An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 747 (1974).\"}"