State v. Stanley

896 N.W.2d 669

STATE of South Dakota, Plaintiff and Appellee,

v.Shelly D. STANLEY, Defendant and Appellant.

27911

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS APRIL 24, 2017

OPINION FILED May 31, 2017

MARTY J. JACKLEY, Attorney General, GRANT FLYNN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

TIMOTHY J. BARNAUD, Spearfish, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice

[¶1.] Shelly D. Stanley appeals her conviction and sentence for possessing cocaine. She argues her Fourth Amendment rights were violated in a number of ways. She also challenges several of the circuit court's evidentiary rulings. Finally, she argues that several comments made during the State's closing argument were inappropriate and that the cumulative effect of these alleged errors denied her a fair trial. We affirm.

Facts and Procedural History

[¶2.] On August 3, 2015, the Sturgis Motorcycle Rally was underway in Sturgis, South Dakota. Shortly before 1:00 a.m., Sturgis Police Officers Mike Varilek and Tom Strickland (collectively, "the Officers") received a report from another police officer that a male and female had entered a single-occupancy, portable toilet located in the middle of 2nd Street. Officer Varilek testified that such an event is extremely uncommon and that he had never seen it happen in seven years of working at the Sturgis Rally. Officer Varilek also testified that his primary objective at the Rally is public safety, and considering the alcohol and drug use that is common at the Rally, he wanted to be sure the female occupant was not being assaulted. Similarly, Officer Strickland testified that prostitution and human trafficking are concerns at the Rally. The Officers walked over to the portable toilet, which was a handicap- accessible unit located at the end of a row of five or six units. The toilet enclosure was vented around the top of the unit. The Officers testified that at the time, foot traffic in the area was minimal, and noise levels were low.

[¶3.] After approaching the portable toilet,¹ the Officers overheard a conversation between the occupants, who were later identified as Stanley and Christopher Shuler. Officer Varilek testified he heard the following exchange:

[Shuler] : You need to pack more in there.

[Stanley] : Can you believe we're in an outhouse [or porta-potty] in Sturgis getting ready to—

[Shuler] : Shh, you need to be quiet.²

The Officers also heard "a plastic bag rustling around as if somebody was digging in a sandwich bag." Officer Varilek concluded, "[b]ased on [his] training and experience as a drug interdiction officer," that Shuler and Stanley were conducting a drug transaction. Officer Varilek then knocked on the door and identified himself as a police officer. About 30 seconds later, the door opened, and Shuler walked out. Officer Varilek followed Shuler to question him.

[¶4.] Officer Strickland stayed with Stanley. He immediately observed Stanley seated on the toilet, with a plastic bag in her left hand. Officer Strickland commanded Stanley to show him her hands, but she leaned forward and placed the bag in the waste receptacle below her. After Stanley got up, Officer Strickland inspected the toilet's interior. Sitting on top of the waste pile was a clear, plastic bag containing a white substance, and a red straw that had been cut to a length of about three or four inches.³ Officer Strickland did not observe any feces or other waste on top of the bag, nor did he see any other bags in the toilet. After retrieving the straw and bag, Officer Strickland noticed a white, powdery substance on the inside of the straw, which led him to conclude it had been used to snort some sort of drug like cocaine or methamphetamine. Subsequent analysis confirmed the bag contained cocaine.

[¶5.] The Officers arrested Stanley and Shuler. After the arrest, the Officers asked Stanley to provide a urine sample, but she refused. The Officers did not subsequently seek a warrant. Stanley was later indicted on one count of possessing a controlled substance in violation of SDCL 22–42–5. Shuler was not indicted.

[¶6.] Prior to trial, the circuit court resolved several evidentiary issues. The court decided that the State could use Stanley's refusal to provide a urine sample against her as evidence of consciousness of guilt. However, the court decided that Stanley would not be able to use the fact that the Officers did not seek a warrant for her urine as evidence to rebut the State's use of her refusal to provide a urine sample. The court also determined that the Officers could testify regarding the conversation they overheard coming from inside the portable toilet.

[¶7.] Stanley's one-day trial occurred on March 2, 2016. After the close of the State's evidence, Stanley made a motion for judgment of acquittal, which the circuit court denied. She also made several objections throughout the course of the trial that are relevant to this appeal. During Stanley's closing argument, her attorney commented on the State's failure to call Shuler as a witness at trial. During the State's closing, the prosecutor remarked that Stanley had the same power to subpoena witnesses. And after Stanley's attorney commented in closing that the police acted illegally, the prosecutor said the opposite in her closing. Stanley objected in both instances and was overruled.

[¶8.] At the conclusion of the trial, the jury returned a guilty verdict. On June 13, 2016, the court sentenced Stanley to imprisonment for five years but fully suspended the sentence on the condition that Stanley serve 180 days in prison and undergo five years of probation. Stanley appeals her conviction and sentence, raising six issues:

1. Whether the evidence obtained by the Officers should have been suppressed.

2. Whether the circuit court erred by permitting Officer Varilek to testify that Stanley refused to provide a urine sample after her arrest.

3. Whether the circuit court erred by refusing to permit Stanley to offer evidence that the State did not obtain a warrant for a urine sample.

4. Whether Officer Varilek's testimony regarding Shuler's statements was inadmissible hearsay.

5. Whether the prosecutor committed misconduct during the State's closing argument.

6. Whether the cumulative effect of the court's alleged errors deprived Stanley of a fair trial.

Analysis and Decision

[¶9.] 1. Whether the evidence obtained by the Officers should have been suppressed.

[¶10.] Stanley argues the evidence gathered by the Officers should have been suppressed because according to Stanley, the Officers violated the Fourth Amendment in two ways. First, she contends that she had an expectation of privacy inside the portable toilet and that the Officers' aural observation of her conversation with Shuler amounted to a warrantless search. According to Stanley, the Officers "had no suspicion that criminal activity was taking place." Second, she contends that the Officers had no reason to interact with or detain her. We disagree on both counts.

[¶11.] The State may not unreasonably search or seize an individual. U.S. Const. amend. IV ; S.D. Const. art. VI, § 11. Under the Fourth Amendment, "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure [.]" Terry v. Ohio , 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Unless an exception applies, a search is unreasonable when the government trespasses into an area protected by the Fourth Amendment without a warrant. United States v. Jones , 565 U.S. 400, 406, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) ("[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects') it enumerates."). Even when a trespass does not occur, a warrantless search is unreasonable if: (1) "the individual has shown that ‘he seeks to preserve something as private[,]’ " and (2) "viewed objectively, [the individual's expectation] is ‘justifiable’ under the circumstances." Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (quoting Katz v. United States , 389 U.S. 347, 351, 353, 88 S.Ct. 507, 511–12, 19 L.Ed.2d 576 (1967) ).

[¶12.] Although Stanley states the legal standard on this issue, she does not explicitly argue she had a subjective expectation of privacy in the portable toilet. Stanley was not alone in the single-occupancy, portable toilet, which was located on a public street, adjacent to at least one other portable toilet, during a well-attended event. The portable-toilet enclosure was vented around the top, allowing air—and sound—to pass freely between the interior of the portable toilet and the outside world. Moreover, the Officers testified that Stanley and Shuler spoke at a normal, conversational volume. So while Stanley and Shuler's decision to lock themselves in the portable toilet exhibits at least some intent to conceal their activities from visual observation, they did little to prevent their conversation from being overheard by any passing member of the public. "[T]he police cannot reasonably be expected to avert their eyes [or ears] from evidence of criminal activity that could have been observed by any member of the public." California v. Greenwood , 486 U.S. 35, 41, 108 S.Ct. 1625, 1629, 100 L.Ed.2d 30 (1988) ; see also Arizona v. Hicks , 480 U.S. 321, 328, 107 S.Ct. 1149, 1154, 94 L.Ed.2d 347 (1987) (holding observation of that which is already observable—"without disturbing it—is not a ‘search’ for Fourth Amendment purposes"); Katz , 389 U.S. at 351, 88 S.Ct. at 511 ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."). Therefore, Stanley has not demonstrated a subjective expectation of privacy relevant to the observation she complains of. Even if she had, she cites no authority to support her conclusion...