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State v. Gilmore

February 25, 2009



The opinion of the court was delivered by: Sabers, Retired Justice


[¶1.] Douglas Gilmore appeals the denial of a motion to suppress evidence seized pursuant to a search warrant, arguing the search warrant was issued on insufficient probable cause. We affirm.


[¶2.] On March 21, 2007, a "cooperating individual" (CI)*fn1 contacted the Minnehaha County Sheriff's Department and disclosed that he relapsed by using methamphetamine (meth) the previous weekend. In an attempt to remove any future temptation, the CI informed Detective Walsh, Detective Duprey, and Lieutenant Vandekamp of the residences at which he purchased meth the week prior. One of the residences was 4606 W. 16th Place in Sioux Falls. The CI indicated that the individual living at this residence from whom he purchased the meth was named "Doug." Law enforcement corroborated the information, conducted surveillance of the residence, and researched other information relating to Doug. Thereafter, Detective Walsh swore to an affidavit to secure a search warrant for the residence. The affidavit, in pertinent part, stated:

2. The CI directed your Affiant to 4606 W. 16th Place, the residence of "Doug," from whom the CI had purchased 1 gram of crystal methamphetamine for $120 on 03/19/2007. The CI described "Doug" as an older white male who didn't have a license or a vehicle. The CI stated that the CI's impression was that "Doug" might possibly have a drug connection in Colorado. Det. Duprey noted a yellow bicycle on the porch.

3. In checking the utilities account for 4606 W. 16th Place, your Affiant discovered that the account holder is Douglas D. Gilmore. According to local police files, Douglas Dean Gilmore has the same phone number (605-571-7502) provided by the utility company, and a "Doug Gilmore" has telephoned 911 from this address.

4. On 03/23/2007, at approximately 1700 hours, Det. Duprey and your Affiant conducted surveillance of 4606 W. 16th Place. A vehicle was parked in the driveway with Colorado license plate 258FGF, registered to Nathan Greer. Your Affiant observed a tall white male exit the residence and retrieve an object from the vehicle. He then returned to the residence. Upon returning to the detective bureau, your Affiant found that Greer has an active arrest warrant for possession of drug paraphernalia, and your Affiant identified a photograph of Greer as the subject seen at the residence.

5. At approximately 1800 hours, your Affiant continued surveillance of the residence. Your Affiant observed Gilmore depart the trailer court on a yellow bicycle and pedal east on 12th Street. Your Affiant recognized Gilmore from a driver's license photograph. Between then and 2000 hours, Gilmore returned after a short term trip.

6. Your Affiant and Det. Duprey returned to 4606 W. 16th Place at approximately 2000 hours. A vehicle with South Dakota license plate 1VV876, a green Dodge minivan registered to Linda Mitzel, was parked in front of the residence. Mitzel [is] a known methamphetamine user and distributor who has convictions for distribution of a controlled substance and possession of a controlled substance. She has been charged with 9 felony narcotics offenses since 1995.

7. After approximately 20 minutes, Mitzel and a male, later identified as Jack Irvin Benney, exited the residence and left in the van. After committing a traffic violation (illegal right turn), the van was pulled over. Benney was eventually arrested for a warrant. During the stop your Affiant observed Mitzel making furtive movements in the front passenger seat of the van.*fn2

8. Gilmore has been associated with major drug dealers in the past three years. In 2006, Aaron Pope, who has pled guilty to federal narcotics violations, stated that one of his customers was Douglas Gilmore. Pope provided Gilmore's phone number (which matches the telephone number in paragraph 3). Some of their transactions took place at Gilmore's trailer, including one in which Pope obtained 1/2 pound of methamphetamine from his source. Between 12/11/2005 and 01/16/2006, Pope and Gilmore called each other approximately 150 times.

9. In 2006, Gilmore also had a number of telephone calls to Christina Cline, a methamphetamine distributor who pled guilty in federal court to conspiracy to distribute methamphetamine; Melissa Koenen, a known methamphetamine distributor; and Eric Lamont, a known methamphetamine distributor who has pled guilty to distribution of [a] controlled substance.*fn3

10. In 2005, Gerald Roby, who pled guilty to federal narcotics charges, stated that one of his customers was Douglas Gilmore.

11. Gilmore has an active arrest warrant for a traffic violation.

12. Based on the aforementioned facts, your Affiant respectfully requests that a search warrant be issued for Gilmore, Douglas Dean, DOB: 12/06/1954, and his urine; and 4604 W. 16th Place, Sioux Falls, Minnehaha County, South Dakota; and unattached outbuilding; and any and all persons present at the time of execution of this warrant.

13. Your Affiant has observed short term traffic at the residence, and the CI in paragraph 1 stated that the CI had purchased crystal methamphetamine from Gilmore at the residence. Your Affiant knows that narcotics distributors will often have customers come to their residence to purchase the drugs, and that subjects found in a drug house will often ...

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