APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE GLEN A. SEVERSON Judge.
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON FEBRUARY 17, 2009
[¶1.] In a case of first impression, we are confronted with the question whether the community caretaker doctrine, which we previously applied to an automobile search, should also be applied to a home search. After smelling ammonia fumes outside a home, police officers entered without a warrant to see if anyone inside needed assistance. While in the home, they saw evidence of a methamphetamine lab in plain view, which later formed the basis for obtaining a search warrant. Defendant homeowner sought unsuccessfully to suppress the evidence seized in his house. He was convicted and sentenced on multiple charges related to the manufacture and possession of methamphetamine. On appeal, we conclude that, under the particular circumstances of this case, the officers were justified in their community caretaking function in entering the home to make sure no one had succumbed to noxious fumes. In another issue of first impression, we conclude that when a drug crime is committed at one location within two overlapping drug free school zones, such constitutes a single offense, and the constitutional prohibition against double jeopardy precludes dual convictions for both defendant's drug free school zone crimes. We affirm in part, reverse in part, and remand.
[¶2.] On April 27, 2007, Roger Pieper of MidAmerican Energy was sent to investigate a potential gas leak at 510 East 31st Street, in Sioux Falls, South Dakota. It was not the first time the company had received complaints in recent days about gas fumes in the neighborhood. During his check of the residence, Pieper's handheld gas detector registered the presence of a "heavier combustible" gas lying low on the basement floor. Pieper later testified that no level of combustible gas is safe because it may indicate that the source of the gas could be "real strong" somewhere else. But because natural gas is lighter than air, he believed that the fumes were not likely natural gas. He went outside to check nearby houses, and noticed a "stronger" odor of fumes at the house next door, 508 East 31st Street, defendant's residence. He smelled an ammonia odor. It was similar to the odors he smelled in other areas on the block. Upon further investigation at the 508 home, Pieper noticed that the MidAmerican padlock for the gas meter was open and pliers were lying on the ground. Pieper initially thought a MidAmerican employee was working on the meter. When he walked around the house, however, he noticed another meter lying on the ground. He then believed that he was dealing with a possible theft of gas. He contacted his supervisor at MidAmerican, and his supervisor called the billing department to learn of the status of service to 508 E. 31st Street. During the call, Pieper learned that service at 508 had been shut off for nonpayment and that the meters had been switched with one taken from a house on inactive status fifteen blocks away. MidAmerican contacted the police.
[¶3.] While Pieper waited for a MidAmerican billing representative and law enforcement officers to arrive, he checked homes on the western side of the block for possible gas leaks. As he proceeded down the block, Pieper saw a person leave in a car from the 508 house. He also saw another person leave in a pickup. When Pieper returned to the residence, he noticed that the meter had been re-locked and shut off. He also noticed that the meter lying on the ground was gone.
[¶4.] Officer Peter Zimbelman of the Sioux Falls Police Department was the first to respond to 508 E. 31st Street to investigate the possible theft of gas. He activated his video camera to record the investigation, but the camera was in a fixed position in the patrol car, and thus, there is only an audio recording of what transpired. Pieper told Officer Zimbelman that he saw two people leave the residence. Officer Zimbelman asked if Pieper thought anyone was still inside. Pieper did not know. Officer Zimbelman saw that the glass storm door to the residence was closed but unlocked, and the main wooden door was wide open. "Because it was a wide open, unsecured house," Officer Zimbelman believed someone could still be inside. He testified that he detected a faint odor of ammonia while standing outside the front door. He knocked on the door but no one answered. A neighbor approached Officer Zimbelman and told him that the person living at 508 E. 31st Street was caught at Kmart buying Sudafed and was seen bringing a propane tank into the house. The neighbor also mentioned the presence of strange gas odors about the neighborhood and that MidAmerican had been called twice.
[¶5.] Officer Thaddeus Openhowski arrived on the scene. He did not take part in the conversations between Officer Zimbelman and Pieper. Rather, he walked the perimeter of the house. While in the backyard, he noticed a chest freezer with a clear plastic tube sticking out of it. He opened the freezer because he thought it looked unusual. The tube was connected outside the freezer to a garden sprayer type device and inside the freezer was a clear plastic bucket. The officer also noted that the back door to the house was unlocked. After walking around the exterior of the house, Officer Openhowski joined Officer Zimbelman by the front door.
[¶6.] Officer Zimbelman opened the storm door and yelled inside, "Hello, Police. Anybody in here?" According to Officer Zimbelman, the faint odor of ammonia he previously smelled became stronger when he opened the door. They decided to enter the residence "to check to make sure nobody was incapacitated inside." Both officers had personally experienced the adverse affects of ammonia fumes years earlier when they were on the scene after a packing plant explosion. Officer Openhowski was "hit with it pretty hard" and knew that ammonia could "knock somebody out."
[¶7.] Once inside the home, the officers saw in plain view a propane tank. They also noticed that the house was in disarray. Within a minute after entry, Officer Zimbelman can be heard on the audio commenting on the real strong chemical odor. Finding no one upstairs, they went toward the staircase leading to the basement. At the entry of the staircase, both officers testified that the chemical odor became stronger. This caused Officer Zimbelman to believe that they might have encountered a methamphetamine lab. Officer Zimbelman called metro communications to contact Sergeant Jerry Mundt. Officers Zimbelman and Openhowski attempted to search the basement for persons possibly overcome by the fumes, but the fumes were overwhelming. They became light headed and had to leave the residence. The fire department and an ambulance were called. Officer Zimbelman received oxygen at the scene, and both officers later went to the emergency room, where they were put on oxygen for two to three hours. No one was found in the house.
[¶8.] When Sgt. Mundt arrived, Officer Openhowski told him of the items he saw in the chest freezer. Sgt. Mundt opened the freezer to examine the contents. The officers also told Sgt. Mundt that during their entry to the basement they saw evidence of a possible methamphetamine lab. Sgt. Mundt contacted Detective Michael Walsh of the Minnehaha County Sheriff's Office to have a warrant prepared. Detective Walsh arrived at the scene but remained in his vehicle. Sgt. Mundt informed Detective Walsh of the contents of the freezer, the existence of the propane tank, that the tank had a blue discoloration consistent with the manufacture of methamphetamine, and of the items seen by Officers Openhowski and Zimbelman in the basement. Detective Walsh prepared an affidavit in support of the search warrant. A search warrant was executed and the homeowner, Brian Deneui (defendant), was later arrested. The search revealed a digital scale, methamphetamine pipes, a spoon and coffee filter that tested positive for methamphetamine, baggies, two wire strainers, one box of Sudafed PE, one baggie of white powder that tested positive for Ephedrine, lithium batteries, a forty-pound bag of Solar Salt, a snort tube, a propane tank, and a small baggie that tested positive for methamphetamine.
[¶9.] After defendant was arrested he was interviewed by Detective Walsh. Defendant admitted that he lived at 508 E. 31st Street. He also admitted to manufacturing methamphetamine for himself and his friends. Defendant was indicted on charges of (1) possession, distribution or manufacture of a controlled substance; (2) manufacturing a controlled substance within 1000 feet of Patrick Henry Middle School; (3) manufacturing a controlled substance within 1000 feet of St. Mary's Catholic School; (4) possession of methamphetamine; and (5) maintaining a residence where controlled substances are used.
[¶10.] Defendant moved to suppress the evidence seized on the ground that his home was searched illegally. A hearing was held and the circuit court ruled that the officers' initial entry into the residence was lawful under the community caretaker exception to the warrant requirement. In regard to the search of defendant's freezer in the backyard, the court held that it was unlawful. After striking the information in the warrant affidavit related to the unlawful portion of the search, the court concluded that the affidavit contained sufficient information to support probable cause. Defendant was found guilty of all charges in a bench trial. He was sentenced to six years on the manufacturing charge, six years on each manufacturing charge within 1000 feet of a school, six years on the possession charge, and five years on the maintaining charge. The manufacturing sentence and one of the manufacturing within 1000 feet of a school sentences were to be served consecutively, with the remaining sentences to be served concurrently.
[¶11.] Defendant appeals on the grounds that (1) the court erred when it held that the officers' warrantless entry into the residence was lawful; (2) the search warrant lacked probable cause; (3) not all essential components in the manufacturing process were proved; (4) double jeopardy precludes two drug-free school zone convictions arising out of one manufacturing conviction from a single location; (5) the evidence was insufficient to sustain guilty verdicts for possession of a controlled substance and maintaining a place where drugs are kept, sold, or used.
I. Warrantless Entry into Home
[¶12.] Both the Fourth Amendment of the United States Constitution and article VI, section 11 of the South Dakota Constitution protect citizens from unreasonable searches and seizures. State v. Hess, 2004 SD 60, ¶11, 680 NW2d 314, 319. Because defendant has not asserted and we have not found a basis to distinguish the protections afforded by the South Dakota Constitution from those provided by the federal constitution under the circumstances of this case, our analysis applies equally to both the state and federal constitutional provisions. State v. Schwartz, 2004 SD 123, ¶31, 689 NW2d 430, 437-38 (Konenkamp, J., concurring in result).
[¶13.] The Fourth Amendment does not protect against all searches and seizures, but only against unreasonable searches and seizures. United States v. Sharpe, 470 US 675, 682, 105 SCt 1568, 1573, 84 LEd2d 605 (1985). In deciding whether a search or seizure was reasonable, "[t]he touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Pennsylvania v. Mimms, 434 US 106, 108-09, 98 SCt 330, 332, 54 LEd2d 331 (1977) (quoting Terry v. Ohio, 392 US 1, 19, 88 SCt 1868, 1878-79, 20 LEd2d 889 (1968)). Reasonableness "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 US 873, 878, 95 SCt 2574, 2579, 45 LEd2d 607 (1975) (citations omitted). On the other hand, "it is well established that 'searches and seizures inside a home without a warrant are presumptively unreasonable.'" Hess , 2004 SD 60, ¶22, 680 NW2d at 324 (citing Payton v. New York, 445 US 573, 586, 100 SCt 1371, 1380, 63 LEd2d 639, 651 (1980)). "'[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed[.]'" Id. (quoting United States v. United States Dist. Court, 407 US 297, 313, 92 SCt 2125, 2134, 32 LEd2d 752 (1972)).
[¶14.] Generally, "every law enforcement entry into a home for the purpose of search and seizure must be made with a warrant." Id . (citing Katz v. United States, 389 US 347, 357, 88 SCt 507, 514, 19 LEd2d 576 (1967); State v. Lamont, 2001 SD 92, ¶50, 631 NW2d 603, 617). A warrantless search and seizure is permissible only if it satisfies a specific exception to the warrant requirement. Id. The State bears the burden of establishing, by a preponderance of the evidence, that the warrantless search satisfied a specific exception. Id . ¶23; State v. Labine, 2007 SD 48, ¶14, 733 NW2d 265, 269. Constitutional challenges to a warrantless law enforcement search require a two-step inquiry: first, factual questions on what the officers knew or believed at the time of the search and what action they took in response; second, legal questions on whether those actions were reasonable under the circumstances. Hess, 2004 SD 60, ¶23, 680 NW2d at 324-25; Lamont, 2001 SD 92, ¶50, 631 NW2d at 617 (Amundson, J., dissenting) (citing State v. Meyer, 1998 SD 122, ¶23, 587 NW2d 719, 724 (citing State v. Heumiller, 317 NW2d 126, 129 (SD 1982)). Although we defer to the circuit court's fact findings, it is our duty to make our own legal assessment of the evidence to decide under the Fourth Amendment whether the officers' actions were "objectively reasonable." State v. Nguyen, 2007 SD 4, ¶12, 726 NW2d 871, 875; Lamont , 2001 SD 92, ¶21, 631 NW2d at 610. The legality of a search will not depend on the motivations of the police officers involved in the search. Lamont , 2001 SD 92, ¶21, 631 NW2d at 610. Indeed, any asserted inconsistencies in an officer's actions, supposedly evincing subjective intentions or beliefs about the situation, are irrelevant to the objective assessment of whether the actions were reasonable. State v. Simmons, 714 NW2d 264, 274 (IA 2006).
1. Exigent Circumstances Exception
[¶15.] We first examine the exigent circumstances exception to the warrant requirement because that is the exception the State contends applies in this case. The exigent circumstances exception is widely recognized and has been consistently applied by this Court. Probable cause and exigent circumstances analysis pertains only when law enforcement officers are investigating criminal activity. United States v. Quezada, 448 F3d 1005, 1007 (8thCir 2006); People v. Davis, 497 NW2d 910, 920 (Mich 1993). For this exception to apply, law enforcement officers must possess probable cause that the premises to be searched contains the sought-after evidence or suspects. Quezada , 448 F3d at 1007; Davis, 497 NW2d at 920.
[¶16.] This Court's test for whether exigent circumstances exist asks "whether police officers, under the facts as they knew them at the time, would reasonably have believed that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspect's escape." Hess , 2004 SD 60, ¶25, 680 NW2d at 325 (citation omitted). "If the officer is not executing a valid search warrant, a warrantless search and seizure is unreasonable absent probable cause and exigent circumstances." Swedlund v. Foster, 2003 SD 8, ¶42, 657 NW2d 39, 56 (citations omitted).
[¶17.] Before we consider whether exigent circumstances existed, we must first decide whether the officers were acting in their crime investigation capacity when they entered defendant's home. See Quezada , 448 F3d at 1007; Davis , 497 NW2d at 920. Both officers testified that they did not enter the home because they believed that methamphetamine was being manufactured there. Rather, they entered because they smelled ammonia fumes and wanted to make sure no one was endangered inside. Officers Zimbelman and Openhowski were found credible by the circuit court. Officer Openhowski maintained that before entering he had no clue that the house could contain a methamphetamine lab and was not intending to investigate a possible methamphetamine lab despite the fact that he saw the freezer with tubing while outside the back of the house. Officer Zimbelman similarly insisted that although the neighbor told him that defendant had been caught buying Sudafed, Zimbelman did not suspect a methamphetamine lab until after he was inside the residence. Both officers testified that they had not worked in narcotics during their careers and they had had little training in drug investigation.
[¶18.] Unlike Hess , where we held that exigent circumstances warranted the intrusion when the officers were at a house to execute an arrest warrant and observed, through a window, two persons consuming what appeared to be a controlled substance, here the circuit court found that the officers entered the house in their non-investigatory capacity to make sure no one inside was overcome by ammonia fumes. See 2004 SD 60, ¶2, 680 NW2d at 317. The officers neither observed nor suspected that a crime was being committed inside the home and there were no claims by the officers, or findings adopted by the court, that support an entry based on the presence of a possible active methamphetamine lab. See United States v. Walsh, 299 F3d 729 (8thCir 2002) (intrusion warranted because of active methamphetamine lab). We also find distinguishable the "plain smell" cases the State cites to argue that the smell of an odor alone is sufficient to provide probable cause. Here, the officers did not believe that the smell of ammonia meant that a possible crime was being committed, i.e. the presence of an active methamphetamine lab. Because the officers did not enter the house in furtherance of a criminal investigation, the sole fact that the officers smelled ammonia cannot give rise to the application of the exigent circumstances exception.
2. Aiding Persons in Need of Assistance Exceptions
[¶19.] The exigent circumstances exception to the warrant requirement encompasses police entry for the purpose of arresting persons thought to be within or for the purpose of finding the fruits, instrumentalities, or evidence of a past crime. That exception, as we have concluded, does not apply in this case. Courts also recognize, however, several exceptions to the warrant requirement where police entry is not for the purpose of investigating crime but for the purpose of preserving life or property.
[¶20.] Here, the circuit court held that the officers' initial entry into defendant's home was lawful under the community caretaker exception to the warrant requirement. This Court adopted the exception in State v. Rinehart , a case where an officer stopped a vehicle after becoming concerned that the driver might be experiencing a medical emergency. 2000 SD 135, ¶¶7-10, 617 NW2d 842, 843-44. Because here the officers smelled a chemical odor while standing outside defendant's residence, the court found that the "overwhelming purpose of the officers in entering the house was to search for possible victims of the fumes." Defendant claims that the initial warrantless entry was unlawful because the officers used a well-being check as a pretext for gathering evidence of a crime and there was no emergency justifying the warrantless entry.
[¶21.] The United States Supreme Court and multiple other courts have upheld a police officer's authority to enter a residence without a warrant when there is a reasonable belief that someone is in need of immediate aid. Mincey v. Arizona, 437 US 385, 392, 98 SCt 2408, 2413, 57 LEd2d 290 (1978). What has not been consistent, however, is which exception to the warrant requirement will permit an officer's warrantless entry into a residence under these circumstances. A review of the caselaw reveals a breadth of decisions discussing and applying various exceptions including the emergency doctrine, the emergency aid doctrine, and the community caretaker doctrine.
[¶22.] Some of the avowed distinctions between these three doctrines can be frail, bordering on the meaningless. Neither have they been consistently applied, thus creating contradictory and sometimes conflicting doctrines. Some courts treat these exceptions interchangeably. Others declare that the community caretaker exception applies, but then use law applicable to one of the other exceptions, such as the emergency doctrine. Several courts have also held that the emergency aid doctrine is a subcategory of the community caretaker exception, while the emergency doctrine is a subcategory of the exigent circumstances exception. We will examine each exception and then determine whether, under the facts of this case, the warrantless entry into defendant's home was justified under any of the exceptions. We are not bound by the circuit court's legal conclusion about which exception, if any, applies. See Hess , 2004 SD 60, ¶9, 680 NW2d at 319; State v. Herrmann, 2002 SD 119, ¶9, 652 NW2d 725, 728.
[¶23.] The emergency doctrine, allowing warrantless entry into a home, has been specifically adopted and applied by the United States Supreme Court. Mincey , 437 US at 392-93, 98 SCt at 2414, 57 LEd2d 290. In Mincey , the Court noted that "[n]umerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." Id . More specifically, the Court stated that "[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Id . (citation omitted). Relying on Mincey, a majority of courts have similarly adopted the emergency doctrine exception.*fn1
[¶24.] One of the most common tests applied for this exception by both state and federal courts was developed by the New York Court of Appeals in People v. Mitchell , 347 NE2d 607, 609 (NY 1976).*fn2 The three-part Mitchell test requires:
(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the ...