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State v. Walter

Supreme Court of South Dakota

May 27, 2015

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DAVID A. WALTER, Defendant and Appellant

Considered on Briefs March 23, 2015.

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE CRAIG A. PFEIFLE, Judge.

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

BRYAN T. ANDERSEN, Pennington County Public, Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR and KERN, Justices, concur.

OPINION

Page 780

GILBERTSON, Chief Justice

[¶1] David A. Walter appeals from a final judgment of conviction for possession of a controlled substance (methamphetamine). Walter asserts the circuit court erred in denying his motion to suppress drug evidence obtained during a " stop and frisk" initiated by a Rapid City police officer. According to Walter, the officer lacked a reasonable basis to conclude Walter had committed a crime. We reverse.

Facts and Procedural History

[¶2] The parties stipulated the relevant facts of this appeal. On October 1, 2013, at approximately 6:15 p.m., Rapid City Police Officer Dale Ackland was dispatched to Roosevelt Park to investigate reports of a panhandler near the ice arena.[1] Officer Ackland received a detailed description of the alleged panhandler, including his clothing and direction of travel. After Officer Ackland arrived at the described

Page 781

location, he immediately identified Walter as matching the provided description. Walter stood alone on a sidewalk to the north of the arena.

[¶3] After making contact with Walter, Officer Ackland noticed a bulge in Walter's front left pocket. Concerned that Walter might have a weapon, Officer Ackland informed Walter that he intended to pat him down. Before Officer Ackland conducted the frisk, Walter said, " You can't frisk me. I have needles on me." [2] During the frisk, Officer Ackland observed an open bottle of liquor in one of Walter's pockets. When Officer Ackland grabbed the bottle, he felt Walter pull away and attempt to manipulate an object out of another pocket. A red box fell to the ground, which contained two syringes. Officer Ackland performed a field test, and one of the syringes tested positive for methamphetamine.[3] Thereafter, Officer Ackland administered a preliminary breath test and arrested Walter for consuming alcohol in public.

[¶4] On October 2, 2013, Walter was charged with one count of possession of a controlled drug or substance in violation of SDCL 22-42-5 and one count of consuming alcohol in public in violation of SDCL 35-1-5.3. Walter was indicted and later arraigned on April 10, 2014.[4] The State also filed--but later dismissed--a habitual criminal information alleging Walter had a prior conviction in Wyoming for larceny in 2013. Walter moved to suppress the methamphetamine evidence, alleging Officer Ackland " did not have a reasonable suspicion of criminal activity to warrant the investigatory stop and frisk[.]" The circuit court denied the motion, and the parties proceeded with a court trial on June 9, 2014. Among other things, Walter stipulated that he had syringes on his person containing methamphetamine when Officer Ackland conducted the frisk. The circuit court found beyond a reasonable doubt that Walter was guilty of possessing ...


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