CONSIDERED ON BRIEFS FEBRUARY 13, 2017
FROM THE CIRCUIT COURT OF HE THIRD JUDICIAL CIRCUIT BROOKINGS
COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J. STOLTENBURG
J. JACKLEY Attorney General GRANT FLYNN Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
HOGAN of Ribstein & Hogan Law Firm Brookings, South
Dakota Attorneys for defendant and appellant.
Douglas Strong, a parolee, and his girlfriend Sueellan Kline
lived together in a motel room. Strong's parole agent
Connie Johnson came to the room to obtain a urine sample from
Strong. When the sample field tested positive for
methamphetamine, Johnson removed Strong from the room and
detained him. Johnson then reentered the room and asked Kline
if there were any drugs or drug paraphernalia in the room.
Kline produced a methamphetamine pipe from her purse and
handed it to Johnson, who subsequently turned it over to law
enforcement. The pipe was used to obtain a search warrant for
Kline's urine, which tested positive for methamphetamine
and amphetamine. The circuit court denied Kline's motion
to suppress the evidence, and Kline was convicted of
ingestion of a controlled substance. She appeals the denial
of the suppression motion. We affirm.
and Procedural History
Kline, her five children, and Strong resided together in a
motel room in Brookings. Kline knew that Strong was on
parole. Parole Agent Johnson, accompanied by Deputy Sheriff
Charles Umberger, went to the motel room to obtain a urine
sample from Strong in accordance with Strong's parole
agreement. Strong's urine field-tested positive for
methamphetamine, and he admitted to smoking the substance.
Johnson removed Strong from the room and detained him in the
hallway, away from Kline's children. There is a dispute
whether the door was completely closed when Johnson,
Umberger, and Strong left the room. Johnson then asked Strong
whether there were any drugs or drug paraphernalia in the
room. Strong said there were not.
After two to three minutes, Johnson reentered the room
without knocking or requesting permission. She then asked
Kline if there were any drugs or drug paraphernalia in the
room. Johnson informed Kline that the "room was open for
search and seizure under [Strong's] parole" and that
Kline should be honest with her. In response, Kline removed a
methamphetamine pipe from her purse and handed it to Johnson.
Johnson left the room and turned the pipe over to Umberger,
who observed a white powdery residue on the pipe. Strong
stated the pipe was his, and he later admitted that both he
and Kline had smoked methamphetamine.
Umberger used the pipe and Strong's admission to obtain a
search warrant for a urine sample from Kline. Kline provided
the sample, which tested positive for methamphetamine and
amphetamine. Kline was subsequently indicted for unauthorized
ingestion of a controlled substance.
Kline moved to suppress all of the evidence, arguing that it
was obtained as the result of an illegal search in violation
of the Fourth Amendment to the United States Constitution and
Article VI, section 11, of the South Dakota Constitution. The
circuit court denied the motion, ruling that Johnson had
reasonable suspicion to search the room and that Kline
voluntarily produced the pipe. Kline stipulated to the facts
at a court trial and was convicted and sentenced to
probation. She appeals, alleging that Johnson unlawfully
reentered Kline's residence without a warrant after
having removed Strong; that any authority to search the
residence did not extend to Kline's purse; and that Kline
did not voluntarily consent to a search of her
Kline first argues that Johnson had no authority to search
the motel room because Kline had a reasonable expectation of
privacy in the room-which was her residence-even though she
shared it with a parolee. It is well settled that a parolee
has a diminished expectation of privacy in their residence.
State v. Kottman, 2005 S.D. 116, ¶ 10, 707
N.W.2d 114, 118. Parole agents may search a parolee's
residence if they have reasonable suspicion that the parolee
has committed a crime. Id. ¶ 15, 707 N.W.2d at
120-22; see also United States v. Knights, 534 U.S.
112, 121, 122 S.Ct. 587, 592-93, 151 L.Ed.2d 497 (2001). We
have not, however, determined when the parolee's
diminished expectation of privacy extends to third parties
who cohabit with the parolee. Kline acknowledges that based
on the field test of Strong's urine, Johnson could have
immediately searched the residence without a warrant because
Johnson had reasonable suspicion that Strong committed a
crime. But Kline contends that once Johnson and Umberger
removed Strong and detained him, Johnson could not reenter
without a warrant. See State v. Bowker, 2008 S.D.
61, ¶ 18, 754 N.W.2d 56, 62-63 (noting that the
heightened expectation of privacy in one's residence
generally demands that law enforcement obtain a warrant prior
to entering a home or dwelling).
However, the circuit court found that Johnson's reentry
was a continuation of the parole search rather than an
independent law enforcement investigation that may have
required a warrant. The evidence supports this finding.
Johnson only removed Strong from the room to detain him
outside the view of the children. Johnson subsequently
remained outside the room for only two to three minutes to
briefly question Strong. Then, following the questioning,
Johnson reentered the room ...