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State v. Lee

Supreme Court of South Dakota

May 17, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
ASHLEY LEE, Defendant and Appellee.

         APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE WALLY EKLUND Retired Judge.

          MARTY J. JACKLEY Attorney General

          GRANT FLYNN Assistant Attorney General Attorneys for plaintiff and appellant.

          JOANNA LAWLER Attorneys for defendant and appellee.

          SEVERSON, Justice

         [¶1.] An asset protection associate at a Walmart placed Ashley Lee under citizen's arrest for theft. The associate contacted law enforcement, who took Lee into custody and searched her purse, finding a pipe with methamphetamine residue. Lee moved to suppress all evidence from the search, alleging that law enforcement had no authority to arrest her and thus the search was illegal. The circuit court agreed with Lee and suppressed all evidence obtained from the search. On intermediate appeal, the State alleges that the search was a proper search incident to an arrest. We reverse the circuit court's order granting Lee's motion to suppress evidence.

         Background

         [¶2.] On May 16, 2015, Lee was shopping at a Walmart in Rapid City when an asset protection associate, Aaron Miller, noticed her concealing items in her purse. She paid for other items at the store, but failed to pay for those that she had placed in her purse. After she passed all points of sale, Miller apprehended her. He recovered the items stolen (totaling a value of $36.63), reported the incident to the police, and detained her until an officer arrived. Miller described the incident in a "Citizen's Arrest Report." Officer Duane Baker with the Rapid City Police Department responded to the report of the theft. He performed a warrantless search of her purse and found a glass pipe. Residue on the pipe tested positive for methamphetamine.

         [¶3.] A complaint was filed on May 20, 2015, charging Lee with petty theft and possession of a controlled substance. On July 8, 2015, she was charged by an information with possession of a controlled substance. A part II information alleged that she was convicted of two felonies in 2014. Lee moved to suppress the evidence obtained as a result of the search, claiming that law enforcement arrested her without a warrant for a Class 2 misdemeanor committed outside an officer's presence, in violation of SDCL 23A-3-2. Therefore, according to Lee, there was no authority to search her incident to an arrest.

         [¶4.] On July 28, 2016, the circuit court filed findings of fact and conclusions of law directing suppression of the evidence. It concluded that a citizen's arrest "merely permits detention of a suspect until he [or she] may be taken before a magistrate or delivered to the nearest available law enforcement officer. A citizen's arrest does not entitle a police officer to make a custodial arrest when he otherwise would not have that authority." The State asserts that the circuit court erred and that law enforcement may validly search, without a warrant, a person incident to a citizen's arrest.

         Analysis

         [¶5.] "A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review." State v. Hess, 2004 S.D. 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Herrmann, 2002 S.D. 119, ¶ 9, 652 N.W.2d 725, 728). Pursuant to SDCL 23A-3-3,

Any person may arrest another:
(1)For a public offense, other than a petty offense, committed or attempted ...

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