FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE WALLY EKLUND
J. JACKLEY Attorney General
FLYNN Assistant Attorney General Attorneys for plaintiff and
LAWLER Attorneys for defendant and appellee.
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
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.
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
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
"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 ...