CONSIDERED ON BRIEFS APRIL 24, 2017
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE
COUNTY, SOUTH DAKOTA, THE HONORABLE JEROME A. ECKRICH, III
FLYNN Assistant Attorney General Pierre, South Dakota,
Attorneys for plaintiff and appellee.
TIMOTHY J. BARNAUD Spearfish, South Dakota, Attorney for
defendant and appellant.
GILBERTSON, Chief Justice.
Shelly D. Stanley appeals her conviction and sentence for
possessing cocaine. She argues her Fourth Amendment rights
were violated in a number of ways. She also challenges
several of the circuit court's evidentiary rulings.
Finally, she argues that several comments made during the
State's closing argument were inappropriate and that the
cumulative effect of these alleged errors denied her a fair
trial. We affirm.
and Procedural History
On August 3, 2015, the Sturgis Motorcycle Rally was underway
in Sturgis, South Dakota. Shortly before 1:00 a.m., Sturgis
Police Officers Mike Varilek and Tom Strickland
(collectively, "the Officers") received a report
from another police officer that a male and female had
entered a single-occupancy, portable toilet located in the
middle of 2nd Street. Officer Varilek testified that such an
event is extremely uncommon and that he had never seen it
happen in seven years of working at the Sturgis Rally.
Officer Varilek also testified that his primary objective at
the Rally is public safety, and considering the alcohol and
drug use that is common at the Rally, he wanted to be sure
the female occupant was not being assaulted. Similarly,
Officer Strickland testified that prostitution and human
trafficking are concerns at the Rally. The Officers walked
over to the portable toilet, which was a handicap-accessible
unit located at the end of a row of five or six units. The
toilet enclosure was vented around the top of the unit. The
Officers testified that at the time, foot traffic in the area
was minimal, and noise levels were low.
After approaching the portable toilet,  the Officers overheard a conversation
between the occupants, who were later identified as Stanley
and Christopher Shuler. Officer Varilek testified he heard
the following exchange:
[Shuler]: You need to pack more in there.
[Stanley]: Can you believe we're in an outhouse [or
porta-potty] in Sturgis getting ready to-
[Shuler]: Shh, you need to be quiet.
Officers also heard "a plastic bag rustling around as if
somebody was digging in a sandwich bag." Officer Varilek
concluded, "[b]ased on [his] training and experience as
a drug interdiction officer, " that Shuler and Stanley
were conducting a drug transaction. Officer Varilek then
knocked on the door and identified himself as a police
officer. About 30 seconds later, the door opened, and Shuler
walked out. Officer Varilek followed Shuler to question him.
Officer Strickland stayed with Stanley. He immediately
observed Stanley seated on the toilet, with a plastic bag in
her left hand. Officer Strickland commanded Stanley to show
him her hands, but she leaned forward and placed the bag in
the waste receptacle below her. After Stanley got up, Officer
Strickland inspected the toilet's interior. Sitting on
top of the waste pile was a clear, plastic bag containing a
white substance, and a red straw that had been cut to a
length of about three or four inches. Officer Strickland did not observe any
feces or other waste on top of the bag, nor did he see any
other bags in the toilet. After retrieving the straw and bag,
Officer Strickland noticed a white, powdery substance on the
inside of the straw, which led him to conclude it had been
used to snort some sort of drug like cocaine or
methamphetamine. Subsequent analysis confirmed the bag
The Officers arrested Stanley and Shuler. After the arrest,
the Officers asked Stanley to provide a urine sample, but she
refused. The Officers did not subsequently seek a warrant.
Stanley was later indicted on one count of possessing a
controlled substance in violation of SDCL 22-42-5. Shuler was
Prior to trial, the circuit court resolved several
evidentiary issues. The court decided that the State could
use Stanley's refusal to provide a urine sample against
her as evidence of consciousness of guilt. However, the court
decided that Stanley would not be able to use the fact that
the Officers did not seek a warrant for her urine as evidence
to rebut the State's use of her refusal to provide a
urine sample. The court also determined that the Officers
could testify regarding the conversation they overheard
coming from inside the portable toilet.
Stanley's one-day trial occurred on March 2, 2016. After
the close of the State's evidence, Stanley made a motion
for judgment of acquittal, which the circuit court denied.
She also made several objections throughout the course of the
trial that are relevant to this appeal. During Stanley's
closing argument, her attorney commented on the State's
failure to call Shuler as a witness at trial. During the
State's closing, the prosecutor remarked that Stanley had
the same power to subpoena witnesses. And after Stanley's
attorney commented in closing that the police acted
illegally, the prosecutor said the opposite in her closing.
Stanley objected in both instances and was overruled.
At the conclusion of the trial, the jury returned a guilty
verdict. On June 13, 2016, the court sentenced Stanley to
imprisonment for five years but fully suspended the sentence
on the condition that Stanley serve 180 days in prison and
undergo five years of probation. Stanley appeals her
conviction and sentence, raising six issues:
1. Whether the evidence obtained by the Officers should have
2. Whether the circuit court erred by permitting Officer
Varilek to testify that Stanley refused to provide a urine