FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J.
J. JACKLEY Attorney General
CAROLINE SRSTKA Assistant Attorney General Pierre, South
Dakota Attorneys for plaintiff and appellee.
M. VANDENBERG Volga, South Dakota Attorney for defendant and
WILBUR, Retired Justice
Officers arrested defendant after they executed a search
warrant at his friend's home. During the search, officers
found marijuana in defendant's van parked outside the
home. Defendant moved to suppress the evidence, asserting
that the search violated his Fourth Amendment rights. The
circuit court found that defendant did not have a personal,
legitimate expectation of privacy in his friend's home
and could not challenge the search. The court alternatively
ruled that the search did not violate defendant's Fourth
Amendment rights. Defendant appeals. We affirm.
On January 23, 2015, an agent with the South Dakota Division
of Criminal Investigation (DCI) informed Detective Dana
Rogers of the Brookings Police Department that Joseph Jones
may be dealing large quantities of marijuana in the Brookings
area. Jones lived in a trailer home within and near the
entrance to the Lamplighter Village Trailer Park in
That same day, Detective Rogers had a pole camera installed
on a public street light across from Jones's trailer.
Detective Rogers did not obtain a warrant for the camera. The
camera continuously recorded a street view of Jones's
home and front yard from January 23, 2015, to March 19, 2015.
Detective Rogers could view the recordings live or he could
look at previously recorded footage to review what had
already taken place. Detective Rogers observed when
Jones's vehicle was at the home, when it left, how long
it was gone, when visitors came and where they parked, how
long they stayed, when pedestrians walked by, etc.
[¶4.] On March 6 and 11, Detective Rogers reviewed the
camera footage and observed Jones leave his home with a black
or dark-colored trash bag. Detective Rogers believed Jones
took the trash bag to the trailer park's community
dumpster. On both days, Detective Rogers rummaged through the
dumpster. Detective Rogers identified Jones's trash bags
in the dumpster and discovered evidence suggesting drug use.
During the garbage search on March 11, Detective Rogers found
a letter addressed to Walter Gaters at the South Dakota State
Penitentiary. The letter did not contain postage, which
indicated to Detective Rogers that Jones never mailed the
letter. Detective Rogers testified that he knew Gaters from a
past investigation for possession of marijuana.
Using the information gained from the garbage searches and
from the pole camera footage, Detective Rogers prepared an
affidavit for a search warrant on March 11 to install a GPS
tracking device on two vehicles at Jones's home. On March
13, Detective Rogers submitted a second application for a
search warrant for Jones's trailer home. On March 19,
2015, Detective Rogers sat in a patrol vehicle outside
Jones's home for several hours. He observed Jones and
Gaters arrive at Jones's home in the late afternoon.
Detective Rogers saw Jones exit the vehicle carrying a large
duffle bag. Jones carried the duffle bag into the home and
Gaters followed. After both Gaters and Jones were in
Jones's home, Detective Rogers and other officers
executed the search warrant. The search uncovered
approximately three pounds of marijuana and $27, 000 cash
inside Jones's home. Detective Rogers also searched
Gaters's van, which was located outside Jones's home,
and found marijuana. Detective Rogers arrested both Jones and
Gaters, and the State charged them with drug-related
In a consolidated hearing in July 2015, the circuit court
considered Jones's and Gaters's separate motions to
suppress the evidence seized during the March 19 search.
Jones argued that the use of the pole camera to surveil his
home violated his Fourth Amendment rights. Gaters argued that
he had an expectation of privacy in Jones's home, and,
therefore, the use of the pole camera violated his Fourth
Amendment rights too. At the conclusion of the hearing, the
court orally denied both motions. It held that "Jones
can claim no expectation of privacy for what he does outside
his home in full view of the public at large." In the
court's view, "society would not recognize that once
you step outside your home that you have an unfettered
expectation of privacy." Because Jones had no
expectation of privacy, the court also concluded that Gaters
had no expectation of privacy.
The court issued separate findings of fact and conclusions of
law on Jones's and Gaters's motions. This appeal
concerns Gaters's motion; we considered Jones's
appeal in State v. Jones, 2017 S.D. 59, __ N.W.2d__.
In regard to Gaters's motion, the court entered findings
of fact on Gaters's expectation of privacy in Jones's
home. The court found that Gaters and Jones were "close
friends, " that Jones cared for Gaters's cat while
Gaters was incarcerated, and that Gaters visited Jones's
home often. But the court concluded that Gaters did not have
a reasonable expectation of privacy in Jones's home on
March 19 because Gaters had no authority over Jones's
home or unfettered access to or right to control the home. In
the court's view, Gaters was "simply permitted to be
on the premises."
the court held that if Gaters had an expectation of privacy,
the search did not violate ...