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State v. Kaline

Supreme Court of South Dakota

July 11, 2018

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
GENE R. KALINE, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON APRIL 16, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JEFF W. DAVIS Judge

          MARTY J. JACKLEY Attorney General ANN C. MEYER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          PAUL E. PIETZ Pennington County Public Defender's Office Rapid City, South Dakota Attorneys for defendant and appellant.

          GILBERTSON, CHIEF JUSTICE.

         [¶1.] Gene R. Kaline appeals his conviction and sentence for possessing a controlled substance (methamphetamine). Kaline argues the circuit court erred by denying his motion to suppress evidence obtained from what he claims was an illegal search of his person. We reverse and remand.

         Facts and Procedural History

         [¶2.] In the early morning hours of September 22, 2016, a homeowner in Pennington County contacted the Rapid City Police Department and asked that officers remove her son and a woman named Kasey Sybert from her home. The homeowner asserted that there was an active warrant for Sybert's arrest. The homeowner did not indicate how many people were in the home at the time, but responding officers understood her request to mean that everyone in the house should be removed.

         [¶3.] Officers Kimball, Hunt, and Lewellen responded to the call at approximately 1:30 a.m. Recognizing Sybert as a "runner," the three responding officers approached the house on foot, established a perimeter around the house, and waited for the homeowner to arrive. While waiting, the officers saw Kaline and another man exit the rear of the home. Officers Hunt and Lewellen immediately approached the men, ordered them to the ground, and placed them in handcuffs. Officer Lewellen testified that he then asked for Kaline's consent to search the pockets on the front of Kaline's pants and that Kaline consented. In the resulting search, Officer Lewellen found three plastic bags that field tested positive for methamphetamine.

         [¶4.] Kaline was arrested and charged with one count of possessing a controlled substance (methamphetamine) in violation of SDCL 22-42-5 and one count of unauthorized ingestion of a controlled substance (methamphetamine) in violation of SDCL 22-42-5.1, both of which are Class 5 felonies. The State also filed a habitual-criminal information alleging that Kaline had one previous felony conviction in Nebraska for failing to appear while on bail. Kaline was arraigned on October 31, 2016, at which time he pleaded not guilty.

         [¶5.] After arraignment, Kaline filed a motion to suppress all physical and testimonial evidence arising out of the search and seizure of September 22, 2016. On February 27, 2017, the circuit court held an evidentiary hearing to consider the motion. At the hearing, Officers Kimball and Lewellen testified, as did Kaline. The court denied Kaline's motion to suppress evidence.

         [¶6.] Following his unsuccessful attempt to suppress evidence, Kaline and the State began negotiating a plea agreement. The parties agreed to a stipulated court trial. At the trial, which was held on March 27, 2017, Kaline did not formally change his plea, but his attorney told the circuit court that Kaline was "willing to stipulate [that] methamphetamine was found on him on [September 22, 2016, ] and that he knew it was methamphetamine and [that] it was here in Rapid City." The court directly questioned Kaline and verified that his admission was voluntary. Kaline's attorney then added: "Obviously, for the record, we're reserving our right to appeal the ruling [denying the motion to suppress evidence]." The stipulated trial then simply concluded.

         [¶7.] The parties subsequently treated Kaline's March 27, 2017 stipulation as a plea of guilty. On July 10, 2017, Kaline appeared before the circuit court for sentencing. The State recommended the court sentence Kaline only to time in the local jail and probation. The circuit court sentenced Kaline to imprisonment for two years but suspended execution of all but 10 days of the sentence, crediting Kaline with 2 days already served. The same day, the State dismissed the ingestion charge and the habitual-criminal information. In the dismissal, the State indicated it was doing so "for the reason that [Kaline] has [pleaded] guilty to the offense of [possessing a controlled substance] and has been sentenced on that charge pursuant to a plea agreement." The circuit court entered judgment on July 19, 2017 (but effective July 10, 2017), indicating that Kaline had been sentenced pursuant to a guilty plea.

         [¶8.] Kaline now appeals, raising the following issue: Whether the circuit court erred by denying his motion to suppress physical and testimonial evidence relating ...


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