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State v. Rolfe

Supreme Court of South Dakota

December 19, 2018

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
TOBY ROLFE, Defendant and Appellant.



          MARTY J. JACKLEY Attorney General ERIN E. HANDKE Assistant Attorney General Attorneys for plaintiff and appellee.

          ELLERY GREY of Grey & Eisenbraun Law Rapid City, South Dakota Attorneys for defendant and appellant.

          GILBERTSON, Chief Justice

         [¶1.] Toby Rolfe appeals his judgment of conviction and sentence for third- degree rape. He asserts that the circuit court erred in denying his motion to suppress all evidence obtained from a warrantless search of his garage. Rolfe claims that he was unreasonably seized by police deputies before the search took place and that any consent given to search the garage after the seizure was invalid. We affirm.

         Facts and Procedural History

         [¶2.] Around 4:00 a.m. on September 28, 2016, an anonymous source in Box Elder placed a 911 call reporting she had witnessed an unconscious female being raped five minutes earlier. The caller informed the dispatcher that the female victim had dark hair, was between 20 and 30 years old, and had possibly been drugged. She described the two perpetrators as white males in their 30s wearing gray or black shirts. She specifically named Rolfe as one of the assailants. The caller claimed that the incident occurred inside a detached garage on Rolfe's property, which was across the street from her current location.

         [¶3.] Pennington County Sheriff's Deputies Jon Edwards and Josh Kunde were dispatched to Rolfe's home in Box Elder. When they arrived at the residence, the deputies observed that Rolfe's vehicle was parked on the premises, that the lights were dark in the house, and that lights and music were coming from the garage. Deputy Edwards approached the walk-through door of the garage and Deputy Kunde approached the roll-up door.

          [¶4.] Both doors were closed, so each deputy knocked on the respective doors. Deputy Edwards stated, "This is the Sheriff's Office," and Deputy Kunde stated both that he was with the Sheriff's Office and that he was a fictional neighbor named Wayne. Deputy Kunde's deception was an attempt to get someone to come to the door. During this time, the deputies could hear two males speaking to each other inside, and heard them say "Go away," and "Fuck off." The deputies reported they had difficulty communicating with the garage occupants through the doors and were unsure whether the occupants knew they were law enforcement officers.

         [¶5.] The deputies continued knocking on the doors for several minutes before anyone in the garage came to the door. When the occupants approached the door, Deputy Edwards spoke with them through the closed door. He identified himself as a deputy with the Pennington County Sheriff's Office and explained that they had received a report of an assault. At the end of the conversation, Marvin Payne, Rolfe's friend, opened the door while Rolfe stood behind him. Payne and Rolfe matched the description of the assailants given by the 911 caller. Deputy Edwards asked, "So can I come in and make sure there's not anyone who's like injured? Is that okay?" Payne immediately replied "Yeah, yeah, yeah" while Rolfe affirmatively nodded his head up and down. Before the deputies entered, Payne stated that there was a girl inside the garage who was passed out.

         [¶6.] The deputies entered the garage. Inside, Deputy Edwards observed two legs sticking out from underneath an air hockey table. He soon discovered an unconscious female underneath the table that matched the description of the victim he received from dispatch. The female was naked from the abdomen down. Deputy Edwards could not feel the woman's pulse, and she remained unconscious despite the efforts of both deputies to wake her up. Deputy Edwards called for an ambulance and the woman was transported to the hospital for medical care.

         [¶7.] Both Rolfe and Payne were placed under arrest. During a search incident to the arrests, Deputy Kunde found a cell phone in Payne's front pocket. A search of the cell phone made pursuant to a warrant uncovered pictures of the apparently unconscious female being sexually penetrated. On October 12, 2016, a Pennington County grand jury indicted Rolfe on one count of third-degree rape in violation of SDCL 22-22-1(3).

         [¶8.] Rolfe filed several pre-trial motions, including a motion to suppress evidence of the cell phone pictures and the observations of the deputies. Rolfe argued he was unreasonably seized when the deputies were pounding on the garage door and stating "Sheriff's Office, open the door," and that any evidence obtained as a result of the unreasonable seizure should be suppressed. The State argued Rolfe and Payne were not seized, and that both Payne and Rolfe had given valid consent to enter the garage and search the premises without a warrant. At a hearing on May 12, 2017, the circuit court orally denied Rolfe's motion. The court held that Rolfe and Payne were not seized when they first encountered the deputies and had validly consented to the deputies' entrance into the garage. The ...

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