STATE OF SOUTH DAKOTA v. CARRIE LYNN OSTBY STATE OF SOUTH DAKOTA v. DANA OLMSTED

Sturgis, SD. - Criminal defense lawyer represented defendants Carrie Lynn Ostby and Dana Olmsted charged with felony-controlled substance charges.

On March 20, 2019, at around 5:45 p.m., Deadwood police officers

responded to a report of possible illegal drug activity associated with Apartment 15

located at 53 Dunlap Avenue, in Deadwood, South Dakota. After a failed attempt to

speak with the occupant, officers gained entry into Apartment 15 and detained a

male subject inside the apartment. Subsequently, Officer Erik Jandt submitted a

search warrant request to a magistrate judge. Officer Jandt signed the affidavit in

support of the warrant, presenting the following facts.

[¶3.] On March 20, 2019, April Roberts contacted the Deadwood Police to

report that she had found a baggie that she suspected contained methamphetamine

in a dryer of the apartment building at 53 Dunlap Avenue in Deadwood, South

Dakota. After the officers arrived, Roberts told them that she was doing laundry

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and needed to use the clothes dryer located in a common area of the apartment

building, but there were clothes left inside the dryer. Roberts reported that she

knocked on the door of Apartment 15 and asked the male occupant to remove the

clothes from the dryer. After he removed the clothes, Roberts looked inside the

dryer and found a baggie with a substance she believed was methamphetamine.

The substance tested positive for methamphetamine in a field test conducted by

Officer Jandt. Roberts also told the officers that a month earlier, she had found a

small baggie that she believed contained methamphetamine in the hallway of the

apartment building where the dryer was located, and that she reported it to law

enforcement. Roberts had also reported that there was “heavy short-term traffic” in

and out of Apartment 15.

[¶4.] After speaking with Roberts, the officers knocked on the door of

Apartment 15. A male voice inside yelled, “Who is it?” Officer Jandt responded

that it was the police. No response was heard from inside the apartment, but the

officers could hear someone walking around inside. The officers then obtained a key

from the property manager to gain access to Apartment 15. The officers detained

the male individual, identified as Dana Olmsted, transported him to the Lawrence

County jail, and arrested him for possession of a controlled substance and

possession of drug paraphernalia.

[¶5.] Officer Jandt was also aware of information from Drug Investigator

James Olson, who was actively working a drug investigation involving Apartment

15. Olson knew that the apartment was rented by Ostby and was aware of the

report, made by Roberts, of heavy foot traffic in and out of Apartment 15. As part of

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Olson’s investigation, he observed a male subject arrive at “Ostby’s residence and go

inside with the vehicle running and the driver’s door open.” The male subject was

in the residence “approximately 2 minutes.” The subject was later stopped for a

traffic violation and arrested for possession of methamphetamine. Olson also

received unconfirmed information that Ostby had been distributing

methamphetamine.

[¶6.] The affidavit requested to search Apartment 15 and Ostby’s vehicle for

illegal drugs. The affidavit also requested permission to take urine samples from

both Ostby and Olmsted. The reviewing magistrate judge found probable cause for

the search warrant and granted the request.

[¶7.] The subsequent search of the apartment produced several bags

containing a white crystal substance, which was later confirmed to be

methamphetamine. The urine samples taken from Ostby and Olmsted both tested

positive for methamphetamine. The search of Ostby’s vehicle did not result in the

discovery of any contraband.

[¶8.] On March 27, 2019, Olmsted was indicted and charged with one count

of possession of a controlled drug or substance. On April 24, 2019, Ostby was

indicted on one count of unauthorized ingestion of a controlled substance. She was

subsequently charged, by superseding indictment, with unauthorized ingestion of a

controlled substance, possession of a controlled drug or substance, and possession of

a controlled drug or substance with the intent to distribute.

[¶9.] On July 9, 2019, Olmsted filed a motion to suppress evidence. He

argued that probable cause did not exist to issue a search warrant for the

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apartment, and that there were no exigent circumstances for the search in the

absence of a valid warrant. Olmsted requested that “all evidence seized as a result

of his stop, detention, and search of his residence be suppressed.”1 On July 24,

2019, Ostby joined the motion to suppress filed by Olmsted.

[¶10.] The State responded that probable cause existed for the issuance of a

search warrant, and that exigent circumstances existed to search the apartment

without a warrant. Alternatively, the State argued that suppression was not a

proper remedy if probable cause did not exist for the search warrant because Officer

Jandt had a good-faith belief that the warrant was valid.

[¶11.] On September 10, 2019, Officer Jandt testified at an evidentiary

hearing held on both motions to suppress. The circuit court filed memorandum

decisions granting the motions on November 25, 2019. The circuit court determined

probable cause did not exist for the search warrant, and that the exigent

circumstances exception to the warrant requirement was inapplicable. The circuit

court did not address the good-faith exception raised by the State.

[¶12.] The circuit court entered separate orders granting the motions to

suppress. The State timely filed petitions for permission to appeal both

intermediate orders on December 21, 2019. This Court granted both petitions on

January 30, 2020. The State raises the following issues as to both suppression

orders:



1. The parties did not argue, and the circuit court did not address, whether

probable cause existed for the search of Ostby’s vehicle or to take urine

samples from Ostby and Olmsted. We do not express any opinion whether

probable cause existed for the search of the vehicle or the urine samples.

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I. Whether the affidavit in support of the search warrant

established probable cause to search Apartment 15.

II. Whether the good-faith exception applies to the

exclusionary rule, if the search warrant is determined to

be invalid.

Analysis and Decision

I. Whether the affidavit in support of the search

warrant established probable cause to search

Apartment 15.

[¶13.] “We review the issuing court’s probable cause determination

independently of any conclusion reached by the judge in the suppression hearing.”

State v. Gilmore, 2009 S.D. 11, ¶ 7, 762 N.W.2d 637, 641. Our review of the

probable cause determination of the issuing magistrate judge is deferential.

“Reviewing courts are not empowered to conduct an after-the-fact de novo probable

cause determination; on the contrary, the issuing judge’s legal basis for granting the

warrant is examined with ‘great deference.’” State v. Raveydts, 2004 S.D. 134, ¶ 8,

691 N.W.2d 290, 293 (quoting State v. Jackson, 2000 S.D. 113, ¶ 9, 616 N.W.2d 412,

416). “A deferential standard of review is appropriate to further the Fourth

Amendment’s strong preference for searches conducted pursuant to a warrant.” Id.

(quoting Jackson, ¶ 9, 616 N.W.2d at 416). “On review, we are limited to an

examination of the facts as contained within the four corners of the affidavit.”

Gilmore, 2009 S.D. 11, ¶ 7, 762 N.W.2d at 641.

[¶14.] In determining whether probable cause exists to support the issuance

of a search warrant, “[t]here must be ‘a showing of probability of criminal activity.’”

State v. Tenold, 2019 S.D. 66, ¶ 30, 937 N.W.2d 6, 14 (quoting State v. Helland,

2005 S.D. 121, ¶ 16, 707 N.W.2d 262, 269). “[T]he judge must be able ‘to make a

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practical, common-sense decision whether, given all the circumstances set forth in

the affidavit before [the judge], including the “veracity” and “basis of knowledge” of

persons supplying hearsay information, there is a fair probability that contraband

or evidence of a crime will be found in a particular place.’” Id. (quoting Illinois v.

Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)). This

Court, in Gilmore, explained that “these elements should [not] be understood as

entirely separate and independent requirements to be rigidly exacted in every case”

but “as closely intertwined issues that may” aid in the finding of probable cause.

2009 S.D. 11, ¶ 11, 762 N.W.2d at 642 (quoting Gates, 462 U.S. at 230, 103 S. Ct. at

2328).

[¶15.] “Probable cause cannot be determined by some ‘formulaic solution.’”

State v. Dubois, 2008 S.D. 15, ¶ 11, 746 N.W.2d 197, 202 (quoting Helland, 2005

S.D. 121, ¶ 15, 707 N.W.2d at 268). It “‘is a fluid concept—turning on the

assessment of probabilities in particular contexts—not readily, or even usefully,

reduced to a neat set of legal rules.’” State v. Running Shield, 2015 S.D. 78, ¶ 9, 871

N.W.2d 503, 506 (quoting Jackson, 2000 S.D. 113, ¶ 22, 616 N.W.2d at 420). We

look “at the totality of the circumstances to decide if there was at least a

‘substantial basis’ for the issuing judge’s finding of probable cause.” Tenold, 2019

S.D. 66, ¶ 28, 937 N.W.2d at 14 (quoting State v. Boll, 2002 S.D. 114, ¶ 44, 651

N.W.2d 710, 721 (Konenkamp, J., concurring specially)). The “totality of the

circumstances” test requires us to look at the evidence contained in the affidavit in

its entirety—the “whole picture”—rather than at each piece of the evidence in

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isolation. State v. Barry, 2018 S.D. 29, ¶ 22, 910 N.W.2d 204, 212 (quoting District

of Columbia v. Wesby, __ U.S. __, __, 138 S. Ct. 577, 588, 199 L. Ed. 2d 453 (2018)).

[¶16.] Officer Jandt’s affidavit relied heavily on information he received from

Roberts. This Court has “recognized two inquiries crucial to a probable cause

determination in cases when an informant’s tip is involved.” Tenold, 2019 S.D. 66,

¶ 34, 937 N.W.2d at 16. “First, an ‘explicit and detailed description of alleged

wrongdoing, along with a statement that the event was observed firsthand, entitles

[the informant’s] tip to greater weight than might otherwise be the case.’” Id

(quoting Raveydts, 2004 S.D. 134, ¶ 11, 691 N.W.2d at 295). “Second, the extent to

which the tip is corroborated by the officer’s own investigation is important.” Id.

(quoting Raveydts, 2004 S.D. 134, ¶ 12, 691 N.W.2d at 295). “However, not every

piece of information provided by an informant requires corroboration. ‘Because an

informant is right about some things, he is more probably right about other facts[.]’”

Gilmore, 2009 S.D. 11, ¶ 16, 762 N.W.2d at 643 (quoting Gates, 462 U.S. at 281, 103

S. Ct. at 2355).

[¶17.] Furthermore, we consider a known informant, who observed the

activity firsthand to be more reliable. An informant “whose identity is known, who

personally observes the alleged criminal activity, and who openly risks liability by

accusing another person of criminal activity [ ]may not need further law

enforcement corroboration.” Dubois, 2008 S.D. 15, ¶ 15, 746 N.W.2d at 203 (quoting

State v. Griggs, 34 P.3d 101, 104 (Mont. 2001)).

[¶18.] The circuit court concluded that Roberts’s tip could not establish

probable cause for the search warrant because law enforcement failed to “confirm

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the tips through personal observations of criminal activity, or in the alternative, be

aware that the tipster has special training or experience relating to the conclusion

at issue.” In reaching this conclusion, the circuit court erroneously relied on

language from State v. Sharpfish, wherein this Court, in discussing reasonable

suspicion, stated that when an unknown informant does not give “explicit and

detailed description of alleged wrongdoing,” . . . “[t]he officer must confirm the tip

through personal observations of criminal activity, or in the alternative, be aware

that the tipster ‘has special training or experience relating to the conclusion at

issue.’” 2019 S.D. 49, ¶ 27, 933 N.W.2d 1, 10 (citation omitted).

[¶19.] However, Sharpfish is inapplicable to the circumstances here because

Roberts was a known informant. She identified herself to law enforcement and met

with them at the apartment building. See United States v. Robertson, 39 F.3d 891,

893 (8th Cir. 1994) (holding that the credibility of an anonymous informant was

verified based on a face-to-face meeting with the officer and the officer’s training

and experience in interviewing “hundreds of defendants and informants”). Roberts

also provided law enforcement with an “explicit and detailed description of the

wrongdoing” when she reported her firsthand observations and her finding of the

baggie immediately after Olmsted removed his laundry from the dryer.

[¶20.] Additionally, much of the information provided by Roberts was

corroborated by law enforcement. Law enforcement personally observed the baggie

and preliminarily confirmed that it contained methamphetamine. Law

enforcement’s ability to verify this information suggests that Roberts may have also

properly identified that the baggie she found in the hallway of the apartment

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building, a month earlier, contained methamphetamine. Roberts’s report that a

male in Apartment 15 had removed the laundry in the dryer was also partially

corroborated when the officers knocked on the door of the apartment, and a male

inside asked who was there. The information that Roberts had observed “heavy

short-term traffic” coming from Apartment 15 was also partially corroborated by

Investigator Olson, who personally observed an individual arrive at the apartment

building, leave his car running and door open, and return to the vehicle two minutes

later. This individual was later stopped for a traffic violation and arrested for

possession of methamphetamine. Under these circumstances, the reviewing

magistrate judge could appropriately find the “veracity” and “basis of knowledge”

for Roberts’s information to be reliable.

[¶21.] Ostby and Olmsted, however, argue that even if the magistrate judge

could rely on the information provided by Roberts, the circuit court’s suppression

rulings should be affirmed because there was an insufficient nexus between this

information and the request to search Apartment 15. Guthrie v. Weber, 2009 S.D.

42, ¶ 11, 767 N.W.2d 539, 543 (stating that “[t]he Fourth Amendment requires that

there be a nexus between an item to be seized and the alleged criminal activity”).

They highlight that both bags of methamphetamine Roberts purportedly found were

located in common areas of the apartment building, and the prior arrest of a person

found to possess methamphetamine after entering the apartment building was not

“directly linked . . . or traceable” to Apartment 15.

[¶22.] Ostby’s and Olmsted’s arguments presuppose both a heightened

standard for probable cause and a piecemeal approach to reviewing the facts in the

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affidavit. But Roberts’s discovery of the baggie of methamphetamine in the dryer

provided a direct connection between the criminal activity—the baggie of

methamphetamine found in the dryer—and the male occupant in Apartment 15.

Additionally, the reviewing magistrate could have also considered the other

information provided by Roberts and the investigation of Investigator Olson to find

a probability of ongoing drug activity connected with Apartment 15. Finally, the

magistrate judge could have also drawn inferences from the male occupant’s failure

to open the door after law enforcement knocked on the door of Apartment 15 and

identified themselves, as contrasted with his willingness to respond to and

communicate with Roberts when she knocked on the door a short time before.2

“[W]e will draw every reasonable inference possible in support of the issuing court’s

determination of probable cause to support the warrant.” Dubois, 2008 S.D. 15, ¶

11, 746 N.W.2d at 203 (citation omitted). The affidavit, and the reasonable

inferences drawn therefrom, provided the reviewing magistrate with a sufficient

basis to conclude that the information was reliable, and that there was a “fair

probability” that contraband would be found in Apartment 15.



2. Ostby and Olmsted claim that Officer Jandt’s body camera footage, presented

at the suppression hearing, showed that Roberts was confused about the

apartment where Olmsted was located, but this claim is not supported by the

footage itself. More importantly, none of these additional facts are relevant

to our determination, as they were not presented to the magistrate at the

time he granted the search warrant. “[T]he existence of probable cause for

the search warrant must rise or fall on the affidavit itself which was the only

evidence presented to the magistrate for his determination of probable

cause.” Jackson, 2000 S.D. 113, ¶ 11, 616 N.W.2d at 416 (quoting State v.

Smith, 281 N.W.2d 430, 433 (S.D. 1979)).

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[¶23.] Ostby and Olmsted also ask us to review the circuit court’s conclusion

that exigent circumstances did not exist for law enforcement to search Apartment

15; however, the State has not challenged this determination, and the question of

exigent circumstances is not before us.3 Finally, having determined that probable

cause existed for the issuance of the search warrant, it is unnecessary to consider

whether the good-faith exception applies to the exclusionary rule.

We reverse the circuit court’s suppression orders and remand for

further proceedings.