Recent Decisions Highlight Police Over-Reaching In Western South Dakota And The Court’s Protection Of Our Rights

The South Dakota Supreme Court has recently issued two decisions that advance and protect the rights of persons accused of crimes in South Dakota. Both of these cases came out of Rapid City, and both involved the police using unconstitutional means to obtain evidence. Perhaps the most important decision issued in recent months is State v. Medicine. This decision further refines the analysis of when police officers must obtain warrants before they can take a DUI suspect’s blood after arrest. After the United States Supreme Court’s decision in Missouri v. McNeeley, and the South Dakota Supreme Court’s decision in State v. Fierro, most criminal defense attorneys assumed that the police would understand that they had to obtain a warrant before taking a DUI suspect’s blood. The only recognized exceptions to that was when a suspect consented, or when the police could show some exigency that made getting a warrant in a timely manner nearly impossible. However, as soon as McNeeley and Fierro were issued, prosecutors and police tried to carve out new exceptions to the warrant requirement. For instance, I had one case where the prosecutor argued that it was a suspect’s burden to show that they didn’t consent to a blood draw, and unless the suspect verbally refused or pulled away when the medical technician was drawing the blood, the suspect had tacitly consented to the blood draw. Numerous other defense attorneys faced the same nonsensical reasoning by various prosecution agencies. For many decades the well established case law has instructed that the prosecution had the burden of showing that a suspect had consented to a warrantless search. There was no basis to treat DUI cases differently and throw the burden on the suspect to prove that he didn’t consent. Medicine was pulled over by a Rapid City police officer on suspicion of driving drunk. The officer told him that, as a result of his decision to operate a motor vehicle in South Dakota, he had legally consented to giving his blood for chemical testing. The officer further used the term “submit” when asking Medicine for his blood. At other times during the arrest, Medicine was asked to “consent” to the withdrawal of his blood, but this came after he was already under arrest. The State argued that because the officer used the term “consent” at times, other statements by the officer about Medicine submitting to a blood draw should be viewed as inconsequential. The South Dakota Supreme Court rejected that argument. First, the Court noted that the word submit and consent have substantially different meanings. Second, the Court noted that most of the officer’s statements to Medicine about the blood draw were read to him from a card. The language within the card, such as the use of the word “submit” and the assertion that Medicine had already consented to the withdrawal of his blood, was coercive. The Court held that when Medicine decided to give blood, he wasn’t consenting but was merely submitting to claim of lawful authority by the police. The Court also noted that Medicine’s alleged consent came after he had already been arrested, and that he was never expressly told he had the right to refuse the blood draw. Hopefully, the Medicine decision will remind law enforcement officers of their duty to obtain a warrant or obtain un-coerced consent for a blood draw. Since McNeeley was issued, police officers who follow the rules have had little problem obtaining warrants when they need them. Cutting corners violates the suspect’s rights and diminishes the significance of the warrant requirement, which was put into the Constitution by the founders of this country for a reason: to protect us all from over-reaching by the authorities. Another important decision is State v. Walter. Like Medicine, this case came out of the criminal courts in Rapid City, South Dakota. And, like Medicine, it shows the extent to which law enforcement in Rapid City will violate suspects’ rights in order to obtain evidence. In Walter, the suspect was a harmless panhandler who was seen loitering in a park near an ice rink. Though he had committed no crime (panhandling is not illegal in Rapid City), the police officer approached Walter and told him he was going to search his pockets “due to officer safety.” As the police officer began to search Walter’s pockets, Walters advised the officer he had needles in his pocket. Walter was charged with possession of methamphetamine based on the residue in one of the needles. Walters challenged the search of his pockets. But, the trial court judge in Rapid City upheld the search and found Walter guilty of the crime. He was sentenced to a three year suspended penitentiary sentence. At issue in the case was whether the police officer had any right to search Walter at all. Recall, Walter had committed no crime. The officer had not been told that Walter had done anything but panhandle. The officer admitted he knew that was not illegal. The case raises a fundamental question of liberty: Do we want to live in a society where the police can walk up to someone who is not committing any crime and demand that they empty their pockets? If we give the police this power, what is going to stop them from asserting the right to search our cars or homes for no reason? In this case, the officer claimed that he asked Walter to empty his pockets “due to officer safety.” However, the officer would not have been in any danger if he had not accosted Walter. Walter was just a homeless panhandler walking around a park. Perhaps not a model citizen, but a citizen who deserves the same protections enshrined in our constitution as any other citizen. Fortunately for him, the South Dakota Supreme Court agreed with Walter’s attorney, Bryan Anderson, that this kind of conduct was impermissible. The Court held that unless the officer had specific information that Walter had conducted himself in some way that was in violation of the law or suggestive of criminal activity, the officer was not entitled to search Walter’s pockets. The Court reversed the trial court’s decision to deny the motion to suppress. Both of these decisions are important reminders to us all about the importance of advocacy on behalf of those accused of crimes. As a defense attorney, I am regularly asked by well meaning but uninformed people how I can represent someone who is guilty. In both of these cases, the defendants were factually guilty of something. Medicine was driving with too much alcohol in his blood, and Walter had methamphetamine on him. However, in both cases, by fighting the way in which the evidence was obtained, these defendants and their attorneys protected all of our rights. None of us want to live in a country where the police can disregard the warrant requirement and unilaterally demand we provide a blood sample without first getting a judge’s approval. None of us want to live in a society where the police can come up to us on the street and start emptying our pockets or rummaging through our purses. It is the battles waged by those of us who were caught doing something wrong that protect the rights of those of us who aren’t violating the law. Without defendants willing to fight the cases and criminal defense attorneys willing to wage these battles, we may all lose our rights.