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Date: 11-07-2020

Case Style:



Case Number: 2020 S.D. 61

Judge: Steven R. Jensen


Plaintiff's Attorney: JASON R. RAVNSBORG
Attorney General
Assistant Attorney General
Pierre, South Dakota
Lawrence County State’s
Attorney’s Office

Defendant's Attorney:

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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
[¶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

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
[¶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.

Outcome: We reverse the circuit court’s suppression orders and remand for
further proceedings.

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