Last updated on 2015-06-01
The South Dakota Supreme Court threw out a drug-and-alcohol conviction this week on an interesting search-and-seizure point. On the evening of October 1, 2013, an unnamed individual reported to Rapid City police that someone was panhandling in Roosevelt Park. Officer Dale Ackland went to the ice arena and found David A. Walter standing on the sidewalk. Walter matched the description provided by the complainant. Ackland saw a bulge in Walter’s front left pocket and decided that was sufficient reason to frisk Walter. Ackland found an open bottle of liquor and a couple syringes of meth. Ackland arrested Walter for public consumption of alcohol and possession of a controlled substance.
Walter argued to the circuit court that Ackland’s search was illegal, because the officer “did not have a reasonable suspicion of criminal activity to warrant the investigatory stop and frisk.” Panhandling is not illegal under state law or Rapid City ordinance, and the complainant did not cite any other activity that might have warranted police attention. The circuit court didn’t buy that, but the Supreme Court did:
In essence, the State asks us to uphold the seizure and search of an individual based only on an accurate description of the “suspect’s” appearance and the statement that he is engaged in activity that might be criminal under certain conditions, but without any claim that those conditions are actually present or any other statement of alleged fact enabling the detaining officer to infer that those conditions might be present [Chief Justice David Gilbertson, State of South Dakota v. David A. Walter (2015 S.D. 37), South Dakota Supreme Court, 2015.05.27].
At peril of likening referendum petitioners to panhandling meth addicts, I see a parallel between the Walter case and the Memorial Day incident in which a veteran was kicked out of Wylie Park after a park visitor grumbled about his circulating a referendum petition. We can’t allow city officials to search, detain, or otherwise harass citizens in public places just because one person disapproves of those citizens’ activities. In the Wylie Park case, our commitment to Constitutional rights (in this case, the First Amendment) means park visitors have to put up with some civil political speech with which they may disagree. In Walter’s case, our commitment to basic Constitutional rights (in this case, the Fourth Amendment) means we miss out on the opportunity to prosecute an individual who really was breaking the law, but that’s the price we pay for obeying the rule of law rather than the rule of gripers.
Police, city officials, take note: State v. Walter emphasizes that if you’re going to accost a citizen on the streetbased on another citizen’s complaint, you’d better make sure that complaint is rooted in statute or ordinance, and not just one griper’s displeasure.
If he had a bugle in his pocket, or a bulge, I’m sure neither is sufficient to stop and frisk.
I lived in this area. My daughter played in Roosevelt Park. Mostly I accompanied her, but as she was older she played there by herself or with friends. The drunks, druggies and homeless folks made the area unpleasant at times and seemingly unsafe, but they were more of a threat to themselves than to other people. Mostly they were just walking by to get somewhere, or resting like any other citizen would do. Sometimes people would try to panhandle, but it wasn’t much of a problem.
We had a neighborhood watch group to make sure there was no obvious drug dealing or violence in the park and nearby neighborhoods. Mostly the guys would just sleep it off in the park or in the nearby greenway. If they were going to drink or do drugs, there are places under the bridges or in nearby floodplain areas that are less obvious. These guys were hardly ever any trouble. In the twelve years I lived in the area I used the bike path a lot. I was hassled one time by someone who was upset about “losing another vet.” The real problem were the “drug houses.”
I have to say, though, I heard different stories from women. They talked about being verbally harassed, and feeling threatened if they walked alone through the park or on the bike path.
Another lazy cop obsessed with his perceived authority. There are many ways to obtain a legal search should an officer get off the doughnuts and use his noodle. Extremely glad to see the SCOSD give this ruling. It’s the camel’s nose South of Dakota liberals need for enthusiasm and action. FIRST THE COURT … NEXT THE BALLOT BOX!!
Lazy cop? Really? Just a couple years ago, 2 officers were shot and killed in the line of duty responding to a similar call from a concerned citizen. It started as just a nuisance call. If all had gone “normally” the folks would have just been asked to move along. Instead, one of the folks pulled a gun and shot all three officers before they even had a chance to chat.
Now, you respond to a nuisance call and the described person has a bulge in their pocket. Do you know that it is a bottle? Could it be something else? What? Want to take a chance that it is just an open bottle or would you like to make SURE? Lazy? Donuts? Maybe he WAS “using his noodle”!
@Loren …. REALLY!!! I”d wager that most police actions are a result of a “similar call” and using your anecdote to justify an unlawful search and seizure didn’t persuade the Supreme Court. One of the bigger problems with South Dakota citizenry is giving undue respect and unearned admiration to religious leaders, politicians and police. It leads to situations the Supreme Court must rule on, often.
In 2012 the publisher of the Mitchell Republic refused to run a news story or a guest column about the matter below, but he did graciously agree to “round” the word count on a 349-word letter to the editor down to the paper’s stated limit of 300:
http://www.mitchellrepublic.com/content/letter-dwu-should-hear-all-sides-issue
I’m still banned from the campus, and to this day neither DWU nor the Mitchell police will tell me what happened.
@Evans …. and you were 42 years old when this happened?
Porter Lansing asks:
>“@Evans …. and you were 42 years old when this happened?”
I was 41 when I was arrested and 42 when the charge was finally dismissed.
I didn’t read this post until Mr. Evans chose to comment then laughed at Mr. Pay’s retort to Cory’s apparent typo. After seven wives or so, perhaps carrying a bugle in my front left pocket might have been the secret to five or six more.
@Evans – I’ve read your sheet. Keep your pervert ass away from young women. There’s a group of liberal counselors who convene to discuss matters like this. They could be convinced to come to Wessington Springs and have a heart to heart about how you can become a better South Dakota citizen.
This makes me wonder just how many people have been falsely arrested, convicted and jailed and called a felon?
Porter Lansing wrote:
>“@Evans – I’ve read your sheet. Keep your pervert *** away from young women. There’s a group of liberal counselors who convene to discuss matters like this. They could be convinced to come to Wessington Springs and have a heart to heart about how you can become a better South Dakota citizen.”
Thanks for not gossiping about me behind my back, Porter. In that regard you seem to have more integrity than Brandon Vetter.
score one for the PDO
Hang on, Loren: it wasn’t a nuisance call. Panhandling isn’t a crime. That’s the court’s point: without a valid complaint based on ordinance, the cop had no basis for stopping and searching a citizen in the park.
And Porter, I’m afraid that, at least initially, I’ll jump on the tangent and take Evans’s case. On what grounds does DWU ban a man who has not violated any law by entering the DWU campus to see a show that is open to the public? What DWU policy has Evans violated? We’re not even talking about sex offender laws meant to protect children; DWU students are adults, right? Is DWU really in a position to play helicopter parent and prevent its female students (do they do this for male students, too?) from making the acquaintance of men they deem unsavory? Will University of Sioux Falls issue a similar ban on my stepping on campus to prevent their female students from engaging in potentially dangerous conversations with an atheist?
Of course, the difference between DWU’s arrest-on-sight order on Evans and the RCPD’s improper search of Walter is that DWU is private property. Civil rights don’t go as far on a private campus as they do in a public park.
What’s a “bugle,” assuming it is not the instrument of cavalry battle order delivery?
Oh. I’ll bet it was “bulge.”
Cory wrote:
>“What DWU policy has Evans violated? We’re not even talking about sex offender laws meant to protect children; DWU students are adults, right?”
Perhaps more to the point, I believe sex outside marriage is wrong.
>“Of course, the difference between DWU’s arrest-on-sight order on Evans and the RCPD’s improper search of Walter is that DWU is private property. Civil rights don’t go as far on a private campus as they do in a public park.”
Good point, Cory. I objected to the arrest on legal grounds. I object to the ban itself (and the lies that caused it) on moral grounds.
Are you still banned, Mr. Evans? Does your ban extend to other schools or is it just General Beadle State College from which you are banished and prevented from harassing co-eds?
Sorry about that, Bob! “Bulge” became “bugle” in a fit of wishful typing. The story would have been more interesting if Walter had been accosted because of his status as a park musician.
That moral argument is worth having. I’m curious: is there any way to tie that moral argument into a legal argument that could get traction in court? Can we assert any right to attend events on a private college campus?
“What DWU policy has Evans violated? We’re not even talking about sex offender laws meant to protect children; DWU students are adults, right?” – moderator
A persons right to be weird ends when it invades the personal space of another… especially after warnings to knock it off. Being a “personal nuisance” and making women feel uncomfortable is certainly denied in the policy for people on campus at Dakota Wesleyan and if it isn’t, it’s in general statutes most everywhere. “Your rights end at the tip of my nose” – Oliver Wendell Holmes, Jr
“Grudznick” wrote:
>“Are you still banned, Mr. Evans? Does your ban extend to other schools or is it just General Beadle State College from which you are banished and prevented from harassing co-eds?”
“General Beadle State College” is a former name of Dakota State University in Madison, which has nothing to do with any of this, but I believe the DWU ban in 2012 was a direct result of a similar ban at SDSU in 2003:
https://groups.google.com/forum/print/msg/rec.music.christian/0fuc26fMYUE/JjzsF2oEiJAJ
As far as I know, both bans are intended to be permanent. Although an attorney has advised me that it would never stand up in court, Chief Heaton explicitly refused to lift the SDSU ban as recently as late 2012.
Cory wrote:
>“I’m curious: is there any way to tie that moral argument into a legal argument that could get traction in court? Can we assert any right to attend events on a private college campus?”
I can and do assert that I have that right, and I assume there’s a way to tie it into a legal argument, but I’d probably want to talk to an attorney again before doing so.
Porter Lansing wrote:
>“A persons right to be weird ends when it invades the personal space of another… especially after warnings to knock it off. Being a ‘personal nuisance’ and making women feel uncomfortable is certainly denied in the policy for people on campus at Dakota Wesleyan and if it isn’t, it’s in general statutes most everywhere.”
Porter reminds me of South Dakota DCI agent Jon Bierne, harassing me with false insinuations based on things that never happened, but doing so in such a vague, general way that it’s essentially impossible to defend myself.
Porter, I am not sure quoting Oliver Wendell Holmes, Jr., is very helpful. After, he wrote the opinion in Buck vs. Bell upholding the involuntary sterilization of a 17 year old girl, saying: “Three generations of imbeciles are enough,” among several other rather offensive comments.
http://en.wikipedia.org/wiki/Buck_v._Bell