#23713-r-RWS 

2006 SD 77

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

MICHAEL SWEEDLAND, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE TIMOTHY R. JOHNS 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

STEVEN R. BLAIR 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

MATTHEW J. KINNEY 

Kinney & Dardis, LLP 

Spearfish, South Dakota Attorneys for defendant 

and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON FEBRUARY 13, 2006 

 OPINION FILED 08/16/06
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SABERS, Justice 

[¶1.] Michael Sweedland (Sweedland) appeals the circuit court’s denial of 

his motion to suppress evidence obtained from the search of his vehicle. We reverse. 

Facts 

[¶2.] On the morning of February 13, 2005, Jay Pearson (Pearson) was 

cleaning one of the rooms in the Budget Host Jackpot Inn Motel in Deadwood, 

South Dakota. During that time, Pearson smelled what he believed to be marijuana 

smoke emanating from two rooms across the hallway. Pearson witnessed four 

young males, whom he believed to be the occupants of the rooms, leaving the motel. 

Pearson reported this information to law enforcement. 

[¶3.] The Pearson information was relayed over radio by police dispatch. A 

summary by the dispatcher is as follows: 

 Manager of the Budget Host advised four males just left the 

 motel, headed into town, driving Montana License 29A8307, 

 maroon 2000 4-door Oldsmobile. The hallway smells like 

 marijuana, as well as the two rooms they were staying in. 

Officer Alex Hamann (Hamann), a Deadwood City Police Officer, was on duty that 

day and heard the dispatch. Approximately three to five minutes after receiving the 

dispatch, Hamann identified a vehicle that matched the description given in the 

dispatch. Sweedland was driving the vehicle. Michael Huggins, Joseph Teasdale, 

and Jason Morrow were passengers in the Sweedland vehicle.1

1. Hamann did not know the identities of the four individuals at this time, as 

that information was not provided by dispatch. 
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[¶4.] Hamann witnessed no traffic violations, but decided to stop the car to 

investigate the information relayed by dispatch. Sweedland pulled into a parking 

lot and stopped his vehicle upon seeing Hamann’s emergency lights.2 Hamann then 

approached the driver’s side of the vehicle and asked Sweedland for his driver’s 

license, proof of insurance, and vehicle registration. Sweedland provided the 

requested information and was asked to exit the vehicle and accompany Hamann to 

his patrol car. 

[¶5.] Hamann performed a pat down of the outside of Sweedland’s clothes 

before the two entered the patrol car. Nothing was found as a result of this search. 

Once the two had been seated in the car, Hamann began questioning Sweedland. 

Hamann first communicated the information that was received by dispatch and 

asked Sweedland why anyone would “say something like that.” Sweedland replied 

that he “did not know.” Hamann then asked Sweedland if he had any marijuana in 

his car, to which Sweedland answered in the negative. At this point, Hamann 

asked Sweedland for consent to search the vehicle. Sweedland asked Hamann what 

“grounds” he had to conduct the search. Hamann replied that he wanted to “follow 

through” with the complaint but that it was “up to [Sweedland].” Sweedland again 

refused to give consent stating that there were “no grounds” for a search and that 

he and his friends had not done anything unlawful. Hamann told Sweedland that 

he understood, but if Sweedland and his friends had truly done nothing illegal, 

there would be no reason to be concerned about a search. At this point, Sweedland 

2. The stop and the search were all captured on video and are part of the record 

for this appeal. 
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told Hamann that he was tired and wanted to “get going.” Hamann then told 

Sweedland to remain in the patrol car. At no time during this encounter did 

Hamann witness any signs of impairment or behavior that enhanced his 

suspicions.3

[¶6.] Hamann exited the patrol car and approached the driver’s side door of 

Sweedland’s vehicle. He asked the three passengers to exit the vehicle via the 

passenger doors. After the passengers had complied, Hamann put his head inside 

the car via the driver’s side window and looked at the interior of the vehicle. Before 

Hamann began questioning the three passengers, he turned off the outside 

microphone of his patrol car.4 He obtained driver’s licenses from each of the three 

passengers and returned to his patrol car to use the radio. The passengers 

remained standing to the right of the Sweedland vehicle. 

[¶7.] None of the three passengers had outstanding warrants, but one had a 

suspended driver’s license. Before Hamann could return the passengers’ licenses, 

3. By this time Cindy Rosche, a city ordinance officer, arrived at the scene to 

assist Hamann. 

4. The initial stop and subsequent questioning of Sweedland are audio recorded 

because Hamann had the outside and inside microphones of his police car 

operating. As mentioned, Hamann turned off the outside microphone before 

questioning the passengers. No dialogue is available between Hamann and 

the passengers from this point forward. Nor are there any video images of 

the exchange between Hamann and the passengers because the patrol car is 

situated so that one can only see to the left of the vehicle. Hamann did leave 

the interior microphone on in his patrol car in an effort to record 

incriminating statements from Sweedland. The only audible statements by 

Sweedland can be heard after the search begins. They include an occasional 

curse and a rhetorical “why the f*** did we have to come to Deadwood?” 

Thus, the facts from this point forward are based on Hamann’s testimony at 

the suppression hearing. 
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he was confronted by Officer Mertens (Mertens) who arrived to assist Hamann. 

Hamann told Mertens that he was unable to get Sweedland to consent to a search of 

the vehicle. Mertens suggested that they perform pat downs on the outer clothing 

of the three passengers. He did not mention any safety concerns justifying the pat 

down, and Hamann did not believe his safety was threatened at that time. At no 

time did Hamann witness any signs of impairment or other behavior on the part of 

the three passengers that would have increased his suspicions beyond that of the 

initial dispatch. 

[¶8.] Hamann testified that upon returning to the three passengers, he 

inquired whether he could perform the pat downs. According to Hamann, the three 

acquiesced. One of the passengers, Joseph Teasdale, produced a pipe and some 

screens from his right coat pocket. The pipe and screens appeared to be brand new 

and did not contain any marijuana residue. Hamann then searched the area in the 

vehicle where Teasdale had been seated. Hamann found a wooden box containing 

marijuana residue. The officers proceeded with a search of the entire vehicle. A 

search of the vehicle’s interior produced two to three bags of marijuana and eight to 

ten pieces of paraphernalia used to smoke marijuana. A search of the vehicle’s 

trunk produced eleven bricks of marijuana. 

[¶9.] Sweedland and the three passengers were arrested and charged with 

various drug related offenses. All four defendants made motions to suppress the 

evidence obtained as a result of the stop, search, and seizures. The motions were 

consolidated and a hearing was held on April 4, 2005. 
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[¶10.] The circuit court issued a written decision denying the motions. The 

court held that the three passengers did not have standing to challenge the search 

as they had no legitimate expectation of privacy in Sweedland’s vehicle. As to the 

passenger pat downs, the court found that “there were no specific, reasonable 

observations by the officer which would support a conclusion that any of the 

defendants were armed and dangerous.” In addition, the court noted, “there is no 

evidence that any of the defendants knowingly and intelligently consented to a 

search of their persons.” The court also found that nothing transpired between the 

stop and the search that “serve[d] as circumstantial evidence corroborating the 

report from the motel.” However, the court denied Sweedland’s motion, writing: 

 [U]nder the totality of the circumstances test the officer was 

 able to verify the report of the informant, shortly after it was 

 made, in respect to the description, state of registration, and 

 license number of the motor vehicle as well as its direction of 

 travel and the number and sex of occupants. Ergo, I conclude 

 as a matter of law that the officer had probable cause that either 

 the vehicle and/or its occupants possessed contraband and that 

 he was legally entitled to conduct a warrantless search of the 

 vehicle and its occupants under the automobile exception to the 

 search warrant requirements of the Fourth Amendment to the 

 United States Constitution and Articles VI, § 11 of the South 

 Dakota State Constitution. 

[¶11.] The passengers were tried and convicted of drug related offenses. 

They did not appeal. Sweedland was convicted of violating SDCL 22-42-7 and 22-3-

3, which prohibit the possession of more than one pound of marijuana with the 

intent to distribute. He raises the following issue on appeal: 

 
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Whether there was sufficient corroboration of the informer’s 

 tip to permit a warrantless search of Sweedland’s vehicle.5

Standard of Review 

[¶12.] Our standard of review is well settled: 

A motion to suppress based on an alleged violation of a 

constitutionally protected right is a question of law reviewed de 

novo. We review findings of fact under the clearly erroneous 

standard. Once the facts have been determined, however, the 

application of a legal standard to those facts is a question of law 

reviewed de novo. 

State v. Chavez, 2003 SD 93, ¶13, 668 NW2d 89, 95 (quoting State v. Hodges, 2001 

SD 93, ¶8, 631 NW2d 206, 209 (internal citations omitted). 

Decision

[¶13.] The Fourth Amendment of the United States Constitution and Article 

VI, Section 11 of the South Dakota Constitution protect individuals from 

unreasonable searches and seizures.6 “As a rule, this protection has been 

interpreted as holding ‘a seizure of personal property . . . per se unreasonable . . . 

unless it is accomplished pursuant to a judicial warrant issued upon probable 

cause[.]’” State v. Ballard, 2000 SD 134, ¶10, 617 NW2d 837, 840 (quoting United 

States v. Place, 462 US 696, 701, 103 SCt 2637, 2641, 77 LEd2d 110 (1983)). The 

 

5. Sweedland does not challenge whether there was reasonable suspicion for 

Hamann to stop his vehicle. 

6. The Fourth Amendment to the United States Constitution provides: 

The right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated, and 

no Warrants shall issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized. 
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warrant requirement is not without exceptions. Specifically, the automobile 

exception excuses law enforcement from obtaining a warrant when the officer has 

probable cause to search the vehicle. Id. n2 (citing Wayne R. LaFave, Search and 

Seizure § 7.1(a) at 433 (3d ed 1995)).

[¶14.] Because the Fourth Amendment has a “strong preference” for searches 

conducted pursuant to a warrant, law enforcement is afforded no deference when 

relying on an exception to justify a warrantless intrusion. State v. Raveydts, 2004 

SD 134, ¶8, 691 NW2d 290, 293; State v. Luxem, 324 NW2d 273, 279 (SD 1982). 

When the state is relying on an exception to the warrant requirement, its burden is 

as follows: 

Under the Fourth Amendment of the United States Constitution 

and Art. VI, § 11 of the South Dakota Constitution a warrantless 

search and seizure is per se unreasonable unless it falls within 

one of the jealously and carefully drawn, strictly circumscribed 

exceptions to the warrant requirement. A heavy burden is on 

the State to prove such exception. 

Luxem, 324 NW2d at 279 (citing Arkansas v. Sanders, 442 US 753, 99 SCt 2586, 61 

LEd2d 235 (1979)) (internal quotations omitted). 

[¶15.] As mentioned above, the circuit court ruled that Hamann had probable 

cause to search Sweedland’s vehicle at the time Hamann made the stop. The court 

based its ruling on Hamann corroborating the vehicle description, direction of 

travel, license plate number, and the number and gender of the occupants with the 

tip received by dispatch. We have had several occasions to examine whether a tip 

provides reasonable suspicion for police to stop a vehicle. See State v. Cuny, 534 

NW2d 52, 54 (SD 1995) (explaining a number of cases where the issue turned on 

whether an anonymous tip by a private citizen provided reasonable suspicion for a 
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stop); State v. Scholl, 2004 SD 85, ¶7, 684 NW2d 83, 86 (listing numerous cases 

involving vehicle stops based upon informant tips). In Scholl, we explained: 

An informant’s tip may carry sufficient indicia of reliability to 

justify a [vehicle] stop even though it fails to rise to the level of 

the probable cause needed for an arrest or search warrant. All 

that is required is that the stop be not the product of mere 

whim, caprice, or idle curiosity. 

Id. ¶6 (citing State v. Olhausen, 1998 SD 120, ¶7, 587 NW2d 715, 717-718) (internal 

quotations omitted). Ultimately, we held that reasonable suspicion to effectuate a 

stop occurred when a tip conveyed the make, model, license number, and location of 

Scholl’s vehicle, as well as the fact that Scholl had stumbled badly out of a bar and 

had difficulty entering his vehicle. Scholl, 2004 SD 85, ¶17, 684 NW2d at 89. 

[¶16.] In Graf v. Dept. of Commerce & Regulation, we held that an 

anonymous tip was insufficient to provide reasonable suspicion for a vehicle stop. 

508 NW2d 1, 3-4 (SD 1995). The tip provided the make, model, and license plate 

number of Graf’s vehicle, along with a statement that Graf was possibly intoxicated. 

Id. The officer who stopped Graf did not witness any erratic driving. It was due to 

the vague nature of the tip and the officer’s failure to corroborate additional facts 

beyond the make and license plate number of the vehicle that the majority held the 

tip insufficient to provide reasonable suspicion. Id. 

[¶17.] The United States Supreme Court addressed this issue in Alabama v. 

White, 496 US 325, 110 SCt 2412, 110 LE2d 301 (1990). In White, the police 

received an anonymous telephone tip that White would be leaving her apartment at 

a particular time in a particular car and that she would be in possession of cocaine. 

496 US 325 at 327, 110 SCt at 2414, 110 LEd2d 301. The tip also specified White’s 
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destination, the amount of cocaine she would be carrying, and the type of bag she 

would be using to conceal the cocaine. Id. Law enforcement corroborated most of 

that information. 496 US at 331, 110 SCt at 2417, 110 LEd2d 301. The Court held 

that although it was a “close case,” the tip provided law enforcement with 

reasonable suspicion to stop White’s vehicle. 496 US at 332, 110 SCt at 2417, 110 

LEd2d 301. The Court also noted that: 

Reasonable suspicion is a less demanding standard than 

probable cause not only in the sense that reasonable suspicion 

can be established with information that is different in quantity 

or content than that required to establish probable cause, but 

also in the sense that reasonable suspicion can arise from 

information that is less reliable than that required to show 

probable cause. 

496 US at 330, 110 SCt at 2416, 110 LEd2d 301. 

[¶18.] The question here is not whether the tip and corroboration that 

followed constituted reasonable suspicion to stop Sweedland’s vehicle, but whether 

it created probable cause to conduct a search of the vehicle.7 Although the above 

mentioned cases aid our analysis, the state faces a greater burden in the present 

case. 

[¶19.] In Raveydts, we held that two anonymous tips alleging illegal drug 

activity in an apartment were sufficient to provide probable cause to obtain a search 

warrant. 2004 SD 134, 691 NW2d 290. The tips provided information that the 

defendant was a narcotics user and that she continually had people coming and 

going from her apartment. The tip also mentioned that the visitors were narcotics 

 

7. We note that the tip was not anonymous. Although it is not clear if Pearson 

gave his name to dispatch, he did give his job title and place of employment. 
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users and that the tipster had witnessed an individual exit the apartment in 

possession of narcotics. Id.¶10. One of the informants lived below the defendant 

and alleged smelling marijuana smoke. Id. ¶3. Finally, the informants provided 

license plate numbers of some of the individuals who had been frequenting the 

apartment. Id. 

[¶20.] Law enforcement identified the owners of the license plate numbers 

supplied by the callers. Id. ¶4. Several of the individuals had been involved in drug 

violations and one had been involved in large marijuana sales throughout the area. 

Id. Based on that corroboration and information, a circuit judge issued a search 

warrant for the defendant’s apartment. Id. ¶5. In holding that there was probable 

cause to issue the search warrant, the majority placed emphasis on the fact that a 

magistrate had made the probable cause determination. Id. ¶7. The concurrence 

agreed, noting, “far more constitutional violations are likely to come from intrusions 

into homes and vehicles by officers without search warrants, under claimed 

exceptions to the search warrant requirement[.]” Id. ¶19 (Sabers, J., concurring). 

[¶21.] The inquiry into probable cause is whether the “information provided 

to the judge was sufficient for a common sense decision that there was a fair 

probability the evidence would be found on the person or at the place to be 

searched.” Id. ¶7 (citing Illinois v. Gates, 462 US 213, 238, 103 SCt 2317, 2332, 76 

LE2d 527 (1983)). Two elements were labeled as “crucial” in determining whether 

an anonymous informant’s tip provided a substantial basis for the issuing court’s 

finding of probable cause. Id. ¶11. “First, an explicit and detailed description of 

alleged wrongdoing, along with a statement that the event was observed first hand, 
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entitles the informant’s tip to greater weight than might otherwise be the case.” Id. 

(citing Gates, 462 US at 234, 103 SCt at 2330, 76 LEd2d 527) (internal quotations 

omitted). “Second, the extent to which the tip is corroborated by the officer’s own 

investigation is important.” Id. ¶12. In Gates, the United States Supreme Court 

outlined many of its prior decisions concerning whether tips are sufficient to provide 

probable cause. 462 US 213, 241-42, 103 SCt 2317, 2334, 76 LEd2d 527. The Court 

summarized the cases, stating: 

[o]ur decisions applying the totality-of-the-circumstances 

analysis . . . have consistently recognized the value of 

corroboration of details of an informant’s tip 

by independent police work. 

Id. at 241. 

[¶22.] Before these principles are applied, it is important to note that 

Hamann did not receive a warrant to search Sweedland’s vehicle. The State is 

relying on one of the exceptions to the warrant requirement. Thus, we will apply a 

heavy burden to the State’s assertion. As stated by the United States Supreme 

Court: 

The essential protection of the warrant requirement of the 

Fourth Amendment, as stated in Johnson v. United States, 333 

US 10, 68 SCt 367, 92 LEd 436 (1948), is in requiring that the 

usual inferences which reasonable men draw from evidence be 

drawn by a neutral and detached magistrate instead of being 

judged by the officer engaged in the often competitive enterprise 

of ferreting out crime. 

Gates, 462 US at 240, 103 SCt at 2333, 76 LEd2d 527 (internal quotations omitted). 

[¶23.] The record reflects that neither of the two crucial elements was met by 

the informant’s tip. First, the informant did not observe any wrongdoing on the 

part of the four men. He did not see them using drugs. Nor did he see them in 
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possession of drugs or paraphernalia. The lack of first hand observance is 

inextricably intertwined with the informant’s failure to give an explicit and detailed 

account of the event. The only thing the informant conveyed to dispatch was that 

he had smelled marijuana smoke in the hallway and that the two rooms the men 

had occupied smelled of marijuana. This does not constitute an explicit and 

detailed account of the event. 

[¶24.] The only thing Hamann corroborated at the time of the stop was the 

license plate number, direction of travel, and gender of the four occupants. He did 

not witness any erratic driving. Nor did he ascertain whether the men had stayed 

at the motel, what rooms if any, they had occupied, who had been occupying the 

adjacent rooms, and whether the men showed any signs of impairment or smelled of 

marijuana smoke. Thus, at the time of the stop, Hamann had corroborated only 

innocuous facts. The information provided coupled with the corroboration of 

Hamann falls short of the standard set forth in Raveydts and did not amount to a 

“fair probability evidence would be found [on the four men] or in [Sweedland’s 

vehicle].” 2004 SD 134, ¶7, 691 NW2d 290 at 293 (citing Gates, 462 US at 238, 103 

SCt at 2332, 76 LEd2d 527). As a result, the circuit court erred in holding the tip, 

standing alone, provided probable cause to search the vehicle at the time of the 

stop. 

[¶25.] At most, Hamann had reasonable suspicion to stop Sweedland’s vehicle 

and investigate the informant’s claim as provided in Scholl, White, and Cuny. The 

informant’s tip alleged marijuana use, a class one misdemeanor under SDCL 22-42-

15. The tip did not allege the four men were engaged in drug trafficking. A 
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reasonable police officer might conclude that one who had been using marijuana 

shortly before a stop might also possess marijuana. However, Hamann could not 

infer possession without first corroborating the allegation of marijuana use. 

[¶26.] The information given to dispatch was that marijuana smoke could be 

smelled in the rooms and in the hallway. Hamann stopped Sweedland’s vehicle 

within three to five minutes after the dispatch. However, Hamann did not smell 

marijuana in Sweedland’s vehicle or on any of the individuals. He testified that 

none of the four men exhibited any signs of impairment and, as a result, he did not 

conduct any sobriety tests. Additionally, Hamann provided no testimony that any 

of the four men acted nervous or in a manner that enhanced his suspicions. 

Because Hamann’s investigation failed to corroborate the informant’s allegations, 

Hamann did not have probable cause to search the vehicle and Sweedland should 

have been free to leave.8 

[¶27.] We agree with the circuit court that nothing after the stop served as 

circumstantial evidence corroborating the report from the motel. However, the 

court erred in holding that probable cause existed at the time of the initial stop. 

Sweedland’s motion to suppress should have been granted. 

[¶28.] Reversed. 

[¶29.] MEIERHENRY, Justice, concurs. 

[¶30.] KONENKAMP, and ZINTER, Justices, concur in result. 

 

8. Hamann’s subjective motives do not control the issue of probable cause. 

However, the record is clear that Hamann knew he did not have probable 

cause because he repeatedly asked Sweedland for consent to conduct a 

search. Moreover, Hamann did not pat down the three passengers for safety 

reasons, but as a result of Sweedland’s refusal to consent. 
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[¶31.] GILBERTSON, Chief Justice dissents. 

KONENKAMP, Justice (concurring in result). 

[¶32.] Is a telephone call from a citizen reporting that someone was in an 

area that smelled of marijuana sufficient in itself to authorize the police to stop and 

search that person’s car? In this case, the caller, a motel manager, reported that 

“the hallway [the suspects were in] smells of marijuana, as well as the two rooms 

that they were staying in.” Other than confirming that the caller accurately 

identified the suspects and their car, the police were unable to establish that the 

caller had any expertise or experience in identifying the odor of marijuana, and, 

after stopping the car, the police could not corroborate that these suspects possessed 

or even smelled of marijuana. Nonetheless, the police went ahead and searched the 

car. To explain why this search is unconstitutional, three points need to be made. 

 1. Reasonable Suspicion and Probable Cause. 

[¶33.] Merely because an expectation of privacy may be lower in an 

automobile does not mean that automobiles can be searched with something less 

than probable cause. Although exigent circumstances can justify searching a car 

without a warrant, there is no different or lesser standard for automobiles: 

probable cause remains the same whether it is used to justify a search with or 

without a warrant. Indeed, when an officer conducts an automobile search without 

a warrant, that officer “acts unlawfully and at his peril unless he can show the court 

probable cause.” Carroll v. United States, 267 US 132, 156, 45 SCt 280, 286, 69 

LEd 543 (1925). After Officer Hamann received the dispatcher’s message about the 
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call, he was able to verify the physical description of the vehicle, the license plate 

number, the direction of travel, and the number and sex of the occupants. With this 

information, Officer Hamann had reasonable suspicion to conduct an investigatory 

stop of Sweedland’s car.9 State v. Scholl, 2004 SD 85, ¶12, 684 NW2d 83, 88. 

Nonetheless, although informant tips may carry sufficient weight to constitute 

reasonable suspicion for an investigatory stop, reasonable suspicion is not the same 

as probable cause necessary to conduct a search. Alabama v. White, 496 US 325, 

330, 110 SCt 2412, 110 LEd2d 301 (1990); State v. Herrmann, 2002 SD 119, ¶10, 

652 NW2d 725, 728. To justify a warrantless search of an automobile, there must 

be “probable cause to believe that the car contains articles that the officers are 

entitled to seize.” Chambers v. Maroney, 339 US 42, 48, 90 SCt 1975, 1979, 26 

LEd2d 419 (1970). 

 2. Citizen’s Tip plus Police Corroboration. 

[¶34.] When a citizen informant reports to police that a crime has been 

committed, that “informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all 

highly relevant in determining the value of his report.” Illinois v. Gates, 462 US 

213, 230, 103 SCt 2317, 2328, 76 LEd2d 527 (1983). These elements should not “be 

understood as entirely separate and independent requirements to be rigidly exacted 

in every case.” Id. Instead, a probable cause determination always depends on an 

examination of the totality of the relevant circumstances. Id. at 235, 103 SCt at 

 

9. Whether this call gave sufficient information to justify reasonable suspicion 

for an investigatory stop is apparently conceded. 
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2330, 76 LEd2d 527; see also State v. Christensen, 2003 SD 64, ¶23, 663 NW2d 691, 

697 (quoting State v. Zachodni, 466 NW2d 624, 629 (SD 1991)). 

[¶35.] Officer Hamann received a radio message that the manager of the 

Budget Host advised that the “four [suspects] just left the motel, headed into town, 

driving a Montana Lic/29A8307, Maroon 2000 Olds 4DR.” After stopping the 

vehicle and confirming the caller’s information about the identity of the car and its 

occupants, Officer Hamann found no additional facts to suggest that the occupants 

were involved in criminal activity.

[¶36.] In our prior cases dealing with citizen tips on criminal conduct, we 

have upheld automobile stops and searches when officers were able to corroborate 

to some degree that the persons stopped were indeed involved in some type of 

criminal behavior. Scholl, 2004 SD 85, ¶6, 684 NW2d at 86; State v. Olhausen, 

1998 SD 120, ¶7, 587 NW2d 715, 717-18 (citations omitted). That is what makes 

this case different. Here, the police gained nothing from the investigatory stop to 

elevate reasonable suspicion to the level of probable cause. Mere suspicion is never 

sufficient to support a finding of probable cause. Wong Sun v. United States, 371 

US 471, 83 SCt 407, 9 LEd2d 441 (1963). Other courts have likewise noted the 

importance of independent corroboration. See State v. K.V., 821 So2d 1127, 1128 

(Fla 2002) (information from security guard provided suspicion; probable cause was 

established after officer corroborated that information “when he observed a ‘small 

cloud’ of smoke floating from the vehicle and smelled the odor of burning 

marijuana”); State v. Estrado, 318 SE2d 505, 507 (GACtApp 1984) (information 

officer received was insufficient to detain defendants, but officer smelling marijuana 
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provided the corroboration necessary for probable cause); State v. Brikenmeier, 888 

A2d 1283, 1290 (NJ 2006) (the officer’s observations and smell of marijuana during 

the investigatory stop based on informant’s tip “further corroborated” the tip and 

“triggered application of the automobile exception to the warrant requirement”). 

But see State v. Carlson, 762 NE2d 121 (Ind 2002) (anonymous tip resulted in stop 

of vehicle, officer smelled alcohol and marijuana emitting from vehicle, smell not 

sufficient to establish probable cause). 

[¶37.] In some instances, crime reporting by citizen informants having 

firsthand knowledge may be sufficient for probable cause without police 

corroboration. State v. Griggs, 34 P3d 101, 104 (Mont 2001) (when information is 

provided by citizen informant, “whose identity is known, who personally observes 

the alleged criminal activity . . . may not need further law enforcement 

corroboration”); State v. Lammers, 676 NW2d 716, 725 (Neb 2004) (“detailed 

eyewitness report of a crime may be self-corroborating”). However, a citizen 

informant’s veracity and basis of knowledge remain important considerations for 

finding probable cause, when an independent investigation by law enforcement 

officers fails to substantiate allegations of criminal activity. See Gates, 462 US at 

238-39, 103 SCt at 2328, 76 LEd2d 527 (there needs to be a “substantial basis . . . 

for concluding that probable cause existed”) (quoting Jones v. United States, 362 US 

257, 271, 80 SCt 725, 736, 4 LEd2d 697 (1960)). In this case, we have no police 

corroboration of the purported criminal activity. Thus, we must examine whether 

there was an adequate basis of knowledge to support the citizen’s tip. 
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 3. Basis of Knowledge for Citizen’s Report. 

[¶38.] Without corroboration, all the police had to go on was what the caller 

had relayed. Nonetheless, we will give greater weight to a citizen’s “explicit and 

detailed description of alleged wrongdoing,” and “a statement that the event was 

observed firsthand. . . .” Gates, 462 US at 234, 103 SCt at 2330, 76 LEd2d 527. But 

here there was no explicit and detailed description of wrongdoing. In fact, the caller 

did not claim to have seen any marijuana or anyone using marijuana. He claimed 

only to have smelled marijuana. 

[¶39.] In cases where informants have reported on the smell of marijuana, 

the courts have found relevant a showing of training or experience with the 

substance before such reports can be considered reliable for probable cause 

purposes.10 Not every citizen calling to report the smell of marijuana can be 

 

10. Professor LaFave explains the importance of the basis of knowledge element 

in assessing probable cause: 

[T]he case which clearly calls for some explanation regarding the 

basis of knowledge of the victim or witness is that in which it 

appears the purported knowledge could have been obtained only 

by the utilization of some expertise beyond that of the typical 

layman. Though such an explanation is sometimes needed in 

other contexts, the usual situation is that in which the person 

providing the information asserts that he has detected illegal 

drugs or narcotics of a certain type at a certain place, in which 

case some showing must be made that this person has the 

ability to recognize that substance through the senses he 

employed. 

 Wayne R. LaFave, 2 Search and Seizure: A Treatise on the Fourth 

Amendment § 3.4 (4th ed) (citations omitted). 
#23713 

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considered presumptively reliable.11 A good illustration of this principle can be 

seen in State v. Swift, 556 NW2d 243 (Neb 1996). There, a social worker visiting 

the apartment of a client noticed the smell of burnt marijuana and saw what she 

believed to be marijuana seeds. The affidavit for a search warrant recited the basis 

for the social worker’s knowledge: “because of the nature of her job, she was 

familiar with the smell and appearance of marijuana.” Thus, because the social 

worker had observed a crime and had sufficient knowledge of the smell and 

appearance of marijuana, the Supreme Court of Nebraska ruled that she was 

“presumptively reliable.” Id. at 248. Other courts have held similarly.12

[¶40.] In this case, the caller’s report of a crime was an opinion. The caller 

did not claim to have personally observed marijuana or to have seen anyone using 

 

11. Despite its claim that a “split of authority” exists on the issue of “how an 

informant knows the odor . . . of marijuana,” the dissent fails to cite even one 

case holding that a report from a citizen informant on the smell of marijuana 

is sufficient of itself to authorize police to conduct a warrantless search of 

private property, absent any indication that the citizen informant had 

training or experience in detecting the odor of marijuana. And cases the 

dissent cites for its argument contradict its position. See, e.g., United States 

v. Merryman, 630 F2d 780, 784 (10thCir 1980) (“This Circuit has held that 

the smelling of marijuana by an experienced observer furnishes probable 

cause for the search.”) (Emphasis added). 

12. People v. Schulle, 124 CalRptr 585 (1975) (14-year-old girl who stated that 

she was familiar with marijuana told police officer that she had seen 

marijuana in her stepfather's bedroom); People v. Paris, 122 CalRptr 272 

(1975) (a reserve police officer trained to recognize the substance who 

personally witnessed the alleged criminal activity is a presumptively reliable 

informant); State v. Mordowanec, 788 A2d 48 (Conn 2002) (court examined 

informant’s basis of knowledge and veracity, as well as information provided 

in tip, witness “detected a strong odor of marijuana, claiming that he ‘knows 

marijuana citing the fact that he is a “Vietnam vet”’”); State v. Doyle, 291 

NW2d 545 (Wis 1980) (citizen personally observed the alleged criminal 

activity and explained he recognized marijuana because he had seen it in 

service in Vietnam). 
#23713 

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marijuana. Nor did he describe what he smelled. Was it smoke? Was it dried 

marijuana? Was it raw plant material? From whatever he smelled, however, the 

caller deduced that it was marijuana. While citizen informants are presumed to be 

truthful, they are not presumed to be experts necessarily qualified to render 

opinions the same as trained law enforcement officers. Nothing in the caller’s 

information established his competence in knowing the smell of marijuana. This 

point was noted in United States v. DeLeon: “[w]e hold that a warrant cannot be 

based on the claim of an untrained or inexperienced person to have smelled growing 

plants which have no commonly recognized odor.” 979 F2d 761 (9thCir 1992) 

(affiant not qualified to recognize the odor of growing marijuana) (citation omitted). 

On the other hand, the case of State v. Kuhlman, 2005 WL 1502284 (WashApp 

2005), illustrates the principle in the inverse: “a layperson [citizen informant] who 

has personal experience with the odor of burning or growing marijuana may 

likewise identify burning or growing marijuana by smell.” 

[¶41.] In circuit court, Officer Hamann was asked, “Do you know what 

training and experience [the manager] would have in detecting marijuana?” The 

officer answered, “No, I do not.” Thus, in addition to not receiving information on 

the caller’s basis of knowledge, Officer Hamann had no other information about the 

caller’s expertise. While a police officer’s smell of marijuana has regularly satisfied 

the probable cause requirement, Officer Hamann did not personally smell anything 

that would warrant searching the vehicle. See State v. Peterson, 407 NW2d 221, 

223 (SD 1987) (“detection of odors alone, which trained police officers can identify as 
#23713 

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being illicit, constitutes probable cause to conduct a warrantless search of an 

automobile”) (citations omitted); State v. Hanson, 1999 SD 9, ¶14, 588 NW2d 885, 

890 (“[o]nce [the officer] detected the odor of burnt marijuana and the drug dog ‘hit’ 

on the car, there was probable cause for a warrantless search of the car”) (citations 

omitted). 

[¶42.] Had the police gained information to corroborate the existence of 

criminal activity, the deficiency in the caller’s basis of knowledge may have been 

overcome under the totality of relevant circumstances. See Gates, 462 US at 233, 

103 SCt at 2329, 76 LEd2d 527 (“a deficiency in one may be compensated for, in 

determining the overall reliability of a tip, by a strong showing as to the other, or by 

some other indicia of reliability”) (citations omitted). Or, the difficulty may have 

perhaps been surmounted if the officer had radioed the dispatcher to call the 

manager back and get more details about what he smelled and how he knew it was 

marijuana. But, in the absence of any further information, the police only had a 

reasonable suspicion, but no probable cause. 

[¶43.] Lastly, the State argues that the police had probable cause based on 

the pipes turned over to them during the pat down search. It is important to look at 

the sequence of events. Sweedland was stopped and taken back to the patrol car. 

He was questioned. He refused to consent to a search of the car. A background 

check was run. He was detained in the patrol car. Then the police spoke to each of 

the passengers, asked them to exit the vehicle, obtained their licenses or 

identification documents, and ran a background check on them. One passenger’s 

driver’s license was suspended. After this, the officers searched the passengers. 
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However, by the time the officers had everyone get out of the car for the pat down 

search, there were no further grounds to detain them because the caller’s 

allegations were not substantiated.13 State v. Ballard, 2000 SD 134, ¶13, 617 

NW2d 837, 841. The circuit court specifically found that the State failed in its 

burden to prove that the passengers voluntarily consented to be pat searched. That 

issue has not been appealed. Individuals “may not be detained even momentarily 

without reasonable, objective grounds for doing so[.]” Florida v. Royer, 460 US 491, 

498, 103 SCt 1319, 1325, 75 LEd2d 229 (1983). Whatever objective grounds existed 

to stop Sweedland’s car, those grounds were exhausted after the police could not 

substantiate the caller’s allegations. 

 4. Conclusion. 

[¶44.] Public-spirited citizens interested in seeing the law upheld should be 

encouraged to report suspicious circumstances to the police. Conscientious law 

enforcement officers will thereafter investigate such reports. But before officers can 

conduct a full-blown search of someone’s private property, they must have more 

than a citizen caller’s uninformed “opinion” that a crime has been committed. The 

police here could not rely solely on the caller’s information to conduct a search of the 

car because there was no basis to believe the caller had any experience or training 

in detecting the odor of marijuana. 

[¶45.] When law enforcement searches are founded on information falling 

short of probable cause, it is our duty to uphold the Fourth Amendment along with 

its corresponding provision in our South Dakota Constitution. US Const amend IV; 

 

13. Defense counsel timely raised this issue in the suppression hearing. 
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SD Const art VI, § 11. Because the search here was conducted without probable 

cause, it is unconstitutional and cannot stand. 

[¶46.] For these reasons, I concur in the result. 

[¶47.] ZINTER, Justice, joins this special writing.

GILBERTSON, Chief Justice (dissenting). 

[¶48.] I respectfully dissent. I agree with the Court that Hamann needed to 

have probable cause in order to search Sweedland’s vehicle. However, the tip from 

the hotel manager, a concerned citizen rather than an anonymous tipster, provided 

reliable and credible information that was sufficiently corroborated by Hamann 

such that the probable cause requirement was satisfied. 

[¶49.] The only facts pertinent to the holding in this case are those that were 

known to Hamann at the time of the traffic stop. Therefore, I restate those facts 

below. 

[¶50.] On February 13, 2005, at approximately 10:45 a.m., Hamann received 

a radio call from a Lawrence County dispatcher advising him as follows: “The 

manager of the Budget Host advised that four males just left the motel, headed into 

town, driving Montana Lic/29A8307, Maroon 2000 Olds 4DR. The hallway smells of 

marijuana, as well as the two rooms that they were staying in. (Room 23 and Room 

24).”14 

 

14. The text is a transcript of the radio dispatch, which was entered into evidence 

at the suppression hearing. 
#23713 

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[¶51.] Over the next six minutes the following transmissions between 

dispatch and Rische were overheard by Hamann: “Suspects are at Pack Horse[, a 

local convenience store],” followed by “Just left Pack Horse, headed towards the 

courthouse,” “Just headed out of town, headed towards Boulder Canyon,” and 

finally “They are just ahead of me.” 

[¶52.] At approximately 10:53 a.m., Hamann advised dispatch he had 

stopped Sweedland’s car. Hamann would later testify that he witnessed no traffic 

violations, but decided to stop the car to further investigate the information relayed 

by dispatch. The stop was recorded on Hamann’s patrol car video. 

[¶53.] Hamann exited his vehicle, approached the driver’s side of Sweedland’s 

vehicle and asked for his driver’s license, proof of insurance and vehicle registration. 

Sweedland provided the requested documents and Hamann asked him to 

accompany him to his patrol car. Hamann then performed a pat down search of 

Sweedland prior to him entering the patrol vehicle. Nothing was found during the 

pat down search. 

[¶54.] Once in the patrol vehicle, Hamann engaged Sweedland in 

conversation as to the reason for the stop, telling him of the information received by 

dispatch from the Budget Host. Hamann asked Sweedland for consent to search his 

vehicle, which Sweedland declined by asking what “grounds” he had to conduct the 

search. Hamann replied that he wanted to “follow through” on the complaint but 

that it was up to Sweedland. Sweedland again declined stating that there were “no 

grounds” for a search. After a second request, Sweedland again declined telling 
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Hamann he was tired and wanted “to get going.” Hamann then told Sweedland to 

remain in the patrol car. 

[¶55.] At 11:00 a.m., Hamann exited the patrol car and approached the 

driver’s side door of Sweedland’s vehicle. He asked the three passengers to exit the 

vehicle on the passenger side doors. After they complied, Hamann looked through 

the driver’s side window into the interior of the vehicle; his face broke the plane of 

the window as he appeared to smell and look at the interior of the car. He then 

turned off the outside microphone of his patrol car. 

[¶56.] The events that transpired after the outside microphone was turned off 

cannot be heard. Nor can the passengers be seen during the remainder of the 

videotape due to the angle at which Hamann parked his patrol car. All of the facts 

concerning the remainder of the stop were testified to by Hamann at the 

suppression hearing or contained in a transcription of the transmissions between 

the various officers involved and dispatch that was admitted into evidence. 

[¶57.] Hamann testified that he asked the passengers for their identification 

in order to run a check. Hamann then returned to his patrol vehicle and 

transmitted the information to dispatch. The videotape shows that Hamann then 

exited his vehicle and spoke with the officers on the scene, including Officer 

Mertens who had arrived on the scene to assist sometime before Hamann finished 

transmitting the driver’s license information to dispatch. 

[¶58.] Hamann testified that he told Officer Mertens that he was unable to 

get consent for a search of the vehicle. Hamann then testified that Mertens 

suggested they perform pat downs on the outer clothing of the three passengers, but 
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that he did not recall Mertens mentioning any safety concerns. Hamann further 

testified that he did not have any particularized suspicion that the passengers 

presented a safety threat during the stop. 

[¶59.] After he asked the passengers if he could search them, Hamann 

testified the passengers replied “it was okay.” Hamann did not remember in what 

order the three passengers were searched, but he did recall Teasdale was searched 

first and that he knew at the time he searched Teasdale that the Montana driver’s 

license he gave Hamann was suspended. 15 However, before Hamann began the pat 

down search of Teasdale, Teasdale produced two pipes and some screens from his 

right coat pocket. Neither of the pipes had been used and did not contain marijuana 

residue. 

[¶60.] After being handed the pipes and screens, Hamann searched the area 

of the car in which Teasdale had been seated and his wingspan area. The search 

produced a wooden box with marijuana residue in it. Hamann testified that the 

officers expanded the search to the entire vehicle and found eight to ten pieces of 

drug paraphernalia and two to three bags of marijuana in the center console and 

the glove box. Finally, Hamann testified that eleven bricks of marijuana were 

found in a backpack located in the trunk of the car. 

 

15. SDCL 32-12-67 provides: “It is a Class 1 misdemeanor for any person to 

display or cause or permit to be displayed or have in that person’s possession 

any canceled, revoked, suspended, fictitious, or fraudulently altered driver 

license.” A Class 1 misdemeanor is punishable by up to “one year 

imprisonment in a county jail or one thousand dollars fine, or both[.]” SDCL 

22-6-2(1) (effective through July 1, 2006). 
#23713 

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[¶61.] Hamann would later testify at the suppression hearing that he 

witnessed no signs of intoxication or impairment when he spoke with Sweedland 

and his passengers. He also testified that none of the four men had any of the 

classic signs of recent marijuana ingestion such as red eyes. Nor did Hamann 

detect the odor of marijuana in the car or on the clothing of the four men. 

ANALYSIS 

[¶62.] An officer may conduct a warrantless search of an automobile under 

the “automobile exception” to the Fourth Amendment warrant requirement once 

probable cause to conduct the search is clear. Pennsylvania v. Labron, 518 US 938, 

940, 116 SCt 2485, 2487, 135 LEd2d 1031 (1996) (citing California v. Carney, 471 

US 386, 390-91, 105 SCt 2066, 2068-2069, 85 LEd2d 406 (1985); Carroll v. United 

States, 267 US 132, 45 SCt 280, 69 LEd 543 (1925)). The rationale for the 

“automobile exception” rests upon the “ready mobility” of an automobile, which in 

and of itself is an exigency sufficient to excuse the failure to obtain a search warrant 

once probable cause to conduct a search is clearly established. Id. An individual’s 

reduced expectation of privacy in an automobile also provides further justification 

for the “automobile exception.” Id. (citing Carney, 471 US at 391-92, 105 SCt at 

2069-2070, 85 LEd2d 406 (noting that the highly regulated nature of automobiles 

makes it subject to a lesser expectation of privacy)). Probable cause to conduct a 

warrantless search under the “automobile exception” requires that the officer 

involved “believe that an automobile which he has stopped contains contraband or 

evidence of a crime.” State v. Peterson, 407 NW2d 221, 226 (SD 1987) (citing 

Chambers v. Maroney, 399 US 42, 90 SCt 1975, 26 LEd2d 419 (1970); Carroll v. 
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United States, 267 US 132, 45 SCt 280, 69 LEd 543 (1925); State v. Burkman, 281 

NW2d 436 (SD 1979)). 

[¶63.] The facts and circumstances supporting a determination of probable 

cause may be based on hearsay from an informant. State v. Raveydts, 2004 SD 134, 

691 NW2d 290. However, just as a magistrate considers the “veracity” or 

“reliability” and “basis of knowledge” of the person or persons supplying the hearsay 

information, Illinois v. Gates, 462 US 213, 238-39, 103 SCt 2317, 2332, 76 LEd2d 

527 (1983) (quoting Jones v. United States, supra, 362 US 257, 271, 80 SCt 725, 736, 

4 LEd2d 697 (1960)), so must an officer when evaluating the facts and 

circumstances in a probable cause determination. 

Basis of Knowledge 

[¶64.] It is not possible to understand the concepts of “reliability” or 

“veracity,” and “basis of knowledge” in a probable cause inquiry without resorting to 

the now-abandoned two-prong Aguilar-Spinelli test and the authority upon which it 

relied. The purpose of satisfying the “veracity” or “reliability” prong and the “basis 

of knowledge” prong under Aguilar-Spinelli was to ensure that an informant’s tip 

was not the product of rumor or based on a suspect’s general reputation. Gates, 462 

US at 228 n3, 103 SCt at 2327 n3, 76 LEd2d 527 (quoting Spinelli v. United States, 

393 US 410, 416, 89 SCt 584, 589, 21 LEd2d 637 (1969)). Both prongs under 

Aguilar-Spinelli had to be independently satisfied prior to the Supreme Court’s 

holding in Gates, which ushered in the more relaxed “totality of the circumstances” 

standard. Id. at 230, 103 SCt at 2328, 76 LEd2d 527. 
#23713 

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[¶65.] As such, an affidavit in support of a search warrant, or an officer 

conducting a warrantless search, had to show knowledge of “facts sufficiently 

establishing either the ‘veracity’ of the affiant’s informant, or, alternatively, the 

‘reliability’ of the informant’s report in this particular case.” Id. at 229, 103 SCt at 

2327, 76 LEd2d 527. An officer had to have facts sufficient to satisfy the Aguilar

requirement in order to know that the informant was a credible source, or facts to 

show the tipster’s information was reliable. Aguilar v. Texas, 378 US 108, 114, 84 

SCt 1509, 1514, 12 LEd2d 723 (1964). 

[¶66.] The “basis of knowledge” prong required an inquiry as to how the 

informant came by the information in his report. Gates, 462 US at 228, 103 SCt at 

2327, 76 LEd2d 527. Questions to be asked in this prong of the test included: 

What are the raw facts upon which the informant based his 

conclusions? How did the informant obtain those facts? What 

precisely did he see or hear or smell or touch firsthand? . . . He 

is concerned not with that part of an affidavit or testimony 

which provides information about the informant but with the 

recitation of the story coming from the informant. 

Wayne R. LaFave, 2 Search And Seizure: A Treatise On The Fourth Amendment § 

3.3(d) (4th ed) (quoting Stanley v. State, 313 A2d 847 (MdCtSpecApp 1974) 

(citations omitted)). 

Thus, an informant’s allegation that he saw the defendant in 

possession of counterfeit money is deemed sufficient without any 

explanation as to how it was determined that the money was 

counterfeit in character, and an assertion by an informant that 

he saw illegal drugs or the like at a certain place is regularly 

accepted without any showing as to how the informant was able 

to identify the substance. 

Id. (citing Collins v. State, 502 SW2d 743 (TexasCrimApp 1973); Commonwealth v. 

Gelfont, 399 A2d 414 (PaSuperCt 1979) (holding that when an informant said he 
#23713 

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“observed a large quantity of suspected marijuana,” “the word ‘suspected’ [is] 

implied in all search warrants.”). See also Christian v. McKaskle, 731 F2d 1196 

(5th Cir 1984); Jackson v. State, 675 SW2d 820 (Ark 1984); State v. Kaukani, 577 

P2d 335 (Haw 1978) (upholding search warrant in which affidavit stated informant 

“observed what appeared to be marijuana plant”); Capistran v. State, 759 SW2d 121 

(TexCrimApp 1982) (holding layman is permitted to assert that a substance seen by 

him is marijuana without a showing in the affidavit of his qualifications to 

recognize it) (citations omitted). Thus, even prior to Gates, the “basis of knowledge” 

prong did not demand facts as to how the informant knew what he sensed was what 

he claimed it to be. 

[¶67.] Subsequently, the holding in Gates, which abandoned the two-prong 

Aguilar-Spinelli test, eliminated the need to excessively and technically dissect an 

informant’s tip “with undue attention being focused on isolated issues that cannot 

sensibly be divorced from the other facts [known to the officer].” Massachusetts v. 

Upton, 466 US 727, 732, 104 SCt 2085, 2087, 80 LEd2d 721 (1984) (quoting Gates, 

462 US at 234, 103 SCt at 2330, 76 LEd2d 527). Instead, “‘reliability, veracity, and 

basis of knowledge’ [remain] relevant considerations in finding probable cause; 

these considerations, however, are ‘not independent, essential elements.’” Gates, 

462 US at 230, 103 SCt at 2328, 76 LEd2d 527; Raveydts, 2004 SD 134, ¶8, 691 

NW2d at 292 (quoting State v. Jackson, 2000 SD 113, ¶9, 616 NW2d 412, 416 

(quoting United States v. Reivich, 793 F2d 957, 959 (8th Cir 1986))). “[A] deficiency 

in one may be compensated for, in determining the overall reliability of a tip, by a 

strong showing as to the other, or by some other indicia of reliability.” Gates, 462 
#23713 

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US at 233, 103 SCT at 2329, 76 LEd2d 527 (citing Adams v. Williams, 407 US 143, 

146-47, 92 SCt 1921, 1923-24, 32 LEd2d 612 (1972); Harris v. United States, 403 

US 573, 91 SCt 2075, 20 LEd2d 723 (1971)). Furthermore, this Court has held that 

“each element of evidence need not be individually assessed for veracity and basis of 

knowledge. Rather, the probable cause determination is a function of ‘the totality of 

relevant circumstances.’” State v. Krebs, 504 NW2d 580, 588 (SD 1993) (quoting 

State v. Zachodni, 466 NW2d 624, 629 (SD 1991) (quoting Gates, 462 US at 235, 103 

SCt at 2330, 76 LEd2d 527; Massachusetts v. Upton, 466 US 727, 732, 104 SCt 

2085, 2087, 80 LEd2d 721 (1984)). 

[¶68.] While the special writing is correct that some jurisdictions require law 

enforcement to know how an informant knows the odor or appearance of marijuana, 

there is a split of authority on this issue. Most of the cases cited by the special 

writing merely note the basis of the informant’s knowledge in passing without 

holding it a prerequisite for a finding of probable cause, or use basis of knowledge as 

an indicator of whether the informant is a citizen informant or an informant with a 

criminal record.16 In State v. Mordowanic, 788 A2d 48 (Conn 2002), the 

 

 (continued . . .) 

16. United States v. Patterson, 292 F3d 615, 626 (9thCir 2002), opinion 

withdrawn by, United States v. Patterson, 359 F3d 1190 (9thCir 2004), (no 

holding requiring the basis of knowledge of an informant be known to a 

magistrate at the time of the warrant application, but basis of knowledge 

detailed and noted by the court); People v. Schulle, 51 CalApp3d 809, 124 

CalRptr 585 (1975) (holding 14-year old girl was citizen informant and 

presumptively reliable due to lack of motivation other than good citizenship, 

while also noting the basis of her knowledge as to the appearance of 

marijuana based on her numerous visual observations of it while at her 

parents’ home); People v. Paris, 48 CalApp3d 766, 122 CalRptr 272 (1975) 

(informant was a citizen informant and presumptively reliable as a 

consequence of his motivation to report crime, and his experience as a reserve 
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Connecticut Supreme Court held a search warrant unconstitutional for lack of 

probable cause, as no facts were contained in the affidavit as to how the informant 

knew the odor he detected was that of marijuana. However, in that case the 

informant was an anonymous caller whose identity or title and place of work were 

not known to law enforcement rather than a citizen informant. Id. The Connecticut 

Supreme Court examined the anonymous informant’s veracity, reliability and basis 

of knowledge and held all were highly relevant in determining probable cause. Id. 

at 58. However, the central focus was on the greater weight statements by an 

anonymous informant are given when corroborated by evidence independently 

________________________ 

(. . . continued) 

police officer trained to recognize the illegal substance noted but not relied 

upon for finding probable cause); State v. Morris, 444 So2d 1200 (La 1984) 

(prior usage of marijuana was material to determining informant’s status as 

a citizen informant and therefore presumptively credible, rather than mere 

usage of marijuana in the past altering his status to that of a confidential or 

criminal informant who might have a reason to lie due to potential criminal 

penalties); State v. Swift, 556 NW2d 243 (Neb 1996) (holding that the 

unnamed apartment manager’s tip as a citizen informant concerning the 

presence of marijuana was corroborated by a social worker whose basis of 

knowledge as to the appearance of marijuana was detailed. However, no 

holding was made by the court that the unnamed apartment manager’s tip 

without information as to the basis of his knowledge was insufficient to 

support determination of probable cause); Patty v. Commonwealth, 235 SE2d 

437, 439 (Va 1977) (recognizing that “[w]hile there is no requirement that a 

known reliable informant demonstrate the basis for his conclusion that the 

substance he observed was a narcotic, Wheeler v. Commonwealth, 217 Va 95, 

98, 225 SE2d 400, 403 (1976), the informants here spoke from experience and 

not from mere supposition); State v. Doyle, 291 NW2d 545, 553-554 (Wis 

1980) (court held the second prong of the Aguilar-Spinelli test, that the 

underlying circumstances or manner in which the informant obtained his 

information is reliable, was satisfied by the information two citizen 

informants provided to the police, which was based on their personal 

observations and one of the citizen informant’s knowledge of marijuana 

gained while serving in Vietnam, but not specifically requiring the basis of 

knowledge be disclosed). 
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gathered by police. Id. at 58. In addition, the anonymous informant’s basis of 

knowledge was established by merely claiming status as Vietnam Vet without 

verification or any explanation as to how he acquired his knowledge concerning the 

odor or appearance of marijuana. Id. at 58. 

[¶69.] The only other case that supports the special writing’s proposition is 

State v. Rose, 876 P2d 925 (WashApp 1994) (Rose I), rev’d by, State v. Rose, 909 P2d 

280 (Wash 1996) (Rose II), which was eventually reversed based on the officer’s 

plain view using a flashlight at night. In Rose I, an affidavit in support of a search 

warrant used as relevant facts a police officer’s nighttime view, through a window 

in the defendant’s shed located within the curtilage of the home, using a flashlight 

and the landlord’s assertion that he had smelled marijuana on the property. Id. at 

927-28. When the police officer’s intrusive look in the shed was held 

unconstitutional, all that remained to support the warrant was the landlord’s naked 

assertion that he smelled marijuana on the property. The Washington Court of 

Appeals held that the assertion alone, without any other corroborating facts to 

support it, was insufficient as it “would not lead a reasonable person to conclude 

that [the defendant] was involved in criminal activity.” Id. at 932. That court 

noted that an assertion must be supported by more than a mere personal belief. Id. 

However, the Washington Supreme Court reversed the holding of the lower court 

without addressing the sufficiency of the landlord’s tip. Rose II, 909 P2d 280. 

[¶70.] Several cases cited by the special writing fail to support the need for 

facts concerning an informant’s “basis of knowledge” due to other corroboration, or 

only support the proposition when no additional facts exist to corroborate an 
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informant’s tip and the probable cause determination. In United States v. DeLeon, 

979 F2d 761 (9thCir 1992), it was ultimately omitted information in the affidavit 

that rendered the warrant deficient when nothing else was presented in support of 

the tip and witnesses contradicted the tipster’s claims. A named citizen informant 

reported that he had seen and smelled marijuana while two other witnesses had 

told him that they had seen and smelled marijuana. Id. at 764. However, when 

police interviewed those additional witnesses, one flatly denied seeing or smelling 

anything and another stated he only smelled growing marijuana. Id. Given that 

the “only remaining peg on which to hang the warrant” was the witness who claimed 

to smell the growing marijuana, that court determined that his qualification to 

recognize the odor of growing marijuana, or “basis of knowledge” was highly 

relevant. Id. at 765. 

[¶71.] In State v. Josephson, 852 P2d 1387 (Idaho 1993), another case cited by 

the special writing, the police affidavit in support of the search warrant failed to 

include any basis of knowledge as to how the anonymous informant knew the plants 

he saw were marijuana, and did not describe the plants in any detail that would 

have enabled the magistrate to determine that what the caller saw was in fact 

marijuana or appeared to be marijuana. Id. 1390. In addition, the police failed to 

verify any of the information provided by the anonymous informant other than that 

the defendant lived at the address given by the caller. Id. 

[¶72.] State v. Eady, 733 A2d 95 (Conn 1998) (Eady I), also provides no 

support for the special writing’s proposition, as it was superseded on 

reconsideration by State v. Eady, 733 A2d 112 (Conn 1999) (Eady II). In Eady II, 
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the Connecticut Supreme Court held that a reasonable and prudent person 

untrained in recognizing drugs “could have believed that the green, leafy substance 

inside the clear plastic bag located in plain view in the open cigar box in the 

defendant’s locked bedroom was probably marijuana.” Id. at 119. It then upheld the 

search under the plain view exception to the warrant requirement. Id. 

[¶73.] The greater weight of the authority falls to those jurisdictions that do 

not require law enforcement to know facts concerning a citizen informant’s basis of 

knowledge, which include Montana, Nebraska, Virginia and Wisconsin. See State v. 

Griggs, 34 P3d 101, 104 (Mont 2001); State v. Lammers, 676 NW2d 716, 725 (Neb 

2004); Wheeler v. Commonwealth, 225 SE2d 400, 403 (Vir 1976); State v. Paszek, 

184 NW2d 836 (Wis 1971). The Montana Supreme Court has held that 

“[i]nformation supplied by a ‘concerned citizen’ . . . 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[.]” Griggs, 34 P3d at 104. Only when the tip is provided by an 

anonymous caller or a confidential informant has the Montana Supreme Court 

required corroboration of more than innocuous facts to support a probable cause 

determination. See id.; State v. Gray, 38 P3d 775,779 (Mont 2001). 

[¶74.] Similarly, the Nebraska Supreme Court has held a citizen witness’s 

“detailed eyewitness report of a crime may be self-corroborating because it supplies 

its own indicia of reliability.” Lammers, 676 NW2d at 725. That court also upheld a 

finding of probable cause based on a bank employee’s tip as a citizen informant of 

seeing a plastic baggie corner containing a yellow-powdered substance on the floor 
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of the bank in nearly the same spot where the defendant had been standing minutes 

before while rummaging through his pockets. State v. Marcus, 660 NW2d 837 (Neb 

2003). No special knowledge was required of the bank employee concerning how 

drugs are packaged or their appearance. Id. That court held that the lack of an 

“apparent motive other than good citizenship in reporting the observations made a 

citizen informant’s eye witness observation of drugs presumptively reliable.” Id. at 

842-843.

[¶75.] The Supreme Court of Virginia has recognized that “there is no 

requirement that a known reliable informant demonstrate the basis for his 

conclusion that the substance he observed was a narcotic.” Wheeler, 225 SE2d at 

403. Similarly, the Wisconsin Supreme Court upheld a probable cause 

determination based on a citizen informant’s tip that she observed marijuana. 

Paszek, 184 NW2d 836. That court reasoned that although the citizen informant 

was not a chemist or an expert on drugs, “an expert’s opinion is not required at the 

probable cause stage of the criminal proceedings to establish that the substance at 

issue was a controlled substance such as marijuana.” Id. at 842. 

Budget Host Manager as a Citizen Informant 

[¶76.] “[I]f an unquestionably honest citizen comes forward with a report of 

criminal activity - which if fabricated would subject him to criminal liability - we 

have found rigorous scrutiny of the basis of his knowledge unnecessary.” Gates, 462 

US at 233-34, 103 SCt at 2330, 76 LEd2d 527 (citing Adams, 407 US at 146-147, 92 

SCt at 1923-24, 32 LEd2d 612). That is because tips from citizen informants “are 

more likely to be reliable than information from informants; ‘the ordinary citizen 
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who has never before reported a crime to the police may, in fact, be more reliable 

than one who supplies information on [a] regular basis.’” State v. Lownes, 499 

NW2d 896, 899 (SD 1993) (quoting United States v. Harris, 403 US 573, 91 SCt 

2075, 29 LEd2d 723 (1971)) (citing State v. McCloskey, 453 NW2d 700, 703-04 

(Minn 1990); Marben v. State, Dept. of Public Safety, 294 NW2d 697, 699 (Minn 

1980)). A tip based on 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.” Gates, 462 US 

at 234, 103 SCt at 2330, 76 LEd2d 527. 

[¶77.] The Court appears to categorize the Budget Host manager as an 

anonymous informant, and evaluates his “reliability, veracity, and basis of 

knowledge” using cases involving anonymous tipsters. See supra ¶¶19-21. The 

Budget Host manager is more properly classified as a citizen informant as he gave 

his title and place of work, which was then relayed to Hamann by dispatch. See 

Lammers, 676 NW2d at 725 (noting “that identification of the informant’s 

occupation alone is sufficient to negate a claim that the informant was 

anonymous.”) (citing United States v. Pasquarille, 20 F3d 682 (6thCir 1994); City of 

Maumee v. Weisner, 720 NE2d 507, 514 (Ohio 1999)). Therefore, the Budget Host 

manager more properly qualifies as a voluntary and identified citizen informant 

rather than an anonymous informant. As a citizen informant, it is not necessary to 

rigorously examine the basis of his knowledge. 

[¶78.] It is true that the Budget Host manager detected the presence of 

marijuana via his olfactory sense rather than through visual observation. However, 
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some courts have “long recognized that marijuana has a distinct smell and that the 

odor of marijuana alone can satisfy the probable cause requirement to search a 

vehicle or baggage.” United States v. Morin, 949 F2d 297, 300 (10thCir 1991) 

(citing United States v. Merryman, 630 F2d 780, 785 (10thCir 1980); United States 

v. Sperow, 551 F2d 808, 811 (10thCir 1977), cert. denied, 431 US 930, 97 SCt 2634, 

53 LEd2d 245 (1977); United States v. Bowman, 487 F2d 1229, 1231 (10thCir 

1973)). These cases have typically pertained to law enforcement officers detecting 

the odor of marijuana. However, not all jurisdictions require that an officer provide 

the basis of his knowledge of the odor of marijuana in order to establish probable 

cause. See United States v. Turner, 431 F3d 332, 337 (8thCir 2005) (upholding 

district court’s finding of probable cause based on law enforcement officers’ 

statements that defendant smelled strongly of marijuana when they encountered 

him in a public bar); United States v. Carr, 92 FSupp2d 1137, 1141-42 (D Kan 2000) 

(upholding law enforcement officer’s affidavit asserting he smelled marijuana 

despite the failure to provide a basis for his ability to recognize the odor of 

marijuana) (citing United States v. Ludwig, 508 F2d 140, 141 (10thCir 1974) 

(holding inherent in officer’s statement that he smelled marijuana is the claim that 

he is familiar with substance’s odor). 

[¶79.] The facts of this case meet the threshold requirement of “reasonably 

trustworthy information.” The hotel manager called Lawrence County dispatch and 

identified himself by title. He gave a detailed account of what he had perceived via 

his sense of smell: “The hallway smells of marijuana, as well as the two rooms that 

they were staying in. (Room 23 and Room 24).” He then provided information that 
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four male guests had just left the Budget Host Hotel, provided a description of the 

vehicle, its license plate number and state of issue, and the general direction of the 

vehicle’s travel. Hamann corroborated the physical description of the vehicle, the 

license plate number and the direction of travel, and occupancy by four males when 

he spotted Sweedland’s car; he then initiated the stop. 

[¶80.] What is at issue then, is whether the citizen informant tip plus the 

corroboration of the non-criminal conduct and appearance of Sweedland and his 

passengers rose to the level of probable cause, sufficient “to warrant a man of 

reasonable caution in the belief that” these were the individuals who had been 

smoking marijuana at the hotel in violation of SDCL 22-42-15.17 If yes, then 

Hamann had probable cause to stop the vehicle and conduct the search from the 

very beginning of the encounter. If the facts rose only to the level of reasonable 

suspicion for a Terry investigative stop, the question then becomes did anything 

occur during the stop that provided the additional facts necessary for reasonable 

suspicion to ripen into probable cause. 

Probable Cause to Search the Vehicle 

[¶81.] The Court concedes that it was reasonable for Hamann to conclude 

that one who had been using marijuana shortly before a stop might also possess 

marijuana. Supra ¶25. Despite this concession, the Court goes on to state that 

 

17. SDCL 22-42-15 provides in relevant part: 

 Any person who intentionally ingests, inhales, or otherwise takes into 

the body any substance, except alcoholic beverages as defined in § 35-

1-1, for purposes of becoming intoxicated, unless such substance is 

prescribed by a practitioner of the medical arts lawfully practicing 

within the scope of the practitioner’s practice, is guilty of a Class 1 

misdemeanor. 
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“Hamann could not infer possession without first corroborating the allegation of 

marijuana use.” However, Hamann was not required to infer possession before 

conducting the search. Hamann had all that he needed when he inferred that the 

crime of ingestion of a controlled substance had occurred based on the motel 

manager’s tip and his corroboration of the license plate number, direction of travel, 

and gender of the four occupants. See supra ¶24. His original belief that evidence 

of the crime of ingestion of a controlled substance would be found in the vehicle was 

sufficient for a determination of probable cause and justified the search for evidence 

of a violation of SDCL 22-42-15. The fact that the search produced evidence of other 

crimes different18 from the original crime for which probable cause was originally 

established, ingestion of a controlled substance under SDCL 22-42-15, cannot 

invalidate the search. See Peterson, 407 NW2d at 224. 

[¶82.] In Peterson, an officer stopped a vehicle due to erratic driving and 

detected the smell of alcohol coming from the vehicle and emanating from the 

driver. Id. at 222. We held that the smell of alcohol on the driver justified a 

warrantless search of an automobile for further evidence of crime. Id. at 223. The 

search in that case was for an open container, a violation of SDCL 35-1-1.9, a Class 

2 Misdemeanor. The officer found one open beer can that appeared at first glance to 

be empty, and then proceeded to search the entire car and its contents for additional 

open containers. Id. The driver in Peterson was able to pass the field sobriety tests, 

 

18. Sweedland was eventually charged, tried and convicted of Possession of 

Marijuana (more than ten pounds) under SDCL 22-42-6, Possession of 

Marijuana with Intent to Distribute under SDCL 22-42-7, and Possession of 

Drug Paraphernalia under SDCL 22-42A-3. 
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but the odor of alcohol provided sufficient probable cause for a search of the vehicle 

for open containers. Id. During the final phase of the search for open containers, 

law enforcement found drug paraphernalia and some marijuana. Id. at 224. We 

upheld the search under the “automobile exception” despite the fact that the 

original search was based on probable cause to believe that the driver had an open 

container of alcohol in the car. Id. 

[¶83.] In the instant case, the tip from the motel manager provided 

“reasonably trustworthy” information that the offense of ingestion of a controlled 

substance under SDCL 22-42-15, a Class 1 misdemeanor, had occurred. Based on 

the tip and the corroborating information confirmed by Hamann, it was reasonable 

for law enforcement to conclude that a search of the vehicle would generate 

evidence that the occupants had violated SDCL 22-42-15. The occupants were 

traveling from Deadwood back to their homes in Montana with their possessions, 

including their luggage and car. It was reasonable for law enforcement to believe 

that evidence of the crime of ingestion of a controlled substance would be inside the 

car or their luggage, either in the form of drug paraphernalia or evidence of residue 

of marijuana, as Sweedland and his companions had just departed the motel. 

Pipes and Screens as Facts Supporting Probable Cause Determination 

[¶84.] Finally, even if we were to assume that the Budget Host manager’s tip 

along with the innocuous facts corroborated by Hamann were deficient for a finding 

of probable cause to search the vehicle under the automobile exception, the Court 

still fails to consider the last corroborating fact known to Hamann immediately 

prior to the search of the car. After asking the passengers for their consent to 
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conduct a pat search, but before Teasdale was physically touched by the officer and 

before there was any indication from Hamann that the stop had concluded and the 

four men were free to go, Teasdale produced from his coat pocket screens and two 

unused one-hit pipes. 

[¶85.] Hamann admitted at the suppression hearing that the pipes could be 

used to smoke tobacco as well as marijuana. But that concession did not negate 

Hamann’s common sense determination at the time of the stop that the report of 

the smell of marijuana from a reliable citizen informant coupled with the presence 

of unused drug paraphernalia “was sufficient for a common sense decision that 

there was a fair probability” that marijuana had been ingested by the occupants of 

Sweedland’s car, that the pipes were recently purchased in order to ingest 

additional quantities of marijuana, and that the additional quantities of marijuana 

the occupants planned on ingesting were already in the car.19 

[¶86.] Based on the facts of this case, the authorities cited, and the common 

sense inferences made by Hamann, I would uphold the circuit court’s conclusion 

that probable cause to search Sweedland’s vehicle existed at the time of the stop. 

 

19. The circuit court held that the State failed to show by a preponderance of the 

evidence that the three passengers knowingly and voluntarily consented to 

the pat search when asked by Hamann. However, the circuit court also 

correctly concluded that Sweedland could not assert a legitimate privacy 

interest in Teasdale’s pat down search sufficient to support a motion for 

suppression. Therefore, we need not specifically consider whether Teasdale’s 

consent was voluntary. The voluntariness of the pat search is even less 

significant in light of the fact that Teasdale produced the items before he was 

pat searched by Hamann.