#24202-a-RWS 

2007 SD 48 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellant, 

 v. 

TRAVIS LABINE, Defendant and Appellee. 

* * * * 

APPEAL FROM THE MAGISTRATE COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE MICHELLE K. PERCY 

Magistrate Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

STEVEN BLAIR 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellant. 

G. MATTHEW PIKE 

Lawrence County Public 

Defender’s Office 

Deadwood, South Dakota Attorney for defendant 

and appellee. 

* * * * 

CONSIDERED ON BRIEFS 

ON MARCH 19, 2007 

 OPINION FILED 05/02/07
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SABERS, Justice 

[¶1.] Travis Labine (Labine) was indicted for possession of marijuana in a 

moving vehicle. After a magistrate judge granted Labine’s motion to suppress, the 

State petitioned for a discretionary appeal, which we granted. We affirm. 

FACTS 

[¶2.] On March 29, 2006, the Spearfish Police Department was conducting a 

school zone speed saturation patrol near Jackson Boulevard and 10th Street in 

Spearfish, South Dakota. The officers were conducting this operation on foot, their 

patrol cars parked some distance away. One officer would radar the speeding car 

and relay the information to a second officer, who would flag down the speeding 

vehicle and issue a citation. It was during this operation that the officers clocked a 

blue Cadillac going thirty-nine miles per hour in the fifteen miles per hour school 

zone. Labine was a passenger in this vehicle. 

[¶3.] Officer Matthew Symonds (Officer Symonds) signaled to the Cadillac to 

pull over. Officer Symonds made contact with the driver, obtained his information 

from his driver’s license, and began issuing a citation for speeding. He did not smell 

any illegal substances at this time. During this time, South Dakota Highway 

Patrolman Brian Swets (Trooper Swets) parked his squad car near the other police 

vehicles and approached the blue Cadillac. According to his testimony at the 

suppression hearing, he did not stop because he witnessed any criminal activity, nor 

was he summoned to the scene by the other officers. He testified he was passing by 

and stopped to visit. 
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[¶4.] At this point, the testimony of Trooper Swets and Officer Symonds 

diverges. Trooper Swets testified that he noticed the blue Cadillac had illegal 

mirrorized tint on its windows. As he approached the vehicle, he asked Officer 

Symonds if that violation had been addressed. When Officer Symonds informed 

him that it had not, he asked Officer Symonds if it would be okay if he talked with 

the occupants of the vehicle about it. However, Officer Symonds testified that 

Trooper Swets did not speak with him prior to talking to the vehicle occupants. 

Instead, Trooper Swets went directly to the passenger side and began speaking with 

the occupants. 

[¶5.] When Trooper Swets approached the vehicle, he claimed he smelled 

the odor of burnt marijuana and alcohol. According to Trooper Swets’ and Labine’s 

testimony, he asked whether there was any reason why his narcotics detection dog 

would smell the odor of an illegal drug coming from the vehicle, even though the 

drug dog was in his vehicle a half a block away.1 Furthermore, he smelled alcohol 

emanating from Labine, so he asked him to step out of the car and to see his 

identification. 

[¶6.] Labine appeared nervous to both Trooper Swets and Officer Symonds. 

When questioned, Labine informed the officers that he was out on bond. Labine 

was asked if he had any illegal drugs on his person, to which he replied no. 

[¶7.] Here again, Officer Symonds’ and Trooper Swets’ testimony differs. 

Trooper Swets claims he asked Labine for consent “to search his person,” and 

1. The record indicates that the drug dog was not employed and had no 

opportunity to alert. 
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according to Trooper Swets, Labine consented to the search of his person. Labine 

was informed by Officer Swets that “he didn’t have to allow [a] search [of] his 

person], and he could deny [the] search if he chose to do so.” According to Trooper 

Swets, Labine consented again. Trooper Swets immediately went to Labine’s 

pockets, felt outside the pocket for any sharp objects and then pulled out a baggie 

from within the pocket containing less than two ounces of marijuana. 

[¶8.] Officer Symonds testified that Labine and Trooper Swets were at the 

rear of the vehicle so he heard the conversation between them. According to Officer 

Symonds, Trooper Swets asked numerous times, “It’s all right if I pat you down?” 

He also testified that the pat-down Trooper Swets conducted was “more in depth” 

than the pat-down search he was trained to conduct. 

[¶9.] Similarly, Labine stated that Trooper Swets asked if he could “patdown your person.” According to Labine, Trooper Swets asked if he could conduct a 

“pat-down” twice. Furthermore, he thought he was consenting to nothing more 

than a pat-down for weapons. 

[¶10.] After the suppression hearing, the magistrate suppressed the evidence. 

In its memorandum opinion, it explained that it “struggles because based upon 

Trooper Swets testimony he acted completely within the scope of the law. However, 

consideration of the testimony of the other witnesses gives the Court reasonable 

doubt.” The court decided the State did not meet its burden of proof and ruled that 

all evidence “seized from a pat-down search not prompted by a reasonable belief of 

present danger should be suppressed.” 
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[¶11.] The State made a motion to reconsider, but the magistrate suppressed 

the evidence. The State proposed findings of fact and conclusions of law, which 

were rejected. The magistrate then issued findings of fact and conclusions of law, 

which did not expressly incorporate the memorandum opinion. Thereafter, the 

State petitioned this Court for permission to take a discretionary appeal. The 

petition listed four issues.2 We granted the petition, and the State appealed the 

following issues: 

1. Whether the trial court erred in applying the wrong standard to 

determine if Labine consented to a search of his person. 

2. Whether the trial court erred in its application of the exclusionary 

rule. 

STANDARD OF REVIEW 

[¶12.] Our standard of review on suppression cases 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. 

2. The issues presented in the petition for discretionary appeal were: 1) 

Whether the court erred in use of a legal standard to determine scope of the 

consent search; 2) Whether detection of alcohol and marijuana odors should 

have been addressed by the court, and if so, whether such odors detected from 

coming within the car led to probable cause to justify search of passengers 

and the car; 3) Whether Labine failed to show standing in order to challenge 

the search of the car and items and persons within; and 4) Whether the court 

erred in omission of the required balancing test to determine if deterrence 

benefits outweighed substantial social costs of exclusionary rule application. 

Two of these issues were briefed in the actual appeal. Because the other two 

issues were not briefed or even mentioned in the State’s brief, they are 

deemed waived. 
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State v. Sweedland, 2006 SD 77, ¶12, 721 NW2d 409, 412 (citing State v. Chavez, 

2003 SD 93, ¶13, 668 NW2d 89, 95) (additional citations omitted). 

[¶13.] 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.3

This prohibition generally means a warrant must be issued before an individual 

may be subject to a search or seizure. Terry v. Ohio, 392 US 1, 20, 88 SCt 1868, 

1879, 20 LEd2d 889, 905 (1968); State v. Ballard, 2000 SD 134, ¶10, 617 NW2d 837, 

840. However, there are exceptions to the general warrant requirement including, 

as argued in this case, consent. See State v. McGarrett, 535 NW2d 765, 767 (SD 

1995) (noting that “once a person consents to a search, probable cause is no longer 

necessary”); see also Sweedland, 2006 SD 77, ¶13, 721 NW2d at 412-13 (noting the 

automobile exception); State v. Swalve, 2005 SD 17, ¶36, 692 NW2d 794, 803 

(discussing the independent source doctrine); State v. Sorenson, 2004 SD 108, ¶8 

n4, 688 NW2d 193, 196 n4 (discussing the good faith exception); State v. Raveydts, 

2004 SD 134, ¶19, 691 NW2d 290, 296 (Sabers, J., concurring specially) (listing 

3. Article 6 section 11 of the South Dakota 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 warrant shall issue but upon probable cause supported by affidavit, 

particularly describing the place to be searched and the person or thing to be 

seized. 
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exceptions to warrant requirement including consent, exigent circumstances, search 

incident to arrest, and protective sweeps). 

[¶14.] “[L]aw enforcement is afforded no deference when relying on an 

exception to” the warrant requirement. Sweedland, 2006 SD 77, ¶14, 721 NW2d at 

413 (citing Raveydts, 2004 SD 134, ¶8, 691 NW2d at 293; State v. Luxem, 324 

NW2d 273, 279 (SD 1982)). Furthermore, the State has the heavy burden of 

proving a warrantless search meets an exception to the warrant requirement. Id. 

In this case, the State has the burden to show by a preponderance of the evidence 

that consent was voluntarily given. See State v. Akuba, 2004 SD 94, ¶13, 686 

NW2d 406, 412-13. In order to determine if consent was voluntary, we look at the 

totality of the circumstances. Id. ¶25. 

[¶15.] The State’s first argument in this case is that the magistrate court 

held the State to a higher burden than preponderance of the evidence. In its 

memorandum opinion, the court stated that “the testimony of other witnesses gives 

the court reasonable doubt. As such the Court finds the State has not met its 

burden of proof.” According to the State, the trial court’s “erroneous view of the 

applicable law” requires reversal. 

[¶16.] However, the magistrate’s memorandum opinion is not incorporated 

into its findings of fact and conclusions of law. The specific findings of fact and 

conclusions “supersede the memorandum and articulate the trial court’s final and 

determinative thoughts . . . .” State v. Tapio, 459 NW2d 406, 410 (SD 1990). “[I]t is 

settled law that we do not review the trial court’s memorandum opinion unless the 

same is expressly incorporated in the trial court’s findings of fact and conclusions of 
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law.” Linard v. Hershey, 516 NW2d 304, 305 (SD 1994) (quoting Olson v. Olson, 

438 NW2d 544, 547 (SD 1989) (additional citations omitted)). Since the 

memorandum was not incorporated, and cannot be used, our review is limited to the 

findings of facts and conclusions of law. 

[¶17.] The State also argues the trial court erred because the findings and 

conclusions do not explain what standard was utilized. The absence in the 

conclusions of the legal standard used does not require reversal. Whether the State 

met their burden is a legal question we review de novo. Sweedland, 2006 SD 77, 

¶12, 721 NW2d at 412 (stating the application of legal standard to facts is reviewed 

de novo) (citing Chavez, 2003 SD 93, ¶13, 668 NW2d at 95) (additional citations 

omitted). 

[¶18.] After hearing the officers and Labine testify, the magistrate found 

“that the consent given by Defendant Labine to Trooper Swets was limited in scope 

to a pat search of his clothing.” It explained that this factual finding was arrived at 

after “careful review of the contradictory testimony, having observed the witnesses’ 

demeanors, as well as vocal nuance, volume, and intonation, and having considered 

the issue of credibility of the witnesses . . . .” It is the trial court’s responsibility to 

weigh the evidence, including credibility, and make factual findings. State v. 

Lockstedt, 2005 SD 47, ¶33, 695 NW2d 718, 729. “Due regard shall be given to the 

opportunity of the trial court to judge the credibility of witnesses.” SDCL 15-6-

52(a). This Court does not reweigh the evidence and derive new factual findings; 

rather, the trial court’s factual findings will not be overturned unless they are 

clearly erroneous. Lockstedt, ¶33 (quoting Anderson v. City of Bessemer City, 470 
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US 564, 573-74, 105 SCt 1504, 1511, 84 LEd2d 518 (1985)) (noting that reviewing 

courts may not reverse factual findings if plausible in light of the entire record, even 

if it would have weighed the evidence differently). Clearly erroneous factual 

findings mean “we are left with a definite and firm conviction that a mistake as 

been made” or the findings are clearly against the weight of the evidence. State v. 

Belmontes, 2000 SD 115, ¶9, 615 NW2d 634, 637 (additional citations omitted). 

[¶19.] In this case, the record does not demonstrate that the trial court’s 

factual findings are clearly erroneous. The magistrate noted that Labine’s 

testimony was given less weight since he had more to gain from suppression of the 

evidence. Nonetheless, it noted his testimony was consistent with Officer Symonds’ 

testimony that Trooper Swets asked to “pat-down” Labine, not conduct a search. 

After weighing the credibility of the witnesses and their testimony, the trial court 

resolved the conflicting testimony in favor of Labine and Officer Symonds’ 

testimony. This finding is not clearly erroneous. 

[¶20.] The trial court found Labine was only asked, and only consented to, a 

pat-down search. After applying the facts to the legal standard, we conclude the 

State did not prove even by a preponderance of the evidence that Labine’s consent 

removed the need for a warrant to search his person. The trial court found consent 

was limited to a pat search.4 Therefore, Trooper Swets exceeded the scope5 of 

 (continued . . .) 

4. The complete finding is as follows: 

Upon careful review of the contradictory testimony, having observed the 

witnesses’ demeanors, as well as vocal nuance, volume, and intonation, and 

having considered the issue of credibility of the witnesses, I find that the 
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__________________ 

(. . . continued) 

consent when he reached into Labine’s pockets and removed a small baggie of 

marijuana, an object that did not give the officer a reasonable belief of danger.6 See 

Minnesota v. Dickerson, 508 US 366, 378, 113 SCt 2130, 2138-39, 124 LEd2d 334 

(1993) (affirming the suppression of heroin found in defendant’s pocket where the 

officer did not know the illegality until the officer manipulated the substance within 

the pocket); Terry v. Ohio, 392 US 1, 30, 88 SCt 1868, 1884-85, 20 LEd2d 889 (1968) 

(officer may “conduct a carefully limited search of the outer clothing of such persons 

in an attempt to discover weapons which might be used to assault him”). 

[¶21.] Having determined the search exceeded the consented scope and was 

illegal, the next inquiry is whether the exclusionary rule should be applied. 

[¶22.] The exclusionary rule applies to evidence that is obtained in violation 

of the Fourth Amendment’s prohibition against illegal searches and seizures. Mapp 

v. Ohio, 367 US 643, 655, 81 SCt 1684, 1691, 6 LEd2d 1081 (1961). While initially 

consent given by Defendant Labine to Trooper Swets was limited in scope to 

a pat search of his clothing. 

Finding of Fact 12, State v. Labine, No. 06-366 (Lawrence County, August 16, 

2006). 

5. The magistrate found that, 

The resulting search of the Defendant, which exceeded the limited scope of 

the pat search, and the seizure of what was in his pocket violated the Fourth 

and Fourteenth Amendments of the United States Constitution and Article 

VI, § 1 and § 11 of the South Dakota Constitution. 

Conclusion of Law 10, Labine, No. 06-366 (Lawrence County, August 16, 

2006). 

6. Both Officer Symonds and Trooper Swets testified they did not believe they 

were in any danger. 
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exclusion was applied in all cases where evidence was illegally obtained, the United 

States Supreme Court has limited the application of the exclusionary rule. United 

States v. Leon, 468 US 897, 922, 104 SCt 3405, 3420, 82 LE2d 677 (1984). Now, the 

exclusionary rule is a judicially created remedy of deterring illegal searches and 

seizures that is designed to be employed, “where its remedial objectives are thought 

most efficaciously served.” United States v. Calandra, 414 US 338, 348, 94 SCt 613, 

620, 38 LEd2d 561 (1974); see Sorenson, 2004 SD 108, ¶8, 688 NW2d at 196-97. 

Therefore, the rule is applicable “where its deterrence benefits outweigh its 

‘substantial social costs.’” Pennsylvania Bd. of Probation & Parole v. Scott, 524 US 

357, 363, 118 SCt 2014, 2019, 141 LEd2d 344 (1998) (quoting Leon, 468 US at 907, 

104 SCt at 3412). 

[¶23.] The State claims the trial court must be reversed because “[a]t no place 

within the trial court’s memorandum decision does the court discuss the social costs 

of application of the exclusionary rule and balance those costs against any deterrent 

benefit.” However, the State is again mistakenly relying on the memorandum 

decision. In the magistrate’s conclusions, it specifically explains that “exclusion of 

evidence here, where a law enforcement officer obtained limited consent under one 

pretense and then exceeded the scope of that consent, is necessary to deter future 

police misconduct.” It further explained, 

If law enforcement were allowed to obtain consent for a 

pat-down search of a suspect’s outer clothing by use of 

express words like “pat-down” and then intentionally 

exceed the scope of that consent, including reaching into a 

suspect’s pockets for any and all objects not otherwise 

identified as possible weapons, the individual protections 

guaranteed under the Fourth and Fourteenth 

Amendments of the United States Constitution and 
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Article VI, § 11 of the Constitution of South Dakota would 

be rendered moot. 

Conclusion of Law 9, Labine, No. 06-366 (Lawrence County, August 16, 2006). The 

State claims the mention of the benefit in deterrence is not enough; the trial court 

must also list the societal costs. It argues the trial court must make more specific 

findings or conclusions as to how that benefit balances against the social costs in 

application of the exclusionary rule. However, the findings and conclusions indicate 

the trial court did consider the deterrent effect versus societal costs. 

[¶24.] The State goes on to argue that the societal costs in lost evidence 

outweigh any deterrence, and that there was confusion, but the officer did not act 

with “conscious disregard of Defendant’s rights under the Fourth Amendment.” 

However, this ignores the trial court’s findings of facts. It found the Trooper 

repeatedly asked for consent to “pat-down” Labine. When he received consent for 

that limited search, he intentionally and almost immediately exceeded the scope of 

consent. Exclusion of the evidence deters police officers from “misunderstanding” 

the type of search that was consented to and then violating suspect’s rights. This 

deterrence outweighs the cost of lost evidence. 

[¶25.] For these reasons, we affirm. 

[¶26.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

MEIERHENRY, Justices, concur.