Arielle Zionts
Rapid City Journal, S.D.
PENNINGTON COUNTY, S.D. — A Pennington County deputy violated the Fourth Amendment when he seized empty drug vials from a paramedic based on “nothing more than a hunch” that they might be illegal, a federal appeals court ruled Monday.
“For an item’s ‘incriminating character’ to be ‘immediately apparent,’ the officer must have probable cause to associate it with criminal activity,” wrote Judges Ralph Erickson and Jonathan Kobes of the Eight Circuit Court of Appeals. Deputy Eric Fenton “possessed no such probable cause.”
The ruling means that federal prosecutors in Rapid City can’t use the vials — which were labeled as containing Fentanyl and Ketamine — as evidence in their case against Dane Arredondo, who they charged with health care fraud, acquiring controlled substances by fraud, and possessing controlled substances after stealing the drugs from his work in January 2019.
Arredondo, who previously worked for the Oglala Sioux Tribe’s ambulance service, has pleaded not guilty.
Judge Raymond Gruender disagreed with his colleagues about the seizure.
The ruling “ignores the totality of the circumstances” in failing to see that “several factors gave Deputy Fenton probable cause to associate the glass vials with criminal activity,” he wrote in his dissent.
The facts
The incident happened around 10 p.m. on Jan. 5, 2019, when Fenton arrived at Arredondo’s Rapid Valley home after someone called 911 to report that she could hear slamming doors and a woman who was screaming and crying.
Fenton didn’t hear any noises when he arrived but rang the doorbell because he could see a rifle casing inside the home.
Arredondo’s brother slightly opened the door and said there was a fight, but it was now resolved and everyone was fine. Fenton asked for permission to enter but the brother resisted, saying it wasn’t his home. The brother said his girlfriend was on the floor, which alarmed Fenton, who then entered the house.
The brother said his girlfriend was drunk and Fenton said he wanted to check on her welfare. The brother asked the deputy to stop touching him and “Fenton, in a raised voice, ordered (the brother) to come downstairs or else be handcuffed” before radioing to dispatch that the man was “not being cooperative.”
The girlfriend said multiple times that she wasn’t hurt and she was lying on the floor “because I want to.” Arredondo’s brother told the woman to explain she wasn’t injured and told Fenton they were arguing when she fell down the stairs.
At one point the brother moved towards the back of the room and Fenton grabbed his lanyard to “yank him away,” handcuff him and pat him down.
Fenton used a flashlight to see if the woman had any injuries, which she did not. He testified during a hearing that he came to believe there were no signs of a physical fight, that she was just tired and intoxicated.
Fenton and Deputy Matthew Pond followed Arredondo upstairs so he could show them his driver’s license. Pond accused him of previously lying about his name but Arredondo said it was just a misunderstanding, that the girlfriend has a different last name than the brothers. Pond then brought Arredondo to his patrol vehicle for further questioning.
Fenton, still inside with the brother who followed the group upstairs, saw and picked up six small, empty and clear vials on a couch, including one labeled Ketamine. The brother explained that Arredondo is a paramedic so he has a prescription. Fenton wasn’t sure if any of the vials were for controlled substances so he Googled them on his phone and found that some of them were. Pond also found a vial of Fentanyl in the basement.
The arguments
Arredondo’s lawyer filed a motion to ban the prosecution from using the vials during the trial, arguing they were collected during an illegal search. Two local judges agreed.
Federal prosecutors appealed, saying the deputies legally seized the vials due to the “plain view” doctrine, which says officers can seize criminal items they happen to spot.
The appeals court said there are multiple reasons why Fenton didn’t have immediate probable cause to believe the vials were criminal:
* Fenton knew Arredondo was a paramedic;
* The vials looked similar to common household items that might hold essential oils, insulin or contact lenses;
* Fenton said he thought the vials were odd, especially in the context of all three residents appearing to be intoxicated on alcohol, but that itself is not illegal;
* The room and couch was dark so Fenton couldn’t see if anything was inside the vials, he had to pick them up;
* Fenton had to Google whether the drugs were controlled substances while Pond said he wasn’t sure if he could charge a paramedic with drug possession.
“Deputy Fenton had nothing more than a hunch that the vials could be incriminating, which is not enough for the plain view exception (to warrantless seizures) to apply,” the judges wrote.
Gruender said the “immediately apparent” criminal nature of items spotted in plain view does not mean an officer has to be 100% confident. He said it means officers must believe the items might be be criminal based on “the facts available to a reasonably cautious” person, which includes the greater context of the situation.
The judge said Fenton had multiple reasons to suspect the vials were criminal:
* Arredondo might have provided a false name and his brother lied at the door about how many people were in the house;
* The brothers “behaved evasively” by trying to move away from the deputies and providing vague answers;
* All three people at the home were acting strange and appeared to be highly intoxicated;
* The six vials were on a couch, not where medicine usually is, like a cabinet or paramedic bag. This also usually isn’t where people would usually put vials containing oil or contacts;
* “The fact that the vials were largely empty, combined with the intoxicated behavior of the home’s occupants, suggests illegal drug use.”
“The court minimizes the relevance of this behavior, arguing that the occupants’ ‘strange behavior,’ combined with ‘the presence of bottles and cans strewn about [the home], gave the officers reason to believe that the three individuals inside the house were drunk’ but evidently nothing more,” Gruender wrote. “But the court’s own logic cuts the other way — the presence of empty drug vials ‘strewn about’ a couch, combined with the occupants’ intoxicated behavior, gave Deputy Fenton reason to believe the occupants were engaged in illegal drug use. If the empty liquor bottles could suggest drunkenness, why could not the empty glass vials suggest drug intoxication?”
The U.S. Attorney’s Office in South Dakota declined to comment when asked if it will appeal this decision, continue with the case without using the vials, or dismiss the charges.
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