State v. Cummings

#29010-r-SRJ

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   …

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellant,
      v.

MORGAN CUMMINGS,                            Defendant and Appellee.

                                   …

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SIXTH JUDICIAL CIRCUIT
                   BENNETT COUNTY, SOUTH DAKOTA

                                   …

                      THE HONORABLE BOBBI J. RANK
                                Judge

                                   …

JASON R. RAVNSBORG
Attorney General

STACY R. HEGGE
Assistant Attorney General
Pierre, South Dakota

SARAH E. HARRIS
Bennett County State’s Attorney
Martin, South Dakota                        Attorneys for plaintiff and
                                            appellant.


TERRY L. PECHOTA
Rapid City, South Dakota                    Attorney for defendant and
                                            appellee.

                                   …
                                            ARGUED
                                            FEBRUARY 11, 2020
                                            OPINION FILED 01/27/21
#29010

JENSEN, Chief Justice

[¶1.]         Agents from the South Dakota Division of Criminal Investigation and

the Bureau of Indian Affairs spoke with Morgan Cummings and his father Charlie

Cummings at their home located on Indian trust land concerning property crimes

that had occurred outside Indian country. 1 Morgan and Charlie agreed to speak

with the officers and produced evidence implicating Morgan in a burglary in

Bennett County. Morgan was later charged in state court. The circuit court

granted Morgan’s motion to suppress statements he made to a state officer,

determining that the officer lacked authority to investigate crimes in Indian

country. We granted the State’s petition for intermediate appeal of the circuit

court’s order suppressing Morgan’s statements. We now reverse the circuit court’s

decision.

                           Facts and Procedural History

[¶2.]         In January 2017, various state law enforcement agencies were

investigating recent burglaries and thefts that had occurred outside Indian country

in Martin, South Dakota. Morgan Cummings was a suspect. Morgan was eighteen

at the time and lived with his father, Charlie Cummings, in Sunrise Housing; which


1.      Indian country is defined in 

 and includes all land within any
        Indian reservation, dependent Indian communities, and Indian allotments for
        which “Indian titles . . . have not been extinguished . . . .” The United States
        Supreme Court has held “that the test for determining whether land is
        Indian country does not turn upon whether that land is denominated ‘trust
        land’ or ‘reservation.’ Rather, we ask whether the area has been ‘validly set
        apart for the use of the Indians as such, under the superintendence of the
        Government.’” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian
        Tribe of Oklahoma, 

, 

, 

        (1991) (quoting United States v. John, 

, 

, 

 (1978)).

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#29010

is in Indian country on the east side of Martin. 2 On January 9, 2017, at

approximately 1:15 p.m., Special Agent Rasmussen of the South Dakota Division of

Criminal Investigation (DCI) and Special Agent Hooper of the Bureau of Indian

Affairs (BIA) went to the Cummings’ house to investigate the burglaries and thefts.

DCI Special Agent Patterson was also present, but he did not testify; and there is no

showing that he possessed any federal authority in Indian country.

[¶3.]         As a BIA officer, Agent Hooper was authorized to investigate and make

arrests for crimes committed in Indian country and “serve warrants, summonses, or

other orders relating to a crime committed in Indian country . . . .” 

. Agent Hooper was also authorized “when requested, [to] assist . . . any

Federal, tribal, State, or local law enforcement agency in the enforcement or

carrying out of the laws or regulations the agency enforces or administers.” 

Agents Rasmussen and Hooper were members of the Northern Plains Safe Trails

Drug Enforcement Task Force. Agent Rasmussen was federally deputized to

investigate drug offenses in Indian country pursuant to 

 et. seq.

[¶4.]         Upon approaching the Cummings’ residence, the officers knocked on

the front door. Charlie answered, and the officers identified themselves as drug

task force officers, said they were investigating recent burglaries and thefts that

had occurred outside Indian country, and asked to speak to Morgan. Charlie


2.      There was no direct evidence or finding by the circuit court that the
        Cummings are members of a federally recognized Indian tribe or otherwise
        qualify as Indians under federal law. On appeal, the State concedes the
        Cummings’ Indian status, though it acknowledges uncertainty about whether
        they are members. We assume for the purpose of our analysis that the
        Cummings are Indians under federal law.


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#29010

invited the officers in and woke Morgan. Morgan agreed to follow Agent Rasmussen

out to Rasmussen’s vehicle to talk. The vehicle was unlocked, and Morgan sat in

the passenger seat. He was told that he was free to leave at any time. Morgan and

Agent Rasmussen talked for twenty minutes. During the conversation, Morgan

made certain admissions, including admitting to taking a saddle that the officers

were investigating as stolen. He agreed to show Agent Rasmussen where the

saddle was located in the basement.

[¶5.]        While Morgan and Agent Rasmussen were outside, Agent Hooper

discussed the stolen items they were looking for with Charlie and asked for consent

to search the home. Charlie offered to show the officers the items that had been

described. Charlie led Agent Hooper to a saddle and saddle blanket, along with

other items. Those items were placed in a pile in the kitchen. When Morgan and

Agent Rasmussen returned to the house, Agent Rasmussen asked Morgan to show

him where other stolen items were located; and Morgan did so. After all the items

were collected, Charlie and Morgan both signed a consent to search form.

[¶6.]        Morgan was indicted for third-degree burglary, grand theft, and

intentional damage to property in state court. He moved to suppress his statements

and the items provided to law enforcement, claiming law enforcement’s actions

violated the Fourth and Fifth Amendments to the United States Constitution.

Specifically, Morgan argued Agent Rasmussen did not have the authority to

question him in Indian country, his statements were involuntary, and the search

was not consensual. Following an evidentiary hearing, the circuit court suppressed

Morgan’s statements relying exclusively on our decisions in State v. Spotted Horse,


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#29010

 (S.D. 1990), and State v. Cummings, 

, 

,

to conclude that Agent Rasmussen did not have authority to investigate state

criminal offenses in Indian country. The court refused to suppress the physical

evidence, determining that Agent Hooper had investigative authority within Indian

country as a BIA officer and that Charlie’s decision to voluntarily produce the

physical evidence was an intervening event that removed the taint of Agent

Rasmussen’s interview of Morgan.

[¶7.]         The circuit court denied the State’s motion for reconsideration

following a hearing, but the circuit court clarified its ruling by determining that

Morgan’s statements to Agent Rasmussen were voluntary. 3 The State petitioned

for intermediate appeal from the circuit court’s ruling, raising the sole issue of

whether the court erred in suppressing Morgan’s statements.

                                 Standard of Review

[¶8.]         “We review the circuit court’s grant or denial of a motion to suppress

involving an alleged violation of a constitutionally protected right under the de novo

standard of review.” State v. Smith, 

, ¶ 14, 

. We

review the circuit court’s findings of fact for clear error, but conclusions of law are

given no deference. 

                               Analysis and Decision

[¶9.]         The State argues that the circuit court erred in relying on our decisions

in Spotted Horse and Cummings to conclude that Morgan’s statements must be


3.      Morgan has not sought review of the circuit court’s ruling that his statements
        to Agent Rasmussen were voluntary or the denial of his motion to suppress
        with respect to the physical evidence.

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#29010

suppressed “[b]ecause Agent Rasmussen was without authority to conduct the

investigation in Indian country.” The State argues Spotted Horse and Cummings

are inapplicable because the officers were lawfully present at the Cummings’ home

and the interaction between the officers and the Cummings was entirely

consensual. The State also claims that nothing prohibited Agent Rasmussen from

going to the Cummings’ home in Indian country to investigate crimes that occurred

off the reservation and cite Nevada v. Hicks, which recognized the authority of state

officers to enter Indian country to investigate and enforce off-reservation crimes.

, 

, 

 (2001). Alternatively, the State

asks that we reverse the holdings of Spotted Horse and Cummings.

[¶10.]       Morgan relies upon the continued applicability of Spotted Horse and

Cummings. He argues that Agent Rasmussen had no authority to enter Indian

country and engage in any law enforcement activity without authorization from

tribal authorities. As a result, Morgan maintains that the State cannot rely on

consent given by him or his father because Agent Rasmussen was not legally

present at the Cummings’ home when he requested consent to search and speak

with Morgan.

[¶11.]       Spotted Horse and Cummings both arose from similar facts. In each

case, a state law enforcement officer observed a tribal member commit a state motor

vehicle offense outside of Indian country. The state law enforcement officer pursued

the driver into Indian country at high speeds until the driver eventually stopped.

The state officer in each case then arrested and transported the tribal member out

of Indian country to face charges in state court.


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#29010

[¶12.]       In Spotted Horse, the Court relied on Ker v. Illinois, 

, 

, 

 (1886), to deny a challenge to the state court’s jurisdiction to

hear the case, but held the “seizure of [the defendant] by [the officer] was clearly a

violation of [the defendant’s] Fourth Amendment rights . . . .” 

-

69. Spotted Horse viewed the officer’s “actions in pursuing [the defendant] down the

reservation highway, into the housing area and onto his front lawn to be a

constitutional violation, far above simple statutory violations” and held “that the

evidence attained by the unconstitutional arrest is not admissible against [the

defendant].” 

.

[¶13.]       Cummings reaffirmed the holding in Spotted Horse, that the arrest of

the defendant in Indian country violated the Fourth Amendment, and affirmed a

circuit court’s order suppressing evidence obtained from the arrest. Cummings,

, ¶ 18, 

. This Court also rejected the State’s

argument that Nevada v. Hicks effectively nullified Spotted Horse. Id. ¶ 16.

[¶14.]       In Hicks, the United States Supreme Court determined a tribal court

did not have jurisdiction to adjudicate tort claims arising from a state officer’s

execution of a state search warrant. The warrant authorized a search of the

plaintiff’s home on a reservation for evidence pertaining to an off-reservation crime.

, 

. Applying accepted Indian law

jurisdictional principles, the Court recognized that states may exercise some legal

process and authority on Indian fee land:

             Our cases make clear that the Indians’ right to make their own
             laws and be governed by them does not exclude all state
             regulatory authority on the reservation . . . . Though tribes are
             often referred to as “sovereign” entities, it was “long ago” that

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#29010

             “the Court departed from Chief Justice Marshall’s view that the
             laws of a State can have no force within reservation boundaries.”

, 

 (quoting White Mountain Apache Tribe v. Bracker, 

, 

, 

 (1980)). “To the contrary, the

principle that Indians have the right to make their own laws and be governed by

them requires ‘an accommodation between the interests of the Tribes and the

Federal Government, on the one hand, and those of the State, on the other.’” Id. at

362, 

 (quoting Washington v. Confederated Tribes of Colville

Reservation, 

, 

, 

 (1980)).

[¶15.]       In determining the tribal court lacked jurisdiction over the tort claim

against the state officer, Hicks concluded:

             that tribal authority to regulate state officers in executing
             process related to the violation, off reservation, of state laws is
             not essential to tribal self-government or internal relations—to
             “the right to make laws and be ruled by them.” The State’s
             interest in execution of process is considerable, and even when it
             relates to Indian-fee lands it no more impairs the tribe’s self-government than federal enforcement of federal law impairs
             state government . . . . Nothing in the federal statutory scheme
             prescribes, or even remotely suggests, that state officers cannot
             enter a reservation (including Indian-fee land) to investigate or
             prosecute violations of state law occurring off the reservation.
             To the contrary, 

 affirms that “the provisions of
             this chapter alter neither . . . the law enforcement, investigative,
             or judicial authority of any . . . State, or political subdivision or
             agency thereof.”

Id. at 364, 366, 

.

[¶16.]       Nonetheless, Cummings concluded Hicks was inapplicable to law

enforcement’s actions involving the hot pursuit and forcible arrest of the defendants

in Indian country, stating “[Hicks’] holding does not apply in this case and that the

language the State relies upon in support of its argument is insufficient to allow

                                          -7-
#29010

such an incursion on tribal sovereignty, especially without specific direction from

the United States Congress or a clear holding by a majority of the Supreme Court.”

Cummings, 

, ¶ 11, 

. Cummings also concluded Hicks

was distinguishable because “in Hicks, tribal sovereignty was being used as a sword

against state officers. Here, tribal sovereignty is being used as a shield to protect

the Tribe’s sovereignty from incursions by the State.” Id. ¶ 12. As such, Cummings

viewed the language from Hicks to be dicta and questioned whether a majority of

the Hicks Court had joined in this language. Id. ¶ 16.

[¶17.]       Justice Zinter specially concurred in Cummings, agreeing that Hicks

was factually and legally distinguishable from Cummings. However, he “concede[d]

that much of the language of Justice Scalia’s opinion . . . suggests that the second

underpinning of Spotted Horse [that a state officer has no jurisdiction on the

reservation] was wrongly decided.” Id. ¶ 23 (Zinter, J., concurring). The special

writing also took issue with the assertion that a majority of the Court in Hicks had

not joined this language. Id. ¶ 24. Justice Zinter, however, concurred with the

majority opinion resolving that Hicks was not sufficiently compelling to require a

reversal of course yet a third time and “believe[d] that stability and predictability in

the law require our adherence to Spotted Horse.” Id. ¶ 26.

[¶18.]       Consistent with Justice Zinter’s concurring opinion in Cummings, our

review convinces us that a majority of the Hicks Court joined Justice Scalia’s

opinion discussing state officers’ authority to investigate state crimes in Indian

country. Since Cummings, at least two other courts have also concluded that six

members of the Hicks Court joined the applicable language. State v. Clark, 178


                                          -8-
#

, 28-29, 

 (2013) (“Six members of the Court signed the

majority opinion in full; none of these justices withheld their signatures from Part

II, the portion discussing the execution of the search warrants.”); State v. Harrison,

, 

, 

 (“Thus, a majority of

the Court joined the analysis regarding state authority to investigate off-reservation

crimes committed by Indians in Indian country.”).

[¶19.]         Contrary to our statement in Cummings, we now view the language of

Hicks ─recognizing the ability of state officers to lawfully enter Indian country to

investigate “violations of state law occurring off the reservation” ─to be

authoritative and controlling. Hicks, 

, 

. Further,

Hicks unquestionably recognizes state law enforcement officers’ authority to enter

into Indian country to investigate state crimes alleged to have been committed by

Indians off the reservation. Applying Hicks to this case leads to the inescapable

conclusion that Agent Rasmussen did not violate any jurisdictional principles by

entering Indian country to investigate crimes that occurred outside Indian Country.

Agent Rasmussen simply knocked on the door of the Cummings’ home and engaged

in a voluntary encounter with Morgan and his father about a crime committed

outside Indian country. 4



4.       Apart from Spotted Horse and Cummings, Morgan has not identified any
         decisions supporting his claim that the state officers’ actions in this case
         infringed upon tribal sovereignty. Morgan cites United States v. Anderson,
         which held that a parole search of a tribal member’s apartment by state
         parole agents was invalid because the parole agents lacked criminal
         jurisdiction to conduct a warrantless search in Indian country. 

 (D.S.D. 1994). Anderson cited Spotted Horse for the principle that
         state officers have no jurisdiction in Indian country, but acknowledged there
                                                               (continued . . .)
                                              -9-
#29010

[¶20.]       Other courts have also recognized that law enforcement has some

degree of authority to enter Indian country to investigate and prosecute state

crimes committed outside Indian country. In considering whether the actions of

state law enforcement officers violate tribal sovereignty, these courts have

considered the degree to which the state action infringed on tribal self-governance.

E.g., Clark, 

, 

; Harrison, 

,

, 

; State v. Mathews, 

, 

 (1999); State ex rel. Old Elk v. Dist. Court In & For Big Horn Cnty., 

, 

, 1397-98 (1976); State v. Lupe, 

,

, 6–7 (Ct. App. 1994). “The general consensus among our sister states

regarding a state officer’s authority to investigate off-reservation crimes in Indian

country also is supported by Hicks, which held that ‘state sovereignty does not end

at a reservation’s border,’ because ‘an Indian reservation is considered part of the

territory of the State.’” Harrison, 

, 

, 

 (quoting Hicks, 

, 

).

[¶21.]       We have previously applied the infringement test in civil cases to test

the limits of a state court’s exercise of its jurisdiction over Indians and matters

arising in Indian country. Before asserting jurisdiction, we ask whether the

exercise of jurisdiction in a particular case “would infringe on the right of

reservation Indians to make their own laws and be ruled by them.” Alone v. C.

Brunsch, Inc., 

, 

 (quoting Williams v. Lee,
________________________
(. . . continued)
         was not “a case directly on point.” 

 However, Anderson was decided prior
         to Hicks and did not involve a consensual encounter.


                                          -10-
#29010

, 

, 

 (1959)). In considering “the

infringement test, we assess the interests of the tribal and federal governments on

the one hand, and those of the State, on the other. Under this standard, whether all

defendants named in this action are member Indians or tribal entities and whether

the [activity] occurred within the confines of Indian country are highly relevant in

determining whether the exercise of jurisdiction will infringe on tribal self-

government.” Id. ¶ 15 (citations omitted).

[¶22.]       Here, Morgan fails to identify how Agent Rasmussen infringed upon

any legitimate interest of a tribal government by entering Indian country to

investigate a crime that occurred off the reservation. While Morgan is Indian, there

is no claim that Agent Rasmussen’s actions adversely impacted the ability of any

tribal government to make its own laws and be governed by them. Agent

Rasmussen did not attempt to execute any formal state process or non-consensual

enforcement activities in Indian country. Further, Morgan’s alleged criminal

conduct occurred outside Indian country and involved matters of state criminal

jurisdiction, over which the tribe has no authority. Cf. id. ¶ 18 (holding the

assertion of state jurisdiction would infringe on tribal sovereignty where the tribal

court had jurisdiction over claims occurring on the reservation against member

Indians and a tribal entity). Morgan has not identified any case suggesting that

Agent Rasmussen infringed on tribal sovereignty by engaging him in an informal,

consensual encounter in Indian country concerning state criminal violations.

Moreover, in assessing the infringement claim, we consider it to be significant that

Agent Rasmussen was accompanied by a BIA officer who is authorized by federal


                                         -11-
#29010

statute to “assist . . . any Federal, tribal, State, or local law enforcement agency in

the enforcement or carrying out of the laws or regulations the agency enforces or

administers.” 

.

[¶23.]         Morgan argues, however, that the circuit court properly relied on the

language from Cummings to determine that Agent Rasmussen was without

authority to enter Indian country to investigate state crimes. Specifically, he points

to the Court’s statement in Cummings, made in the context of the facts before it,

that “the state officer was without authority to pursue [the defendant] onto the

reservation and gather evidence without a warrant or tribal consent.” 

,

¶ 18, 

. For the reasons previously expressed, this overly broad

language from Cummings is inconsistent with Hicks and stands in contravention to

the decisions of other courts. As such, this language has no application to Agent

Rasmussen’s actions investigating the crimes committed outside Indian country in

this case. 5 Morgan has failed to show that Agent Rasmussen lacked authority to

investigate state offenses while in Indian country, or that his actions infringed upon

tribal sovereignty.

[¶24.]         Morgan has also failed to show a Fourth Amendment or other

constitutional violation that would support the suppression remedy granted by the

circuit court. We acknowledge that Spotted Horse and Cummings relied on the



5.       The actions of Agent Rasmussen are markedly different than those addressed
         in Spotted Horse and Cummings, which involved the hot pursuit of tribal
         members suspected of state law violations into Indian country. We need not
         decide today whether the actions of the state law enforcement officers in such
         cases infringe upon tribal sovereignty, or the appropriate remedy for any
         such infringement.

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#29010

Fourth Amendment to order the evidence in those cases to be suppressed.

Specifically, Spotted Horse and Cummings determined that state officers violated

the Fourth Amendment by entering Indian country, without authorization to do so,

to make an illegal arrest of a tribal member. Neither decision cited any other

authority to support its holding that the State’s infringement on tribal sovereignty

invoked the protections of the Fourth Amendment. In re-examining both decisions,

we conclude that Spotted Horse and Cummings incorrectly conflated jurisdictional

principles associated with tribal sovereignty and individual rights afforded by the

Fourth Amendment.

[¶25.]       It is well-established that the Fourth Amendment protects the privacy

interests of individuals and tests “the reasonableness in all the circumstances of the

particular governmental invasion of a citizen’s personal security.” Terry v. Ohio,

, 

, 

 (1968). “[A]n individual

must have a reasonable expectation of privacy in the place searched or the article

seized before the Fourth Amendment will apply.” Cordell v. Weber, 

, ¶

12, 

. Neither Spotted Horse nor Cummings identified any

individual privacy interest or expectation of privacy of a defendant that law

enforcement violated. Rather, the “illegal arrest” was premised on the conflict

between the exercise of state criminal jurisdiction and the extent of the State’s

infringement on sovereign tribal government. Apart from Spotted Horse and

Cummings, we find no cases holding that a state officer’s infringement on tribal

sovereignty implicates individual privacy interests under the Fourth Amendment.




                                         -13-
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[¶26.]       There is, however, well-established caselaw to support the conclusion

that Agent Rasmussen’s actions are well within the “knock and talk” doctrine

discussed by the United States Supreme Court in Florida v. Jardines, 

,

, 

 (2013). The “knock and talk” doctrine applies to

the home and the area immediately around the home, and “recognize[s] that ‘the

knocker on the front door is treated as an invitation or license to attempt an entry,

justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.’” 

, 

 (quoting Breard v. Alexandria, 

, 

, 

 (1951)). Jardines explained that “[t]his implicit license typically

permits the visitor to approach the home by the front path, knock promptly, wait

briefly to be received, and then (absent invitation to linger longer) leave.” 

“Thus, a police officer not armed with a warrant may approach a home and knock,

precisely because that is ‘no more than any private citizen might do.’” 

 (quoting Kentucky v. King, 

, 

, 

 (2011)). “If consent is freely given, it makes no difference that an

officer may have approached the person with the hope or expectation of obtaining

consent.” King, 

, 

.

[¶27.]       We also conclude that there was no seizure of Morgan’s person for

Fourth Amendment purposes. A seizure occurs under the Fourth Amendment

when, “taking into account all of the circumstances surrounding the encounter, the

police conduct would ‘have communicated to a reasonable person that he was not at

liberty to ignore the police presence and go about his business.’” Florida v. Bostick,

, 

, 

 (1991) (quoting


                                          -14-
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Michigan v. Chesternut, 

, 

, 

(1988)). “[N]ot every encounter between a citizen and the police constitutes a

Fourth Amendment seizure.” State v. Iversen, 

, ¶ 9, 

. The Fourth Amendment is not violated when an encounter between law

enforcement and an individual is consensual. Jardines, 

, 

; King, 

, 

.

[¶28.]       The circuit court did not find that Morgan was seized by Agent

Rasmussen, but rather found that the entire encounter was consensual. Morgan

does not challenge the circuit court’s determination on appeal or claim that the

conversation between Morgan and Agent Rasmussen was a custodial interrogation.

Thus, Morgan has failed to show a Fourth Amendment violation. See Jones v.

Norton, 

 (10th Cir. 2015) (determining there was no Fourth

Amendment violation by a state officer on an Indian reservation when there is no

evidence that the officer seized a tribal member).

[¶29.]       The circuit court’s order suppressing Morgan’s statements is reversed.

We remand to the circuit court for further proceedings.

[¶30.]       KERN, SALTER, and MYREN, Justices, and GILBERTSON, Retired

Chief Justice, concur.

[¶31.]       DEVANEY, Justice, deeming herself disqualified, did not participate.

[¶32.]       MYREN, Justice, participating in his official capacity as a Circuit

Court Judge when this case was submitted to the Court, sitting for DEVANEY,

Justice, disqualified.




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