State v. Ghebre , 2023 S.D. 21 ( 2023 )

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2023 S.D. 21IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
FITSUM GHEBRE, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE BRADLEY G. ZELL
Retired Judge
****
BEAU J. BLOUIN of
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
DANIEL HAGGAR
Minnehaha County State’s Attorney
DREW W. DEGROOT
Minnehaha County Deputy State’s Attorney
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.
****
ARGUED
JANUARY 10, 2023
OPINION FILED 05/10/23
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KERN, Justice
[¶1.] The State petitioned for an intermediate appeal from the circuit court’s
order suppressing statements made by Fitsum Ghebre during the execution of a
search warrant. This Court granted the petition. We reverse.
Background
[¶2.] The following facts are taken from the record, including police reports,
dash and body camera footage, and the suppression hearing transcript. On the
morning of November 29, 2020, S.M. woke up in an unfamiliar apartment lying next
to a fully clothed man she reported having never met. S.M. remembered waking up
clothed from the waist up, but her pants were at her ankles. She asked the
stranger if he knew where her phone and keys were, and the stranger replied, “you
no have phone or key” in a heavy accent. S.M. then asked to use the man’s phone to
call her own, hoping to locate it. After making the call, she still could not find her
phone, so she asked the man for a ride. She reported that he gave her a ride to her
friend’s house in a “dark or black SUV.”
[¶3.] The following day, S.M.’s father called law enforcement, reporting that
S.M. had been raped in the early morning hours of November 29, 2020. Sioux Falls
Police Officer Benjamin Fiegen was dispatched to a Sioux Falls residence to take a
report. Upon arrival, Officer Fiegen observed S.M. sitting outside her parent’s
residence, “trembling” with “tears rolling down her face.” S.M. told Officer Fiegen
that she had been raped by a man she had “never seen . . . before in [her] life.” S.M.
described the man as a ‘“real African’ in his mid-40s, with shorter grey hair and a
neatly trimmed beard.”
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[¶4.] S.M. also described the events leading up to the alleged sexual assault.
She explained that on Saturday, November 28, 2020, she and her friend, K.W., went
to a Sioux Falls nightclub where she drank “a lot of alcohol,” primarily “mixed
drinks with Hennessey.” S.M. did not remember seeing the stranger at the
nightclub. S.M. told Officer Fiegen that after leaving the nightclub, she recalled
getting into a car with K.W. and other friends, and they drove to a local motel. She
also recollected that before entering the motel, she argued with K.W. However,
S.M. could not recall much after this point because she “blacked out from being so
drunk.” She had no further recollection of entering or leaving the motel.
[¶5.] She also told Officer Fiegen that she could not remember what had
occurred over the course of the evening and early morning hours before she
awakened in the stranger’s apartment. She reported having pain in her vaginal
area and was missing the tampon she had previously inserted. S.M. gave police the
stranger’s phone number, which remained in her phone after she had used his
phone to call her own. By using Google Maps, S.M. was able to point out the
location of the stranger’s apartment. After taking her report, Officer Fiegen took
S.M. to the hospital where she received a medical examination and had evidence
collected for a sexual assault kit, from which samples were sent to the South Dakota
Forensic Lab for testing.
[¶6.] Detective Christopher Schoepf was assigned to investigate S.M.’s
sexual assault allegation. On December 7, he called the phone number S.M. had
provided during her report. The individual who answered identified himself as
Fitsum Ghebre. Detective Schoepf followed up by inquiring how Ghebre spells his
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name. Because Ghebre had a thick accent and talked quietly, Detective Schoepf
struggled to understand Ghebre’s response but was able to confirm that he had the
correct spelling.
[¶7.] During the call, Detective Schoepf informed Ghebre that he was calling
about the girl that was at his house the other night, and he asked Ghebre if he
would like to come to the law enforcement center to talk about the events of that
evening. Instead, Ghebre told Detective Schoepf to come to his house. The phone
call then ended abruptly and attempts to reestablish contact were unsuccessful.
Detective Schoepf ran Ghebre’s name through available databases and discovered
that he had a 1999 black Subaru Forester registered in his name.
[¶8.] The South Dakota Forensic Lab returned the test results from S.M.’s
sexual assault kit to Detective Schoepf on February 19, 2021. The results revealed
the presence of male DNA on three swabs collected from S.M.’s cervical and genital
areas, and the lab was able to identify that this DNA originated from a single male
source.
[¶9.] The next day, Detective Schoepf applied for and was granted a search
warrant to obtain a sample of Ghebre’s DNA through an oral buccal swab. On
February 24, 2021, Detective Schoepf drove to Ghebre’s apartment building in an
unmarked duty vehicle. While he was parked outside, Detective Schoepf saw
Ghebre leave his apartment, get into a black Subaru Forester, and drive away.
Because Detective Schoepf’s unmarked car was not equipped with flashing lights,
he radioed for assistance from a marked duty vehicle. Detective Schoepf followed
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Ghebre for about 12 blocks before Officer Christensen of the Sioux Falls Police
Department arrived and initiated the traffic stop.
[¶10.] Officer Christensen approached the driver’s side window of Ghebre’s
car and requested that he turn the engine off and step out of the vehicle. Ghebre
did not immediately comply, so Officer Christensen repeated his request. Ghebre
thereafter complied and, after getting out of his car, walked to the boulevard, where
he met with the officers. Detective Schoepf asked Ghebre if he remembered their
December phone call about an intoxicated girl that stayed at his house. Ghebre
indicated that he did not remember. Detective Schoepf informed Ghebre that the
girl filed a report alleging he had raped her and that she had completed a sexual
assault kit, the samples from which showed the presence of male DNA. Detective
Schoepf also explained that he had obtained a search warrant to collect a DNA
sample from Ghebre to compare to the DNA sample from the sexual assault kit.
[¶11.] Detective Schoepf told Ghebre to stay with Officer Christensen while
he went to his patrol car to get a copy of the search warrant. Officer Christensen
asked Ghebre if he had his ID on him, and without hesitation, Ghebre immediately
retrieved it from his back pocket and handed it to the officer. He also asked Ghebre
what time he had to be at work, to which Ghebre responded, “4:30.” After a minute
of waiting, Detective Schoepf told Ghebre that they would finish the warrant
process while sitting in his unmarked duty vehicle and directed Ghebre to sit in the
front passenger seat.
[¶12.] Once in the car, Ghebre sat unrestrained with the passenger door left
open. Officer Christensen stood in the passenger doorway with his body camera
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recording the encounter. In the car, Detective Schoepf explained the search
warrant to Ghebre and the reason for collecting his DNA. He also provided Ghebre
with a copy of the warrant. Detective Schoepf explained how he would obtain the
DNA sample by swiping the inside of Ghebre’s cheek with a buccal swab. After
giving his explanation, Detective Schoepf mentioned to Ghebre that he looked
confused and asked if he had any questions. Ghebre did not answer but proceeded
to look down at the copy of the warrant that Detective Schoepf had just handed him.
Detective Schoepf then stated, “And if you want to talk about it, give me a call,
that’s what I was trying to do that day when I talked to you.” Detective Schoepf
then executed the warrant by swabbing the inside of Ghebre’s mouth. As Detective
Schoepf packaged the buccal swabs, he asked Ghebre, “[D]o you have questions for
me or anything like that right now?” Ghebre did not respond.
[¶13.] Detective Schoepf completed the search warrant’s inventory sheet. He
then asked Ghebre to sign it and told him that he would receive a copy, but Ghebre
responded, “[N]o”—indicating that he was not going to sign it. Ghebre
spontaneously remarked that he “doesn’t know that girl.” To which Detective
Schoepf asked, “[Y]ou didn’t know her?” Ghebre’s response was inaudible. After
this brief exchange, the following conversation took place as reflected by the video
recording:
SCHOEPF: Do you have any questions for me? Do you want to
talk about what happened at all? We’re not going to talk about
it right here, but we can make an arrangement to talk about it.
Do you want to talk about what happened? Here’s your driver’s
license. (Hands driver’s license back to Ghebre). You’re free to
go. Do you want to talk about what happened though? Here’s
my thing man, if you had sex with her, that’s what you need to
explain to me now. Okay? Not right this minute, but call me
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and we’ll talk about it. Okay? Here’s my card. If you had sex
with her, you had sex with her. The DNA is going to tell us on
that kit if that was you that had sex with her.[ 1]
GHEBRE: I have problem. How I . . .
SCHOEPF: What’s that?
GHEBRE: Have problem to
SCHOEPF: You have problems?
GHEBRE: why I sex, says. . .
SCHOEPF: I don’t understand.
GHEBRE: I have problem for sex.
SCHOEPF: Okay?
GHEBRE: I can’t go . . . (inaudible)
SCHOEPF: You can’t achieve an erection, is that what I’m
understanding?
GHEBRE: Yes.
SCHOEPF: Okay? Did you have oral sex with her? Or stick your
fingers in her?
GHEBRE: No.
SCHOEPF: No. Okay, so that’s not going to be your DNA on the
sexual assault kit?
GHEBRE: (inaudible) (shakes head)
SCHOEPF: No? Okay?
GHEBRE: (inaudible)
1. After Detective Schoepf told Ghebre he was free to go, Officer Christensen
takes a noticeable step back and off to the side from where he previously
stood in the open doorway of Detective Schoepf’s vehicle.
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SCHOEPF: Okay. Okay. We’ll be in contact once that comes
back. Okay?
[¶14.] Detective Schoepf sent the buccal swabs to the South Dakota Forensic
Lab for examination. The results of the DNA testing revealed that the DNA
recovered from Ghebre’s buccal swabs matched the single origin male DNA collected
from S.M.’s sexual assault kit.
[¶15.] A Minnehaha County grand jury indicted Ghebre on April 28, 2021, for
one count of rape in the third degree in violation of SDCL 22-22-1(4) and one count
of sexual contact with a person incapable of consenting in violation of SDCL 22-22-
7.2. On July 29, 2021, Ghebre moved to suppress the statements he made to law
enforcement during the execution of the search warrant on February 24, 2021,
arguing that the statements were obtained in violation of Miranda. The State
opposed the motion, arguing that because Ghebre was never in custody, the officers
were not required to read him the Miranda warnings.
[¶16.] The circuit court held a hearing on the motion on January 18, 2022.
Before the hearing, Ghebre’s counsel contacted the court and State, expressing his
desire to supplement his suppression motion with a Fourteenth Amendment Due
Process argument alleging that Ghebre’s statements were involuntarily made. The
court and the parties agreed to hold the hearing as scheduled, but the court allowed
two weeks for supplemental briefing on the voluntariness issue.
[¶17.] At the hearing, Detective Schoepf testified about his December phone
call with Ghebre and the circumstances of the search warrant’s execution. During
his testimony, Detective Schoepf acknowledged that he had trouble understanding
Ghebre during the initial phone call, and it had taken him a few tries to understand
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Ghebre clearly enough to correctly spell his name. Detective Schoepf testified that
his difficulty stemmed from Ghebre’s thick accent, and Ghebre was very quiet on
the phone. He further testified that the phone call did not leave him with the
impression that Ghebre struggled to understand him.
[¶18.] Regarding his execution of the search warrant, Detective Schoepf
testified that Ghebre was unresponsive to several questions that he had asked him
and seemed confused at certain times during the stop. Detective Schoepf agreed
that during their conversation, Ghebre had trouble articulating the nature of the
sexual problem he claimed to suffer. Detective Schoepf also admitted that he was
trying to elicit some immediate answers about the alleged offense but stated that
this conversation occurred only after he told Ghebre that he was free to leave. He
acknowledged that after Ghebre left the scene, he told Officer Christensen, “Well, I
like that,” in regard to getting the interaction on tape.
[¶19.] After considering the post-hearing briefs filed by the parties
addressing Ghebre’s due process argument, the circuit court held that Ghebre’s
statements to Detective Schoepf were involuntary. The court found that:
Detective Schoepf ignored the obvious language barrier between
himself and defendant; bodycam video footage demonstrates
that Defendant was confused and largely unresponsive
throughout the entirety of the encounter; Detective Schoepf
admitted at the suppression hearing that there were difficulties
in communicating with Defendant and that he was not sure how
much Defendant understood; Detective Schoepf did not attempt
to call an interpreter to assist Defendant, even after telling
Defendant he “looked confused”; Officer Christensen kept the
passenger door ajar but stood directly outside the door so
Defendant could not exit. Based on Defendant’s clear difficulty
in understanding the officers, the Court is not persuaded that
Defendant fully understood his rights at that time.
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Although the court found that Ghebre was not “in custody” for purposes of Miranda,
the court determined that Ghebre’s statements to Detective Schoepf were
involuntary under the Due Process Clause of the Fourteenth Amendment.
Therefore, the court granted Ghebre’s motion to suppress and filed an order on May
13, 2022, suppressing Ghebre’s February 24, 2021 statements to law enforcement.
[¶20.] The State petitioned for intermediate appeal, which we granted. On
appeal, the State raises one issue, arguing that the circuit court erred by concluding
that Ghebre’s statements were involuntarily made under the Due Process Clause of
the Fourteenth Amendment.
Standard of Review
[¶21.] “The Due Process Clause of the Fourteenth Amendment prohibits the
admission into evidence, over objection, of a confession obtained through coercion.”
State v. Holman, 2006 S.D. 82, ¶ 14, 721 N.W.2d 452, 456 (citing Payne v. Arkansas,
356 U.S. 560, 568, 78 S. Ct. 844, 850, 2 L. Ed. 2d 975 (1958)). Whether a statement
was voluntarily made is a “legal question, requiring independent judicial review.”
State v. Morato, 2000 S.D. 149, ¶ 11, 619 N.W.2d 655, 659. We “review[] the entire
record and make[] an independent determination of voluntariness.” Holman, 2006
S.D. 82, ¶ 13, 721 N.W.2d at 456. “In addressing a Due Process voluntariness
challenge, the circumstances surrounding an interrogation are factual questions
meriting deferential review.” Morato, 2000 S.D. 149, ¶ 11, 619 N.W.2d at 659. It is
the State’s burden to show by a preponderance of the evidence that a defendant’s
statement was voluntarily made. State v. Fisher, 2011 S.D. 74, ¶ 18, 805 N.W.2d
571, 575.
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Analysis and Decision
[¶22.] The State argues that the circuit court erred by concluding Ghebre’s
statements were involuntary. The State contends that the actions of Officer
Christensen and Detective Schoepf were free from overt and implicit deception,
coercion, manipulation, or improper influence. The State further asserts that when
weighed against Ghebre’s capacity to resist police pressure, law enforcement’s
conduct did not overbear Ghebre’s will to make an autonomous, unconstrained
statement.
[¶23.] Statements obtained involuntarily through improper police pressure or
by overbearing a defendant’s will violate the Due Process Clause of the Fourteenth
Amendment. Arizona v. Fulminante, 499 U.S. 279, 285, 111 S. Ct. 1246, 1251, 113
L. Ed. 2d 302 (1991). “The test for determining [the] voluntariness of incriminating
statements or confessions requires the [circuit] court to consider the effect [that] the
totality of the circumstances had upon the will of the defendant and whether that
will was overborne.” State v. Gesinger, 1997 S.D. 6, ¶ 12, 559 N.W.2d 549, 550
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854(1973)). To determine whether a defendant’s will was overborne, we consider the
following:
the defendant's age; level of education and intelligence; the
presence or absence of any advice to the defendant on
constitutional rights; the length of detention; the repeated and
prolonged nature of the questioning; the use of psychological
pressure or physical punishment, such as deprivation of food or
sleep; and the defendant's prior experience with law
enforcement officers and the courts.
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State v. Wright, 2009 S.D. 51, ¶ 33, 768 N.W.2d 512, 524 (citation omitted). These
circumstances are considered in light of any coercive or deceptive law enforcement
conduct. State v. Darby, 1996 S.D. 127, ¶ 31, 556 N.W.2d 311, 320; see Wright, 2009
S.D. 51, ¶ 33, 768 N.W.2d at 524. However, even the existence of a police ruse does
not make a statement per se involuntary. Darby, 1996 S.D. 127, ¶ 31, 556 N.W.2d
at 320. “[T]he police may use some psychological tactics in interrogating a suspect,”
so long as the confession is voluntary, meaning it is “a product of the suspects own
balancing of competing considerations.” Id.[¶24.] The question we must answer is not whether the conduct of the officers
was the “but for cause” of a defendant’s statements, but whether the officer’s
conduct was “so manipulative or coercive” that it deprived the defendant of his or
her “ability to make an unconstrained, autonomous decision” to make statements to
the officer. State v. Tuttle, 2002 S.D. 94, ¶ 23, n.7, 650 N.W.2d 20, 31, n.7 (citation
omitted); State v. Owens, 2002 S.D. 42, ¶ 52, 643 N.W.2d 735, 750.
[¶25.] Based on the record before us and the lack of improper police pressure
surrounding Ghebre’s encounter with law enforcement, we conclude that the
officers’ conduct and the circumstances of the encounter did not overpower Ghebre’s
free will. “[A] statement may be considered involuntary if it is ‘extracted by any
sorts of threats or violence, [or] obtained by any direct or implied promises, however
slight, [or] by the exertion of any improper influence.’” Beaty v. Schriro, 509 F.3d
994, 999 (9th Cir. 2007) (second and third alterations in original) (quoting Hutto v.
Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 203, 50 L. Ed. 2d 194, 197 (1976) (per curiam)).
The circumstances of Ghebre’s encounter do not indicate improper police pressure.
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He was not detained for a long period of time nor was he exposed to prolonged or
repeated questioning. Rather, the video of Ghebre’s interaction with law
enforcement indicates that it lasted no longer than nine and a half minutes, five of
which Ghebre spent sitting unrestrained in the front passenger seat of Detective
Schoepf’s unmarked duty vehicle. And during these five minutes Ghebre spoke
with Detective Schoepf for only two minutes—the majority of which occurred after
the Detective handed Ghebre his license and told him he was “free to go.”
[¶26.] Furthermore, upon consideration of Ghebre’s personal circumstances,
we are not persuaded that his will was overborne. At the time of the stop, Ghebre
was 40 years old and had lived in America for 12 years. The record reflects that
Ghebre maintained gainful employment. Furthermore, this was not his first
encounter with law enforcement. In the four years leading up to the search
warrant, Ghebre had two police encounters, including a DWI charge, where he was
required to appear in court.
[¶27.] Ghebre, however, contends that Detective Schoepf’s decision to
question him without an interpreter was a subtle and coercive tactic targeted to
capitalize on his linguistic vulnerability and overbear his self-will in order to elicit
inculpatory statements. A defendant’s ability to understand, process, and
communicate information is relevant to an individual’s susceptibility to police
pressure. Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520, 93 L. Ed. 2d
473 (1986). However, the existence of some vulnerability or condition making one
more susceptible to police pressure does not “itself and apart from its relation to
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The defendant’s susceptibility becomes relevant when considering the “quantum of
coercion” necessary to overbear the defendant’s self-will. Hill v. Anderson, 300 F.3d
679, 682 (6th Cir. 2002).
[¶28.] Much of Ghebre’s subtle coercion argument rests on Detective
Schoepf’s testimony that Ghebre had a “thick accent” as evidence that Ghebre had
trouble understanding and processing English. But without some evidence, which
the record does not contain, establishing that Ghebre had trouble understanding
English, we do not equate having an accent with being unable to comprehend a
nonnative language. While it may have been difficult for Detective Schoepf to
understand Ghebre during their initial phone call, this does not mean Ghebre was
unable to comprehend or process the nature of his interaction with Detective
Schoepf. At no point during their interaction did Ghebre tell Detective Schoepf that
he did not understand English or request clarification of a question.
[¶29.] When reaching its conclusion, the circuit court placed undue weight on
Ghebre’s unresponsiveness during the police encounter. Ghebre’s decision to
remain silent is not necessarily evidence of an inability to comprehend or process
information. Rather, remaining silent in the face of police questioning could reflect
a voluntary choice and a nuanced understanding of the situation.
[¶30.] Further, it appears that the court improperly conflated the Fourteenth
Amendment due process analysis with the requirements of Miranda in concluding
that it was “not persuaded that [Ghebre] fully understood his rights at that time.”
Although Ghebre was not Mirandized before Detective Schoepf’s questions, which is
considered under the totality of the circumstances, there was no obligation for law
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enforcement to ensure that Ghebre knew or understood his rights before
questioning him in a noncustodial setting. See Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966) (holding that such procedural
safeguards are only required before custodial interrogation). “[O]nly ‘[i]ndividuals
subject to a custodial interrogation are entitled to Miranda warnings.’” State v.
Hopkins, 2017 S.D. 13, ¶ 6, 893 N.W.2d 536, 539 (second alteration in original)
(citation omitted). And, here, the circuit court determined that Ghebre was not in
custody for purposes of Miranda—a decision Ghebre does not contest on appeal.
Therefore, Detective Schoepf had no obligation to inform Ghebre of his
constitutional rights, let alone ensure he understood them. See Berkemer v.
McCarty, 468 U.S. 420, 437–38, 104 S. Ct. 3138, 3149, 82 L. Ed. 2d 317, 333 (1984).
[¶31.] In summary, based on our review of the totality of the circumstances,
we determine the circuit court erred in concluding that Ghebre’s statements to
Detective Schoepf were involuntarily made. Ghebre’s personal circumstances, as
set forth in the record, do not support the court’s conclusion that Ghebre’s will was
overborne: Ghebre was 40 years old, gainfully employed, had lived in the country for
12 years, and had prior experience with law enforcement.
[¶32.] Additionally, before getting into the patrol car, Ghebre demonstrated
comprehension and understanding of the English language by responding
appropriately to the Officers’ questions and commands. Once he was seated in the
car and presented with the search warrant, Ghebre remained silent during
Detective Schoepf’s questions and refused to sign the search warrant inventory
sheet.
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[¶33.] It was not until after Detective Schoepf handed Ghebre his driver’s
license and told him that he was free to leave that Ghebre started to talk. Each of
his statements that followed were of an exculpatory nature. First, he claimed not to
know S.M., and second, he stated that he had sexual problems, meaning that he
could not get an erection. These statements illustrate that Ghebre understood the
allegations against him and could formulate a response to maintain his innocence.
[¶34.] In addition to Ghebre’s unilateral decision to speak with Detective
Schoepf, the lack of “coercive police activity” is determinative here. Connelly, 479
U.S. at 164, 107 S. Ct. at 522. The record contains no indication that law
enforcement’s conduct had the effect of overbearing Ghebre’s will. Rather, Ghebre’s
statements are evidence that he balanced “competing considerations” available to
him and elected to speak to the officer.
[¶35.] Accordingly, we reverse and remand the circuit court’s order granting
Ghebre’s motion to suppress for proceedings consistent with this opinion.
[¶36.] JENSEN, Chief Justice, and SALTER and DEVANEY, Justices,
concur.
[¶37.] MYREN, Justice, dissents without a writing.
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