State v. Pursley

#23951-r-DG

2007 SD 22

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

STEVEN R. PURSLEY, Defendant and Appellee.

* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *
HONORABLE MERTON B. TICE, JR.
Judge

* * * *

LAWRENCE E. LONG
Attorney General

KATIE L. HANSEN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellant.

MICHAEL STONEFIELD
Office of the Public Defender
for Pennington County
Rapid City, South Dakota Attorneys for defendant
and appellee.

* * * *
ARGUED JANUARY 10, 2007

OPINION FILED 02/28/07
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GILBERTSON, Chief Justice

[¶1.] While on parole for a prior conviction, Steven R. Pursley (Pursley) was

charged with possession of a controlled substance, in violation of SDCL 22-42-5, and

possession of marijuana, in violation of SDCL 22-42-6. Pursley moved to suppress

evidence of possession arguing that it had been illegally obtained through a search

without reasonable suspicion in violation of the Fourth Amendment to the United

States Constitution, Article IV, section 11 of the South Dakota Constitution and in

violation of the provisions of his parole agreement with the South Dakota

Department of Corrections, Board of Pardons and Paroles (the Board). On

December 20, 2005, the South Dakota Seventh Judicial Circuit issued its decision

granting Pursley’s motion. On January 12, 2006, the State filed a petition with this

Court seeking permission to file an intermediate appeal. On February 24, 2006,

this Court issued an order granting the appeal. We reverse.

FACTS AND PROCEDURE

[¶2.] Pursley was incarcerated in the South Dakota State Penitentiary

following a November 2003 conviction for the offense of accessory to first degree

manslaughter. On November 18, 2004, Pursley was granted parole by the Board.

Pursley’s parole was conditioned upon the provisions of the Supervision Agreement

(the Agreement) that he entered into with the Board. Pursley signed the

Agreement prior to his release on October 15, 2004, and again on the day that his

parole commenced, November 18, 2004. In agreeing to these provisions, Pursley

acknowledged that his parole was subject to the Board’s supervision and that it had

the authority to revoke his parole for any violations thereof. Parole Agent Brian

Robb (Robb) was assigned to supervise Pursley.
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[¶3.] As part of the Agreement, Pursley was required to abstain from the

use or possession of alcohol and illegal drugs. The Agreement included a search and

seizure provision prefaced on a parole agent’s or law enforcement’s “reasonable

suspicion” that Pursley was in violation of its terms. 1 Pursley was also subject to

“Special Limitations” as provided under paragraph 13 of the Agreement. These

included his agreement to participate and cooperate as directed in alcohol and drug

treatment and random urinalysis (UA) and preliminary breath tests (PBT) as

provided under paragraph 13e. 2 When Pursley signed the Agreement his signature

was directly below an acknowledgement that he had read and understood the

Agreement.

1. Specifically, paragraph 5, “SEARCH and SEIZURE” provided:

I will submit my person, property, place of residence, vehicle and
personal effects to search at any time, with or without a search
warrant, whenever reasonable suspicion is determined by a parole
agent or law enforcement.

2. The introductory language of paragraph 13 “SPECIAL LIMITATIONS”
stated:

I will faithfully comply with special limitations and conditions
imposed by the Court, the Board of Pardons and Paroles, and my
Parole Agent as follows[.]

Following this introductory statement, the paragraph included several
checkbox provisions. Subparagraph “e” was a checkbox provision included in
Pursley’s supervision agreement. The introductory language of
subparagraph “e” stated:

I will participate, cooperate and complete any programs as directed[.]

Additional checkboxes followed this statement. Programs that Pursley
agreed to under subparagraph “e” included “Alcohol/Drug Treatement
[sic]/Aftercare/AA/NA” and “Random UA’s and PBT’s.”

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[¶4.] Robb’s supervision program included approximately two scheduled

meetings per month in his office with Pursley as well as unscheduled visits to

Pursley’s residence. Through discussions with Pursley during these meetings, Robb

became aware that Pursley had problems with illegal drug use prior to his

incarceration. Robb directed Pursley to participate in a substance abuse aftercare

program as provided for in the Agreement under the “Special Limitations” of

paragraph 13e. Pursley’s participation in this program was less than satisfactory.

As a consequence, on one occasion Robb had him incarcerated for two days. During

several of the office visits, Robb requested Pursley to submit to UAs. Pursley

complied with the requests and initially the results of these tests were negative for

evidence of drug use.

[¶5.] On or before March 11, 2005, Robb received an anonymous telephone

call from a person who stated that Pursley had been using illegal drugs. As a result

of this call and Pursley’s admission of prior drug use, Robb contacted Pursley and

asked him to submit to a UA. On March 11, 2005, Pursley came to Robb’s office

where the sample was collected. The results of this UA were negative.

[¶6.] Still concerned Pursley might be violating the provisions of the

Agreement, Robb again asked Pursley to submit to a UA at their scheduled meeting

on April 1, 2005. The results from this UA were positive for methamphetamine.

Robb discussed these results with Pursley during their scheduled meeting on April

18, 2005. Pursley admitted to Robb that he had used methamphetamine. Robb

asked Pursley to submit to another UA at this meeting. Robb performed an on-site

analysis that indicated positive for methamphetamine and marijuana. Pursley then

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admitted to using marijuana and methamphetamine again. Pursley’s parole was

revoked and he was taken into custody by Robb at that time.

[¶7.] Robb provided the results of the UAs to the Pennington County State’s

Attorney. Pursley was subsequently indicted for violation of SDCL 22-42-5,

possession of a controlled substance. The state’s attorney also charged him with

being a habitual criminal.

[¶8.] Pursley filed a motion with the circuit court to suppress evidence

relating to the new charges 3 alleging that his rights under the Fourth Amendment

to the United States Constitution and Article IV, section 11 of the South Dakota

Constitution had been violated when he was required to submit to a UA on April 1,

2005, absent reasonable suspicion. Pursley also argued in his brief in support of the

motion that requiring him to submit to a UA without reasonable suspicion was a

violation of the provisions of the Agreement.

[¶9.] Following a hearing the circuit court issued its written decision,

incorporated into its findings of fact and conclusions of law, granting Pursley’s

motion. This Court granted a request by the State for permission to file an

intermediate appeal of the circuit court’s decision to suppress. The State raises the

following issues on appeal:

1. Whether Parole Agent Robb needed reasonable suspicion
to request Pursley to submit to a UA.

3. Citing Pennsylvania Board of Probation and Parole v. Scott, 524 US 357, 368,
118 SCt 2014, 2022, 141 LEd2d 344 (1998) (holding that the exclusionary
rule does not apply to parole revocation hearings), Pursley conceded that his
parole was not unlawfully revoked. Hence, Pursley’s parole revocation is not
an issue before this Court.

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2. If required, whether Robb had reasonable suspicion.

STANDARD OF REVIEW

[¶10.] Interpretation of a contract, such as a parole agreement, is a question

of law, reviewed de novo. Prunty Const., Inc. v. City of Canistota, 2004 SD 78, ¶10,

682 NW2d 749, 753 (citing Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶8, 676

NW2d 390, 393). This Court gives no deference to a circuit court’s conclusions of

law and applies the de novo standard. State v. Schouten, 2005 SD 122, ¶9, 707

NW2d 820, 822-23 (citing City of Deadwood v. Summit, Inc., 2000 SD 29, ¶9, 607

NW2d 22, 25). A circuit court’s findings of fact are reviewed under the clearly

erroneous standard. State v. Aaberg, 2006 SD 58, ¶8, 718 NW2d 598, 600 (citing

State v. Mattson, 2005 SD 71, ¶14, 698 NW2d 538, 544-45 (citing State v. De La

Rosa, 2003 SD 18, ¶5, 657 NW2d 683, 685)).

ANALYSIS AND DECISION

[¶11.] Whether Parole Agent Robb needed reasonable suspicion
to request Pursley to submit to a UA.

[¶12.] Pursley concedes that the United States Supreme Court’s decision in

Samson v. California, __US__, 126 SCt 2193, 165 LEd2d 250 (2006), now precludes

the Fourth Amendment argument he successfully made in support of his motion to

suppress. 4 Pursley’s argument, that the circuit court’s suppression order should be

affirmed, now rests on his assertion that general principles of contract construction

4. In fairness to the circuit court, Samson had not been decided at the time the
circuit court made its decision on the Fourth Amendment argument.

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apply to the interpretation of the Agreement. For purposes of this contractual

analysis, we must assume that reasonable suspicion did not exist.

[¶13.] Pursley cites Ziegler Furniture and Funeral Home, Inc. v. Cicmanec,

2006 SD 6, ¶25, 709 NW2d 350, 357; Campion v. Parkview Apartments, 1999 SD 10,

¶34, 588 NW2d 897, 903; and, Hicks v. Brookings Mall, Inc., 353 NW2d 54, 56 (SD

1984), for the contract principle that ambiguities should be construed against the

drafter. The circuit court concluded and Pursley argues that when read together,

paragraphs 5 and 13e of the Agreement are ambiguous or conflicting and therefore

should be construed in his favor to require that there be reasonable suspicion before

he can be requested to submit a UA. We disagree with the conclusion that the

Agreement is ambiguous as to these provisions.

In interpreting a contract, we seek to ascertain and give
effect to the intention of the parties; at the same time, to
find the intention of the parties, we rely on the contract
language they actually used. . . . It is a fundamental rule of
contract interpretation that the entire contract and all its
provisions must be given meaning if that can be accomplished
consistently and reasonably. However, when provisions conflict
and full weight cannot be given to each, “the more specific clauses
are deemed to reflect the parties [sic] intentions-a specific
provision controls a general one.”

Prunty Const., Inc., 2004 SD 78, ¶16, 682 NW2d at 756 (quoting Carstensen

Contracting, Inc. v. Mid-Dakota Rural Water Sys., Inc., 2002 SD 136, ¶8, 653 NW2d

875, 877) (internal citations omitted).

[¶14.] We conclude that a fair reading of the Agreement reveals that

paragraph 5 is a general provision requiring reasonable suspicion for all parolee

searches and seizures. The “Special Limitations” provisions of paragraph 13e list

UAs and PBTs as specific exceptions to the reasonable suspicion requirement.

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Paragraph 13e unambiguously required Pursley to submit to UAs and PBTs as the

checkbox provision covering those tests is marked and follows the clear,

introductory language that states, “I will participate, cooperate and complete any

programs as directed[.]” Moreover the checkbox provision expressly prefaces the

tests as being random UAs and PBTs.

[¶15.] Random is defined as “[l]acking aim or method, purposeless, not

uniform, applies to that which occurs or is done without careful choice, aim, or

plan.” Webster’s New World College Dictionary 1187 (4th ed 2001). This is clearly

in contrast to reasonable suspicion that Black’s Law Dictionary defines as “[a]

particularized and objective basis, supported by specific and articulable facts, for

suspecting a person of criminal activity.” Id. at 1273 (7th ed 1999). Under the

provisions of the Agreement, requiring the parole agent to show reasonable

suspicion before being able to request a random UA would create an inconsistent

result.

[¶16.] The document in dispute appears to be one that is used on a statewide

basis by the Department of Corrections. Thus, it can be tailored to meet the needs

of an individual parolee as determined by his or her parole agent. Since Pursley

had a history of problems with drugs it is logical to conclude that he would have to

agree to random UAs and PBTs as special conditions of his parole. Conversely, a

professional identity thief with no history of addiction problems would logically not

have the special conditions. The circuit court, consistent with Pursley’s assertion,

construed the provisions of paragraph 13e as de facto general provisions based on

Robb’s testimony that in eight years as a parole agent he had never seen an

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agreement that did not include random UA and PBT provisions. While this

individual agent may consider random testing uniformly appropriate based on his

type of caseload that does not make it a uniform statewide condition of parole for all

parolees. The circuit court’s interpretation also overlooks Robb’s further testimony

that the incidence of alcohol and drug-related criminal offenders is “very high.”

[¶17.] Not only was the document not ambiguous, Pursley conceded the same

on both occasions that he signed the agreement—first, while yet incarcerated and

then again the day he was paroled. Immediately above his signature are the words:

“I have read or have had read to me, fully understand and agree to abide by the

conditions of supervision.”

[¶18.] For all the forgoing reasons we reverse. 5

[¶19.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices,

concur.

5. Since we hold that the Agreement did not require a showing of reasonable
suspicion before Pursley could be requested to submit to a UA, we do not
need to address the second issue raised by the State on appeal.

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