STATE of South Dakota, Plaintiff and Appellee, v. Fredrick D. BRASSFIELD, Defendant and Appellant, 615 N.W.2d 628

GILBERTSON, Justice (on reassignment). [¶ 1.] Fredrick Brassfield appeals a suspended imposition of sentence for possession of a controlled weapon. We affirm. FACTS [¶ 2.] On March 13, 1999, Brassfield was stopped for speeding by a Rapid City police officer who was accompanied by a police cadet. After the stop, the officer asked Brassfield for his driver’s license, proof of insurance and vehicle registration. Brassfield produced his registration and an expired insurance card, but no driver’s license. Brassfield also gave the officer his name and date of birth.

With this information, the officer was able to confirm through dispatch that Brassfield’s driver’s license had been suspended. The officer then placed Brassfield under arrest for driving with a suspended license and lack of proof of insurance. After the arrest, the officer and cadet searched Brassfield’s vehicle and, under the front passenger seat, found a .410 shotgun with a barrel length of approximately twelve inches. [¶3.] The State subsequently filed an information charging Brassfield with one count of possession of a controlled weapon.

Brassfield’s counsel moved to suppress the evidence seized after his arrest (ie., the shotgun) for violation of his Fourth Amendment rights. A suppression hearing was held and the trial court later entered findings of fact, conclusions of law and an order denying suppression on the basis that Brassfield’s car was validly searched incident to his arrest. After a court trial, Brassfield was found guilty of possession of a controlled weapon.

On August 26, 1999, the trial court entered an amended judgment suspending the imposition of Brassfield’s sentence and placing him on probation for two years under various terms and conditions. Brassfield appeals. ISSUE 1 [¶ 4.] Does this Court have jurisdiction of this appeal? [¶ 5.] The State argues this Court lacks jurisdiction of this appeal because it is not taken from a final judgment appealable by right.

Although Brassfield resists this argument on the basis that the State failed to file a notice of review contesting jurisdiction, it is well settled that, “ ‘[a]n attempted appeal from an order from which no appeal lies is a nullity and confers no jurisdiction on this court, except to dismiss it.’ ” State v. Phipps, 406 N.W.2d 146, 148 (S.D.1987) (citations omitted)(quoting Oahe Enterprises, Incorporated v. Golden, 88 S.D. 296, 299, 218 N.W.2d 485, 487 (1974)). Further, “ ‘this court is required sua sponte to take note of jurisdictional deficiencies!.]’ ” Phipps, 406 N.W.2d at 148 (quoting State v.

Huftile, 367 N.W.2d 193, 195 (S.D.1985)). [¶ 6.] There is some support for the State’s jurisdictional argument. In criminal matters, SDCL 23A-32-2 permits, “[a]n appeal to the Supreme Court ... by the defendant from [a] final judgment of conviction.” “As a general rule, imposition of sentence is required for finality and ... appealability of a judgment of conviction.” 4 Am.Jur.2d Appellate Review § 224 (1995). However, there is a significant split of authority on this view. See John H. Derrick, Annotation, Appealability of Order Suspending Imposition or Execution of Sentence, 51 A.L.R.4th 939 (1987).

The United States Supreme Court reached a contrary conclusion in Korematsu v. United States, 319 U.S. 432, 434-36, 63 S.Ct. 1124, 1125-26, 87 L.Ed. 1497, 1498-99 (1943), reasoning as follows: In [.Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204], we held that the appeal was proper where the sentence was imposed and suspended, and the defendant was placed on probation. The probationary surveillance is the same whether or not sentence is imposed. In either case, the probation order follows a finding of guilt or a plea of nolo contendere.

Thereafter, the defendant must abide by the orders of the court. He must obey the terms and conditions imposed upon him, or subject himself to a possible revocation or modification of his probation; and under some circumstances he may, during the probationary period, be.required to pay a fine, or make reparation to aggrieved parties, or provide for the support of persons for whom he is legally responsible.

He is under the “supervision” of the probation officer whose duty it is to make reports to the court concerning his activities, and at “any time within the probation period the probation officer may arrest the probationer wherever found, without a warrant, or the court which has granted the probation may issue a warrant for his arrest.” These and other incidents of probation emphasize that a probation order is “an authorized mode of mild and ambulatory punishment, the probation being intended as a reforming discipline.” The difference to the probationer between imposition of sentence followed by probation, as in the Berman case, and suspension of the imposition of sentence, as in the instant case, is one of trifling degree ...

In either case, the liberty of an individual judicially determined to have committed an offense is abridged in the public interest. “In criminal cases, as well as civil, the judgment is final for the purpose of appeal ‘when it terminates the litigation ... on the merits’ and ‘leaves nothing to be done but to enforce by execution what has been determined.’ ” Here litigation “on the merits” of the charge against the defendant has not only ended in a determination of guilt, but it has been followed by the institution of the disciplinary measures which the court has determined to be necessary for the protection of the public [ie., probation].

These considerations lead us to conclude that the order [suspending the imposition of sentence] is final and appealable. [¶ 7.] We find the Supreme Court’s reasoning in Korematsu persuasive. In South Dakota, as in the federal system, the probationary surveillance is similar whether or not a sentence is imposed. See SDCL 23A-27-12.1 (court services supervision of probationers); SDCL 23A-27-21 (court services duty to report probationer’s failure to meet conditions of probation); SDCL 23A-27-19 (board of pardons and paroles supervision of person on suspended sentence).

Under either a suspended imposition or execution of sentence, the probation order follows a finding or admission of guilt. See SDCL 23A-27-13 (court may suspend imposition of sentence upon receipt of verdict or plea of guilty); SDCL 23A-27-18 (court may suspend execution of sentence upon a conviction). Thereafter, the defendant must abide by the orders of the court and the terms and conditions imposed upon his probation. See SDCL 23A-27-12.1, 23A-27-13, 23A-27-18, 23A-27-18.3, 23A-27-19, 23A-27-21.

Violation of these terms and conditions subjects the defendant to a possible revocation or modification of probation. See SDCL 23A-27-13, 23A-27-19, 23A-27-20.1, 23A-27-21. Under some circumstances, a defendant may, during the probationary period, be required to pay a fine or to make restitution to his victims. See SDCL 23A-27-18.3(l) & (3). He may even be required to face incarceration in a county jail or in the state penitentiary for limited periods of time. See SDCL 23A-27-18.1. He is under the “supervision” of a court services officer whose duty it is to make reports to the court concerning his activities.

See SDCL 23A-27-12.1, 23A-27-21. Under certain circumstances, including the prevention of escape or the enforcement of discipline, the court services officer may, without order or warrant, detain the probationer and place him in custody. See SDCL 23A-27-21. [¶ 8.] As in the federal system, these incidents of probation make it clear that, despite its relatively low level of intrusiveness, it remains an authorized mode of punishment that abridges the liberty of the defendant.

Thus, like the Supreme Court in Korematsu, we conclude that an order suspending the imposition of sentence should be considered a final and appealable order under SDCL 23A-32-2. To the extent our holding in State v. Iverson, 269 N.W.2d 390, 393 (S.D.1978) is contrary, it is overruled. ISSUE 2 [¶ 9.] Did the trial court err in denying Brassfield’s suppression motion? [¶ 10.] This Court recently modified its standards for reviewing suppression issues: We review fact findings 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. Whether police had a “lawful basis to conduct a warrantless search is reviewed as a question of law.” State v. Hirning, 1999 SD 53, ¶ 8, 592 N.W.2d 600, 603. (citations omitted). [¶ 11.] “The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted without the prior approval of a judge or magistrate are per se unreasonable, subject to only a few specific exceptions.” State v.

Peterson, 407 N.W.2d 221, 223 (S.D.1987). One of these exceptions is a search incident to arrest. “When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile[.]” Id at 224 (emphasis added). The distinction between a custodial and non-custodial arrest was succinctly explained by the Colorado Supreme Court in People v.

Bland, 884 P.2d 312, 316, n.6 (Colo. 1994): A “custodial” arrest is made for the purpose of taking, the arrestee to the stationhouse for booking procedures and in order to file criminal charges. A “non-custodial” arrest, however, involves ... only a temporary detention for the purpose of issuing a notice or summons to the arrestee. [¶ 12.] The trial court denied suppression on the basis that Brassfield’s car was validly searched incident to his arrest.

Brassfield argues there was not a valid search incident to ’ his arrest because SDCL 32-33-2 prohibited his custodial arrest under the circumstances of this case. [¶ 13.] SDCL 32-33-2 provides in part: Except as otherwise specifically provided, whenever a person is arrested for a violation of any provision of this title [i.e., apprehension and prosecution of traffic violators] punishable as a misdemeanor, the arresting officer shall take the name and address of the person and the license number of his motor vehicle and driver’s license and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in the summons or notice.

The time shall be at least five days after the arrest unless the person arrested demands an earlier hearing. The arresting officer shall upon the person’s writ ten promise to appear, release him from custody, (emphasis added). [¶ 14.] Statutes “ ‘must be given their plain meaning and effect.’ ” State v. Cameron, 1999 SD 70, ¶ 17, 596 N.W.2d 49, 53 (quoting Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539).

SDCL 32-33-2 plainly requires the release of a person arrested for violating title 32 after the arresting officer has taken his name and address and the number of his vehicle license and driver’s license. Brassfield was arrested for a violation of SDCL 32-12-65(2), an offense in title 32 of the South Dakota Code. During the course of the arrest, the officer took Brassfield’s name and address and the number of his vehicle license and driver’s license.

Thus, Brassfield argues all requirements for his release under SDCL 32-33-2 were met and that the officer should have issued him a summons for a future court appearance and released him on his written promise to appear. Instead, Brassfield contends the officer took him into custody and violated the express terms of SDCL 32-33-2. [¶ 15.] Under SDCL 32-33-2, Brassfield had to provide the officer his name and address, the license number of the motor vehicle he was driving and his driver’s license number before he could be released on his promise to appear.

While Brassfield provided the number of his driver’s license, he did not provide what SDCL 32-33-2 requires, the number of a valid driver’s license authorizing him to drive a motor vehicle upon South Dakota highways. SDCL 32-33-2 does not recognize the number of an invalid driver’s license as compliance with the statute. For purposes of compliance with this statute, the number of an expired, suspended, revoked, altered or forged driver’s license is the same as no driver’s license number. Brassfield was not authorized to drive his vehicle. SDCL 32-12-22.

Here, the officer would have violated his duty as a law enforcement officer had he allowed Brassfield to sign a promise to appear and simply drive away. To hold otherwise would create an absurd and unreasonable result that the legislature did not intend. See Dahn, supra. See also State v. Vocu, 2000 SD 109, ¶ 10, 615 N.W.2d 623, 625. [¶ 16.] Since SDCL 32-33-2 did not prohibit Brassfield’s custodial arrest under the circumstances of this case, the officers had authority to take him into custody and to conduct a warrantless search of his vehicle incident to his arrest. Peterson, supra.

It follows that the trial court did not err in denying suppression of the evidence seized as a result of that search. [¶ 17.] Affirmed. [¶ 18.] MILLER, Chief Justice, and KONENKAMP, Justice, concur. [¶ 19.] AMUNDSON, Justice, concurs in part and dissents in part. [¶ 20.] SABERS, Justice, dissents. .

SDCL 22-14-6 provides in part that, "[a]ny person who knowingly possesses a controlled weapon is guilty of a Class 6 felony.” SDCL 22-1-2(8) defines a "controlled weapon” as “a firearm silencer, machine gun, or short shotgun, as those terms are defined in subdivisions (17), (23), and (46)[.]” SDCL 22-1-2(46) defines a "short shotgun” as "a shotgun having a barrel less than eighteen inches long or an overall length of less than twenty-six inches[J” . Charges relating to Brassfield’s driving with a suspended license and lack of proof of insurance were ultimately dismissed. .

SDCL 32-12-65(2) provides: Any person who drives a motor vehicle on any public highway of this state at a time when his privilege is:

(2) Suspended is guilty of a Class 2 misdemeanor!)]