Amy Poppinga

Harry Madsen’s fate lies in the hands of five South Dakota justices.

On Sept. 30, Madsen appealed his drug conviction – which stemmed from a 2007 incident – to the South Dakota Supreme Court.

Jack Der Hagopian, attorney for the defendant, argued that the state used illegally collected evidence against Madsen during his first trial. Der Hagopian said security guards at the Royal River Casino Hotel in Flandreau used trickery and tactics that violated the U.S. Constitution to gain access to his client’s hotel room. The guards found marijuana in the room upon entering.

“There wouldn’t be any question if this was done by actual police,” he said. “The officers [violated] part of the fourth amendment.”

The fourth amendment guards against unreasonable searches and seizures and states that judicially sanctioned search and arrest warrants must be supported by probable cause and be limited in scope.

Der Hagopian also said that even though the hotel guards were not actual police officers, they still should be held to certain standards.

“It doesn’t matter what you call them; it matters what they do.”

During Madsen’s bench trial, the judge ruled that the hotel security personnel were not working as agents of law enforcement and their method of entry into the hotel room did not invalidate the search.

Assistant Attorney General Ann C. Meyer represented the state in the appeal. During her arguments, Meyer said that the officers were “acting on their own initiative” to protect the assets of the tribe. The Attorney General’s office could not be reached for further comments.

Madsen was arrested last January at the casino after private security guards could smell raw marijuana coming from his hotel room. The guards gained entry to Madsen’s room by covering the peep hole, knocking on the door and asking to enter the room, claiming they were responding to a noise complaint.

Once the security officers entered the room, they found a marijuana bud on the floor. After handcuffing Madsen, the guards turned the case over to the Flandreau police, who then obtained a search warrant.

Flandreau police officers found illegal substances and drug paraphernalia in Madsen’s room and car. A urine sample confirmed that the defendant had cocaine, methamphetamine and marijuana in his system.

The Supreme Court Justices will issue a written opinion, which will be available on the South Dakota Unified Judicial System’s Web site.