*1 Sabers, J., opinion dissented and filed portunity prove that his theories are Amundson, Justice, Retired fails, If he workable. decertification joined. should follow. Amundson, Justice, Retired filed dis- senting opinion. AMUNDSON, Justice, Retired joins special writing. SD 18 Dakota,
STATE of South Plaintiff Appellant, ROSA, DE LA
Edward Defendant Appellee. Dakota,
State of Plaintiff South Appellant, Stocker,
Lane Appellee. Defendant and
Nos. 22232. South Dakota.
Argued Oct. 2002.
Reassigned Dec. 2002. Feb.
Decided *2 General, Long, Attorney
Lawrence E. Archer, Attorney Assistant Gener- Patricia Pierre, Dakota, al, Attorneys for South appellant. L. Law Thomson Morman
Candi Firm, Dakota, Sturgis, Attorney for South De appellee La Rosa. Haivala, Sturgis, A. Dako-
Robert South ta, Attorney appellee for Stocker. (on GILBERTSON, reas- Chief Justice signment). De La and Lane 1.] Edward Rosa charged arrested and
Stocker were Possession of Controlled Substance (SDCL 22-42-5) and of Two Possession (SDCL Marijuana 22- Ounces Less 42-6). Both filed Motions to Defendants during Suppress drug evidence seized August a traffic 2001. After evidentiary hearing, the trial court entered sup- granting its decision motions con- press. appeals claiming no a motorist stitutional violation occurs when briefly detained for few seconds be- yond the conclusion of canine sniff of the vehicle’s exterior. We trial agree and reverse the court.
FACTS Sturgis Motorcycle During the 7, 2001, De La Rosa was Rally, August Dakota for pulled Sturgis, over South signal. left turn De La failure use his Den- being Rosa identified himself as from officer, ver, arresting Colorado. The Marquardt, 18-year was an veteran Steve Highway the South Dakota Patrol on duty with his detection canine named the facts of this case result no confirming that Tess. After De La Rosa’s constitutional violation. We reverse the order, turn signal working grant circuit court’s of the Defendants’ requested that De La Rosa suppress motions to the evidence seized. *3 him accompany patrol to his car. The STANDARD OF REVIEW
trooper performed a radio check for war-
check,
rants and a license
which checks
In reviewing
[¶ 5.]
a motion to
clear,
eventually came back
and he issued
suppress
alleged
based on an
violation of a
warning
citation for
signal
violation.
constitutional right, we utilize the de novo
Rechtenbach,
standard. State v.
2002 SD
Trooper Marquardt
[¶ 3.]
testified that
¶96, 6,
State v.
once he returned
La De
Rosa’s documents
93, ¶8,
Hodges, 2001
SD
631 N.W.2d
citation,
and
warning
issued the
the traffic
209). Findings of fact are reviewed under
completed
but that he did not
clearly
erroneous
Hodges,
standard.
inform
LaDe
Rosa that he was free to go.
the truck. A purse search of Stocker’s DOES A CONSTITUTIONAL marijuana. revealed A further search of FOURTH AMENDMENT VIOLA- bag Stocker’s travel TION A back of the OCCUR WHEN MOTOR- pickup peyote revealed some and IST’S DETENTION AT A more VALID marijuana. Both Stocker and De La Rosa TRAFFIC STOP IS BRIEFLY EX- were arrested. TENDED A FOR CANINE SNIFF EXTERIOR, OF THE VEHICLE’S The [¶4.] State has conceded that at THE WHERE OFFICER THE HAS performed, the time the sniff test was De CANINE AT IMMEDI- DRUG HIS La Rosa’s traffic completed ATE DISPOSAL. particular- had no ized illegal drugs were in The Fourth [¶7.] Amendment Thus, vehicle. the sole protects citizens from unreasonable appeal is whether there is a violation of the by government searches and seizures offi Const, Fourth Amendment of the United States cials. US amend. IV. Police offi § Constitution generally and Article IV 11 of the are required cers to have a war South Dakota (collectively judicial Constitution rant by issued officer Amendment) Fourth probable when a de- cause in order to seize an individ motorist’s Ohio, tention at a valid traffic briefly property. Terry ual of his or her extended for a canine sniff of the vehicle’s 392 U.S.
exterior,
(1968) (additional
the officer has a
ca- L.Ed.2d
cita
omitted).
disposal.
However,
nine
his immediate
Based on tions
circumstances,
a totality
of the
we hold U.S. at
20 L.Ed.2d at
The
the United States
only prohibits unreason
to the constitution
police
the need to allow
recognized
has
able “search
seizures.” When
effectively
safely
perform
officers to
reasonableness
“constitutional standard” of
Terry line
of cases
their functions.
circum
totality
measured
person
subject
that when
establishes
stances,
governed
“we should not be
than
“investigative detention” rather
to an
artificial distinctions.”
arrest,
custodial
a full-blown
Amend
649. The touchstone of Fourth
need
have reasonable
ment constitutional
is “the reason
the probable
rather
than
the detention
in all the circumstances of the
ableness
typically required.
cause
*4
citi
particular governmental invasion of a
investigatory stop
An
at 1884-85.
S.Ct.
security.” Pennsylvania v.
personal
zen’s
if
the Fourth Amendment
the offi-
satisfies
Mimms,
106, 108-109,
434 U.S.
98 S.Ct.
by
supported
action is
reasonable
cer’s
(1977)
331,
(quot
54 L.Ed.2d
333
activity
that criminal
suspicion to believe
19,
1878,
ing Terry,
at
at
392 U.S.
88 S.Ct.
30,
“may
afoot.”
88
be
Lamont,
906);
20
at
v.
2001
L.Ed.2d
1884,
at
ever,
the time the sniff test was
Few
health
problems affecting the
De
conducted on the exterior of
La Rosa’s
population, particularly
welfare of our
vehicle,
the initial traffic
com-
young,
greater
our
cause
concern than
par-
no
plete,
escalating
had
the
use of controlled sub-
illegal
may
...
...
suspicion
many drugs
ticularized
there were
stances
[a]nd
result,
easily
vehicle.
drugs
the Defendant’s
concealed. As
Terry analysis may
[525
1. A
be of limited assistance
U.S.
S.Ct.
L.Ed.2d
(1998)]
in the resolution of the Fourth Amendment
to the issue of unreasonable
issue now before us. As the
Circuit
during a
stop,
detention
we believe
traffic
Appeals
in United
Court
reasoned
closely
exam-
would not
$404,905
F.3d 643
ine the time it takes a traffic officer to
(8thCir.1999), Terry
properly
stops are
done
itself,
complete
the traffic
consistent
persons
where
officers detain
given arresting
with the discretion
officers
activity
reasonable
that criminal
contexts. But
the officer de-
other
once
However,
afoot.
the Court concluded that a
depart
cides to let
routine traffic offender
investigative;
it is
is not
a form of
ticket, warning
with a
or an all clear—a
upon probable
penal
arrest based
cause that a
determined,
point in time
like other Fourth
violated,
generally
law has been
a violation
inquiries, by objective indicia
Amendment
arresting
presence
committed
of an officer's intent —then the Fourth
officer.
648. The Court concluded:
applies
any subsequent
limit
Applying
reasoning
of Berkemer v.
or search.
detention
McCarty,
[468 U.S.
Id. at 648.
Iowa,
(1984)]
L.Ed.2d 317
and Knowles v.
illegal
around the
obstacles to detection of
conduct
exterior of the Defendant’s ve-
be unmatched
other area of hicle. The
argue
dog
Defendants
law enforcement.
sniffing of
constitutionally
the vehicle is
Mendenhall,
United States
unreasonable based on an
of lack
1870, 1881, 64
suspicion.2
reasonable
(1980). (Powell, J., concurring.)
The lack of
suspi-
no
initial
[¶ 10.] There is
cion, however, does not automatically
stop of
Defendant’s
valid
vehicle was
equate with unconstitutional
conduct on
Trooper’s eyewitness
ob-
Here,
part
of the officer.3
servation that a traffic violation
oc-
had
vehicle,
dog
had the
hand
his
and the
(motor
curred.
ch 32-26
SDCL
vehicle
Defendants
sniffing
concede the
activity
road).
purposes
analy-
rules of the
For
was of a short duration. Had there been
us,
sis of the issue before
this also satisfied
“hits,”
delay
no
to the motorists would
the constitutional
standard of reasonable
have
been matter of seconds. We cannot
Vento,
stop.
for that
accept
premise
that while the State’s
158, 8,
3. Other cases have
suspicion.
the absence of individualized
similar intrusions made in the absence of a
particularized suspicion.
Hodges,
See
argument
lengthy
4.At oral
there was a
dis-
¶93, 17,
(officer
both must be ics, Place, 462 a contraband item.” constitutionally permissible. ble both 707, 103 For S.Ct. at 2637. these *6 reasons, a police officer makes a We conclude [¶ 13.] traffic and has at his immediate analysis Eighth Circuit Court of disposal the to employ canine resources 648, to Currency, F.3d at Appeals 182 uniquely investigate proce- this limited constitutionally persuasive. Instead of be dure, it does not violate the Fourth attempting separate to improperly to require the offend- distinct se trooper’s actions into two ing momentarily motorist’s be detention noted, correct previously quences, as a extended for canine sniff of the vehi- reasonableness measure of constitutional cle’s exterior. totality of the circumstances. Robinette, (citing F.3d at 646 v. 182 Ohio Moreover, 647-49. Id. at Cir 33, 417, 421, 117 136 S.Ct. 519 U.S. continued cuit has to- this constitu follow (1996)). L.Ed.2d 347 See also State . analysis tional and rationale United ¶15, 111, Kenyon, 2002 SD 651 N.W.2d Linkous, 716, States v. 721 Arvizu, 269, (citing 274 United States v. (8thCir.2002); v. Gregory, United 750-51, 266, 273, 744, 534 (8thCir.2002) (“[w]e 805, F.3d 810 302 have (2002)) (citing 740 United 151 L.Ed.2d held that a brief scan at the end of a Cortez, 417-18, 411, 449 101 States v. require traffic does not 621, 628-9 66 L.Ed.2d S.Ct. that “the suspicion.”). The basis is (1981)). probable need to cause did not have or support further fo- to even reasonable [¶ 14.] as ‘a the exterior inspection dog cused on the nature of the scan because sniff of Lamont, 92, ¶40, (citations omitted). 2001 631 N.W.2d 617 sis. SD
689
” Gregory,
a
a search.’
302
rights
vehicle is not
based upon an offi
(citations omitted).
F.3d at 810
by
cer’s checklist or a mad dash
one officer
dog
to
stopped
vehicle while the
Today’s opinion
[¶ 15.]
is consistent
other officer checks out the
pa
driver’s
with our recent
v. Bal-
Defendants,
pers.
any
or
driver for that
lard,
617
837. As we
fact, would be no more inconvenienced or
Ballard,
specifically
acknowledged
delayed by
dog
a
sniff in this case than
particular
“[w]hether
intrusion will fall
they
would
a roadblock check point
Terry exception
into the
will be decided
(Martinez-
for detecting illegal aliens
balancing
‘quality
of the intrusion on
Fuerte,
ficer in complete this case did not reasons, [¶ 18.] For the above we re- objectively and then foreclose verse the circuit court and remand for investigation by telling further further proceedings consistent with this that they motorists were free to leave. In opinion.
Ballard we concluded: KONENKAMP, presents ZINTER,
This case [¶ 19.] close Justices, when continued detention un- becomes concur. However, reasonable. we are concerned SABERS, Justice, [¶ 20.] message the dubious we send AMUNDSON, Justice, Retired dissent. public law enforcement officers and the
if procedure we allowing validate offi- MEIERHENRY, Justice, not *7 falsely cers to tell traffic they offenders having been a member of the Court at the only are free to go, purpose for the time this action was submitted to the eliciting agreement their uncoerced to Court, did not participate. search their automobiles. SABERS, (dissenting). Justice ¶ 134, 17,
2000 SD 617 at 842. N.W.2d I Trooper [¶ 22.] dissent because Mar- in holding Because our Ballard ex- was quardt’s subsequent search of De La pressly involving limited to facts a deten- Rosa’s suspi- vehicle without reasonable tion completion which followed the of a cion violated the Fourth Amendment. stop by traffic the officer’s announcement to the that motorists he or she was free to stop complete, [¶ 23.] Once a traffic leave, apply Ballard does not to a traffic police officer must allow the driver to stop like the one now before us. proceed without further constraint. State ¶ Ballard, bright-line The
[¶ 17.] artificial test re- v. 2000 SD 617 N.W.2d Woolfolk, sult advocated the Defendants not (citing does 841 State v. 3 S.W.3d comport principles (Mo.Ct.App.1999)). with constitutional 828 In order to upon totality any further, reasonableness based of the detain the driver Instead, “reasonable, circumstances. it would result in must suspi- have articulable 690 than any period longer driver for it takes person
cion
is involved'in crimi
that [the]
to the
viola
activity
pursue
investigation
nal
unrelated
traffic
to
a reasonable
Ballard,
134, ¶12,
2000 SD
617
tion.”
grounds
stop.5
initial
on the
for the
See
Anderson,
State
(quoting
N.W.2d
841
e.g.,
Kenyon,
651
(2000))
605 N.W.2d
132
Neb.
Durke,
269;
State
(citations omitted). Thus, we have held
¶ 17,
407, 410;
v. Ra-
tells
that
an officer
the driver
(S.D.1995) (cit-
mirez,
535 N.W.2d
leave,
to
he
free
the “Fourth
or she is
Watson,
ing State v..
165 Conn.
to limit a further
Amendment intercedes
(1973)).
A.2d
Ballard, 2000 SD
detention or search.”
majority
pa
The
narrows the
at 842
United
protec
rameters of Fourth Amendment
$404,905
Currency,
in U.S.
States v.
disregards
tions and
the rule of Terry
(8thCir.1999)).
F.3d
adopting
Eighth
holding
]
Circuit
By accepting the
assertion
24.
Appeals
Court of
United
reasonable, suspi
does not need
officer
404,905
Currency, 182
in U.S.
F.3d 643
stop,
cion
a citizen after a traffic
to detain
(8thCir.1999).
police
In
offi
disregards
majority
only
not
constitu
stopped
cer
Haul
a truck and U
trailer for
stop analy
inherent
principles
tional
speeding.
After the purposes
sis,
unreasonably limits our
but
decision
stop
of the underlying
accomplished,
were
only
encompass
to
those cases
Ballard
but before the officer returned
driver’s
actually
person
which an officer
tells the
documents, the officer told the driver that
they
to leave. Such a limitation
are free
the protection
eviscerates
it
there
a sniff of the
Ballard
would be
truck and
It
provides for motorists.
would mean
trailer for
drugs.
Id. at 646.
that an officer would
need to refrain
police
Circuit
that when a
held
stop
from
saying the words
extend
stop
makes a
and has a
unit
canine
unreasonably.
testi
disposal,
his
her immediate
it does
for
fied that his
the initial
not
Fourth Amendment
violate the
to de
therefore,
served,
actually
whether he
tain the
initial stop
motorist after the
words,
finished,”
said
“this
completed
a canine sniff of the
for
vehicle’s
purposes
over for constitutional
exterior,
or not the
whether
officer has
re-séize
before he chose to
the Defendants
support
the ex
Ballard,
As
a canine
sniff.
tended
Id. at 649.
detention.
be sensitive
the “dubious
[¶ 26.] The court
relied
to law
offi
message we send
enforcement
largely on the fact that the amount of time
¶ 18,
cers
public,”
and the
,
*8
minimal
taken to
a sniff test was
perform
842, by saying
N.W.2d at
that an officer
and that
the level of intrusion
the indi-
the fact
need
withhold
that the citizen
vidual
minimis.
-was likewise de
Id. The
in
is free to end the encounter
order to
problem
reasoning
this
is
that it de-
intrusion
justify a continued
without inde
in
tracts from the real
pendent
justification. We
follow
analysis and instead
the
rule that
officer Amendment
concen-
well-established
suspicion
primarily
trates
the amount
must have reasonable
to detain
of time
investigation
patrol
computer
5. That reasonable
includes mak
car and make a
check on
license,
registration
outstanding
ing request
registration,
for driver's
and
war
automobile
Bloomfield,
An
rants.
proof
and
of insurance.
also
United States
(8thCir.1994).
accompany
have the driver
him or her to the
necessary to
requires
conduct a sniff test. Howev-
that the officer
“specific
have a
er,
question,
the threshold
before we ad-
suspicion
and articulable”
stop
is
before
necessary
dress the amount of time
to permissible. Terry,
stop,
effectuate the second
is
whether
S.Ct. at
[¶ 27.] The State’s speculating leaves courts on the look primarily length to the length of time after a is over that an intrusiveness of the is not supported justified detaining officer would reasoning underlying require- motorist anew. This is a can of worms ments of the Fourth Amendment. The unopened. Trooper Marquardt’s best left proper inquiry First, is two-fold. initial stop of the Defendants was both Court is to determine “whether the offi- subjectively objectively justified cer’s action over. There is inception” at its juris- nothing our Fourth Amendment reasonably second “whether it was *9 scope prudence related in which indicates that to the circumstances once over, justified objectively which may the interference the first re-seize place.” at for a individual different with- suspicion. 905. The out reasonable minimis intrusion on Defendants’ a de inquiries was Eighth liberty.” Both the Circuit personal totality of to look at the
require Court misapprehend the law and the State circumstances, presumption but any balancing takes stops.6 Before on be drawn lessens bright-line that no necessary the officer had it is that place, protections and blurs constitutional to make the objective basis detaining a responsibilities officer’s stop. majori- upon which the The cases citizen. totality that a proposition for the
ty relies
Amendment exists
The Fourth
30.]
[¶
balancing
ap-
test
of the circumstances
well as the
protect
the innocent as
to
the second
to determine whether
plies
interest
Although the State’s
guilty.
premised
are
constitutional
was
allow
compelling,
to
drug interdiction
had an
finding that the officer
threshold
violates this
justify
the means
the end
suspicion upon which
base
articulable
drug
that
interdic-
duty to ensure
Court’s
majority cites
example, the
stop.
For
limita-
comports
tion
proposition
Place for the
States v.
United
ability to in-
government’s
tions on
minimally intrusive
drug
that a
sniff is
a citizen.
should affirm.
trude on
We
of
purposes
a “search” for
therefore not
(dissent-
AMUNDSON, Retired Justice
696,103
Amendment. 462 U.S.
the Fourth
ing).
(1983).
This
zures, brief detentions stating, “some in- minimally
personal effects be so interests of Fourth Amendment
trusive
strong countervailing governmental
that
pointing on Briefs Jan. 2003. Considered constitutional, must be reasonable there Decided Feb. argues But suspicion. the State gov- weighed against compelling “when case, addi- interest in this
ernmental momentary delay for the canine sniff
tional Holt, stating that the ble in such cases and e.g., 6. See United States ques- (10thCir.2000) opinion support and (rejecting had "little proposition Circuit's analysis"). applica- Teiry analysis tionable is not
