*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. 631 N.W.2d at 209. Rather, he had De La Rosa stand front determined, “Once the facts have been patrol of the car while he used Tess however, application of a legal stan perform a sniff test on De La Rosa’s truck. dard question to those facts ais of law test, Before beginning the sniff Officer reviewed de novo.” Himing, Marquardt approached the passenger side ¶53, 8, 603 (citing requested of the truck and pas- that the Falls, Spenner City Sioux Stocker, senger, Defendant Lane exit the N,W.2d ¶56, 13, 610). The facts so, vehicle. She did and Tess began her disputed this case are not so our review work. Tess indicated that there were is de novo. drugs in passenger compartment

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 20 L.Ed.2d at 911.1 S.Ct. ¶ 38, 603, 631 616. Rea N.W.2d dispute Trooper There is no depends sonableness a balance be “on Marquardt was within individu public tween the interest and the initially stopped De La bounds when he personal security al’s free from right ¶ Vento, 604 Rosa. State arbitrary interference law officers.” Cuny, 470 534 Mimms, at 434 U.S. 98 S.Ct. (S.D.1995)) (citations omitted). 53 that an (holding at 333 L.Ed.2d “specific officer must have and articulable public illegal in suppression interest the of stop a for a traffic suspicion drugs of violation” their effect on our devastating concedes, how- permissible). be The State citizens is obvious.

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, 604 N.W.2d at 470. From that in drug interest interdiction compelling, point, the Defendants invite this Court to *5 a delay non-entry few seconds for sniffing events, dissect the facts into two distinct the exterior of a dog already vehicle a involving those the normal checks of a proof constitutionally on the is driver’s license and of insurance and scene unreason- second, the use of drug dog the to sniff able.4 Although objective Trooper the facts suspicion.” before ment of such 428 U.S. at Marquardt may Terry’s case, not rise to reasonable S.Ct. at 3084. In that the United States suspicion illegal drugs standard that were in government’s Court determined the car, Marquardt’s the decision to have Tess detecting illegal outweighed interest in aliens sniff the Defendant's vehicle was not based privacy the motorists' interests. The Court solely upon caprice. Marquardt whim or tes- relied, part, expecta- on the fact that "one's Trooper tified that as a veteran and based privacy tion of automobile and of free- upon prior experience, his Denver Colorado operation significantly dom in its are different major drugs Sturgis was a source for at the expectation privacy from the traditional of Motorcycle Rally." He was also aware there (cita- and freedom in one's residence." Id. drug usage was an increased amount of at the omitted). stopping tions The Court held the Sturgis Rally. questioning occupants of vehicles and of their minimally was intrusive could be done in recognized upheld

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 631 N.W.2d at 211 had cussion between the State and Justices of this right passenger to order to remain in vehicle attempt Court as to whether the State would violation, stopped though for traffic even no expand today's holding justification into a passenger existed as to stops for unlimited of motorists to search for Mimms, time); at the drugs. Clearly, the of a motorist and (1977) (officer S.Ct. at 54 L.Ed.2d at 333 lengthy drug dog brought detention while a is during order driver out of vehicle in from a substantial distance is not constitu- Martinez-Fuerte, stop); United States v. tionally We reasonable. limit our decision of 96 S.Ct. today to the facts of this case and leave (1976) for the (suspicion L.Ed.2d 1116 less Border future whether other "what ifs” are constitu- checkpoint detecting illegal Patrol aliens valid). tionally totality permissible under a of cir- As the Court in Martinez-Fuerte noted, cumstances standard of constitutional review. quantum while some of individualized Bright-line usually totality prerequisite rules instead of a of cir- to a consti- seizure, gen- tutional search and "the cumstances-reasonableness standard are Fourth imposes erally require- analy- no irreducible disfavored in Fourth Amendment a short and lack of guided by a two- that of direct 12.] Our duration fold test: ^[1] “whether officer’s action invasion of the citizen’s vehicle and con- justified its inception” ^[2] cluded: reasonably related in it was “whether per- canine sniff of of the exterior [A] justified scope to the circumstances location “is property public sonal so place.” first interference limited both manner which 1879, 20 88 S.Ct. 392 U.S. and in the con- information obtained disputed Concerning at 906. revealed tent information constitutionally hardly it is prong, second not constitute procedure” it does the officer did to hold that what consistent meaning within the of “search” papers checking in first the Defendant’s Amendment. United sniff doing the to be constitu- and then test Place, 462 U.S. in the yet conclude tionally impermissible, (1983) L.Ed.2d 110 would alternative in the constitutionally justified have been he it the traffic had done before sniff test vehicles, applied to of the exterior When rights finished. stop was Constitutional investigative proce- canine sniff is an be based reasonableness uniquely dure suited to —it intrusion, totality government search, not to be a is so uninstrusive as bright-line a mere rule based rather than very time, it takes little and it “discloses Either solely upon timing sequence. presence or absence narcot- constitutionally impermissi-

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, 428 U.S. at 96 S.Ct. at the individual’s Fourth Amendment inter- 1116), 49 L.Ed.2d at roadblock-type stops against importance ests govern- verify driver’s licenses and alleged justify reg mental interests in- vehicle ” (Delaware istrations, Ballard, Prouse, trusion.’ 440 U.S. Place, 462 U.S. at S.Ct. L.Ed.2d 660 (1979)) 118; a roadblock-type checkpoint S.Ct. L.Ed.2d at (State game during hunting season 905). Halverson, (S.D. L.Ed.2d at 1979)). Ballard, however, Unlike [¶ 16.] the of-

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 20 L.Ed.2d at 906. The appropriate officer had an upon basis intrusion temporary must be and last no which to detain the citizen at that time. longer necessary than to effectuate the e.g., Terry, See 88 S.Ct. stop. Royer, Florida v. (stating, 20 L.Ed.2d at 906 “[t]his specificity demand for the information (1983). Furthermore, police predicated action is is the methods used must intru- be least teaching the central of this Court’s Fourth sive means available to the officer to either (additional jurisprudence”) ci- verify dispel or his or her reasonable sus- omitted); Kenyon, tations picion. Id. These principles ¶20, 651 at 275 (stating, “[t]he shatter the foundation argu- of the State’s investigating officer is not constrained ments. it the time would have taken to issue the Because interim, warnings if, in the articulable would constitutionally justified have been suspicion lead him to a reasonable facts in the sniff test had he done it before the ”) (em- activity that other criminal is afoot finished, traffic stop majority rea- phasis supplied). In falling situation sons requirement that the that an officer Amendment, within the Fourth have reasonable to continue the required is to at least have reasonable detention stop completed after the is is an Lacking to detain a citizen. such artificial majority distinction. The suspicion, errs the detention infringes on the analysis. primary its right inquiry individuars be free from seizure of stop person. his or is whether the stop her When a traffic officer was completed, justified remaining duty independently the officer’s in the intru- second sion, to release the individual from detention. not whether the officer told citi- defendant, When he fails to release the he go. Simply zen that he or she was free to stop creates a new for which required he is put, majority’s holding is that this to have suspicion, regardless disregard Terry analysis Court should whether the intrusion was minimal or whenever officer chooses to detain a egregious, lengthy or Any or short. other by simply refusing citizen him inform rule is unconstitutional. complete. her the initial valid Furthermore, accepting holding request

[¶ 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 77 L.Ed.2d 110 by Place but the supported proposition join I in Justice Sabers’ dissent search is intrusiveness of the sniff level of my set forth dissents for the reasons here, re- for the not the issue Kenyon, 2002 SD deten- whether the second 269; volves around Hodges, itself, Vento, tion, consti- 206; the sniff search not and State v. in Place The Court 468. tutionally permissible. in its of sei- very pointed discussion

zures, brief detentions stating, “some in- minimally

personal effects be so interests of Fourth Amendment

trusive strong countervailing governmental that 2003 SD 15 justify will a seizure interests Timothy DURAN, Plaintiff James prop- that the specific articulable facts Appellant, contraband or evidence erty contains Place, the crime.” Cheryl Kay DURAN, Defendant (emphasis L.Ed.2d at 120 5.Ct. Appellee. Thus, acknowledging supplied). even itself was not a that sniff No. 22405. “search,” very clear the Court was Dakota. Court of South out that for the seizure itself

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