State v. Akuba

challenging the re- Generally, one 8-58. have evidence should presumption

buttable Here, Tor did challenge. support However, opportuni- he had the once

not. of the test and the results

ty to review dropped argu-

testing procedures, Tor on the rec- paternity

ment and admitted Therefore, how Tara fails show

ord. by his initial assertion prejudiced

she was continued to Had Tor non-paternity. issue, Tara have had a claim

press However, un- prosecution.

for malicious facts, barratry does these the claim

der scrutiny. The statutes

not withstand recognize putative fathers

their terms presumption. SDCL

right to contest

25-8-58; 25-8-59. To allow a SDCL barratry simple on the assertion

claim for non-paternity the father claimed ignore putative fathers

would be

rights under the law. The circuit court is

affirmed on this issue. the circuit court on We affirm

[¶ 46.] 1,2,3,7 and reverse the circuit

Issues 8. We part 5 and 6. affirm in

court on Issues part on Issue 4.

and reverse GILBERTSON, Justice, Chief KONENKAMP, ZINTER and

MEIERHENRY, Justices, concur.

2004 SD 94 Dakota, Plaintiff

STATE South Appellant,

Touray Paul, AKUBA and Kaisha Appellees.

Defendants

No. 22923.

Supreme Court of South Dakota.

Argued March 2004. Aug.

Decided

ZINTER, Justice. Touray Akuba and Kaisha Paul stopped highway patrol were officer for speeding. allegedly consented to a search of During the vehicle. the officer 177 pounds found marijuana in the trunk. Paul Akuba and suppress, alleging moved to were illegally detained and the consent was in- voluntary. The trial court suppressed. appeals arguing The State now detention legal, voluntarily was that Akuba consented to the and that Paul had standing challenge no it. We conclude that the detention was lawful and the con- valid, therefore, sent to search was and even if Paul had standing challenge consent, Akuba’s the evidence should not suppressed. been reverse. History Facts and Procedural September On highway [¶ 2.] patrol patrolling officer Matt Oxner was City. Interstate east of Rapid Oxner drug was canine officer focused on inter- west, diction. traveling While Oxner ob- traveling through served a vehicle east ap- construction zone. Because the vehicle peared catching up to be with vehicles in it, front of radar and Oxner activated his traveling determined that the vehicle was mph mph in a 65 construction zone. around, vehicle, pursued Oxner turned approximately and followed it for two requested miles. Oxner also a license General, Long, Attorney E. Lawrence if plate check to determine the vehicle was Archer, Attorney Patricia Assistant Gener- A dispatcher stolen. radio informed Ox- al, Pierre, Dakota, Attorneys for South car ner the vehicle was a rental from plaintiff appellant. and Oregon. Diggins, Pennington County Thomas M. lights [¶ 3.] Oxner activated Office, Rapid City, Public Defender’s stopped driving the vehicle. Akuba was Dakota, Attorneys South for defendant (Akuba’s girlfriend) Paul brother’s appellee Touray Akuba. passenger the front seat. Oxner ob- Brankin, atlas, blankets, Legal pillows, Paul John Dakota Plains served an and food Services, Dakota, vehicle, Rapid City, South Attor- containers which indicated neys appellee driving stop- for defendant and Kaisha were without him Paul. ping overnight. Yep. Akuba that Ox- AKUBA: informed Oxner

[¶ 4.] Akuba of the car to warn stopped ner Okay. you Have ever been OFFICER: Oxner obtained violation. speeding at all? trouble before rental license and the car driver’s Akuba’s AKUBA: No. car, no- at the Oxner agreement. While I Okay. Then what normal- OFFICER: marijuana or other no evidence ticed do, officer— ly Touray, being a canine He informed Akuba illegal substances. AKUBA: Uh-hum. warning him a going give that he was violation, okay, drug dog and he I speeding got a ticket for the OFFICER: — accompany him back to back, normally do is asked Akuba and what I walk to issue the ticket. patrol car that I have him around most vehicles illegal for all dif- stopped checking car, —the entering patrol Ox- Upon marijua- illegal drugs, o[dors] ferent writing warning ticket. began ner na— engaged Akuba in rou- process, He first stop questioning. tine AKUBA: Um-hum. their destination. Akuba told Oxner asked cocaine, methamphet- OFFICER: — to they traveling were from Seattle amine, heroin— They engaged then in a casual Chicago. AKUBA: Yeah. concerning purpose of the conversation anything Any that. like OFFICER: — Chicago, where the car was rented trip to drugs, anything like prescription that. from, and where Akuba worked. Akuba I’m and walk him going go So ahead they Chicago going told Oxner were you going car. Do think he’s around the Akuba also indicated meet his brother. car? anything to smell from the driving straight through were Nothing. Nothing. AKUBA: stay couple days. for a and intended finally Nothing. Okay. okay

He told Oxner that he worked at Is it OFFICER: business Seattle. if I look in the car? AKUBA: Yeah. Oxner then that he reiterated only give warning Akuba a going I OFFICER: can look? violation, also speeding

for the but Oxner AKUBA: Um-hum. going told that he was check his Akuba Okay. OFFICER: driver’s the course of that license. noticed that Akuba’s Oxner nervousness conversation, they only short discussed drug dog.1 increased at the mention of the check, the driver’s license but Oxner also After further conversation before the brief sniff, drug dog mentioned a and he re- check came from driver’s license back quested to search the car. Akuba dispatcher, that Akuba Oxner confirmed consented on two occasions. The tran- stating: to a consented search “So given script reveals those consents were you’ll go ahead and let me look in ear during scope of the initial to issue then, Touray?” Akuba a third consented and warning ticket check Akuba’s driv- time, replying, “Um-hum.” er’s license. Everything’s okay waiting with While still driver’s [¶ OFFICER: your dispatch- check to return from the license? license drug dog was in the car with them not bark until Akuba was out of the car and 1. Oxner’s they had this conversation. While Akuba opened Oxner the trunk. car, dog dog was in the whined. The did er, they get you their about going continued conversation here.... OFFICER: — ticket, warning employment, Akuba’s When the driver’s license check subse- the search the vehicle: back, quently came Oxner told the radio what kind do OFFICER: So of business dispatcher that he “had vehicle for a you An work at? African business? Akuba, “Okay, search.” He also stated to business, yeah. AKUBA: African guys you you will free to ifgo let me quick. just you search real I’ll stand OFFICER: that? What’s car, in front okay?” Akuba again AKUBA: African clothes. replied, ‘Yeah.”2 OFFICER: Clothes? got 8.] Oxner Akuba then out of (No response AKUBA: could be patrol approached car and the rental heard....) drug dog car. Oxner did not take the with it your OFFICER: Is store some- Upon car, him. approaching the Oxner con- body else’s? firmed to Paul that “Touray going to let Ah, my part- AKUBA: brother and his me look in real quick the vehicle and we’ll ner. you get guys going.” then Oxner asked OFFICER: Brother’s store? Paul and Akuba to stand near front of (No AKUBA: response could be the car. silently Paul stood heard....) objection without while Oxner searched your OFFICER: Here’s license ... the vehicle. first looked back, just Touray. warning Here’s passenger front side of the car. He then the speed. You don’t have to do nothing unlocked the doors and searched back warning. with the You throw that can searching seat. After the interior of the away. your a speed Just watch little minutes, car for about two Oxner took the you go zones, closer when into those keys ignition from the and searched the okay? trunk. four large bags Oxner found duffel (No response AKUBA: could be containing pounds marijuana. of The heard....) stop, including ap- entire took proximately minutes. OFFICER: Then li- ten when this [driver’s you’ll go. comes free to cense] back be and placed [¶ 9.] Akuba Paul were un- If you let real quick— me look later by der arrest and interviewed an AKUBA: Um-hum. agent of the Division Criminal Investi- do that— OFFICER: —we’ll gation. Akuba admitted that he knew the marijuana AKUBA: Um-hum. was in the trunk and that he 2. Akuba contends consent was coerced consent a and in these fourth fifth time ex- improp- because his freedom "to leave" was changes. already Akuba to a consented erly you tied to Oxner’s statements: "If let me times, search three of the car and these latter quick” you look real and "if me let search exchanges appear to be casual conversation quick.” spacing paragraphing real and executing already given. the consent search transcript suggest of this written could by This is also state- confirmed officer’s subjects together. the two were tied Howev- (that dispatcher ment to the he "had'a vehicle er, validity by inference is refuted search”) for a officer’s later statement stop, the audio of the which includes Paul, going "Touray is to let look in the me officer's tone inflection. There no oth- you quick get going.” vehicle real and we’ll er record evidence this issue. have ¶ 8. For a further discussion of this Infra portion videotape reviewed the audio issue, ¶ seq. see et. infra asking and conclude that Oxner was not Analysis and Decision transport Chicago. it to $1,000 to paid

was subsequently- Paul were 1. Whether the State’s burden marijuana, charged possession with voluntary proving should consent pounds, in violation than ten more “preponderance the evi- be SDCL 22-42-6. by “clear and convinc- dence” or the tri- pre-trial hearings, 10.] After ing evidence.” sup- granted Akuba’s motion al court ruled that the State court press. The offi police “Even when voluntarily prove Akuba had failed probable cause nor cers neither ar- The court to the search. consented warrant, they an area if search by reasoning that at that conclusion rived consent someone voluntary from obtain scope of expanded the improperly adequate authority over possessing “impermissibly stop by engaging Chaidez, F.2d v. area.” United States beyond scope of questioning intrusive” (8thCir.1990) (citing United States stop. The court held that a routine traffic Matlock, 7, 94 171 n. S.Ct. asking for Akuba’s consent to search (1974)). “It 993 n. L.Ed.2d 242 vehicle, the officer had no reasonable when conduct has been said that consent to so, in- suspicion impermissibly to do Amendment, Fourth search satisfies the in an ille- questioning resulted trusive thereby removing the need for a warrant ultimately The court con- gal detention. Sheehy, probable even cause.” State v. detention, illegal coupled cluded that the 130, 11, 636 N.W.2d drug dog, to use a “threat”3 with (citations omitted). “For to a consent and rendered it coerced Akuba’s valid, totality of the cir search involuntary as a matter of law. Paul’s cumstances indicate that it was vol must motion, trial suppressed, related court Almond, untarily given.” concluding the fruit evidence was (S.D.1994) (citations omit illegal detention. The trial court ted). standing Paul’s to ob- declined address ject to the search. re previously [¶ We 13.] following The State raises the [¶ 11.] quired that State must establish vol- “[t]he on appeal: issues by convincing clear and evi untariness prov- 1. the Whether State’s burden Zachodni, State v. 466 N.W.2d dence!].]” ing voluntary by consent should be a (citations omitted). (S.D.1991) 624, 629 of the evidence” or “preponderance However, require no longer most courts by convincing “clear and evidence.” Today we convincing clear and evidence.

2. the search of Whether warrantless proof our that used conform burden by

the Aku- vehicle was authorized by the United Court States ba’s consent. Eighth Appeals.4 the Circuit Court They hold Paul, deciding that whether “[i]n having 3. Whether failed make voluntary, re consent was courts should any showing that possessed she prosecution prove the voluntari legitimate expectation quire in privacy vehicle, by a preponderance the of the ness of the evidence.” trunk rental Matlock, Chaidez, challenge (citing 906 F.2d at 380 standing to the search. attorney argument, 3. We see See 4. At oral con- no "threat” this record. also Akuba's change supra supported.” ceded that n 1. the "well

413 988). 177, opinion, objective 415 94 randum U.S. at S.Ct. Numerous there was an preponderance also apply vehicle, i.e., other courts basis for the stop of Akuba’s finally proof.5 burden of note that speed its of 68 in a mph mph 65 zone. preponderance is consistent speeding burden with This offense warranted stop closely applied the burden we have objectively because traffic violation is an related of the voluntariness of issue a con- stop reasonable basis to a vehicle. Tuttle, 94, State v. 2002

fession. See SD the stop may While not be product ¶ 21, 20, 650 N.W.2d 30-31. We now hold whim, caprice mere curiosity, idle .of preponderance burden should be enough it is that the stop upon is based applied considering when voluntariness “specific and articulable facts tak- which of a consent to search.6 together en with rational inferences 2. Whether warrantless search of facts, from those reasonably warrant

the vehicle was authorized Herrboldt, intrusion.” State [the] v. ¶55, Akuba’s consent. 805, SD 1999 593 N.W.2d 808 (quoting Spenner City Falls, v. Sioux Legality Stop of the ¶56, 14, 606, 611). 1998 SD standards, these Under it estab- is well matter, As a preliminary 14.] [¶ violation, lished however questions legality stop. Akuba minor, creates to stop cause not stop He asserts that Oxner did him for sufficient the driver a vehicle.” Whren v. Unit- speeding. argues Akuba that the testimo States, ed ny regarding “the alleged speeding viola 1769,1772,135 (1996); L.Ed.2d 95-95 tion” shows “there well have ¶ 16, Kenyon, v. State n 651 been suggests no such violation.” Akuba N.W.2d 274. stopped merely that Oxner the car because African 3 Akuba was an American an out- Chavez, State v. 200 SD 668 of-state vehicle. added). 95 (emphasis However, reviewing Although after agrees videotape stop, agree “expressed trial court displeasure Akuba’s no merit. suggestion has As with the manner in which the made,” trial court specifically although stated its memo- that Ox- hints See, Perez-Montanez, O'Dell, (2001); e.g., United States v. State v. 425 A.2d (1st Cir.2000); (R.I.1990); Ashworth, 202 F.3d United v. States State v. 3 S.W.3d (7thCir.2001); Raibley, People F.3d 1069 (Tenn.Crim.App.1999); Delaney, James, Cal.Rptr. Cal.3d (Utah Ct.App.1994); P.2d 4 Camden Com Patterson, (1977); P.2d 1135 State v. 58 Haw. monwealth, 725, Va.App. 17 441 S.E.2d 3 8 462, (1977); Kilby, 745 State v. 571 P.2d 130 403, (1994); Worley, State v. 179 36 W.Va. 9 747, (1997); Idaho 947 P.2d 420 v. People (W.Va.1988); City S.E.2d 706 v. Laramie 169, Robinson, 35, Ill.App.3d 322 255 Ill.Dec. (Wyo.1991). Hysong, 808 P.2d But see 199 (2001); Howard, 748 739 v. N.E.2d State 509 Johnson, 78, State v. 116 Nev. 993 P.2d 44 (Iowa 1993); Hardyway, N.W.2d 764 State v. (clear standard); (2000) convincing Gue 451, (1998); 264 Kan. 958 P.2d 618 v. Cook State, (Tex.Crim.App. vara v. 97 579 S.W.3d Commonwealth, (Ky.1992); 826 S.W.2d 329 2003) (preponderance standard under federal (Me.1977); Kelly, State 376 v. A.2d 840 State constitution, convincing but clear and stan Wilson, 189, (1977); v. 279 Md. A.2d 1223 367 constitution). dard under state Harris, (Minn. 1999); State v. 590 90 N.W.2d Middleton, (Mo.Ct.App. 43 S.W.3d 881 applied trial court The both burdens 2001); 704, Sawyer, v. State 145 N.H. 764 proof, and reached the same result. (N.H.2001); A.2d ex rel. 936 State Juvenile 220, Dept. Or.App. Stephens, v. 175 27 P.3d 414 a probable to traffic subjective reasons cause believe had other

ner have vehicle, subjective v. other violation occurred.” United States Go- for the stopping 1037, Serena, does not invalidate a 368 F.3d 1041 motivation mez intent or (8thCir.2004) (citing v. Whren United stop: 806, 1769, States, 517 116 S.Ct. U.S. legally au officer] was [the [BJecause (1996)). L.Ed.2d 89 135 vehicle, any addi stop thorized to “underlying intent or motivation” tional Consent Search stop. not have invalidated would The trial court’s memo 40 F.3d Bloomfield, States v. United opinion ruling reveals that its was randum (8thCir.1994), denied, 514 915 cert. legal asking on the notion that based 1970, 131 L.Ed.2d 115 S.Ct. U.S. impermissibly for consent Cummins, (1995); v. States United beyond permissible stop extended (8thCir.1990). if 920 F.2d Even stop. Relying of a traffic scope United other motivations to [the officer] had Ramos, 42 F.3d States v. vehicle], subjective those rea stop [the (8thCir.1994), trial court reasoned They were not sons were not relevant. suspicion because there no reasonable was objective stop because this was relevant request traffic for expand stop, reasonable, ly objectively an reason during illegal occurred an deten consent even stop is not invalidated if the able tion. court concluded because Lamont, v. stop pretextual. was during illegal an requested consent was ¶92, 21, detention, a involuntary the consent was Sullivan, (citing Arkansas U.S. However, trial matter of law. court’s 1876, 1878, 149 of Ramos this case is mis application (2001)). L.Ed.2d placed. Moreover, Id. 603.7 distinguishable is speeding marginal

fact that Akuba’s Ramos on its consequence. impermissible “An offi- involved an violation is no facts. Ramos violation, occupants of a traffic how- detention vehicle cer’s observation minor, probable necessary gives beyond ever the officer time for the intru- vehicle, if the sion traffic It stop stop. cause to even officer associated with the ignored but for a involved a would violation also suspicion illegal crimes are afoot.” search within that detention: greater Luna, F.3d requested United States v. 878 consent was the vehicle’s after (8thCir.2004) (citing occupants’ registration licenses and United States Mar- (8thCir.2004)). tinez, Here, however, 358 F.3d been checked and cleared. Eighth recently waiting As the noted in a Akuba was still in the officer’s car Circuit upholding case for his ticket license stop “expired warning a traffic check tags” he notwithstanding allegation completed of ra- when consented to the fact, only cial profiling: “The United States Su- search. three minutes ex- preme pired from time Court holds Akuba entered the constitutional, patrol no matter the officer’s car until Oxner first asked for con- sub- intent, Therefore, Ramos, jective long as unlike so the officer had sent to search. Banks, 19, authority (citing 7. Akuba also to cite State v. 387 N.W.2d 24 fails for position. (failure (S.D.1986) Court could it "[T]his consider supporting to cite authori- waived for that reason alone.” State v. Sulli- appeal)). ty waives issue on 20, van. 2003 SD 147. 673 N.W.2d 288. 293

415 car, request during this patrol for consent occurred and asking the driver about scope stop, any of a valid traffic his destination and purpose.” Id. at 1163 (citations omitted). during consent obtained that lawful deten- That type question- tion ing was valid. is reasonable and not an arbitrary interference. however, Akuba, argues that

[¶ 19.] Moreover, and request Oxner’s detention for consent request Oxner’s for “arbitrary was an an interference” and Akuba’s consent to search before traf- “government unreasonable on fic stop completed intrusion did not render the the roadways.” disagree. stop impermissible We detention. In Al- mond, stopped speeding, quoted Bostick, Paul were and the we 501 U.S. at 434- portion 35, traffic 2386, of the did not 111 extend S.Ct. 115 L.Ed.2d at 398- beyond necessary complete 99: “Even when officers have no basis for warning ticket and license check.8 More- suspecting particular individual, they over, questioning may generally occurred while questions ask of that indi- waiting vidual, were for the license did check ask examine the individual’s identification, not an illegal create detention. and request to search his or her luggage 511 [.] N.W.2d at 575 (empha- ” An officer im- [¶ 20.] does not added). also, sis So Dreps, 1996 permissibly expand scope of a traffic 142, 339, SD an officer con- stop merely by asking ques the driver ceded that he had no suspicion articulable tions, subject even if the of the questioning when he asked the defendant whether he original purpose unrelated to the any illegal weapons, drugs, or contra- stop, long questioning as the does Nevertheless, band. held “an offi- unduly initial, extend the duration of the cer not have does to have probable cause Ramos, valid 42 seizure. 1165 F.3d at to search before requesting consent (Beam, J., concurring); United States v. ¶ 11, search.” Id. at 558 339. Shabazz, 431, (5thCir.1993); 993 F.2d 436 Purcell, have arrived at United these States v. 236 F.3d because (11thCir.2001); questioning, conclusions including 1279-80 State v. Parkin son, for consent to (2000). during 135 17 Idaho P.3d 307 course of a lawful all, stop, need not After questioning “mere ... is neither related to the reason for stop. Shabazz, “[Be a search nor a seizure.” questions cause [such] are neither Bostick, F.2d at searches (citing Florida v. seizures, police nor need not U.S. demonstrate 111 S.Ct. justification for (1991)). inquiry” each as is fact, other L.Ed.2d 389 itself Ramos necessary Ohio, Terry wise under permitted subjects such questioning on U.S. L.Ed.2d place origination, destination, like em Childs, U.S. v. 277 F.3d ployment purpose and the Ra trip. (7thCir.2002). mos, As the Seventh Circuit ex 42 F.3d at 1161. rea “Typically, a plained: investigation sonable a traffic stop

include asking amendment, driver’s license Under the fourth every registration, requesting the “reasonable,” driver to sit seizure search or must be back, 8. Akuba also concedes Oxner could have come immediately check to or even validly drug dog taken his around the vehicle investigation after the traffic was finished. possessing at that time without reasonable Rosa, See State v. De La SD suspicion. He concedes that could N.W.2d 683. waiting done so while for the license 416 to quest for consent search vehicle was person-spe- some normally entails

which was unnec- Indianap- legal, suspicion and reasonable suspicion. See cific basis Harris, 90, Edmond, 32, essary); 121 v. State 531 U.S. S.Ct. olis v. (1) (Minn.1999) (2000). (noting generally, 102 333 But the 447, L.Ed.2d 148 questioning stop in a vehicle is not a sei- repeatedly has held Supreme Court (2) zure, persons ask and absent a seizure within police may approach and Constitution, meaning of the reason- permission their to questions or seek unnecessary); suspicion inquiry is that the do not able provided officers (Mo.Ct. Middleton, 43 881 oblig- or consent are State v. S.W.3d imply that answers officer, See, an while Rodriguez, App.2001) (permitting v. atory. e.g., Florida ticket, ask 1, 5-6, 308, writing speeding a motorist a to 105 S.Ct. 83 469 U.S. drugs an (1984); Delgado, INS 466 for consent to search for because 165 v. L.Ed.2d 1758, to 210, L.Ed.2d 247 officer ask for consent search 104 80 U.S. S.Ct. 491, (1984); Royer, suspicion v. 460 U.S. the absence of reasonable Florida Everson, cause); 1319, probable v. 474 501, 75 L.Ed.2d 229 (N.D.1991) (1983) (holding 695 opinion); United States N.W.2d (plurality Mendenhall, 544, 552-58, required 100 officer was not to have reasonable v. (1980). 1870, activity request- suspicion drug 64 L.Ed.2d 497 before S.Ct. during ing re- consent to search a license requests proper These are without course of a traffic gard suspi- reasonable check conducted absence of 27, Boatman, cion, Or.App. stop); made clear Florida v. 185 the Court (2002) Bostick, (holding 111 501 57 P.3d 918 that before U.S. S.Ct. (1991), necessary traf- paperwork 115 L.Ed.2d 389 because associated with stop completed, not fic officer could re- police questioning does consti- “mere quest though consent to search even it was tute a seizure.” and stop unrelated the traffic there was added). also, See (emphasis Id. at 950 suspicion no reasonable defendant Shabazz, (holding ques- 993 F.2d 431 engaged activity); in criminal v. has James request tions for consent search and State, (Tex.App.2003) (per- 102 162 S.W.3d minutes four a traffic were not a into officer, mitting an giving warning after “seizure,” require predi- did not thus offenses, traffic request ticket minor suspi- cate cause or probable reasonable search because reasonable sus- cion); Burton, v. 334 F.3d U.S. picion to continue detention search (6thCir.2003) could, (holding police during required following for valid consent stop, of a traffic ask driver course original stop); resolution reason for he would consent to a search of whether (3d § ed LaFave Search Seizure 8.1 Moore, automobile); Ill. People 1996). App.3d Ill.Dec. N.E.2d (2003) (brief questioning, contrary dur- The dissent cites no 843-844 authority,9 ing stop, displea- traffic about contraband and re- but instead relates its violation, erroneously ing stopped as- Consequently, the dissent for a traffic the motorist impermis- for consent was ordered out of sumes that his automobile sibly expanded scope stop. police of the traffic officer and asked if he would consent However, Robinette, illegal Ohio U.S. search of the vehicle for contra- 35-36, question S.Ct. L.Ed.2d ex- band. Because officer's (1996), Supreme scope stop's Court ceeded the initial considered purpose, whether motorist's Fourth Amendment the Ohio Court had ruled where, rights initially subsequently were violated after be- that the consent obtained was police investigative techniques. period within the sure with of the initial lawful de- However, tention, the dissent’s concerns have been Akuba’s consent was not involun- rejected by other courts. tary Ballard, considered as a matter of law. State v. 2000 SD 837. N.W.2d happened here must occur thou- What daily across the nation: sands times The Factual Issue Consent stopped ask persons Officers for traffic Having [¶ 25.] determined they committing are offenses whether legal there was no reason to invalidate any other That is not unrea- crimes. consent, Akuba’s the next issue is whether strategy, sonable law-enforcement either actually to a search of consented given gross; who persons case or in the vehicle. The State the bears burden of question do not like the can decline to proving, totality under the of the circum many answer. Unlike other methods stances, that valid consent search was law, criminal enforcing the respects this given. Sheehy, everyone’s privacy. There is therefore Almond, at 453^154 (citing reason validity [the no to doubt the 573). N.W.2d at a valid Whether consent driver’s] consent.... generally search exists is a question of Childs, 277 F.3d at 954. fact for the trial court. Id. “Because the 24.] We therefore conclude presence absence of consent to search is requiring trial court erred in officer fact, a question of the trial court’s resolu possess quantum suspicion some question tion of that upheld will be unless activity requesting criminal before consent evidence, our examination of the construed suspicion simply to search. Reasonable light in a most favorable to the trial court’s required not Fourth this Amendment findings, convinces us that the finding was An context. officer not need have reason- Almond, clearly erroneous.” suspicion that con- able a vehicle contains at 573. Here, before asking traband search it. stop case, however, because initial traffic was In this completed when request- only was trial court made conclusions of law or ed, scope was not imper- findings mixed of fact and conclusions of And, missibly extended. because Oxner’s law on this issue. no findings We have request consent to search made fact clearly historical to which the errone- reversed, The puter invalid. Court questioning hold- check of the license. ing only required Fourth Amendment place request [and that took search] oc- question the detention reasonable waiting curred while officers were for the particular under facts of the case. Id. at Therefore, computer results of check. S.Ct. at 421. questioning nothing did extend the dura- initial, tion of the valid seizure. Because the Or, noted:[A]ppellants 5th Circuit has waiting computer officers were still for the successfully cannot claim that the detention check at time that received consent original scope. Appellants exceeded its con- car, point to search the detention to that cede, doubt, and we have no a valid supported by continued to be the facts that stop, can an officer a driver’s justified its initiation. United States v. license, Cf. papers, registration, insurance vehicle Sharpe, 470 U.S. thereon, computer run a check issue (1985) ("Clearly 84 L.Ed.2d 605 this 1469; Kelley, See F.2d citation. Guz- any delay man, unnecessary case does not involve case, 864 F.2d at In this Officer legitimate investigation to the of the law en- LaChance asked officers.”). produce Shabazz to exit the vehicle and forcement Shabazz, driver’s license. He then called in for a com- 993 F.2d at 437. exchanges six in Therefore, repeated all our task have applies. ous standard order, chronological in transcript of the facts to the written application an involves ties, Sheehy, novo. contextual law, is de removed from their that review but and ¶ ¶¶ 5-8): (for at 452. De supra full context see SD .because appropriate is novo also review (1) if okay I Is it look OFFICER: this no of fact about dispute there was the car? testify that he was Akuba did issue. AKUBA: Yeah. give consent. failed to coerced or otherwise (2) I can look? OFFICER: on this issue was only The live witness AKUBA: Um-hum. question Oxner, only asked one and he was was consent. subject: he said there on this (3) go ahead and you’ll So OFFICER: is the vid- only other record evidence The then, Touray? me look the car let had the same eotape, and “because we AKUBA: Um-hum. videotape ... as to review opportunity (4) license [the Then when OFFICER: court,” the issue of the trial we review free to you’ll back be check] comes Tuttle, novo. Akuba’s de quick— go. you If let me look real at 35 n. 11. n. AKUBA: Um-hum. upon our review of 27.] Based [¶ do that— OFFICER: —we’ll gave Akuba videotape, believe that we AKUBA: Um-hum. voluntary and unconditional consents three the first five minutes to search within get you going here. OFFICER: — (and especially video encounter. (5) be Okay, you guys will OFFICER: clearly that Aku- portion) reflect audio you if me real go free to let search voluntarily the first three consented ba quick.... Moreover, con he was asked. these times AKUBA: Yeah.10 question given only after brief sents were (6) let Touray going OFFICER: arrest, under he was ing, Akuba was not real and quick me in the vehicle look during daylight, and on a interstate public you guys going. get we’ll barking. in the car was not “Be dog persons who been arrest cause even have that audio first 29.] We observe custody voluntarily can con ed are exchanges of these reflects evidence sent a search ... we do not believe three consents were obtained before consent was un setting [Akuba’s] made. alleged requests “conditional” were Chaidez, F.2d duly at 382 coercive.” three times in the clearly consented Watson, 423 U.S. (citing United States entire first five minutes 96 S.Ct. 46 L.Ed.2d only ten minutes. More search lasted (1976)). tone, and context importantly, pausing, exchanges four language of the officer’s Akuba, however, argues that ex- they were not further five, and five reflect they appear four as in a changes consent, rather, ca- were requests but interpreted could transcript, unitten executing sual conversation the consent impermissible demands to search Although exchanges previously given. for Akuba’s release. were the conditions assertion, interpre- susceptible and five were To facilitate review this four completed. Only exchanges five and six occurred after warning ticket and license check had been solely upon transcript, tation based ableness —what would the typical rea- actual audio reflects that were con- person sonable have understood appear merely versational in tone and exchange between the officer and the keep made to Jimeno, been Akuba informed suspect?” Florida v. process going follow 248, 251, 1801, 1803-1804, after consent to search. also (1991) (citations Akuba’s We L.Ed.2d 302 omit- ted). drug note that the one reference to the Jimeno, the driver of a car dog objectively was not coercive. dog police told they could search the vehicle, inwas the canine officer’s and we During car. the officer nothing per disclosing see coercive se folded, opened paper bag brown on historically fact that correct this canine floorboard the car. The driver usually drug officer conducts around sniffs argued only later he had meant to of lawfully stopped the exterior vehicles. consent to a search of the visible interi- finally response note that the officer’s vehicle, or of the and not con- closed dispatcher exchange to the radio after four Supreme tainers within it. The Court (he search) had a for vehicle reflects first noted the consent was not contemporaneous officer’s belief that he scope. limited in its The Court then had already obtained consent to search. noted that the consent came after the Therefore, do exchanges we not find that officer had informed the driver that he four and five demonstrate that the consent believed driver carrying was narcot- was conditional. ics, and scope that “the of a search is generally by expressed defined its ob- again acknowledge 30.] We that the ject.” circumstances, Id. Under those question historical consent search is a Court held that it was ob- Furthermore, question of fact. an ap- as jectively reasonable for officer court, pellate we uphold are bound to general assume that driver’s consent trial questions court’s resolution of of fact any authorized a search of within items unless the evidence convinces us that the might the car drugs. contain Id. clearly trial court was erroneous. Al- at 111 S.Ct. 1801. See also United mond, However, N.W.2d as Pena, States 920 F.2d discussed, previously the trial court’s find- (consent (10thCir.l990) to search for ings on consent erroneously prem- were drugs in car tapping authorized of ex- legal ised on incorrect conclusions that the probing ternal fender and door rear officer impermissibly expanded the stop panel loose, after officer observed and that consent during obtained screws); crooked missing United illegal involuntary detention was a mat- Lechuga, States F.2d ter of law. We are not bound such (7thCir.l991) (consent for search legal Therefore, conclusions. based our drugs in apartment authorized search evidence, de novo review of the audio closet); suitcase see also H. Charles determine that Akuba’s consent volun- Christopher & Slobogin, Whitebread tary. Procedure: Analysis Criminal An finally [¶ 31.] We note that (4th § Concepts Cases and 12.03 ed did not scope exceed the of Aku- 2000). by searching ba’s consent trunk. Here, “The for measuring scope gave standard a general [¶ 32.] a suspect’s under drugs, consent the Fourth consent to search he did ‘objective’ consent, Amendment is that of reason- limit subsequently this and he Akuba, Paul filed a motion against objection while Ox- dence without silently stood motion. The join suppression Akuba’s bags. and duffel the trunk opened ner Paul’s motion. circumstances, opposing filed a brief objec- it was Under these acknowledged that Paul had officer to assume The State tively for the reasonable challenge stop the initial traffic drugs standing to search that Akuba’s persons of all because a is a seizure any area that could included a search Krebs, the trunk of vehicle. which included drugs, contain (S.D.1993) v. Er- (citing States United vehicle. (10th Cir.1989)). win, F.2d objectively also reason- It was standing to chal- Consequently, Paul in the trunk. bags the duffel able search legality of her own detention. lenge the Appeals of the Second Circuit Court As 443, Ameling, F.3d States v. 328 United stated: Cir.2003) (8th (citing 446 United n. 3 police a officer It is self-evident (8th 1168, Lyton, 161 F.3d 1170 States v. a seeking permission to search general Cir.1998)). However, argued the State illegal of looking for evidence vehicle is standing to chal- that Paul did not have activity. just that such It as obvious to search the trunk lenge Akuba’s consent might be in con- evidence hidden closed argu- of car. The continues that State If the to search is en- tainers. consent ment, standing asserting Paul lacks tirely person a reasonable open-ended, challenge the of the trunk because search that the would have no cause to believe rights personal are “Fourth Amendment way. search will be limited some rights may vicariously which ... not be Snow, 133, F.3d States v. 44 135 United Krebs, 504 at 586 asserted.” N.W.2d (2d Cir.1995). Or, as the United States Illinois, 128, Rakas 439 U.S. (quoting v. has noted: Court 133-34, 387, 58 L.Ed.2d 99 S.Ct. suspect may A of course delimit as he (1978) (citation omitted)); v. 394 State Wil- of scope chooses the the search to which ¶ 176, son, 33, 24, 678 184 N.W.2d But if he consents. would (passenger standing in a lacks to chal- car to a reasonably be understood extend consent). legality of the lenge driver’s container, Fourth Amend- particular Paul, agree that [¶ We 35.] provides grounds no for requiring ment car, challenge in rental passenger explicit a more authorization. only consent to search the vehicle Akuba’s Jimeno, 252, 1804, at 111 500 U.S. S.Ct. at legitimate expectation if “a she established 114 con- L.Ed.2d at 303. We therefore privacy particular areas objectively, clude that when viewed Rakas, automobile searched.” 439 U.S. at not con- scope did exceed of Akuba’s 433, 148, at at 404. In 58 L.Ed.2d bags duffel sent when he searched the determining legiti Paul whether had the trunk rental car. of the privacy, look for expectation mate Paul, having failed to Whether following facts: any showing pos- that she make legitimate presence in the area [A] legitimate expectation sessed searched, ownership of possession or privacy in the trunk of the rental seized, property area searched or the challenge vehicle, standing area searched or prior use the search. seized, ability to control or ex- property property, others’ After the trial court entered its clude use subjective privacy. opinion suppressing expectation the evi- memorandum

421 Krebs, (quoting cy.” Additionally, argued 504 N.W.2d at 587 United when the State (1st Lochan, 674 F.2d 965 States that Paul had “to present the burden some Carter, Cir.1982); United 854 States evidence to show that she has expecta- [an] (8th Cir.1988)); Wilson, F.2d 1105 tion privacy,” the trial court disagreed, ¶ 26, SD 678 N.W.2d at 184. 2004 incorrectly placed that burden on the must that Paul had also remember the State: legitimate proving expecta- burden of her not COURT: Does the State even—like privacy tion of the area searched. Wil- seeking When are proper- forfeit son, at SD ty establish, all, first of —have Rakas, (citing at S.Ct. there is some against evidence her 404); 58 L.Ed.2d at United States v. tying pot somehow to her? Salter, (8th F.3d n. Cir. STATE: I don’t know about anything 2004) Gomez, (citing United States v. civil forfeiture. (8th Cir.1994)). F.3d thing. COURT: It’s same You are Here, however, Paul did saying, prove you’re innocent. there Is testify present any evidence sup not a threshold burden for the relationship porting any with rental eyidence come forward and some show

vehicle, trunk, bags the its or duffel con guilt of before some connection—some marijuana. taining present That to failure connection to the contraband before the any normally evidence would be fatal to party has to other show some reason her motion she carried the because burden why it can’t tied way to them in one Wilson, ¶25, proof. of or another? Moreover, at 184. N.W.2d Paul reading In STATE: the Krebs deci- that been unable meet burden because sion,11 is, I don’t think Hon- there Your her brief maintains “never that she mean, only I I can rely or. that on trunk; access to the that she was never in ' you decision and indicate to that that vehicle; possession keys the to the of that plainly passenger’s court said it the was trunk[,]” in property she had no proof expectation of burden show of that she “had no control over the trunk of privacy. car, ability nor the to exclude others is not entering sitting from it.” COURT: This stuff .in in passenger seat. This stuff that’s is Nonetheless, [¶ 37.] we address in trunk which the is saying State —and this issue the trial misap because court arguments particularly critical on plied applicable law burden of this-vehicle, is an cars she’s not owner Although proof. attorney the State’s ar motor is not renter vehicle and gued that Paul “has not met her burden of so she has—the State has to establish to legitimate expectation showing priva me somewhere that that stuff hidden cy,” disagreed, insisting trial court that the trunk of the car is her’s. the detention of both Paul and Akuba was STATE: That’s the defendant’s burden illegal, stating and further court’s proof, Your Honor. “primary on [was] [ ] decision based illegal people fruit of an detention of this No. No. No. The in this young COURT: lady expectation than priva- country prov- rather her don’t have to around walk Krebs, passen- (citing Rawlings Kentucky, this Court stated that the 98,-105, ger proving he “bears burden had a (1980)). legitimate expectation privacy.” L.Ed.2d valid, prevail even sent Paul could not something do they didn’t

ing standing. on if first threshold is she had wrong.12 they did do some- prove [¶ Reversed. 39.] interest here The first thing wrong. somehow is to establish the State Justice, GILBERTSON, Chief [¶ 40.] pot to the is connected another she KONENKAMP, Justice, concur. back sitting not in the It’s

the trunk. MEIERHENRY, SABERS and [¶ 41.] in the com- sitting glove It’s not seat. Justices, dissent. joint. smoking partment. not She’s someone no connection between There is SABERS, (dissenting). Justice simply riding is urges the State past I It time for dissent. is hitchhiker. much like a car protect the Fourth this Court act on the further discussion After their rights of motorists and Amendment issue, continued to standing the trial court expeditions of passengers fishing from the surrounding circumstances focus on the Because of the law enforcement officers. request consent to and the stops inherently coercive nature of traffic considering Paul’s stand- search without overreaching and the law enforcement ultimately noted that its ing. The court interdiction, drug the interest of any expectation of ruling was based have a reason- require should that officers Rather, by Paul. privacy (standing) activity criminal suspicion able that its decision was trial court indicated afoot are entitled before ruling its that the search was the based on consent to search. have, illegal detention. We fruit of Dictionary provides Law [¶ Black’s 43.] however, that the trial court determined voluntary part in that means: “Uncon- Therefore, ruling. Paul in that erred interference, by unimpelled by an- strained given opportunity an to have been should influence, spontaneous, acting of other’s expec- that she a reasonable establish by or design oneself. Done intention. [] in the of the rental privacy of trunk tation However, Proceeding from the free and unre- [ ] need not remand vehicle.13 of in person. strained will the Produced standing hearing for because Akuba’s a by act from Resulting con- or of choice. consent was valid. Because Akuba’s imper- criminally possessed good, seized but 12. The trial court’s declaration of an the subject the ob- to a missible contradiction between State's was not Fourth Amendment ligation guilt possession prove deprivation, legal of a without contradiction. Salvucci, 83, 90, and the defendant's obli- controlled substance U.S. United States gation prove standing rejected by (1980). has been S.Ct. L.Ed.2d author, Therefore, the United States Court. It stated: by one "it is now noted assert, possible prosecutor ... for with- the question not belabor the of wheth- need contradiction, out that defendant does not prosecutorial "vice” of contradiction er the (i.e., standing legitimate expectation of a support countenancing could a rule alone searched) privacy place in the and contend probative the exclusion of evidence property trial that defendant owns grounds someone other the defen- than ¶ 28, Slobogin, supra & seized.” Whitebread was a dant denied Fourth Amendment § right. simple 4.04. The is that the deci- answer Court, especially of re- sions this our most "[wje're Illinois, going to Paul noted that not even cent decision in Raleas v. (1978), get granting due to that” to the trial court’s 58 L.Ed.2d 387 sup- clearly may join prosecutor the motion Akuba's motion to establish a si- press. multaneously that a maintain defendant compulsion by highway free choice without or solicita- tained a patrol any officer at given time. word, statutes, especially tion. in [ ] implies knowledge

often essential facts.” Second, [¶ 46.] Akuba’s assertions re- (6th 1990) garding legality Dictionary Black’s of this Law ed deserve greater majority attention than the (internal omitted). opinion citations The State has provides. point The facts to racial profil- a clear by burden to establish and convinc- ing. Specifically, Oxner saw an African ing search the re- evidence “the was American driver a vehicle with out-of- free, sult intelligent, unequivocal plates. around, state license He turned specific any consent without duress or followed the vehicle two miles and coercion, or implied.” actual State Al- n pulled the exceeding driver over for (S.D.1994) mond, limit speed by per three miles It hour. is added) (citation omitted).14 (emphasis noteworthy that the facts this bear case striking resemblance to those in previ- upon by The cases relied ous stop executed Oxner. The dissent- opinion majority State and the have consis- ing noted, opinion in that case tently bent volun- stretched word If there ever was a clear case of racial tary it point completely to the where is out profiling, By it this case. affirming shape meaning. pre- without As convictions, these gives majority cases, by vious coming the conclusion support police officers this circuit voluntarily consented to the who seize and search individuals because majority opinion utterly disre- case, their race. present [] gards reality of a stop by drug Martinez and Cortez-Gomez driv- were ing through South Dakota high- interdiction unit on a South Dakota daylight broad trooper when state way. traveling in the opposite direction ob- First, permissi- the criteria for served their vehicle. The evi- unrefuted bly detaining a motorist are as endless as dence trooper is that when the noticed (Martinez) the driver imagination. example, Hispanic officers For and that the vehicle he was driving bore any citizen for deviating detained trooper California plates, the did a “180” travel, within of crossing his lane over the on highway the proceeded to follow line, fog center line or the failing appro- to doing the After so approxi- vehicle. for a priately signal, exceeding use turn the miles, mately trooper pulled five the the speed limit, or to failing meet the mini- momentarily vehicle for crossing over speed illustrates, mum limit. As this case fog the line violation South Dakota one can exceeding be detained for law. speed by per limit three miles hour. See Martinez, United States Herrera ¶ Ballard, 134, e.g. 11, 2000 SD (8th Cir.2004) 932, F.3d (Lay, circuit (center 837, 840-841 Une and case, judge, dissenting). present in the As line); DeLaRosa, fog clearly The record' shows that de- [the ¶2, (turn signal). registra- driver’s license and fendant’s] This is so even when the officer has no proper tion were in order. The record ticketing intention of for driver further shows that re- [the defendant’s] Therefore, infraction. every almost driver sponses questions the trooper’s to re- a highway may South Dakota be de- garding purpose his destination and did join Meierhenry's special writing convincing I Justice the clear and evidence rule to the that it extent holds should maintain consent to search. It clear that Akuba would suspicion. Simply is to arouse nothing trooper right deny permission no reasonable have had to put, suspect upon which to basis to perform articulable the officer a sniff search of drug activity. However, Defendants was within his vehicle. rights for the officer to deny permission an to insufficient basis profile A racial Id. dog. a under the without the There is which to allow seizure search car upon simply To Amendment. state Fourth no in the that Akuba had indication record is “without mer- argument Defendant’s deny any that he could such consent. idea indications to the face of clear it” Bustamonte, Schneckloth v. Court’s

contrary is an this abdication 2059, 36 L.Ed.2d overreaching by duty to such law prevent (1973) (knowledge deny to right of the enforcement. is a factor to be considered Third, recent deci- this Court’s voluntariness). determining This is true rights during regarding sions by majority of the of motorists detained officer’s officer stop make clear that the a traffic police officers. authority to extend the has carte blanche most, [M]any persons, perhaps would inter- purpose drug for the traffic police view the of a officer diction, go rule” of contrary to the “free having a make search the force

Ballard, 17, 617 2000 SD 134 at N.W.2d at ] In the context motor vehicle law.[ requests if an officer example, 842. For at stops, where individual is the side and the citizen denies consent to search and confronted a uni- road bring only permission, the officer need seeking formed officer to search his or majority canine unit to the scene. vehicle, her it is not a stretch of the held, contrary Terry, has this Court imagination to assume the individu- stop, may that an extend officer al compelled feels to consent. accom- Wes- purpose its has been even after Cfi Oliver, Eye Evil suspicion, ley without reasonable MacNeil With an plished, and DeLa- bring drug dog to the scene. Unequal an Hand: Pretextual Rosa, N.W.2d at SD Stops Doctrinal Remedies Racial brings dog onto 688. Once officer LRev Profiling, 74 Tul. scene, over for the the matter (2000) (stating “[psychological citizen, only for the officer need unwitting studies further confirm that ... there is dog “alerted” order to decide that his impulse obey an almost reflexive Citing clearly tear the our apart. vehicle authority figure.”); see also Adrian J. review, majority erroneous standard of Barrio, Note, Rethinking Schneckloth v. upheld of this a search based Court such Incorporating Bustamonte: Obedience dog’s the that his officer’s assertion Theory into the Supreme Court’s Con- despite pattern changed, audio breathing Consent, 1997 Ill ception Voluntary U of contrary. evidence to the See State v. (discussing L psycho- Rev 233-40 Chavez, Fi- 2003 SD 668 N.W.2d 89. regarding authority fig- logical studies nally, whatever the officer finds the ures). against every passen- vehicle will be held Carty, N.J. 790 A.2d ger holding the of vehicle under (2002) (additional omitted). Wilson, citation passengers “stand- which denies This particularly is so in case ing” to a this where contest of motor vehi- the search Wilson, no that Aku- there is indication whatsoever cle. State go N.W.2d 176. ba realized that he free to without was search; free, a misperception intelligent, to the consenting unequivocal and specific perpetuated any coercion, which have been the consent without duress or Almond, indicating officer’s conditional statements actual or implied.” (citation omitted). go” you Akuba would be “free to “if let me at 574 The Constitution fact, quiek[.]” look In real Akuba was of the United States and the State clearly police time under control he prohibit South Dakota unreasonable “consented” the search. He a was searches and Coercing seizures. car,

patrol papers, the officer retained his to search in these circumstances consti- drug dog whining there was a in the seat tutes an unreasonable search and seizure him, directly behind and the officer’s “re- prohibited by as the constitutions. quest” for consent less than As was clear. person fact verbally 49.] The that a findings:

the trial court noted in its agreed to search proof is not positive investiga- Prior his traffic completing legally consented to a search. tion, Oxner advised Defendant he ease, finder, this the fact findings whose was a narcotics officer and would are to be if only clearly errone- overturned dog sniff around vehicle. Defendant’s ous, found no consent.15 Immediately following the he foregoing, previously I have noted: asked if he could “look the vehicle.” Bustamonte, In Schneckloth v. the Unit- expand

There no basis to traffic ed pointed States Court out investigation to a vehicle. search utility that the of a consent search was Defendant was under detention and evident in police “situations where the clearly not free to leave at that time. have some evidence of illicit activity, but dog plan” The sequencing “drug probable lack cause arrest if okay and “is it I look in car” is 218, 227, search[J” U.S. people such that reasonable could and (1973) 36 L.Ed.2d would infer that there was no choice (listing justification as further for con- going matter-that the officer was 1) sent searches instances where police look in car anyway. Under these investigate suspicious seek to circum- circumstances, people reasonable would 2) up stances or to follow leads devel- likely that the conclude look in car crime). oped at the scene of a inspection would visual accompanied officer not dog and 142, ¶28, Dreps, SD trunks, including opening search (Sabers, Justice, dissent- glove compartments, purses, luggage, ing). majority di- Although opinion looking under seats etc. rectly question addresses the whether majority opinion disregards probable the trial officer must have cause to extend findings courts of fact to come con- to the consent for a clusion that Akuba consented. The basis it question does address the appellate finding appar- this of fact quantum suspicion whether lower is ently necessary. urge that Akuba said “um-hmm” three I to require Court However, times. legal our suspicion standard officers to have reasonable determining activity whether consent volun- criminal before are entitled to was tary is whether “the result permission search was the to search a vehicle. Chavez, It position is hard resist the conclusion that the State. SD of the See 2003 normally given 93, deference to the finder fact 668 N.W.2d 89. apply against does not when it would work

426 Carty, 790 police traffic of conduct.” typical sonableness appraisal An honest at 914. it A.2d the conclusion that is must come to stop situation in which inherently coercive align our approach This would their consti- understand few citizens very un- with the actual interests jurisprudence protections. tutional the derlying the Fourth Amendment. As noted, Supreme Court has when court drug the interest of interdic- 51.] [¶ weighs Fourth Amendment reasonableness are tion, pulling motorists police officers the stops, in the context of traffic State’s and coercing infractions for minor over heavily more weighed are than interests regard- by implying that to search subject the the motorists’ interests where consent, a be conducted. of search will less privilege driving the of matter concerns in or- all citizens like criminals “Treating Valadez, v. highways. the United States among malefactors us to catch the der (5th Cir.2001) (Garwood, 395, 267 F.3d 399 choice, policy an out- an unwise represents Michigan concurring) (citing Dept, State of all of favoring prevention crime over look Sitz, v. 496 110 S.Ct. Police U.S. Carty, at 790 A.2d our other values.” (1990) (additional citation L.Ed.2d 412 omitted). (citation The should ac- Court omitted)). hand, the inter- On the other reality the of “consent” knowledge weighed ests of the motorist are more highways. A on South Dakota searches subject “the heavily where the matter is side the road pulled citizen over the (cit- general crime control.” Id. interest trooper’s car to a would not brought Edmond, ing City Indianapolis free to terminate the encounter and feel 447, 453, 148 L.Ed.2d U.S. S.Ct. e.g. See carry on with their business. (2000)). Drug interdiction falls Bostick, 429, 437, Florida v. U.S. squarely general within “the interest 115 L.Ed.2d S.Ct. control,” this crime and therefore Court (“the (1991) whether, test taking crucial consciously weigh the interests of should all the circumstances sur- into account innocent motorist more presumptively encounter, police conduct rounding the than heavily the interest the State. to a communicated reasonable would have affirm liberty ignore I trial that he not at would court’s person grant go suppress. about his busi- of Akuba’s motion police presence omitted). ness.”) (citation Therefore, trial court ruled that failed to State voluntarily inherently prove and an that Akuba had consent- encounter is coercive required meet a ed to the search. The court arrived officer should be by evidentiary reasoning standard before “re- that conclusion that Officer threshold e.g. Carty, improperly expanded scope See questing” such consent. v, Quino, 903; “impermis- engaging 790 A.2d traffic 170 N.J. (1992), sibly questioning beyond 364-365 74 Haw. 840 P.2d intrusive” denied, scope stop. routine traffic This con- cert (1993). requirement supported by requirements This clusion is 123 L.Ed.2d hardship underlying protections on offi- Fourth Amendment impose would no undue Jersey stop. the context of As the cers the courts New noted, noted, suspi- Eighth Circuit Court has after a Court reasonable stop, permitted cion is valid initial an officer is a “well established constitutional questions requirement any reasonably the Fourth “ask related to under Amend- Ramos, 42 provision stop.” ment comparable United States (8th Cir.1994). 1160,1163 constitution to the rea- F.3d [state] determine questions raise in- reasonably baggage If related the in the trunk. trial The court answers, if consistent or the licenses and did not err its determination Ox- out, registration do not check a[n] [offi- “impermissibly ner’s actions were intru- suspicions may raised so as to cer’s] sive.” expand him the scope enable to the [¶54.] Oxner’s extended detention of additional, stop and ask more intrusive beyond the the time of the purpose If, however, questions. no answers are stop concluded and when the officer objective circum- inconsistent and no suspicion had no reasonable of criminal supply stances the addi- [officer] with activity Therefore, was unlawful. even as- suspicion, the tional should not [officer] suming that Akuba voluntarily consented scope the expand stop. to the involuntarily since the ob- objective Id. no cir- Officer found seizure, tained consent created an unlawful provide cumstances to him with addi- exclusionary requires rule suppression suspicion necessary tional to expand the of the evidence by obtained the officer. scope beyond justifi- its stop original Id. Therefore, expansion cation. of the 55.] The trial ultimately [¶ court con- scope of the consent to detention, illegal cluded that the coupled beyond Terry search went mandates drug with “threat” to dog, use the Ohio, requires which that the officer’s coerced Akuba’s consent and rendered it “justified inception” action be at its involuntary as matter As law. indicat- “reasonably that the action be related in ed, agree I the trial with court for the scope justified to the circumstances which part most and would affirm the motion to place.” Terry interference the first suppress. Ohio, 1, 19-20, U.S. S.Ct. (1968). L.Ed.2d least, very deciding 56.] At the [¶ “justified” circumstance that inter- Oxner’s voluntary, whether consent was courts

ference was Akuba’s traveling three require should prosecution prove per speed miles hour over the limit. by preponderance voluntariness of the There is no relation between this minor Here, evidence. the trial court held that traffic violation and a full blown search of of proving State failed their burden Akuba’s vehicle other than the officer’s voluntary consent whether the burden was garner desire consent to search. Fur- “by preponderance of the or evidence” thermore, by the officer was bound convincing “clear and evidence.” We requirement that his “tempo- intrusion be affirm the should trial court. rary longer necessary and last no than is judiciary only 57.] The barrier the purpose stop.” effectuate to police violations of our citizens’ constitu- Finally, “the employed methods should [ ] rights. tional act to ensure should be the least reasonably intrusive means protections the basic of the Fourth verify dispel [to available or officer] citizens; Amendment are afforded to all suspicion period the officer’s in a short even those who drive ride in vehicles. time.” Florida v. Royer, 460 U.S. affirm 1319, 1325-26, I L.Ed.2d, [¶ 58.] would the trial court’s (1983). holding that the Although illegality of the consent to Oxner had a immediately him, canine unit search carries over to Paul. In that re- available he I spect, disagree majority opin- chose the much with the more intrusive alterna- tive requesting standing. a full search of ion’s decision to I reverse vehicle, interior, including particularly disagree trunk and proposition with the

428 voluntary consent proof on the one hand dard may claim

that the State Supreme The United States searches. sufficient control that the defendant expressly prepon- applied has Court of the possession be in trunk to over the v. since 1974. Mat- derance standard U.S. hand, she had the other drugs but 988, lock, 164, 94 39 L.Ed.2d S.Ct. to over the trunk have control insufficient Dakota Court 242. The South Clearly, protest the search.16 standing require- apply in 1977to the same declined circumstances, have she would under these determined, instead, require ment and privacy. expectation reasonable of clear and convinc- higher standard voluntary consent to show ing evidence MEIERHENRY, (dissenting). Justice Kissner, v. 252 N.W.2d 330 search. State join I dissent. Justice Sabers’ [¶ 59.] (S.D.1977). use have continued to disagree that we should I also [¶ 60.] convincing standard to all con- clear and proof required lower the standard State v. up present. searches to the sent voluntary war- prove State (S.D.1980); 440 State v. Cody, 293 N.W.2d Today, majority re- search.17 rantless Woods, (S.D.1985); 92 State v. 374 N.W.2d proving volun- the State’s burden duces Nemeti, (S.D.1991); 472 477 State N.W.2d convincing the clear and tary consent from Zachodni, (S.D.1991); 624 466 N.W.2d v. preponderance standard. to the standard (S.D. Almond, 572 v. 511 N.W.2d State any compelling It does without reason. so 1994); Fountain, v. 534 N.W.2d 859 State (1) majority gives reasons conform- (S.D.1995); v. SD Dreps, State 1996 by the proof the burden of used ity with Benallie, 339; 1997 and Supreme Court United States Morato, 236; 570 State v. SD N.W.2d (2) Appeals, con- Eighth Court of Circuit 655; 619 State v. N.W.2d formity courts that do not re- with other Guthrie, 2001 401. SD convincing quire clear and evidence Second, changing the standard [¶ 62.] (3) consent, consistency with the prove and jurisdictions that to conform to those determining we proof use burden compelling standards is not a reason. lower Supra 13. voluntariness of confessions. maintain- analysis justify That same could compelling. are None of these reasons ing convincing the clear and standard since First, historically have cho- courts use “clear and numerous state convincing” court’s standard.18 Jurisdictions sen not to follow federal stan- regard, urge convincing I states adhere to the 'clear and 16. In this would the members similarly hold the South of this Court to Dakota evidence’ or stated standard of re- provides protection greater to a constitution view Id. at n 207. of voluntariness.” motorist than the federal constitution. Allow- apply a and Jurisdictions that clear con ing prosecutorial such is funda- contradiction vincing proof higher standard of include any mentally unfair and lacks basis com- State, following: Phillips v. So.2d mon sense. denied, (Ala.Crim.App.1983), cert. 3541, 82 U.S. L.Ed.2d 845 agree I Akuba consented 17. under State, (1984); Rodriquez v. 262 Ark. convincing clear standard. and State, (1978); 559 S.W.2d 925 Stone v. ("clear (2002) Ark. 74 S.W.3d Seizure, states, "Many it Search and Carlson, positive”); People v. P.2d require higher states ... burden of 'clear State, (Colo. 1984); evidence,' Wilson v. 470 So.2d 1 convincing even some State, Lightford (Fla.Dist.Ct.App.1984); proof beyond a reasonable doubt.” John (1974); Hall, Jr., Seizure, 8.11, § 90 Nev. 520 P.2d 955 Wesley Search and Mann, (N.M.Ct. Further, (3d ed). compared 103 N.M. 712 P.2d 514-15 to the standard, Tinneny, preponderance larger App.1985); People v. 99 Misc.2d number "[a]

429 Supreme higher have maintained burden specifically Court left the States proof upon so independent apply higher do based their free to a standard. 404 U.S. 477, (1972). interpretation 619, of their own state’s constitu- 92 S.Ct. 30 L.Ed.2d 618 jurisdictions, states, Lego specifically tion. of those the Texas One reject- Appeals, directly Court of Criminal free, pursuant The States are to their ed a to reduce the State’s burden law, to higher own adopt standard. Ibarra, 242 proof. State v. 953 S.W.2d They may indeed differ as to the appro- (en banc). The Ibarra (Tex.App.1997) priate resolution of the values find independently court construed the Texas at stake. require higher Constitution to stan- (quoting Lego, Id. 404 U.S. at 92 S.Ct. stated,

dard. Specifically, Ibarra court 627). at The Ibarra court determined that although “we need not construe the Tex- “any State failed to offer compelling differently as Constitution from the fed- depart reason to from the and con- [clear constitution, simply get- eral there is no vincing] proof’ standard prove used to ting around the fact that we it construe “the voluntariness of a consent search.” Indeed, independently.” it seems odd Id. at it Finally, that, 245. concluded suggest measure our state preponderance satisfy standard not “does rights constitutional stems not from an the demands of the Texas Constitution art. independent of our assessment constitu- I, § 9.”19 Id. 245. but, rather, way

tion from the in which Under reasoning, similar provisions our constitutional are similar should not reduce the to prepon- standard to or different from coun- their federal Here, only derance. reason the State So, terparts. while Court gives for requested change is that oth- analysis of provi- federal constitutional er courts use the preponderance standard. may enlighten' sions our own constitu- The fact that the federal courts and some endeavors, by tional we are not bound state courts have applied the lower stan- those interpretations. legal dard of proof concept. is not new (internal omitted). Id. at 244 citation The This has been situation since we first Twomey, Ibarra court reviewed v. Lego adopted convincing the clear and standard which the Supreme Court “decided that in 1977. The compelling State offers no the government only need prove why the volun- reason this Court should lower the tariness of a confession a preponder- of proof burden after almost three decades pointing ance of the evidence” out interpreting that the the South Dakota constitu- (Crim.Term 1979); 417 N.Y.S.2d 840 sent to the voluntariness of confession Phillips, N.C.App. 25 212 S.E.2d requires, proof Mississippi, which of vol- State, (1975); 172 McMorran v. 118 Nev. beyond a untariness reasonable doubt. Id. (2002); Gregorio, 46 P.3d 81 State v. at 272. (1976); N.J.Super. 361 A.2d 586 State, (Okla.Crim. Coon 587 P.2d 1373 1, § 19. Vernon's Ann.Texas Const. Art. Glenn, App.1978); Or.App. State v. people Sec. shall be secure in their State, (1987); 732 P.2d 946 Armstead v. houses, persons, papers possessions, (Tex.Ct.App.1984); S.W.2d 266 searches, from all unreasonable seizures or Mathe, Wash.App. 668 P.2d 599 any place, and no warrant to search or to (1983); Mississippi requires proof of the any person thing, seize issue or shall with- beyond voluntariness of consent a reason be, State, describing out them as near as nor able doubt. In Luton v. 287 So.2d cause, denied, (Miss.1973), probable supported by cert. without oath (1974), L.Ed.2d affirmation. analogized court the voluntariness a con clear higher proof burden of represents de- tain it values

tion and the convincing proof from and evidence standard of manding higher in a consent search. We searches. the government long our established should abandon protections. constitutional

State’s Third, consistency with voluntariness of proof

standard can be dis- required not

confession is Tuttle, we lowered In State v.

tinguished. suppression hear- proof in the standard of SD 92 confessions. ings involving custodial BANK, as Guardian FIRST PREMIER The cus- 30. SD 650 N.W.2d Ad Litem and Limited Conservator involved the in Tuttle todial confession Boone, Appel Plaintiff and Daniel L. by a rights followed waiver Miranda lant, Weber, Id.; Cordell v. See also confession. 49; 673 N.W.2d 466. In Wright, SD ENTERPRISES, INC., a KOLCRAFT contrast, request case involves this corporation, Defendant Delaware unrea- right against waive constitutional Appellee. Here, de- search and sonable seizure. subject or to a Nos. 22449. not arrested fendant was officer interrogation, police custodial Supreme Court of South Dakota. criminal suspect probable had no cause give officer did not activity, and the Argued Oct. 2003. or inform warnings defendant Miranda Aug. Decided right to refuse the him of warn- safeguards search. The Miranda

ings present are not present Tuttle overreaching by The law

here. chances of greater per- far when the

enforcement are subjected

son search is advised right rights, of his

of his constitutional his waiver of those

withhold consent

rights by his consent. we have held

[¶ 65.] Since convincing to the of clear and

State burden search. The for a consent State

evidence has that the standard been argue

does not does the

overly burdensome. Neither compelling reasons break identify precedent

with own and stare decisis. our interpret fit to

This Court saw South a higher

Dakota Constitution to afford proof

standard of on a consent search. interpretation was sound 1977 and

it today. sound This Court should main-

Case Details

Case Name: State v. Akuba

Court Name: South Dakota Supreme Court

Date Published: Aug 18, 2004

Citation: 686 N.W.2d 406

Docket Number: None

Court Abbreviation: S.D.