State v. Barry

#28288-r-SRJ
2018 S.D. 29IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
BREE BARRY, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE SUSAN M. SABERS
Judge
****
MARTY J. JACKLEY
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellant.
BEAU J. BLOUIN of
Office of the Minnehaha
County Public Defender
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
****
ARGUED ON
FEBRUARY 13, 2018
OPINION FILED 03/21/18
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JENSEN, Justice
[¶1.] Bree Barry was indicted on four felony drug charges after marijuana
and other controlled substances were found in the vehicle she was driving. Barry
moved to suppress this evidence, claiming it was the product of an unlawful search
after the initial traffic stop of her vehicle was improperly extended to allow time for
a drug dog to arrive and complete an exterior sniff of her vehicle. The circuit court
granted Barry’s motion to suppress. The State filed a petition for an intermediate
appeal. We reverse and remand.
Background
[¶2.] At approximately 9:26 a.m. on December 2, 2016, Highway Patrol
Trooper Joshua Olson (Trooper Olson) observed a black Hyundai SUV driving nine
miles over the speed limit, heading east on I-90 near Sioux Falls. Trooper Olson
stopped the vehicle and noticed it was licensed in Colorado. He approached the
vehicle and spoke with the driver, Barry. Trooper Olson asked Barry where she
was coming from and inquired about her speed. Barry responded she was coming
from Denver and acknowledged she had been speeding. Trooper Olson asked for
Barry’s driver’s license. According to Trooper Olson, Barry’s hand was shaking
when she handed over the license.
[¶3.] Trooper Olson asked Barry to take a seat in the front of his patrol
vehicle while he processed a speeding citation. A patrol vehicle camera captured
video and audio of the conversation between Trooper Olson and Barry. Barry
initially explained that she was on her way home to Wisconsin after visiting
Colorado. She expounded that she had flown to Colorado to stay with her brother
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for ten days while he participated in an FDA clinical trial of an experimental
Alzheimer’s drug. The registration for Barry’s vehicle showed that it belonged to a
Colorado car-rental agency. The vehicle was rented in the name of a person other
than Barry. Barry explained that her brother’s girlfriend rented the car because
Barry did not have a credit or debit card. Trooper Olson informed Barry that he
was going to reduce her citation to a violation for going five miles over the speed
limit. Throughout the initial encounter, Trooper Olson claimed to have observed
additional unusual signs of nervousness in Barry.
[¶4.] Approximately six minutes after the stop, Trooper Olson testified he
began running Barry’s driver’s license and criminal history. As he did so, he asked
Barry if she “had issues” with the law before. Barry stated she was a recovering
heroin addict. She further indicated that she had worked off drug charges in
Wisconsin a few years earlier by acting as a confidential informant. Barry stated
she was now working and was in college, majoring in criminal justice and
psychology. Trooper Olson then began to question Barry about whether she was
transporting drugs in her vehicle, and the following conversation ensued:
Olson: What all are you transporting in the vehicle today?
Barry: Just my suitcase, duffle bag, shoes.
Olson: So they give you leave at work for something like
that?
Barry: Ya, um, I actually had two weeks of vacation saved
up, because I got hired on at Sargento, so right off
the bat after your first year you get one week, after
your second year you get two weeks. But then you
have to finish them out before January. It was
kind of perfect timing.
Olson: Anything in the vehicle I need to be concerned
about, such as weapons?
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Barry: Oh, no, I’m a lover not a fighter.
Olson: Transporting anything crazy like we talked about,
any cocaine in the vehicle?
Barry: Oh, no.
Olson: Heroin?
Barry: No.
Olson: Methamphetamine?
Barry: No.
Olson: How about marijuana, hash, [inaudible]?
Barry: No.
Olson: I don’t know if you know in this state we utilize
drug safety canines, if we were going to have one do
an exterior sniff of your vehicle [inaudible]
Barry: (shaking her head no) No, that’s alright.
[inaudible].
Olson: You’re extremely nervous and it appears like you’re
not being a hundred percent honest with me.
Barry: I’m not nervous.
Olson: Is there some, do you got, did you bring a little?
Barry: I don’t have anything. I have nothing.
Olson: Is everything in the vehicle yours?
Barry: Yes.
Olson: So if I were to search the vehicle today would I find
anything in there?
Barry: You would not find anything at all. I promise.
Olson: So it’s ok if we search the vehicle today?
Barry: No.
Olson: K.
Barry: But that’s . . . because you. . .
Olson: What?
Barry: Only cuz I know my rights now because of school
and I just [inaudible].
Olson: Right. I’m not . . . if you . . . if you have a small
amount of marijuana or paraphernalia . . .
Barry: I really don’t. I really don’t. I’m literally just
trying to get home.
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Olson: Ok. But you said it would be ok if we did an
exterior sniff with our canine?
Barry: No? Did I?
Olson: Well yeah you did. You said that’d be fine.
Barry: Oh, I’m sorry.
Olson: You said that’d be fine.
Barry: Oh I thought that you said that if you were to do it,
like, it would be fine there wouldn’t be anything,
that’s what I thought you meant.
[¶5.] Trooper Olson then asked, “What would you say if I told you that I had
information that you were transporting drugs?” Barry responded “That would be a
lie. How would that be possible if you don’t mind me asking?” Trooper Olson
responded, “I’m just asking a hypothetical.” He then initiated eye nystagmus
testing on Barry and asked Barry if she had used marijuana in Colorado. Barry
replied, “Yes. Absolutely. You don’t get to do that anywhere else.” Trooper Olson
followed up by asking if Barry had used marijuana that morning, which she denied.
Trooper Olson then radioed for a canine unit to conduct an exterior sniff of Barry’s
vehicle. He asked Barry if she was wearing the same clothes when she used
marijuana. Barry began smelling her clothing and responded, “Do I smell like it?”
Trooper Olson stated, “Yeah.” He then asked Barry to perform a partial-alphabet
sobriety test. Trooper Olson told Barry he was detecting a faint smell of marijuana
and asked Barry to be honest with him about whether she had brought drugs back
with her from Colorado. Barry responded that she “enjoyed [her] time in Colorado”
but that she did not bring drugs back with her.
[¶6.] Trooper Olson was advised that a canine unit was en route and that
Barry would need to wait for the unit to arrive. Barry asked if the canine search
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would take long, and Trooper Olson said that it would not. The canine unit arrived
and commenced an exterior sniff of the vehicle. The dog indicated to Barry’s vehicle
during the exterior sniff. Trooper Olson then conducted a probable cause search of
Barry’s vehicle, which revealed a large locked graphite suitcase. Barry told the
canine officer that the suitcase contained souvenirs and claimed she did not have a
key to open it. Trooper Olson forced the suitcase open enough to see what appeared
to be marijuana wrapped in plastic. Barry was then arrested and transported to the
Minnehaha County jail.
[¶7.] Following a hearing on Barry’s motion to suppress, the circuit court
granted the motion and entered findings of fact and conclusions of law. The circuit
court determined, among other things, that: 1) Trooper Olson had reasonable
suspicion for the traffic stop but had unlawfully prolonged the stop; 2) Trooper
Olson lacked a particularized and objective basis for suspecting other criminal
behavior under the totality of the circumstances; 3) Trooper Olson did not smell the
odor of burnt marijuana on Barry until after he had already unlawfully extended
the duration of the initial stop; 4) Barry did not admit to using marijuana two days
prior to the stop until after the stop was unlawfully extended; and 5) Trooper Olson
unlawfully extended the stop to question Barry, conduct standard field sobriety
tests, and call for a drug dog.
[¶8.] The sole question raised by the State in this intermediate appeal is
whether the circuit court erred in suppressing the evidence on the grounds that
Trooper Olson had unlawfully prolonged the traffic stop without reasonable
suspicion of drug activity.
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Standard of Review
[¶9.] We review a circuit court’s grant of a motion to suppress based upon an
alleged violation of a constitutional right de novo. State v. Kenyon, 2002 S.D. 111,
¶ 12, 651 N.W.2d 269, 273. The circuit court’s findings of fact are reviewed for clear
error. Id. Once the facts have been correctly ascertained, we review the circuit
court’s application of those facts to a legal standard de novo. State v. Babcock,
2006 S.D. 59, ¶ 12, 718 N.W.2d 624, 628. As such, determinations of reasonable
suspicion are also reviewed de novo on appeal. State v. Ballard, 2000 S.D. 134, ¶ 9,
617 N.W.2d 837, 840.
Analysis
[¶10.] The State claims that the circuit court erred in suppressing the
evidence by: 1) failing to account for all the indicia of drug activity that was known
or revealed to Trooper Olson during the stop; 2) finding that the stop had been
unreasonably prolonged; 3) finding that Trooper Olson lacked reasonable suspicion
to prolong the stop; and 4) analyzing the stop subjectively, from the perspectives of
the court and Barry, rather than objectively, from the perspective of a reasonable
officer. The State argues that Trooper Olson recognized several indicators of
suspected drug activity within the first few minutes of the traffic stop, providing
him with reasonable suspicion to extend the traffic stop.
[¶11.] The State cites a number of state and federal cases to support its claim
that reasonable suspicion existed to extend the stop of Barry’s vehicle. For
example, in State v. Littlebrave, 2009 S.D. 104, ¶¶ 19-20, 776 N.W.2d 85, 92-93, this
Court found the following articulable facts were sufficient to create a reasonable
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suspicion: 1) one-way air travel to a source state and return to a drug destination
state; 2) the smell of cleaner that the officer believed to be a drug-masking agent; 3)
the “lived-in” appearance of a vehicle; 4) the defendants’ inconsistent stories as to
their travel plans; 5) nervous behavior; and 6) driving a rental car one way with
one-way return plane tickets purchased after only one day. Id.[¶12.] The State also cites United States v. Walton, 827 F.3d 682, 687-88 (7th
Cir. 2016), where the Seventh Circuit Court of Appeals found that one-way air
travel to Colorado, return travel in a rented SUV, persistent nervousness,
inconsistent stories from a driver and a passenger, and the driver’s criminal history
for drug trafficking offenses were sufficient to warrant prolonging a traffic stop past
the 22 minutes it took an officer to write a ticket. Finally, the State cites United
States v. Sanford, 806 F.3d 954, 959 (7th Cir. 2015), where the same court found
reasonable suspicion of drug activity where the defendant traveled through a known
drug corridor, was nervous, was driving a vehicle rented by a third party, and had a
history of drug offenses. The State maintains these cases support the
determination that Trooper Olson had reasonable suspicion to inquire about Barry’s
possible drug involvement and extend the stop to investigate his concerns.
[¶13.] Barry argues this case is controlled by Rodriguez v. United States,
135 S. Ct. 1609, 1612, 191 L. Ed. 2d 492 (2015). Rodriguez considered “whether the
Fourth Amendment tolerates a dog sniff conducted after completion of a traffic
stop.” Id. The Rodriguez Court stated, “A seizure justified only by a police-observed
traffic violation, therefore, ‘becomes unlawful if it is prolonged beyond the time
reasonably required to complete the mission’ of issuing a ticket for the violation.”
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Id. (quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 834, 160 L. Ed. 2d
842 (2005)). In Rodriguez, an officer stopped the defendant after seeing the
defendant slowly veer onto the shoulder of the road and “then jerk back onto the
road.” Id. The officer issued a warning approximately 20 minutes later. Id. at
1613. The officer then detained the defendant for another seven to eight minutes to
allow for the arrival of a second officer so the original officer could safely complete
an exterior canine sniff of the vehicle. Id. at 1615-16. The Rodriguez Court
determined the additional detention was illegal absent reasonable suspicion, but did
not review the question whether there was reasonable suspicion to extend the stop.
Id. at 1616-17. The Court remanded that issue to the Eighth Circuit Court of
Appeals. Id.
[¶14.] Rodriguez is controlling here unless Trooper Olson had reasonable
suspicion of drug activity to justify extending the stop of Barry. This Court has
echoed Rodriguez, noting that an investigatory detention “should ‘last no longer
than is necessary to effectuate the purpose of the stop,’ unless the officer has
reasonable suspicion that additional criminal activity is afoot.” Littlebrave,
2009 S.D. 104, ¶ 16, 776 N.W.2d at 91 (emphasis omitted) (quoting Kenyon,
2002 S.D. 111, ¶ 16, 651 N.W.2d at 274). See also Rodriguez, 135 S. Ct. at 1614.
“Like reasonable suspicion for the initial stop, reasonable suspicion to justify
extending the scope of a traffic stop is examined under an objective test.” Ballard,
2000 S.D. 134, ¶ 13, 617 N.W.2d at 841. “In making a reasonable suspicion
determination, we must look at the ‘totality of the circumstances’ of each case to see
whether the detaining officer has a ‘particularized and objective basis’ for
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suspecting legal wrongdoing.” State v. Herren, 2010 S.D. 101, ¶ 8, 792 N.W.2d 551,
554 (quoting State v. Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d 911, 914). “The
officer’s observations and experience, the location, and the underlying
circumstances need only reasonably support ‘a commonsense inference’ that
additional criminal activity is occurring or about to occur.” Kenyon, 2002 S.D. 111,
¶ 18, 651 N.W.2d at 274 (quoting United States v. Arvizu, 534 U.S. 266, 277,
122 S. Ct. 744, 752, 151 L. Ed. 2d 740 (2002)).
[¶15.] “[T]he investigative methods employed [by an officer] should be the
least intrusive means reasonably available to verify or dispel the officer’s suspicion
in a short period of time.” Littlebrave, 2009 S.D. 104, ¶ 12, 776 N.W.2d at 89.
“However, ‘an officer does not impermissibly expand the scope of a traffic stop by
asking the driver questions, even if the subject of the questioning is unrelated to the
original purpose of the stop, as long as the questioning does not unduly extend the
duration of the initial, valid seizure.’” Id. (emphasis added) (quoting State v. Akuba,
2004 S.D. 94, ¶ 20, 686 N.W.2d 406, 415). “‘[A] reasonable investigation of a traffic
stop may include’ questioning on ‘subjects like place of origination, destination,
employment[,] and the purpose of the trip.’” Id. (quoting Akuba, 2004 S.D. 94, ¶ 20,
686 N.W.2d at 415). “If complications arise during these routine tasks, the vehicle
may reasonably be detained ‘for a longer duration than when a stop is strictly
routine.’” Id. at 90 (quoting United States v. Peralez, 526 F.3d 1115, 1119 (8th Cir.
2008)).
[¶16.] The parties do not dispute Trooper Olson had a legal basis to stop
Barry for speeding. Within six minutes after the stop, and while still conducting his
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investigation incidental to the traffic stop, Trooper Olson became aware of a number
of unusual circumstances concerning Barry’s flight to Colorado and return in a
rental car leased by a third party. He also became aware of her history of drug
addiction and prior criminal drug involvement. Trooper Olson also testified that
Barry displayed unusual nervousness throughout the stop even after he informed
her that he would reduce the speeding citation. At the time of the stop, Trooper
Olson had fifteen years of experience on the South Dakota Highway Patrol and
specialized training in narcotics and drug interdiction. Trooper Olson recognized
Colorado as a drug-source state and testified that based on his training and
experience, he knew it was common for drug dealers to pay someone to “come to
Denver . . . set them up with a vehicle, and have them drive back wherever their
destination is.”
[¶17.] In Littlebrave, we held that a “suspicious vehicle and emerging
inconsistent stories about the details of their trip established reasonable suspicion
to justify the brief detention necessary to ask the three questions regarding illegal
drugs.” 2009 S.D. 104, ¶ 19, 776 N.W.2d at 92. The information available to
Trooper Olson—while still within the initial lawful scope of the reason for his stop—
likewise created reasonable suspicion to inquire further about possible drug
activity. This information included that: Barry was unusually nervous; Barry was
returning from a drug-source state where she did not live; Barry was driving a
rental car rented by an unknown third party; Barry gave no explanation why she
flew to Colorado and rented a car to return home; Barry stated she was a recovering
heroin addict; and Barry admitted prior criminal drug activity and that she had
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been a confidential informant. Barry had plausible explanations for some of her
circumstances, but Trooper Olson was unable to confirm the veracity of these
explanations.1 Aside from nervousness, the circuit court failed to consider or
address any of these other indicators in concluding that Trooper Olson lacked
reasonable suspicion of drug activity.
[¶18.] The circuit court concluded that by this time, Trooper Olson had
effectuated the purpose of the traffic stop and improperly extended the stop by
questioning Barry about illegal drugs without reasonable suspicion. The circuit
court’s determination that Trooper Olson had completed his purpose for the stop at
this point is not supported by the record. The record is undisputed that Trooper
Olson was still conducting the license check and had not yet written Barry’s ticket
at this point in the stop. More importantly, Trooper Olson had reasonable suspicion
to extend the stop based upon the information he learned within the first six
minutes of the stop.
1. A number of decisions from the Eighth Circuit Court of Appeals have also
found reasonable suspicion under similar circumstances to support extending
the stop to allow for the arrival of a drug dog. United States v. Riley,
684 F.3d 758, 761 (8th Cir. 2012) (holding unusual nervousness, inability to
explain inconsistencies about defendant’s itinerary, and a prior history of
drug convictions provided reasonable suspicion to delay the stop to call for a
drug dog); United States v. Lyons, 486 F.3d 367, 372 (8th Cir. 2007) (finding
contradictory descriptions of the planned itinerary between the driver and
passenger, a plan to rent two different vehicles during the course of the trip,
and a large amount of luggage for a short trip provided law enforcement with
reasonable suspicion to prolong a stop for the arrival of a drug dog); United
States v. Fuse, 391 F.3d 924, 929 (8th Cir. 2004) (stating an officer had
reasonable suspicion to conduct a dog sniff where the defendant was driving
from a drug-source state in a vehicle belonging to another person, defendant
was extremely nervous, had an unusual explanation for his trip, and had a
prior criminal history).
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[¶19.] As noted by the circuit court, Trooper Olson’s attention began to turn
toward his concern that Barry was involved in drug activity at this point.2 Trooper
Olson’s questions about Barry’s drug involvement were more extensive than in
Littlebrave, continuing for approximately six minutes. However, all of Trooper
Olson’s questions and actions during this time were directly related to his
reasonable suspicion that Barry might be transporting illegal drugs. His questions
about whether Barry was transporting illegal drugs and his request for a consent
search of the vehicle were the least intrusive means available to dispel those
concerns. Significantly, Trooper Olson did not even call for a drug dog until Barry
admitted that she had used marijuana in Colorado two days earlier.
[¶20.] In its oral ruling, the circuit court determined that Trooper Olson had
improperly extended the stop by the time Barry admitted using marijuana in
Colorado and stated that “given [Barry’s] admission as to legal use in the State of
Colorado which permits the smoking of marijuana, I can’t even find that on these
facts that rises to the level of suspected criminal activity.” Barry also asserts that
her legal use of marijuana in Colorado should not have been considered by Trooper
Olson as part of his reasonable suspicion. On the contrary, the operative analysis
for reasonable suspicion is not the legality of Barry’s use of marijuana in Colorado,
but whether this fact, along with other indicia, objectively supported Trooper
2. Trooper Olson never issued a citation to Barry for speeding. The record does
not clearly show how much longer the issuance of such a citation may have
taken if Trooper Olson had not begun his investigation into suspected drug
activity.
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Olson’s reasonable suspicion to believe that Barry was in possession of illegal drugs
in South Dakota.
[¶21.] Shortly after Barry admitted using marijuana in Colorado, Trooper
Olson indicated he smelled a faint odor of marijuana coming from Barry’s clothes.
Barry smelled her clothes and did not deny that they smelled of marijuana. Trooper
Olson testified that he smelled the odor of marijuana before he called for the drug
dog. However, the circuit court found that Trooper Olson stated he was getting
“faint whiffs” of marijuana approximately 14 minutes after stopping Barry. We
cannot say this finding was clear error based upon the video evidence and Trooper
Olson’s uncertainty about the exact time he began smelling the marijuana.
However, Trooper Olson had already developed reasonable suspicion of Barry’s drug
involvement several minutes before he detected the odor of marijuana on her
clothing. Detecting the odor of marijuana only heightened these concerns.
[¶22.] Barry attempts to separately parse out each of the indicators that
Trooper Olson became aware of during the stop. Admittedly, each fact standing
alone was insufficient to warrant reasonable suspicion to believe Barry might be
transporting illegal drugs. However, as the United States Supreme Court recently
noted in an action filed under 42 U.S.C. § 1983 claiming that law enforcement did
not have probable cause for a search of a residence, the “‘totality of the
circumstances’ requires courts to consider ‘the whole picture.’” District of Columbia
v. Wesby, ___ U.S. ___, ___, 138 S. Ct. 577, 588, ___ L. Ed. 2d ___ (2018) (quoting
United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621-13-
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(1981)). “Our precedents recognize that the whole is often greater than the sum of
its parts—especially when the parts are viewed in isolation.” Id.[¶23.] Considering the whole picture, Trooper Olson developed reasonable
suspicion to believe that Barry was involved in drug activity within minutes after
the stop. His additional questioning of Barry over the next several minutes only
heightened this suspicion. Contrary to the circuit court’s conclusion, Trooper Olson
was not relying upon a “hunch” to extend the stop. Rather, he made commonsense
inferences based upon training and experience, stemming from Barry’s unusual
nervousness, the suspicious circumstances of her trip, and her admitted drug
history. Barry’s admission that she smoked marijuana two days earlier before
leaving Colorado and the odor of marijuana coming from her clothing further
enhanced this reasonable suspicion. The drug dog arrived within approximately 10
minutes after Trooper Olson learned this additional information, and the entire
stop lasted approximately 30 minutes.3 On this record, the length of time of the
stop was not unreasonable. The actions of law enforcement were properly
3. A number of courts have approved of a delay for the arrival of a drug dog once
an officer develops reasonable suspicion of drug involvement during a traffic
stop. United States v. Woods, 829 F.3d 675, 680 (8th Cir. 2016) (approving a
roughly 20-minute wait for a drug dog supported by reasonable suspicion);
United States v. Sanford, 806 F.3d 954, 959 (7th Cir. 2015) (holding a delay of
eight minutes before the drug dog arrived was not unreasonable after the
officer developed reasonable suspicion of drug activity during a traffic stop);
Riley, 684 F.3d at 761 (upholding a 54-minute stop, caused by the delayed
arrival of a drug dog, that was supported by reasonable suspicion); United
States v. Pettit, 785 F.3d 1374, 1378, 1383 (10th Cir. 2015) (prolonging a
traffic stop by 15 minutes to wait for a drug dog was justified because of
reasonable suspicion of drug activity); Lyons, 486 F.3d at 372 (approving a
31-minute delay for drug dog to arrive because of reasonable suspicion that
drugs were in the vehicle).
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supported by reasonable suspicion up to and including the exterior sniff of the
vehicle driven by Barry.
Conclusion
[¶24.] Trooper Olson’s decision to extend the initial traffic stop to question
Barry about drug activity and to conduct the drug dog sniff was supported by
reasonable suspicion. Barry’s traffic stop was not unlawfully extended and the
circuit court erred in suppressing evidence found during the search of the vehicle.
We reverse and remand the case for trial.
[¶25.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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