State v. Akuba

Decision Date18 August 2004
Docket NumberNo. 22923.,22923.
Citation2004 SD 94,686 N.W.2d 406
PartiesSTATE of South Dakota, Plaintiff and Appellant, v. Touray AKUBA and Kaisha Paul, Defendants and Appellees.
CourtSouth Dakota Supreme Court

Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

Thomas M. Diggins, Pennington County Public Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellee Touray Akuba.

Paul John Brankin, Dakota Plains Legal Services, Rapid City, South Dakota, Attorneys for defendant and appellee Kaisha Paul.

ZINTER, Justice.

[¶ 1.] Touray Akuba and Kaisha Paul were stopped by a highway patrol officer for speeding. Akuba allegedly consented to a search of the vehicle. During the search, the officer found 177 pounds of marijuana in the trunk. Akuba and Paul moved to suppress, alleging that they were illegally detained and the consent was involuntary. The trial court suppressed. The State now appeals arguing that the detention was legal, that Akuba voluntarily consented to the search, and that Paul had no standing to challenge it. We conclude that the detention was lawful and the consent to search was valid, and therefore, even if Paul had standing to challenge Akuba's consent, the evidence should not have been suppressed. We reverse.

Facts and Procedural History

[¶ 2.] On September 2, 2002, highway patrol officer Matt Oxner was patrolling Interstate 90, east of Rapid City. Oxner was a canine officer focused on drug interdiction. While traveling west, Oxner observed a vehicle traveling east through a construction zone. Because the vehicle appeared to be catching up with vehicles in front of it, Oxner activated his radar and determined that the vehicle was traveling 68 mph in a 65 mph construction zone. Oxner turned around, pursued the vehicle, and followed it for approximately two miles. Oxner also requested a license plate check to determine if the vehicle was stolen. A radio dispatcher informed Oxner that the vehicle was a rental car from Oregon.

[¶ 3.] Oxner activated his lights and stopped the vehicle. Akuba was driving and Paul (Akuba's brother's girlfriend) was in the front passenger seat. Oxner observed an atlas, blankets, pillows, and food containers in the vehicle, which indicated to him that they were driving without stopping overnight. [¶ 4.] Oxner informed Akuba that Oxner had stopped the car to warn Akuba of the speeding violation. Oxner obtained Akuba's driver's license and the car rental agreement. While at the car, Oxner noticed no evidence of marijuana or other illegal substances. He informed Akuba that he was going to give him a warning ticket for the speeding violation, and he asked Akuba to accompany him back to the patrol car to issue the ticket.

[¶ 5.] Upon entering the patrol car, Oxner began writing the warning ticket. In that process, Oxner engaged Akuba in routine traffic stop questioning. He first asked their destination. Akuba told Oxner that they were traveling from Seattle to Chicago. They then engaged in a casual conversation concerning the purpose of the trip to Chicago, where the car was rented from, and where Akuba worked. Akuba told Oxner they were going to Chicago to meet his brother. Akuba also indicated that they were driving straight through and intended to stay for a couple of days. He finally told Oxner that he worked at a business in Seattle.

[¶ 6.] Oxner then reiterated that he was only going to give Akuba a warning for the speeding violation, but Oxner also told Akuba that he was going to check his driver's license. In the course of that short conversation, they not only discussed the driver's license check, but Oxner also mentioned a drug dog sniff, and he requested consent to search the car. Akuba consented on two occasions. The transcript reveals those consents were given during the scope of the initial stop to issue the warning ticket and check Akuba's driver's license.

OFFICER: Everything's okay with your license?
AKUBA: Yep.
OFFICER: Okay. Have you ever been in trouble before at all?
AKUBA: No.
OFFICER: Okay. Then what I normally do, Touray, being a canine officer —
AKUBA: Uh-hum.
OFFICER: — okay, I got a drug dog in the back, and what I normally do is walk him around most vehicles that I have stopped checking for all illegal — the different o[dors] of illegal drugs, marijuana —
AKUBA: Um-hum.
OFFICER: — cocaine, methamphetamine, heroin —
AKUBA: Yeah.
OFFICER: — anything like that. Any prescription drugs, anything like that. So I'm going to go ahead and walk him around the car. Do you think he's going to smell anything from the car?
AKUBA: Nothing. Nothing.
OFFICER: Nothing. Okay. Is it okay if I look in the car?
AKUBA: Yeah.
OFFICER: I can look?
AKUBA: Um-hum.
OFFICER: Okay.

Oxner noticed that Akuba's nervousness increased at the mention of the drug dog.1 After further brief conversation before the driver's license check came back from the dispatcher, Oxner confirmed that Akuba had consented to a search stating: "So you'll go ahead and let me look in the car then, Touray?" Akuba consented a third time, replying, "Um-hum."

[¶ 7.] While still waiting for the driver's license check to return from the dispatcher, they continued their conversation about Akuba's employment, the warning ticket, and the search of the vehicle:

OFFICER: So what kind of business do you work at? An African business?
AKUBA: African business, yeah.
OFFICER: What's that?
AKUBA: African clothes.
OFFICER: Clothes?
AKUBA: (No response could be heard ....)
OFFICER: Is it your store or somebody else's?
AKUBA: Ah, my brother and his partner.
OFFICER: Brother's store?
AKUBA: (No response could be heard ....)
OFFICER: Here's your license ... back, Touray. Here's just a warning for the speed. You don't have to do nothing with the warning. You can throw that away. Just watch your speed a little closer when you go into those zones, okay?
AKUBA: (No response could be heard ....)
OFFICER: Then when this [driver's license] comes back you'll be free to go. If you let me look real quick —
AKUBA: Um-hum.
OFFICER: — we'll do that —
AKUBA: Um-hum.
OFFICER: — get you going here....

When the driver's license check subsequently came back, Oxner told the radio dispatcher that he "had a vehicle for a search." He also stated to Akuba, "Okay, you guys will be free to go if you let me search real quick. I'll just have you stand in front of the car, okay?" Akuba again replied, "Yeah."2

[¶ 8.] Oxner and Akuba then got out of the patrol car and approached the rental car. Oxner did not take the drug dog with him. Upon approaching the car, Oxner confirmed to Paul that "Touray is going to let me look in the vehicle real quick and we'll get you guys going." Oxner then asked Paul and Akuba to stand near the front of the car. Akuba and Paul stood silently without objection while Oxner searched the vehicle. Oxner first looked in the front passenger side of the car. He then unlocked the doors and searched the back seat. After searching the interior of the car for about two minutes, Oxner took the keys from the ignition and searched the trunk. Oxner found four large duffel bags containing 177 pounds of marijuana. The entire stop, including the search, took approximately ten minutes.

[¶ 9.] Akuba and Paul were placed under arrest and later interviewed by an agent of the Division of Criminal Investigation. Akuba admitted that he knew the marijuana was in the trunk and that he was paid $1,000 to transport it to Chicago. Akuba and Paul were subsequently charged with possession of marijuana, more than ten pounds, in violation of SDCL 22-42-6.

[¶ 10.] After pre-trial hearings, the trial court granted Akuba's motion to suppress. The court ruled that the State failed to prove that Akuba had voluntarily consented to the search. The court arrived at that conclusion by reasoning that Oxner improperly expanded the scope of the stop by engaging in "impermissibly intrusive" questioning beyond the scope of a routine traffic stop. The court held that asking for Akuba's consent to search the vehicle, when the officer had no reasonable suspicion to do so, was impermissibly intrusive questioning that resulted in an illegal detention. The court ultimately concluded that the illegal detention, coupled with a "threat"3 to use the drug dog, coerced Akuba's consent and rendered it involuntary as a matter of law. In Paul's related motion, the trial court suppressed, concluding that the evidence was the fruit of an illegal detention. The trial court declined to address Paul's standing to object to the search.

[¶ 11.] The State raises the following issues on appeal:

1. Whether the State's burden of proving voluntary consent should be by a "preponderance of the evidence" or by "clear and convincing evidence."
2. Whether the warrantless search of the vehicle was authorized by Akuba's consent.
3. Whether Paul, having failed to make any showing that she possessed a legitimate expectation of privacy in the trunk of the rental vehicle, had standing to challenge the search.
Analysis and Decision
1. Whether the State's burden of proving voluntary consent should be by a "preponderance of the evidence" or by "clear and convincing evidence."

[¶ 12.] "Even when police officers have neither probable cause nor a warrant, they may search an area if they obtain a voluntary consent from someone possessing adequate authority over the area." United States v. Chaidez, 906 F.2d 377, 380 (8thCir.1990) (citing United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974)). "It has been said that consent to conduct a search satisfies the Fourth Amendment, thereby removing the need for a warrant or even probable cause." State v. Sheehy, 2001 SD 130, ¶ 11, 636 N.W.2d 451, 453 (citations omitted). "For consent to a search to be valid, the totality of the circumstances must indicate that it was voluntarily...

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