State v. Ballard, No. 21322.

CourtSupreme Court of South Dakota
Writing for the CourtKONENKAMP, Justice
Citation2000 SD 134,617 N.W.2d 837
Docket NumberNo. 21322.
Decision Date18 October 2000
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Shanna BALLARD, Defendant and Appellant,

617 N.W.2d 837
2000 SD 134

STATE of South Dakota, Plaintiff and Appellee,
v.
Shanna BALLARD, Defendant and Appellant

No. 21322.

Supreme Court of South Dakota.

Considered on Briefs September 18, 2000.

Decided October 18, 2000.


617 N.W.2d 838
Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee

Matthew J. Kinney, Spearfish, for defendant and appellant.

KONENKAMP, Justice

[¶ 1.] If, after issuing a traffic warning, an officer tells a driver she is free to leave but asks for her consent to search her vehicle for drugs, and she refuses, may the officer then detain the driver to await the use of a drug dog? The defendant argues that the officer had insufficient legal grounds to continue detaining her after she was told she was free to go. The circuit court denied her motion to suppress, but we conclude that it should have been granted and reverse.

617 N.W.2d 839
A.

[¶ 2.] On August 14, 1999, at 11:50 p.m., Lawrence County Deputy Sheriff Michael Shafer observed a car driving partly on the shoulder of the road near Whitewood, South Dakota. Shafer followed for a short distance and saw the car cross the centerline. He then stopped the driver for a violation of SDCL 32-26-1.1 Shafer suspected the driver was intoxicated.

[¶ 3.] Deputy Shafer approached the vehicle, advised the driver, Shanna Ballard, of his reason for stopping her, and asked for her driver's license. Ballard explained that she was driving erratically because she had been looking for something in her purse. Shafer did not smell alcohol or detect the presence of any contraband in the car. He asked Ballard to come back to his patrol vehicle. Her two passengers remained in her car.

[¶ 4.] While in the patrol car, Shafer observed Ballard to be "very fidgety"—her hands were shaking; she could not sit still; her pupils were constricted; and she had a "wired" look. When asked at the suppression hearing to describe this "wired look," Shafer said,

The best description that I can give would be of—very intense look. Eyes kind of very—almost bulging in focus. Almost if—if you've ever seen a picture of Charles Manson where he's just very intense, some of the photos you've seen of him, that's the best description I can give you of it.

Shafer noted that while most drivers are nervous when they encounter law enforcement officers, Ballard's conduct was "remarkable" and "unique from other people." In his experience this behavior was consistent with methamphetamine use. Nonetheless, after checking the status of her license and issuing her a warning citation, Shafer told Ballard she was "free to leave." Then he told her that he was suspicious about the presence of drugs in her car and asked her for consent to search it. Ballard refused.

[¶ 5.] Shafer informed Ballard that he was going to detain her vehicle until a drug detection dog could be brought to the scene. He radioed for a K-9 unit. In his suppression hearing testimony, Shafer admitted he had no probable cause to search at this point, but he believed he had reasonable suspicion that there was contraband in Ballard's vehicle. Shafer left Ballard in his patrol car and told the two passengers that the vehicle would be detained until a drug dog could be brought to the scene. He went on to ask the occupants if any items in the car belonged to them. He also asked if the dog would "alert" to any contraband. One passenger admitted that he had a "bowl of marijuana" in his bag. Shafer asked both passengers to step outside the vehicle.

[¶ 6.] About five minutes later, Trooper Schnettler arrived along with his dog, Nitro. Schnettler led Nitro around the vehicle to sniff for illicit substances. When Nitro "alerted" to a part of the car, the entire vehicle was searched. The officers found a blue zipper bag that contained a scale with white powder residue, a plastic bag containing marijuana, a box containing three plastic bindles with white powder residue, and various syringes. All three occupants were arrested.

[¶ 7.] Ballard was indicted on one count of possession of a controlled substance and one count of possession of marijuana. A charge of possession of drug paraphernalia was later added. She moved to suppress and, following a hearing, the circuit court denied her motion. In a bench trial, Ballard was found guilty on all charges and given a suspended imposition of sentence with probationary conditions. Her suspended imposition of sentence was later revoked and the court suspended the execution of a prison sentence, allowing Ballard to continue probation in her home state of Colorado.

617 N.W.2d 840
[¶ 8.] Ballard now appeals challenging the legality of her continued detention after the warning citation was issued and she was told that she was "free to leave." She asserts that this constituted a second stop without reasonable suspicion or probable cause.2 Ballard also argues that even if Shafer's continued detention was permissible there was no reasonable suspicion for the canine sniff, or that this particular canine sniff was unreasonable and should be classified as a "search."3 We need not reach these alternative arguments

B.

[¶ 9.] We recently clarified the appropriate standard for reviewing decisions on warrantless searches and seizures. State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603. "[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Id. (italics and alterations in original)(citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). In reviewing findings of fact we continue to apply the clearly erroneous standard. Hirning, 1999 SD 53, ¶ 8, 592 N.W.2d at 603 (citing State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994)). A finding is clearly erroneous only if, after reviewing the evidence in its entirety, "we are left with a definite and firm conviction that a mistake was made." Almond, 511 N.W.2d at 574. "Once the facts have been...

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30 practice notes
  • State v. Akuba, No. 22923.
    • United States
    • Supreme Court of South Dakota
    • August 18, 2004
    ...was made within the period of the initial lawful detention, Akuba's consent was not involuntary as a matter of law. State v. Ballard, 2000 SD 134, 617 N.W.2d The Factual Issue of Consent [¶ 25.] Having determined that there was no legal reason to invalidate Akuba's consent, the next issue i......
  • State v. Sweedland, No. 23713.
    • United States
    • Supreme Court of South Dakota
    • August 16, 2006
    .... . . per se unreasonable . . . unless it is accomplished pursuant to a judicial warrant issued upon probable cause[.]'" State v. Ballard, 2000 SD 134, ¶ 10, 617 N.W.2d 837, 840 (quoting United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983)). The warrant req......
  • State v. Haar, No. 24988.
    • United States
    • Supreme Court of South Dakota
    • August 26, 2009
    ...a detention to conduct the canine sniff, was justified as incident to a valid stop for a traffic violation.2 [¶ 15.] In State v. Ballard, 2000 SD 134, 617 N.W.2d 837, we set forth the general principles underlying brief detentions of property to conduct canine sniff's when a traffic stop is......
  • State v. Kottman, No. 23443.
    • United States
    • Supreme Court of South Dakota
    • November 22, 2005
    ...standard is also reviewed de novo, while its factual findings are reviewed under the clearly erroneous standard. Id.; State v. Ballard, 2000 SD 134, ¶ 9, 617 N.W.2d 837, 840 (citations omitted). Analysis and Decision [¶ 10.] Even though Kottman maintains that the officers needed a warrant t......
  • Request a trial to view additional results
30 cases
  • State v. Akuba, No. 22923.
    • United States
    • Supreme Court of South Dakota
    • August 18, 2004
    ...was made within the period of the initial lawful detention, Akuba's consent was not involuntary as a matter of law. State v. Ballard, 2000 SD 134, 617 N.W.2d The Factual Issue of Consent [¶ 25.] Having determined that there was no legal reason to invalidate Akuba's consent, the next issue i......
  • State v. Sweedland, No. 23713.
    • United States
    • Supreme Court of South Dakota
    • August 16, 2006
    .... . . per se unreasonable . . . unless it is accomplished pursuant to a judicial warrant issued upon probable cause[.]'" State v. Ballard, 2000 SD 134, ¶ 10, 617 N.W.2d 837, 840 (quoting United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983)). The warrant req......
  • State v. Haar, No. 24988.
    • United States
    • Supreme Court of South Dakota
    • August 26, 2009
    ...a detention to conduct the canine sniff, was justified as incident to a valid stop for a traffic violation.2 [¶ 15.] In State v. Ballard, 2000 SD 134, 617 N.W.2d 837, we set forth the general principles underlying brief detentions of property to conduct canine sniff's when a traffic stop is......
  • State v. Kottman, No. 23443.
    • United States
    • Supreme Court of South Dakota
    • November 22, 2005
    ...standard is also reviewed de novo, while its factual findings are reviewed under the clearly erroneous standard. Id.; State v. Ballard, 2000 SD 134, ¶ 9, 617 N.W.2d 837, 840 (citations omitted). Analysis and Decision [¶ 10.] Even though Kottman maintains that the officers needed a warrant t......
  • Request a trial to view additional results

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