State v. Chavez

• Decision Date: 30 July 2003
• Docket Number: No. 22438.,22438.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Pedro Garcia CHAVEZ a/k/a Alfredo Garcia Chavez, Defendant and Appellant.
• Court: South Dakota Supreme Court

668 N.W.2d 89

2003 SD 93

STATE of South Dakota, Plaintiff and Appellee, v. Pedro Garcia CHAVEZ a/k/a Alfredo Garcia Chavez, Defendant and Appellant.

No. 22438.

Supreme Court of South Dakota.

Argued March 25, 2003.

Decided July 30, 2003.

[2003 SD 92]

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Jeffery D. Collins, Barker, Wilson, Reynolds & Burke, Rapid City, South Dakota, and Kenneth R. Dewell, Viken, Viken, Pechota, Leach & Dewell, Rapid City, South Dakota, Attorneys for defendant and appellant.

ZINTER, Justice.

[¶ 1.] Alfredo Garcia Chavez was stopped by a South Dakota highway patrolman for a traffic violation. While stopped, the patrolman engaged Chavez in questioning and had his drug dog sniff the exterior of Chavez's vehicle. The dog allegedly alerted to the odor of illegal drugs. A search of the car revealed large quantities of marijuana, methamphetamine, and cocaine. Although drug charges were subsequently filed in federal district court, that court suppressed the evidence. After the federal charges were dismissed, the Lawrence County State's Attorney initiated state drug charges. The state circuit court subsequently conducted a suppression hearing in which the State introduced evidence that was not presented to the federal court. The state circuit court declined to suppress the evidence. Chavez was ultimately found guilty of two counts of possession of a controlled substance with intent to distribute and one count of possession of marijuana. Chavez appeals. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] On September 30, 2000, Chavez's automobile was stopped by South Dakota Highway Patrolman Brian Swets. Although Chavez disputes the matter, Swets testified that he initiated the traffic stop because an object was hanging from the interior rear view mirror, which interfered with vision in violation of SDCL 32-15-6.¹

[¶ 3.] There were three others in the vehicle: an adult male was in the front passenger seat, and an adult female and child were in the back seat. Swets testified that Chavez and the front seat passenger were extremely nervous. Swets indicated that Chavez's hand was "significantly, noticeably" trembling when he handed his driver's license to Swets. While conceding that most people who get pulled over react nervously to some extent, Swets stated that Chavez's nervousness "was out of the ordinary ... greater than I would expect to see."

[¶ 4.] In the course of checking Chavez's driver's license, Swets asked Chavez and the front seat passenger various general questions. In response, Chavez told Swets that Chavez was coming from Seattle, Washington and was traveling to North Carolina. Chavez also identified the male passenger as Aurelio Meja-Castillo. Swets testified that Meja-Castillo "had a jacket in his hands and was rolling it in his hands." Swets indicated that Meja-Castillo's nervousness was also "unusual both in length and degree." Swets indicated that "most people after the original stop, have relaxed, settled down some. Especially passengers, as they aren't usually the focus." Meja-Castillo, however, was "still nervous, agitated, rolling the jacket, very fidgety." Moreover, when asked, Meja-Castillo told Swets that he did not have a "green card." Based on this admission, Swets then asked Chavez if he had a "green card," and Chavez replied "no." Swets asked Chavez "[i]f I call INS to check, are you going to be here legally," and Chavez answered "no."

[¶ 5.] Before this license, registration and INS check were completed, Swets informed Chavez that Swets had a drug dog. Swets then stated, "so if I take my drug dog around the car, is he going to tell me there's drugs in the car." Chavez shrugged his shoulders and said "probably, if he's trained, probably but I don't think so." Swets then proceeded to have his dog (Crockett) sniff the exterior of the vehicle.

[¶ 6.] The officers on the scene contend, and the state court found, that Crockett "alerted" to the odor of an illegal drug coming from the vehicle. Swets testified that an alert occurred because he observed Crockett's sniff intensify, increase, and his body posture tightened. Swets stated that the dog "locked up on the trunk. He did not go any further." After the sniff, Swets told Trooper Michael Thomas that "Crockett showed some interest." Trooper Thomas² testified that he paid particular attention to Crockett's sniff of the vehicle because of Chavez's statement that the dog would probably alert to drugs in the vehicle. Thomas testified that the dog "sniffed a little bit more, stiffened up, and then [Swets] gave him a toy."³

[¶ 7.] After the dog sniff, the officers followed up on the occupants' immigration status. Meja-Castillo indicated that he did not have INS documentation or an immigrant card. Swets asked how he was able to get a drivers license without these documents. Meja-Castillo did not answer, but he did consent to the trooper looking though his wallet. While looking through the wallet, Swets discovered what appeared to be a counterfeit social security card. Furthermore, while still at the scene of the traffic stop, the border patrol put a hold on both Chavez and Meja-Castillo.

[¶ 8.] With the further assistance of Crockett, the officers subsequently searched the vehicle. During the search, they removed a back portion of the back seat and some carpet padding that disclosed an access panel. Once that panel was removed, the officers uncovered a hidden compartment containing several cellophane wrapped packages. Field tests yielded positive results for cocaine and methamphetamine. The vehicle was then towed to the Spearfish Police Department while officers obtained a search warrant. The ultimate search produced packages that contained 450.1 grams of methamphetamine, over four pounds of marijuana, and 18.6 pounds of "almost pure" cocaine.

[¶ 9.] Chavez's first criminal charges were initiated by indictment in United States federal district court. He was charged with: 1) knowingly and intentionally possessing with intent to distribute five kilograms or more of cocaine, and 2) knowingly and intentionally possessing with intent to distribute fifty grams or more of methamphetamine. Following a suppression hearing, a United States magistrate concluded that Chavez was unconstitutionally questioned about his alienage, and therefore, Chavez's answers should be suppressed along with all derivative evidence subsequently obtained. A United States district judge considered that decision and remanded the case to the magistrate for further findings on whether the dog actually alerted to the odor of illegal drugs during the initial sniff of the vehicle. On remand, the United States magistrate found that the dog did not alert to the odor of illegal drugs during the initial sniff of the vehicle. The United States district judge adopted the magistrate's findings and recommendations, and suppressed all evidence from the vehicle. The United States government did not appeal that decision.

[¶ 10.] Upon dismissal of the federal criminal action, Chavez was indicted in state court on five drug counts. Chavez moved to suppress the evidence and to dismiss the case because of the evidence suppression and prior prosecution in federal court. Those motions were denied by Circuit Court Judge Timothy Johns. After a trial to the court, Judge Johns found Chavez guilty of possession of a controlled substance with intent to distribute and possession of marijuana.

[¶ 11.] Chavez appeals, raising these issues:

1. Whether the trial court erred in denying Chavez's motion to suppress, and specifically:

A. Whether there was a reasonable suspicion sufficient to stop Chavez's vehicle.

B. Whether Chavez's constitutional rights were violated by the questioning about his alienage when the stop was for a traffic offense.

C. Whether Chavez's Miranda rights were violated in the questioning about Chavez's alienage.

D. Whether the drug dog alerted to the odor of illegal drugs during the sniff of Chavez's vehicle.

2. Whether the trial court erred in denying Chavez's motion to dismiss on grounds of collateral estoppel, res judicata, and double jeopardy.

[¶ 12.] At the outset, we note that Chavez does not argue that the timing or the performance of the dog sniff during the traffic stop was unconstitutional. Therefore, if the dog sniff provided probable cause for the auto search, we need not consider Issues 1B and 1C. We need not consider those issues because the challenged questioning in Issues 1B and 1C would not be necessary to prolong the stop or provide independent probable cause for the search.⁴ Because we ultimately conclude that the drug dog alerted and provided probable cause, we do not reach Issues 1B or 1C. We affirm on Issues 1A (reasonable suspicion to stop), 1D (drug dog alert), and Issue 2 (double jeopardy/collateral estoppel/res judicata).

STANDARD OF REVIEW

[¶ 13.] We recently reiterated the standard of review of a trial court's decision on a motion to suppress.

A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. We review findings of fact under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo.

State v. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d 206, 209 (internal citations omitted).

DECISION

[¶ 14.] 1A. Swets had a reasonable suspicion sufficient to stop Chavez's vehicle.

[¶ 15.] The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Although this protection generally requires probable cause to search, "[t]he requisite level of suspicion necessary to effectuate the stop of a vehicle is not equivalent to probable cause necessary for an arrest or a search warrant." State v. Barton, 2001 SD 52, ¶ 13, 625...