State v. Haar, 24988.

• Citation: 772 N.W.2d 157,2009 SD 79
• Decision Date: 26 August 2009
• Docket Number: No. 24988.,24988.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Sean P. HAAR, Defendant and Appellant.
• Court: Supreme Court of South Dakota

772 N.W.2d 157

2009 SD 79

STATE of South Dakota, Plaintiff and Appellee, v. Sean P. HAAR, Defendant and Appellant.

No. 24988.

Supreme Court of South Dakota.

Considered on Briefs April 27, 2009.

Decided August 26, 2009.

Lawrence E. Long, Attorney General, Sherri Sundem Wald, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Matthew J. Kinney, Spearfish, South Dakota, Attorney for defendant and appellant.

PER CURIAM.

[¶ 1.] Sean Haar appeals from the circuit court's denial of his motion to suppress evidence seized as a result of a canine sniff of his vehicle at an interstate highway rest area. We reverse.

Facts and Procedural History

[¶ 2.] On February 26, 2008, at approximately 3:20 p.m., South Dakota Highway Patrolman Brian Swets pulled into an interstate rest area located on Interstate 90, a few miles east of Beulah, Wyoming and approximately ten miles west of Spearfish, South Dakota. Upon entering the rest area, Swets observed a Subaru Outback station wagon with Illinois license plates and a cargo box mounted on the top of the vehicle. Although there was only one other vehicle in the rest area (a semi-tractor and trailer), Swets parked his patrol vehicle "just a few feet" from the Subaru, leaving his vehicle partially in the travel lane of traffic across a number of the designated parking spaces with the back of his vehicle close to the Subaru's driver's side. Because of the close proximity of the two vehicles, the driver of the Subaru would have had to have backed out toward the entrance of the rest area and then driven around Swets's vehicle to leave.

[¶ 3.] After parking in this manner, Swets walked along the back driver's side of the Subaru. He observed the following items inside the Subaru:

• A luggage compartment cover drawn over the rear cargo area of the station wagon.

• A black duffel bag in the cargo area (beneath the cover).

• A ski vest hanging from a hanger on the driver's side, rear passenger's window.

• A City of Chicago vehicle sticker on the windshield.

• Two cellular telephones in the front passenger area.

• A woman's purse or large bag.

• Food items.

• A Red Bull brand beverage.

[¶ 4.] After walking past the rear of the Subaru, Swets proceeded toward the rest area building. As he approached the building, he observed a male, later identified as Haar, leaving the building. As the two met, they exchanged greetings. Swets testified that the man appeared nervous as he continued walking.

[¶ 5.] Swets indicated that at this point he did not know who was driving the Subaru. He continued to walk toward the building, but before reaching it, he turned around and saw Haar approach the Subaru. Swets immediately returned to the Subaru and initiated a conversation with Haar in front of the vehicle. Swets positioned himself between Haar and the driver's side door of the Subaru.

[¶ 6.] Swets asked if they could speak, who owned the Subaru, and "where [Haar] was traveling from." Haar indicated that he owned the Subaru and he was coming from "out west." Swets then informed Haar that Swets "had some concerns about some things that [he] saw in [Haar's] vehicle, and that part of what [Swets did] with the Highway Patrol is that [he was] a dog handler." Haar did not respond. Swets then "asked [Haar] if there was anything illegal in his vehicle and if my dog would smell the odor of illegal drugs coming from his vehicle." Haar replied in the negative. Next, Swets "asked if there was anything in the vehicle that he wanted to tell me about. Anything illegal." Haar again replied in the negative. Swets then "indicated to [Haar] that a lot of times I—you know, vehicles are parked in a rest area, not moving, sometimes I might take my dog around the vehicle to check for the odor of an illegal drug. Um, I asked him if he had a problem with me doing that." Haar did not consent.

[¶ 7.] While standing between the Subaru and Haar, Swets then told Haar and the other occupant of the vehicle they were "free to go." This statement was, however, conditional. Swets testified that although he had no prior information about the vehicle or its occupants, and although he observed no illegal substances, he had "a reasonable suspicion of an illegal activity in progress," i.e. drug trafficking. Therefore, Swets later explained that by "free to go," he meant that Haar was physically free to walk away from Swets's presence. Swets conceded that Haar would have had "difficulty" accessing his vehicle or recovering any of his other possessions. When pressed as to whether Haar could have gotten in his car and driven away at that time, Swets would only indicate that Haar was "free to try to get in his car and leave." Swets's testimony ultimately reflected that Haar was only free to walk away from the rest area or "[h]e could have got into another vehicle and drove off." This was at a time when there were no other automobiles in the rest area, Haar was wearing a short sleeve shirt, the temperature was less than thirty degrees, and the nearest town was miles away.

[¶ 8.] Moreover, although Swets told Haar he was "free to go," Swets simultaneously released his drug dog from the patrol vehicle by the use of a remote control device. The dog immediately began a drug sniff on the driver's side of the Subaru. Swets was wearing his Highway Patrol uniform and sidearm. Swets, a claimed student of the law in this area, conceded that the encounter constituted "a show of authority."

[¶ 9.] The dog "indicated" to the presence of illegal drugs within seven seconds. The dog's indication led to a warrantless search of the vehicle. This search revealed a large quantity of marijuana, drug paraphernalia, and some Vicodin.

[¶ 10.] After a pre-trial motion hearing, the circuit court denied Haar's motion to suppress. The court concluded that the canine sniff and resulting search were permissible as a brief detention incident to a lawful traffic stop. Following a court trial, Haar was found guilty of possession of more than one pound of marijuana with intent to distribute, possession of more than ten pounds of marijuana, and possession of a controlled drug or substance. Haar appeals from the denial of his motion to suppress.

Decision

[¶ 11.] Haar argues that the canine sniff occurred during an encounter that was a seizure or detention under the Fourth Amendment. He further argues that Officer Swets's detention was not based on reasonable suspicion. Therefore, Haar contends that the evidence was seized as the result of an unlawful detention, requiring suppression under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

[¶ 12.] Our standard of review in this area is well established:

When a motion to suppress evidence is based on an alleged violation of a constitutionally protected right, we apply the de novo standard to our review of the circuit court's decision to grant or deny that motion. State v. Labine, 2007 SD 48, ¶ 12, 733 N.W.2d 265, 268-269. "While we review the [circuit] court's findings of fact under the clearly erroneous standard, we give no deference to its conclusions of law and thereby apply the de novo standard." State v. Condon, 2007 SD 124, ¶ 15, 742 N.W.2d 861, 866 (citation omitted).

State v. Wendling, 2008 SD 77, ¶ 8, 754 N.W.2d 837, 839. In this case, the facts are uncontested. Haar only challenges the legal conclusions drawn from the uncontested facts. Therefore, we review this matter de novo. However, before considering the merits of the Fourth Amendment issue, we address one procedural matter.

[¶ 13.] The parties extensively rely on the circuit court's memorandum decision. This is significant because, in the memorandum decision, the court concluded that the encounter was consensual rather than a Fourth Amendment seizure or detention. However, in its formal findings of fact and conclusions of law, the court determined that the encounter was a nonconsensual detention in that a reasonable person in Haar's circumstances "would not have felt free to leave." Conclusion of Law ¶ 3. Furthermore, the memorandum decision was not incorporated into the court's findings of fact and conclusions of law or order. Under these circumstances:

The specific findings of fact and conclusions supersede the memorandum and articulate the trial court's final and determinative thoughts. ... It is settled law that we do not review the trial court's memorandum opinion unless the same is expressly incorporated in the trial court's findings of fact and conclusions of law. Since the memorandum was not incorporated, and cannot be used, our review is limited to the findings of facts and conclusions of law.

State v. Labine, 2007 SD 48, ¶ 16, 733 N.W.2d 265, 269-70 (internal citations and quotations omitted).

[¶ 14.] With respect to the merits of the Fourth Amendment issue, the circuit court upheld the canine sniff and resulting search, reasoning that "a brief detention, incidental to a valid traffic stop, for a canine sniff ... is permissible." (Conclusions of Law ¶ 5) (emphasis added) (citing State v. DeLaRosa, 2003 SD 18, 657 N.W.2d 683). Although this is a correct statement of law, there is no dispute that a valid traffic stop did not occur because Swets concededly observed no traffic violations.¹ Therefore, unlike DeLaRosa and other traffic stop cases, there was no traffic violation to justify any detention. Compare DeLaRosa, 2003 SD 18, ¶ 10, 657 N.W.2d at 687 (upholding a canine sniff and subsequent search in part because there was no question that the initial stop of the vehicle was based upon the officer's eyewitness observation of a traffic violation). For this reason, the circuit court erred in concluding that Swets's encounter with Haar, if constituting 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...