State v. Kenyon

• Decision Date: 28 August 2002
• Docket Number: No. 22222.,22222.
• Citation: 2002 SD 111,651 N.W.2d 269
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Tony KENYON, Defendant and Appellee.
• Court: South Dakota Supreme Court

651 N.W.2d 269

2002 SD 111

STATE of South Dakota, Plaintiff and Appellant, v. Tony KENYON, Defendant and Appellee.

No. 22222.

Supreme Court of South Dakota.

Argued May 29, 2002.

Decided August 28, 2002.

Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellant.

Michael J. McGill, Beresford, for defendant and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Tony Kenyon (Kenyon) was pulled over for a routine traffic violation, when law enforcement discovered a cooler containing $17,180 in cash and a McDonald's bag containing methamphetamine, marijuana, and needles. The trial court granted defendant's motion to suppress the evidence from the car, and refused to admit the subsequent statements of Kenyon and his passenger, on the ground that there was no reasonable suspicion to justify a search of the car. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] At 9:23 p.m. on July 28, 2001, Kenyon was pulled over by Union County Deputy Sheriff Jacob Hayes (Hayes). Hayes had observed Kenyon's car traveling south on I29 near Beresford and had noticed that Kenyon's left rear taillight was broken. Some of the red tape covering the light had come off and white light was showing through.¹ Hayes approached the vehicle and requested Kenyon's driver's license, registration, and proof of insurance.

[¶ 3.] Kenyon produced a valid driver's license and registration indicating the car had recently been purchased. But Kenyon informed Hayes that he had not obtained insurance for the vehicle because he had only purchased the car from a friend the day before. Hayes noticed that the dash was dirty and the car was "full of trash," which he thought was odd for a car that had just been purchased. Hayes looked more closely at Kenyon and noticed that he was sweating, had "pin point" pupils and seemed exceptionally nervous. Kenyon also had slurred speech, but Hayes did not smell alcohol. Hayes requested that Kenyon return to the patrol car with him and Kenyon complied.

[¶ 4.] Hayes informed Kenyon that he was just going to write a warning ticket for the broken taillight and failure to have proof of insurance, but this did not seem to calm Kenyon down. While Hayes was doing a radio check on Kenyon's driver's license, Kenyon informed Hayes that he and his passenger were on their way to Sioux City, Iowa, for a birthday party. Even though Hayes discovered no outstanding warrants or other problems, Kenyon continued to be nervous and jumpy.

[¶ 5.] Hayes left the patrol car and approached Kenyon's passenger. Hayes noticed that she, too, was exceptionally nervous and jumpy. The passenger was wearing a long sleeved shirt and sweating heavily. She also had constricted pupils and a dry mouth, but seemed to have less difficulty speaking than Kenyon. The passenger indicated that her name was Kristen Rusch (Rusch) and that she did not have a valid driver's license. Hayes returned to the patrol car where Kenyon was waiting and ran a check on Rusch's identity, which revealed nothing unusual. The time was 9:29 p.m.

[¶ 6.] While awaiting the results of Rusch's identity check, Hayes continued to engage Kenyon in conversation. As a result of his drug interdiction training, Hayes was aware that the 129 route between Sioux Falls and Sioux City was known as a drug corridor for methamphetamine traffic. Hayes also suspected that Kenyon's and Rusch's unusual physical symptoms might indicate the use of some form of stimulant. Hayes asked Kenyon whether he could search the car for drugs and other contraband and Kenyon consented. Then Kenyon told Hayes that he could look around the front of the vehicle, but that he could not look in the back because he had "personal shit in there."

[¶ 7.] Based on this conditional consent, Hayes searched the front seat of Kenyon's vehicle and the center console, but found nothing. While Hayes was searching, Kenyon attempted to communicate with Rusch and yelled something from the patrol car. Kenyon returned to his vehicle and withdrew all consent to search. He then demanded that any further search be done with a search warrant. Kenyon also demanded that he be allowed to go because he was late for his social engagement in Sioux City, Nebraska.² Hayes informed Kenyon that he would have a drug dog do a search of the outside of Kenyon's vehicle, as it would be less intrusive than having Hayes go through the bags and suitcases in the back of the car. Hayes then radioed dispatch for a canine drug detection unit at 9:33 p.m.

[¶ 8.] Trooper Nick Vlasman (Vlasman) arrived at 9:38 p.m. with the drug dog, Ringo. Vlasman had a short conversation with Kenyon regarding the procedure they would use to search the car and noticed that Kenyon was very nervous, had slurred speech, and constricted pupils. Vlasman did not notice any symptoms of alcohol intoxication. When Vlasman used Ringo to search the exterior of the car, Ringo "alerted" at the front and back driver's side doors and at the crevice between the doors on the passenger side. Ringo also raised his paw and scratched at the driver's door, indicating the presence of drugs. Based upon Ringo's behavior, Vlasman told Kenyon that he was going to search the vehicle. Incident to the search of the vehicle, Vlasman asked Kenyon to empty his pockets to determine whether he had any contraband on him. Kenyon emptied his pockets and revealed a small plastic bag containing what appeared to be marijuana. Vlasman arrested Kenyon for possession of marijuana.

[¶ 9.] While the canine search was being conducted, Rusch was standing in front of the car. When Vlasman approached Rusch, he noted her unusual attire and disheveled appearance. Rusch's zipper on her pants was down. Vlasman asked her if she had been using any illegal substances and she admitted that she had used methamphetamine earlier that evening. Given Kenyon's arrest for marijuana possession and the other unusual circumstances, Hays proceeded to do a more thorough search of Kenyon's car. At about 9:45 p.m., in the backseat of Kenyon's vehicle, Hayes found a McDonald's bag containing three small ziplock bags of a white powdery substance,³ another bag of marijuana, and some needles. Vlasman then arrested Rusch and helped Hayes finish the search. Vlasman discovered a cooler containing $17,180 in cash, tinfoil, a three-bar weight scale, and a notebook containing initials and dollar amounts adding up to $17,180.

[¶ 10.] Kenyon and Rusch were both taken to the Union County jail where Kenyon was given warning tickets for the broken taillight and his lack of insurance. The two were booked at approximately 11:41 p.m. On July 30, 2001, Agent Lance Barry (Barry) interviewed Kenyon and Rusch. Both defendants were read Miranda warnings and agreed to waive their rights. The interviews, however, were not recorded. Barry kept written notes of what was said, but the notes did not contain the entire conversation. Rusch was interviewed in the presence of her attorney, while Kenyon was not. Essentially, each of the defendants maintained that the contraband belonged to the other. Kenyon did, however, admit to possessing the marijuana. Rusch admitted to ingesting methamphetamine with Kenyon at the time Hayes pulled them over. She also admitted that she had attempted to hide some drugs down the front of her pants, which was why her zipper was undone.

[¶ 11.] Ultimately, Kenyon was indicted on August 21, 2001 for: (1) unauthorized manufacture, distribution, counterfeiting, or possession of a substance with high potential for abuse in violation of SDCL 22-42-2; (2) possession of a controlled substance in violation of SDCL 22-42-5; (3) ingestion of a controlled substance in violation of SDCL 22-42-15; (4) possession of marijuana in violation of SDCL 22-42-6; and (5) possession of drug paraphernalia in violation of SDCL 22-42A-3. The State filed a motion to admit incriminating evidence on September 5, 2001. Kenyon filed a motion to suppress the evidence from the car search on September 10. The trial court, after a hearing on November 5, found that Hayes did not have sufficient reasonable suspicion to support an investigative detention beyond the time it would have taken to issue the warnings. The court granted Kenyon's motion to suppress the evidence from the car search, "including the urinalysis test results, admissions, confessions, and all contraband seized." In addition, the court held the State had failed to meet its burden of showing Kenyon had voluntarily waived his rights because: (1) the interview was unrecorded; (2) no attorney was present; and (3) the state did not produce a verbatim transcript or record of the interview. The court also refused to admit the statements from the interviews on the basis that they were "fruit of the poisonous tree." The State appeals, raising the following issues:

1. Whether reasonable suspicion existed to justify the search of Kenyon's car after he had been stopped for a routine traffic violation.

2. Whether Kenyon voluntarily waived his Miranda rights.

STANDARD OF REVIEW

[¶ 12.] A trial court's grant of a motion to suppress, based upon an alleged violation of a constitutional right, is reviewed by this Court de novo. State v. Frazier, 2001 SD 19, ¶ 13, 622 N.W.2d 246, 253

(citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). The trial court's findings of fact, however, are reversed only if they are clearly erroneous. State v. Ballard, 2000 SD 134, ¶ 9, 617 N.W.2d 837, 840 (citations omitted).

ANALYSIS AND DECISION

[¶ 13.] 1. Whether reasonable suspicion existed to justify the search of Kenyon's car after he had been stopped for a routine traffic violation.

[¶ 14.] Both the Fourth Amendment to the United States Constitution and Article VI § 11 of the South Dakota Constitution prohibit unreasonable searches and seizures by government officials. This protection also "extend[s] to brief investigatory stops of persons or vehicles that fall short of a traditional...