State v. Lockstedt, 23289

• Citation: 695 NW 2d 718,2005 SD 47
• Decision Date: 13 April 2005
• Docket Number: No. 23289,23289
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. CARL OLIN LOCKSTEDT, Defendant and Appellant.
• Court: Supreme Court of South Dakota

2005 SD 47

695 NW 2d 718

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. CARL OLIN LOCKSTEDT, Defendant and Appellant.

No. 23289

Supreme Court of South Dakota.

Considered on Briefs on January 10, 2005

Opinion Filed April 13, 2005

LAWRENCE E. LONG, Attorney General, JOHN M. STROHMAN, Assistant Attorney General Pierre, South Dakota, Attorneys for plaintiff and appellee.

ELIZABETH M. FREDERICK, Rapid City, South Dakota, Attorney for defendant and appellant.

KONENKAMP, Justice.

[¶ AUTONUM 1.] In this automobile search case, the trial court denied a defense motion to suppress evidence seized after a drug detection dog purportedly indicated the presence of drugs in a car in which defendant was a passenger. Defendant questions whether the drug dog truly signaled the odor of an illegal substance. Because the record viewed in a light most favorable to the findings supports the circuit court's conclusions, we affirm.

Background

[¶ AUTONUM 2.] On October 21, 2002, South Dakota Highway Patrol Trooper Brian Swets was patrolling on Interstate 90. With him was his drug detection dog, Crockett. Shortly after 9:00 a.m., the trooper was near Piedmont, South Dakota, traveling eastbound toward Rapid City. He observed a red-colored Chrysler automobile bearing Texas license plates. At the time, the trooper was traveling 75 m.p.h. and was about to pass the Chrysler, which was moving at 70 m.p.h.

[¶ AUTONUM 3.] As the trooper pulled alongside the vehicle, he noticed that there were two occupants. The driver, Billy Carl Kinnamon, was leaning his head against the side window. To the trooper, he looked fatigued. The other passenger was defendant, Carl Olin Lockstedt. Neither occupant made any eye contact with the officer as he was moving past the vehicle. Trooper Swets slowed his car and pulled behind the Chrysler. Upon calling in the vehicle's license plate number, he learned that the Chrysler was a rental car. It had no outstanding warrants or stop requests associated with it.

[¶ AUTONUM 4.] Following the license plate check, the trooper accelerated and again pulled alongside the Chrysler. For the second time, Trooper Swets noticed that both the driver and passenger made no eye contact with him. The trooper thought that further investigation was required. He passed the Chrysler and drove ahead a few miles to a section of Interstate 90 where the speed limit drops from 75 to 65 m.p.h. He positioned his car to await the Chrysler and see if its driver committed a traffic violation.

[¶ AUTONUM 5.] As the Chrysler approached, Trooper Swets obtained a radar reading of 68 m.p.h. However, with foggy conditions and traffic in a construction area, he was unable to safely intercept the vehicle. He radioed ahead to Trooper Matt Oxner, who was patrolling a few miles ahead on eastbound Interstate 90. Trooper Swets asked Trooper Oxner to either obtain a second radar reading of the Chrysler or stop the vehicle for the earlier speeding violation. Trooper Oxner was unable to get a radar fix on the car. At 9:29 a.m. Trooper Swets was able to pull the Chrysler over himself. Trooper Oxner arrived at the scene shortly afterwards. Each of the troopers was accompanied by their drug detection dogs.

[¶ AUTONUM 6.] Trooper Swets exited his car and approached the vehicle. When asked to produce a driver's license, proof of insurance, rental agreement, and registration, the driver of the car opened the glove compartment. It revealed a plastic bag filled with toiletries, a prescription medicine bottle, and a fruit scented air freshener. Trooper Swets asked both occupants where they were headed and where they were coming from. Both replied that they were going back home to Texas and that they were coming from Montana. The trooper asked why they were in Montana. They responded that they were in Montana to purchase real estate. After noticing the various items in the glove box, reviewing the documents that the driver handed him, and posing a couple of further questions, Trooper Swets asked the driver to accompany him to the patrol car. The trooper indicated to both the driver and passenger that he was only going to issue a warning ticket for the speeding violation.

[¶ AUTONUM 7.] While Kinnamon was sitting in Trooper Swets's patrol car awaiting a warning ticket, Trooper Oxner had his drug dog, Jake, walk around the Chrysler. At no point during the sniff of the exterior of the car did Trooper Oxner observe his dog indicate on the presence of drugs. Meanwhile, in Trooper Swets's patrol car, the driver was asked if there was anything illegal in the car that would make the dog alert. The trooper also asked the driver for consent to search the car. Trooper Swets observed that the driver appeared overly concerned about the dog circling his car and seemed unusually nervous. Kinnamon, however, denied that anything illegal was in the vehicle and refused consent to search. He said he was in a hurry to get back on the road.

[¶ AUTONUM 8.] In the midst of writing the warning ticket and learning that the passenger was the official renter of the car, Trooper Swets exited his cruiser to ask defendant Lockstedt some questions. On the way, he was informed by Trooper Oxner that Jake did not detect any illegal contraband. Once at the passenger side door, the trooper first asked about the prescription pill bottle. Defendant claimed ownership and told Trooper Swets of the prescription's purpose. The Trooper next requested consent to search the vehicle. Defendant refused. He told the trooper that they were eager to move along on their trip back to Texas.

[¶ AUTONUM 9.] Trooper Swets decided to check the car with Crockett. The driver was still in the patrol car because the warning ticket had not been completed. The trooper led Crockett around the vehicle twice. On the second time around, Crockett alerted at the crease of the passenger side door. His sniffing intensified, his body lowered to smell either the bottom crease of the passenger's door or under the car, and he spent roughly ten seconds on that side of the vehicle.¹ The dog, however, did not exhibit any behavior, such as jumping or scratching on the car. Trooper Swets then directed him around the front end and started back down the driver's side of the car.

[¶ AUTONUM 10.] On the driver's side, Crockett again caught an odor and sniffed at the seam of the door. The dog remained on the driver's side for roughly five seconds. His sniff was more intense around the seam of the door, and his body turned to an almost perpendicular position in relation to the vehicle. Again, however, Crockett did not show scratching or jumping behavior. Nonetheless, when Trooper Swets tried to pull the dog away from the scent, it resisted and the trooper pulled again, telling him, "I saw that."

[¶ AUTONUM 11.] Trooper Swets guided Crockett to the trunk area. The dog sniffed at the trunk. Then, telling the dog to "get up there" and "get after it," the trooper encouraged Crockett to jump up onto the trunk. Crockett jumped, pawed, and thus "indicated" at the trunk of the Chrysler. With the dog's purported detection of an illicit substance, the troopers acquired the requisite probable cause to conduct a warrantless search of the defendants' vehicle. See Illinois v. Caballes, 125 SCt 834, 837-38 (2005).

[¶ AUTONUM 12.] After telling defendant Lockstedt that his dog smelled something illegal in the car, Trooper Swets obtained the car keys from the driver and opened the trunk of the car to conduct a search. He told Trooper Oxner that it was "pretty obvious Crockett was alerting." The troopers found 17 individually wrapped one-pound bags of marijuana. Both the driver and defendant were placed under arrest.² A total of ten minutes had elapsed from the time the car was stopped.

[¶ AUTONUM 13.] Along with the illegal substance, the officers also seized a notebook with handwritten annotations of various weights and dollar amounts. Both defendants were charged with conspiracy to distribute, distribution, and possession of more than ten pounds of marijuana. Both moved to suppress the evidence, contending that the stop was not supported by reasonable suspicion and that the warrantless search was unsupported by probable cause. The trial court denied the motion. Following a court trial, both defendants were found guilty. Defendant Lockstedt now appeals, raising the following two issues: (1) "Whether the trial court erred in finding and concluding that Trooper Swets had reasonable suspicion to stop and detain the vehicle in which Lockstedt was a passenger"; and (2) "Whether the trial court erred in finding and concluding that Trooper Swets had probable cause to conduct a search of the vehicle in which Lockstedt was a passenger."

Analysis and Decision

[¶ AUTONUM 14.] After hearing conflicting and contradictory testimony in two suppression hearings, the circuit court made a difficult decision on whether and when Crockett "indicated" on the presence of illegal drugs. We will not disturb a circuit court's findings of fact unless they are clearly erroneous in light of the entire record. State v. Guthrie, 2001 SD 61, ¶56, 627 NW2d 401, 423 (citation omitted); SDCL 23A-32-9. We think it particularly fitting, though, that when a trial court's factual findings are premised on witness credibility, we should give especially strong deference to those findings. Indeed, with rulings on suppression motions, we view the evidence in a light most favorable to the court's findings of fact. State v. Tilton, 1997 SD 28, ¶21, 561 NW2d 660, 665 (citations omitted). When it comes to deciding whose testimony should be believed, a transcript is no substitute for a judge's firsthand observation. On the other hand, a circuit court's decision on reasonable suspicion and probable cause principles raise mixed questions of fact and law, which we review de novo. Ornelas v. United States, 517 US 690, 696-99, 116 SCt 1657, 1661-63, 134 LEd2d 911 (1996); State v. Stanga, 2000 SD 129, ¶...