State v. Nguyen

Decision Date03 January 2007
Docket NumberNo. 23613.,23613.
Citation726 N.W.2d 871,2007 SD 4
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Tam Thi Thu NGUYEN, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Michael J. Butler of Butler Law Office, P.C., Sioux Falls, South Dakota, Attorney for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Defendant was arrested, charged, and convicted of possession of more than ten pounds of marijuana and possession with the intent to distribute or dispense more than one pound of marijuana. She was apprehended when a drug detection dog sniffed the substance in the trunk of her rental car. She moved to suppress the evidence on the grounds that the dog was not a reliable drug detector and did not properly "indicate" the presence of marijuana. We conclude (1) that the dog was reliable based on its certification and training, and (2) the response it displayed to its law enforcement officer handler was a sufficient indication of the presence of an illicit substance. Accordingly, we affirm.

Background

[¶ 2.] On March 10, 2004, Tam Thi Thu Nguyen was driving east near Sioux Falls on I-90, just past the interchange between I-29 and I-90, when she was stopped by South Dakota Highway Patrol Trooper Christopher Koltz. Trooper Koltz stopped Nguyen at 9:30 p.m. after he observed her following another vehicle too closely. According to the trooper, the brown Chevy Impala driven by Nguyen was following a blue van with less than one car's length distance between the vehicles. The infraction continued when he observed both vehicles simultaneously make a left lane change, and a subsequent right lane change, again, simultaneously. It was at this time Trooper Koltz positioned his vehicle behind Nguyen's and activated his emergency lights. Nguyen pulled her vehicle over and stopped on the shoulder. The events of the stop were recorded by a video camera mounted in Trooper Koltz's patrol car.

[¶ 3.] After pulling Nguyen's vehicle over, Trooper Koltz exited his patrol car and approached the passenger side of the Impala. He introduced himself and then informed Nguyen of the reason for the stop. Through the window of the vehicle the trooper noticed an open atlas and food wrappers on the passenger seat, and, in the backseat, he saw a piece of luggage. When Trooper Koltz asked for Nguyen's driver's license and vehicle registration, he observed her act nervously: her hand was shaking when she handed him her license. He then told her that he was only going to issue her a warning ticket, but that he would like her to go and sit in the passenger seat of his patrol car.

[¶ 4.] Once out of her vehicle, Nguyen expressed reluctance in response to the trooper's request that she get into the patrol car. She said she was scared and asked to see his badge. He inquired if she would like another officer to be called to the scene. She replied that it was not necessary, and then proceeded to get into the patrol car. However, before she entered his vehicle, the trooper warned her that a drug detection dog was located in the backseat. Inside the patrol car, Trooper Koltz questioned her about the purpose of her trip. She told him that she was from Renton, Washington, and was heading to Chicago to see some friends. He asked about her employment, to which she responded that she "buys things for people." Upon further inquiry, she told Trooper Koltz that she shops for people for a lump sum charge or an hourly rate.

[¶ 5.] During their discussion in the patrol car, Kaz, the drug detection dog, was barking intermittently. There was a mesh cage separating Kaz from the front seat, but air could pass freely through the cage. Trooper Koltz later testified that Kaz went over and sniffed right behind where Nguyen was seated, and "then he began to give his indication to the odor of illegal drugs. He did that by biting at the [rubber] kennel mat" in the backseat. Indeed, on the videotape, Trooper Koltz can be heard explaining to Nguyen that his dog's barking and biting at his kennel while she was in the patrol car was "one of the things [the dog] does when he's trying to tell me he can smell one of the odors he's trained to detect." An audible squeaking created by this biting can be heard on the video tape.

[¶ 6.] Trooper Koltz asked Nguyen whether she had any illegal drugs on her person or in the vehicle. Nguyen replied no. The trooper next asked "whether the odor of illegal drugs would be present on the vehicle or in the vehicle." Nguyen again said no. He then informed her that while the background check was proceeding, he was going to take Kaz and conduct a walk-around sniff of her vehicle. Trooper Koltz exited the patrol car and retrieved Kaz. After they proceeded near the front of the patrol vehicle, the trooper and Kaz can be seen on the video. Kaz is on a leash and being led towards the driver's side of Nguyen's vehicle. The trooper stops near the driver's side door, turns around and leads Kaz from the driver's side area towards the back of the vehicle. The trooper is at all times in front of Kaz, while the two continue to move forward toward the passenger's side, to the front of the vehicle, and then back toward the driver's side door.

[¶ 7.] During this first trip around the vehicle, Kaz can be seen actively sniffing the exterior of the car, tail wagging, nose touching the vehicle, with his body parallel to the vehicle. Kaz continues to sniff in this position until he reaches the trunk area. Here, Kaz pauses momentarily, but resumes his circling of the vehicle, with his body parallel and nose touching. When Kaz arrives near the passenger door, he again pauses briefly. His body position changes slightly, but as with the trunk Kaz moves on, now toward the front of the vehicle, and back to the driver's side door.

[¶ 8.] Trooper Koltz then takes Kaz around the vehicle a second time. Beginning again on the driver's side, Kaz actively sniffs the exterior of the vehicle, moving his head up and down, wagging his tail, but still in a constant movement forward with his body parallel to the vehicle. When he approaches the trunk area, Kaz stops. This time his body becomes perpendicular to the vehicle. Kaz continues to actively sniff the trunk area, moving his nose up and down, with his tail wagging. Trooper Koltz leaves slack in Kaz's leash, and can be seen looking at Kaz. The trooper mouths some words.1 Kaz then appears to be biting at the fender part of the vehicle under the trunk. After this, Trooper Koltz moves toward Kaz, pets him, and continues to mouth some words. Kaz returns momentarily to continue biting the fender. The trooper pulls Kaz away by the leash and returns him to the patrol car.

[¶ 9.] After Trooper Koltz's observation of Kaz's behavior, he informed Nguyen that Kaz indicated the odor of an illegal substance. Because of Kaz's indication, Trooper Koltz told her that he was going to search her vehicle. She asked if she could say no, and he responded that he did not need her permission because Kaz's indication gave him probable cause to conduct the search. By that time, another trooper had arrived at the scene. He assisted Trooper Koltz in searching the trunk of Nguyen's vehicle. Two duffel bags, one containing twenty individually wrapped packages of marijuana and a second containing thirty of the same, were found in Nguyen's trunk. The combined weight of the marijuana came to 53.94 pounds. Nguyen was placed under arrest and charged with possession of more than ten pounds of marijuana, and possession with the intent to distribute or dispense more than one pound of marijuana.

[¶ 10.] On April 15, 2004, Nguyen moved the court to suppress the evidence seized from her vehicle. She alleged that (1) her vehicle was stopped without reasonable suspicion, (2) once stopped, Trooper Koltz, without legal justification, impermissibly extended the scope of an otherwise routine traffic stop, and (3) Trooper Koltz did not have probable cause to search the trunk of her vehicle. Evidentiary hearings were held on July 26, September 21, and November 16, 2004. The trial court denied Nguyen's motion to suppress on all issues. The court found that "Trooper Koltz had probable cause to search Tam Thi Thu Nguyen's vehicle based upon the objectively observable indication of this properly trained and certified drug detection dog, `Kaz.'"

[¶ 11.] After a trial to the court on February 8, 2005, Nguyen was convicted of both charges, and on March 18, 2005, she was sentenced to the penitentiary. On appeal, Nguyen does not contest that Trooper Koltz had reasonable suspicion to justify the stop. Instead, she raises two issues: (1) whether the evidence established that the drug detection dog was reliable, and (2) whether the trooper had probable cause to search Nguyen's vehicle based on the behavior of his drug detection dog.

Standard of Review

[¶ 12.] A trial court's decision on whether probable cause exists is reviewed de novo, as it presents a mixed question of law and fact. State v. Lockstedt, 2005 SD 47, ¶ 14, 695 N.W.2d 718, 722 (citing Ornelas v. United States, 517 U.S. 690, 696-99, 116 S.Ct. 1657, 1661-63, 134 L.Ed.2d 911 (1996); State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). However, the court's findings of fact are reviewed under the clearly erroneous standard. Id. (citing State v. Guthrie, 2001 SD 61, ¶ 56, 627 N.W.2d 401, 423). When we review a court's decision to deny a defendant's motion to suppress evidence, "we view the evidence in a light most favorable to the court's findings of fact." Id. (citing State v. Tilton, 1997 SD 28, ¶ 21, 561 N.W.2d 660, 665). The trial judge remains the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.

Analysis and Decision
1. Reliability of Drug Detection Dog

[¶ 13.]...

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