State v. Pfaff, 16784

• Decision Date: 20 March 1990
• Docket Number: No. 16784,16784
• Citation: 456 N.W.2d 558
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Randy S. PFAFF, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 558

456 N.W.2d 558

STATE of South Dakota, Plaintiff and Appellant, v. Randy S. PFAFF, Defendant and Appellee.

No. 16784.

Supreme Court of South Dakota.

Considered on Briefs March 20, 1990.

Decided May 30, 1990.

Jeffrey P. Hallem, Asst. Atty. Gen., Pierre (Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief), for plaintiff and appellant.

Robert G. Mines, Hot Springs, for defendant and appellee.

MORGAN, Justice.

The State of South Dakota (State) takes an intermediate appeal from an order suppressing evidence in the trial of Randy S. Pfaff (Pfaff). We affirm.

On November 29, 1988, Pfaff was stopped on Highway 79 south of Rapid City, South Dakota, by State Highway Patrol Trooper Lowell Nelson (Nelson) for doing 68 mph in a 55 mph zone.

When Nelson approached Pfaff's car, he noticed that Pfaff was smoking a recently lit cigarette, a sign that made Nelson suspicious that Pfaff might be trying to mask the smell of alcohol. Nelson also noticed two air fresheners in the car, one hanging from the mirror, another lying on the floor board.

Nelson requested that Pfaff produce a driver's license and vehicle registration. Pfaff produced a North Dakota driver's license but no vehicle registration. Prior to the trooper's decision to search Pfaff's vehicle, Nelson determined that Pfaff possessed a valid driver's license and that the automobile was properly licensed in Colorado.

Nelson asked Pfaff to accompany him to the patrol car. When Pfaff exited his car, he was not wearing a jacket, though it was a cold day. The two returned to Nelson's patrol car and Nelson began filling out a citation. While initially suspecting Pfaff of DWI, once Pfaff was in the patrol car, Nelson realized that was not the case. Pfaff appeared normal and relaxed, revealing no indicia of drug or alcohol intoxication.

As Nelson completed the traffic citation, he claims that he smelled raw marijuana on Pfaff's person. Nelson confronted Pfaff, informing him he smelled marijuana on his person and that he suspected Pfaff of possessing marijuana. Pfaff denied smoking marijuana.

Then, Nelson announced that he was going to search Pfaff's car, to which Pfaff refused to give consent. After Nelson announced his intention to search, Pfaff acted nervous and evasive. When Pfaff started to exit the patrol car to return to his vehicle, Nelson stopped him and accompanied him to his car.

At the vehicle, Pfaff was permitted to retrieve his coat because of the cold temperature. Before putting it on, Nelson required that Pfaff permit him to search the jacket. Though Nelson testified he was checking for weapons or contraband, he did not state that he felt that Pfaff was dangerous or that he, Nelson, was in any danger. Instead, he testified that it was his procedure to search everyone in this situation. When Nelson patted down the jacket, he felt a packet in a pocket that he could determine by touch was not a weapon. It was a packet of gold. Nelson admitted he seized the packet knowing it was not a weapon. Nelson additionally found a foil label in a pocket that he admitted did not feel like a weapon. He examined this foil sticker and said that fine particles of marijuana were attached to the sticky portion of the label.

Next, Nelson conducted a search of the interior of Pfaff's car. No contraband was found. However, Nelson claimed that he could smell marijuana in the compartment, despite the smell of air fresheners. In addition to the two air fresheners previously mentioned, Nelson discovered another under the driver's seat and an unopened packet on the floor.

Still convinced there were drugs in the car, Nelson popped the trunk release and searched the trunk. There he found the following: packages of marijuana and hashish wrapped in layers ^* of closed, tightly-sealed, garbage bags, packaged inside a duffle bag, suitcase, and grocery bag. Additionally, Nelson found pills and foil wrapped hashish in a sealed overnight bag. During the search, State Trooper Steve Nichols (Nichols) arrived at the scene and participated in the search. Though Nichols testified that marijuana could be smelled in the driver's compartment and coming from the trunk, Nelson had breached several of the sacks of marijuana by the time Nichols arrived.

During the course of the search, all the sealed bags were breached by the troopers. As a result of these actions, when the State's expert, Dr. Jack Gaines (Gaines), examined the containers and packages, he found tiny holes permitting marijuana to leak out, thus requiring repackaging.

Prior to filling out his arrest report, Nelson felt compelled to contact a Utah Highway Patrol Officer who had given him a class on the drug courier profile in order to brush up on what was required for this determination. Nelson also spoke to several other highway patrol officers and a member of the Pennington County State's Attorney's Office, trying to determine whether he had enough evidence for probable cause to search Pfaff's car.

Pfaff was arrested and charged with possessing marijuana in violation of SDCL 22-42-6 and possession of a controlled substance, hashish, in violation of SDCL 22-42-5. At trial, he moved to suppress the evidence seized as being in violation of his rights under the Fourth Amendment to the United States Constitution and art. VI, Sec. 11 of the South Dakota Constitution.

At the suppression hearing, Pfaff offered evidence on whether Nelson could have smelled marijuana on his person and in the vehicle. Mr. Roger Kierstead (Kierstead), an expert in the field of marijuana investigation and detection, testified. The prosecutor stipulated that Kierstead was an expert, going so far as to declare, "I have all the faith in this witness." Kierstead testified to the following: whether Nelson could have smelled marijuana on Pfaff's person and whether Nelson could have smelled marijuana in Pfaff's vehicle. He based his opinion on the information supplied by the defense attorney as well as speaking to Pfaff about how the drugs were wrapped. Kierstead testified that considering the number of layers the marijuana was wrapped in, the fact that there were numerous air fresheners throughout the car and trunk, the fact that Pfaff was smoking and the fact that a strong north wind was blowing away from the vehicle, Nelson could not have smelled marijuana on Pfaff's person or in the vehicle. Kierstead opined that Nelson had smelled air freshener.

Additionally, the prosecution chemist, Dr. Gaines, testified that if the marijuana was surrounded by four or five layers of garbage bags, as was testified to by Kierstead, only a dog could detect the odor of marijuana, not a person.

Finally, at the suppression hearing Nelson was pressed to articulate what composed the "drug courier profile." Under cross-examination, Nelson admitted that he had not really been taught a profile, but just a wide range of things to look for. When pressed for details, Nelson mentioned out-of-state license plates, use of air fresheners, demeanor, use of rental cars (not present), Highway 79 because it was an artery between Denver (a source for drugs) and Rapid City, and people who were Mexican or Columbian and did not speak English (not present). Ultimately, Nelson testified that he would have to look at the notes from the class he took to provide any better information.

The trial court ordered the evidence suppressed, making specific mention of its consideration of the witnesses' credibility. It found that it did not believe Nelson could have smelled marijuana on Pfaff or inside his vehicle.

The State raises the following issue:

Whether the trial court abused its discretion in suppressing the evidence seized from Pfaff's car.

We first note our standards of review. Since State contests a factual determination made by the trial court as well as the lack of probable cause determination, two standards of review are implicated. First, as to the factual determination, we said in State v. Woods, 374 N.W.2d 92, 98 (S.D.1985):

[A] trial court's findings resulting from a suppression hearing will be upheld unless clearly erroneous, (citation omitted) and that our function under that standard is to determine whether the findings are clearly against the weight of the testimony. (citation omitted)

Second, as concerns the ultimate decision to suppress the evidence, we stated in State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987):

For us to disturb the evidentiary rulings of the circuit court, we must determine that an abuse of discretion has occurred. Once again, an abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.

Under the abuse of discretion standard, we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision. Peterson v. Peterson, 434 N.W.2d 732 (S.D.1989).

The law as to warrantless car searches is well settled. Both sides acknowledge that the United States Supreme Court, as well as this court, have held that when a law enforcement officer stops a vehicle, and the officer has probable cause to believe the vehicle contains contraband, the vehicle may be searched without a warrant....