APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE MERTON B. TICE, JR. Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON NOVEMBER 3, 2008
[¶1.] A drug dog search conducted during a routine traffic stop led to the discovery of over 200 pounds of marijuana in Defendant's rental car. Defendant was charged with Possession of Marijuana with Intent to Distribute, More than One Pound. Defendant moved to suppress evidence seized claiming (1) the dog and handler were deployed in violation of state statutes and regulations and the statutory violation required suppression of the evidence, (2) that the drug dog did not properly indicate to Defendant's car, and (3) that a drug dog that alerts to the odor of drugs and not the presence of drugs is not sufficiently reliable to establish probable cause adequate for a warrantless search. Defendant's motion to suppress was denied, and he was convicted and sentenced to fifteen years in the state penitentiary with eight years suspended. We affirm.
The Statutes and Regulations
[¶2.] In 2004, a legislative mandate to set training and certification standards for all canine units in the state, including drug detection, bomb and explosives detection, and search and recovery dogs, was given to the Law Enforcement Officers Standards Commission (Commission) per the provisions of SDCL 23-3-35(14), -35.4, and -35.5.*fn1 The Commission then enacted administrative rules including standards for testing, training and certification. Under the rules promulgated by the Commission, a canine team was required to be re-evaluated and certified annually by an approved canine judge. Upon completion of the testing and certification with a passing score, the canine judge was required to forward the evaluation and results to the Commission for it to issue the certification. Testing and certification standards were compiled in a publication entitled the South Dakota Police Canine Association, Inc., Certification Teams Student Handbook (Handbook). The Handbook and its requirements became effective on June 9, 2005.
[¶3.] South Dakota State Highway Patrol Officer Matt Oxner and his drug detection dog, Keya, were originally certified on April 4, 2003. The April 2003 certification was completed by the City of Sioux Falls Police Department, and was valid through April 4, 2004. The team was subsequently recertified the following year by the Nebraska State Patrol on January 10, 2005. That certification was valid for one year and set to expire on January 10, 2006. Oxner and Keya's next recertification was required to be in compliance with the Commission's administrative rules and the Handbook, as both became effective June 9, 2005.
[¶4.] On December 12, 2005, Keya and Oxner received training and were evaluated by Nebraska State Patrol Sergeant Andrew Duis, a canine judge authorized by the Commission to administer the South Dakota evaluation. Duis used the Nebraska testing standards, which were taken from the International Congress of Police Service Dogs (ICPSD)*fn2 standards, rather than the South Dakota standards as contained in the Handbook. Duis used a Nebraska score sheet rather than a South Dakota score sheet as required by the Commission's rules.
[¶5.] Duis's score sheet for Oxner and Keya was not submitted to the Commission following the evaluation as required by the Handbook. Instead, on March 25, 2006, Duis finally sent the score sheet to Lieutenant Scott Sheldon, the supervisor of the South Dakota Highway Patrol police service dog unit. Duis never sent the score sheet directly to the Commission. Sheldon was not a canine judge at the time of the December 12, 2005 testing, but was present during Keya and Oxner's evaluation. Sheldon used Duis's one-page Nebraska score sheet to make entries on the seven-page South Dakota form. Sheldon was unable to complete 123 of the 147 entries on the South Dakota score sheet for lack of information.
[¶6.] The Commission reviewed the South Dakota score sheet for the first time on June 9, 2006. The Commission issued a certificate to Oxner and Keya sometime after its review, which was backdated to December 12, 2005, the date of the examination by Duis.
[¶7.] On March 27, 2006, John Vincent Guerra (Defendant) was driving a rented Buick on Interstate 90 just east of Rapid City. Defendant was stopped by Oxner who clocked Defendant on radar going sixty-eight miles per hour in a sixty-five mile per hour zone.
[¶8.] During the traffic stop, while the radio check of Defendant's driver's license and criminal background check was being processed, Oxner informed Defendant that Oxner would be conducting a drug dog sniff of the exterior of Defendant's car. Oxner asked Defendant if Keya would detect any illegal drugs.
Defendant replied in the negative. When asked whether there was anything in the truck of his car, Defendant replied "Just some luggage." When asked how many pieces, Defendant replied "Couple," and later "About two, yeah."
[¶9.] A videotape of the drug sniff was made by Oxner's onboard video recorder. Oxner's body microphone, however, malfunctioned and recorded without sound. The video showed Oxner exiting his patrol vehicle and circling Defendant's car in a counterclockwise motion while Keya remained in the car. Oxner then removed Keya and starting at the driver's side rear corner of the vehicle walked Keya around the vehicle counterclockwise while Oxner led the way and Keya moved with her body parallel to the car. Oxner moved one hand up and down to get Keya to smell high and then low as she circled the vehicle. Oxner then turned around at the front of the vehicle and walked Keya around clockwise and again gestured high and low to Keya while she walked with her body parallel to the car. Oxner would later testify that Keya indicated to the front passenger side door on the second pass just before Oxner turned to make a third pass, but that Keya "left it." This indication was not visible on the videotape due to the camera angle; nor can Keya's body be seen to judge whether she remained parallel to the car or turned perpendicular as she was trained to do when indicating.
[¶10.] Oxner then walked Keya around the vehicle once more in a counterclockwise pattern moving more slowly on this last pass than on the previous ones. Oxner's search pattern was from the front of the car, to the driver's side, and finally to the passenger side while he continued the high and low hand gesture. The angle of Defendant's vehicle partially blocked the camera's view of what happened next, although it is clear that Oxner and Keya both stopped moving forward at this time. The next thing clearly visible on the video is Keya being forcibly removed from the passenger side door by Oxner and pulled onto the shoulder of the interstate, as well as her determination to remain by the door.
[¶11.] Oxner returned to his patrol car and placed Defendant in handcuffs before commencing a search of the vehicle. Oxner discovered two large packages of marijuana hidden under a black felt cover placed across the floor in front of the rear passenger seat. Seven more large packages of marijuana were discovered in the trunk.
[¶12.] Defendant filed a motion to suppress all evidence seized as a result of the drug dog search. In that motion, Defendant challenged Oxner and Keya's December 12, 2005, recertification as untimely and for failure to comply with the requirements in the Handbook. Defendant argued that the December 12, 2005, recertification was invalid because Keya had failed one testing scenario, Duis used Nebraska testing standards and forms, Nebraska scores were extrapolated into the South Dakota testing form, and the Commission failed to issue the canine team's certification prior to January 10, 2006. Defendant further argued Keya was not deployable in the field per the Commission's administrative rules. Defendant also attempted to use Oxner and Keya's field records to show that Keya was unreliable and, therefore, that the alert to Defendant's car was insufficient to establish probable cause. Finally,Defendant challenged whether Keya alerted to the odor of drugs in Defendant's car as claimed by Oxner, arguing that Oxner either cued or blocked Keya and caused her to alert.
[¶13.] Oxner testified at the suppression hearing. He acknowledged he attended the December 12, 2005, recertification, but also testified that he did not receive a copy of his testing scores. Oxner also testified he was not told that he and Keya flunked any of the testing scenarios, or that retraining was required. Instead, Oxner testified the paperwork was mailed to the Commission in Pierre and the Commission eventually issued his certification, which remained valid until December 12, 2006. Oxner testified that he and Keya had never failed a recertification examination in the four and one half years that they had been paired as a drug detection team.
[¶14.] Duis also testified at the hearing. Duis testified that a dog that fails one of the seven scenarios during an evaluation is not automatically scored as failing the entire certification process under the Nebraska/IPCSD standards. Rather, it was the summary of the entire test and not an individual scenario that controlled the ultimate decision to pass or fail a particular drug detection team. Duis testified that in his opinion as a certified canine judge, Keya was "better than fine" in drug detection based on Duis's observations. Duis testified Keya was "commendable. She's a very reliable dog."
[¶15.] Sheldon also testified at the hearing. Sheldon testified that Duis, as a Nebraska dog certification judge, had the discretion to utilize the Nebraska score sheet rather than the South Dakota score sheet, yet conceded that the discretion did not appear in any of the Commission's rules or in the Handbook. According to his testimony, after Oxner and Keya's test was scored by Duis using the Nebraska score sheet, Sheldon transferred those scores to a South Dakota score sheet leaving most of the South Dakota score sheet blank except for the overall scenario scores and a cumulative score for the team. Sheldon also testified that in the end, however, the purpose of the certification score sheet was to ensure that a canine team received a cumulative score of four point zero or less in order to be certified and that failure on one scenario would not preclude a canine team from deployment.
[¶16.] Sheldon further testified that a canine team was considered certified and deployable in the field at the point in time that it passed its annual recertification and training examination. Sheldon conceded that there was no language in the Commission's rules or the Handbook that indicated a canine team was certified at the time it passed the recertification examination. However, Sheldon testified this was the customary practice employed by him in his capacity as the supervisor of the SDHP police service dog unit for several years prior to and after the enactment of the new statutory scheme, rules, and Handbook.
[¶17.] Sheldon also testified that he was the individual who made the determination at the time of the annual certification and training as to whether a team was deployable. He further testified that he had in the past determined canine teams were not deployable for failure to timely recertify. This occurred in December 2006, and was due to a scheduling conflict with Duis. Sheldon notified all drug dog teams whose annual certifications expired on December 14, 2006, that they were not deployable for approximately one week until certification could be rescheduled the following week. Sheldon also conceded that there were no rules or Handbook sections that delegated to him as the supervisor of the SDHP police service dog unit the authority to determine whether a canine team was or was not deployable.
[¶18.] Bryan Gortmaker, assistant director for the South Dakota Division of Criminal Investigation and secretary of the Commission, also testified at the suppression hearing. Gortmaker testified that certification occurred at the time the canine team passed the annual recertification examination. Gortmaker also testified that he was the person who received signed score sheets and verified their content, and then instructed a staff member to prepare certificates for signature by the Commission. He also testified that the rules specifically provide that only the Commission can certify a canine team.
[¶19.]Defendant's motion to suppress all evidence seized was denied by the trial court. Defendant was found guilty on the one count of Possession of Marijuana with Intent to Distribute, One Pound or More in violation of SDCL 22-42-7. He was sentenced to the South Dakota State ...