APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE JANINE M. KERN Judge.
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON JANUARY 12, 2009
[¶1.] In 2004, the South Dakota Legislature mandated that police canine teams be certified and annually recertified before they can be used to assist in law enforcement. During a traffic stop, a drug detection dog, who had not been recertified, indicated the presence of an illegal substance in the stopped vehicle and a search uncovered 155 pounds of marijuana. After the driver's motion to suppress was denied, he was convicted of possession and intent to distribute marijuana. On appeal, we conclude, first, that use of an uncertified canine team does not necessarily compel suppression of the evidence seized and, second, that the circuit court was not clearly erroneous in concluding that the drug detection dog was reliable.
[¶2.] On May 22, 2006, Defendant William Scott Britton was traveling on Interstate 90 near Rapid City, South Dakota. Highway Patrol Trooper Matt Oxner initiated a traffic stop on defendant's vehicle for following another car too closely. Defendant was informed that he would receive a warning ticket. During the stop, Trooper Oxner took his drug dog, Keya, for a walk around defendant's vehicle. Keya indicated the presence of an illegal substance near the back passenger side of the car. Defendant was placed in handcuffs, and Trooper Oxner conducted a search. The search uncovered 155 pounds of marijuana in defendant's trunk. Defendant was arrested and charged with possession of marijuana and possession of marijuana with intent to distribute.
[¶3.] Defendant moved to suppress the marijuana evidence claiming, among other things, that Trooper Oxner and the drug dog, Keya, were not properly certified as required by SDCL 23-3-35.4(1), and Keya was not a reliable drug detection dog. After a hearing, the circuit court denied defendant's motion. Defendant was found guilty in a bench trial. He now appeals asserting that Trooper Oxner and Keya were not properly certified and Keya was not a reliable drug detection dog.*fn1
1. Canine Team Certification
[¶4.] In recent years, federal and state courts have grappled with many contentious South Dakota cases dealing with the challenged use and reliability of drug detection dogs. See, e.g., Chavez v. Weber, 497 F3d 796 (8thCir 2007); United States v. Olivera-Mendez, 484 F3d 505 (8thCir 2007); State v. Bergee, 2008 SD 67, 753 NW2d 911; State v. Nguyen, 2007 SD 4, 726 NW2d 871; State v. Lockstedt, 2005 SD 47, 695 NW2d 718; State v. Mattson, 2005 SD 71, 698 NW2d 538; State v. Chavez, 2003 SD 93, 668 NW2d 89; State v. DeLaRosa, 2003 SD 18, 657 NW2d 683; State v. Ballard, 2000 SD 134, 617 NW2d 837; State v. Hanson, 1999 SD 9, 588 NW2d 885. At the heart of many of these cases is the question of the competence and reliability of the drug dog and its handler.
[¶5.] In 2004, perhaps in response to these continuing questions, the South Dakota Legislature supervened with a statute requiring mandatory certification. "Each law enforcement canine team in the state shall be initially certified and annually recertified in one or more of the following specialties: . . . The detection of the odors of drugs and controlled substances[.]" SDCL 23-3-35.4(1) (emphasis added). As part of the certification process, the Legislature imposed on the Law Enforcement Officers Standards and Training Commission the mandatory duty to "establish standards and criteria for canine certification and recertification." SDCL 23-3-35.5. In June 2005, the Commission adopted standards and criteria for police canine certification. ARSD 2:01:13:01 et seq. These standards prohibit a "state, county, or municipal agency, and [a] state, county, or municipal law enforcement agency or [a] law enforcement officer" from using a canine to assist in drug detection, "unless the canine and its handler are certified by the commission as a canine team." ARSD 2:01:13:02.*fn2 Certification by the Commission expires one year from the date of issuance unless the canine team renews its certificate. ARSD 2:01:13:04.
[¶6.] By forbidding the use of any South Dakota canine team for detecting drugs unless the canine team is certified by the Commission, the Legislature effectively declared uncertified teams legally unqualified for use. As a result, proof of certification must precede any Fourth Amendment analysis for probable cause or reasonable suspicion and the examination of a dog's reliability under the totality of the circumstances test espoused in Nguyen, 2007 SD 4, ¶20, 726 NW2d at 877. See SDCL 23-3-35.4; ARSD 2:01:13:02. This in no way alters the holding in Nguyen, which involved a Fourth Amendment analysis of a search conducted in March 2004, before the effective date of SDCL 23-3-35.4 and the Commission's adoption of rules regulating the use and certification of canine teams. See 2007 SD 4, ¶20, 726 NW2d at 877. Moreover, the certification of the dog in Nguyen was not in dispute. See id. ¶18. In sum, the Legislature, by requiring the use of only certified drug detection dogs, interjected a precondition that must be established before we reach Fourth Amendment considerations, such as reliability, in drug dog cases of the type seen in Nguyen, 2007 SD 4, 726 NW2d 871.
[¶7.] The first question, then, is whether Trooper Oxner and Keya were certified in compliance with SDCL 23-3-35.4 and ARSD 2:01:13:01 et seq. on May 22, 2006. Their certificate was not issued by the Commission until June 9, 2006, some eighteen days after the search in question here, but the certificate was backdated to December 12, 2005, two days before actual testing began. Defendant contends that the law mandates certification by the Commission before the canine team can be used, and the Commission did not certify Trooper Oxner and Keya until after the search. The State, on the other hand, argues that Trooper Oxner and Keya were certified the moment they passed their required skills evaluation on December 14, 2005. The fact that the certificate was not officially issued until June 9, 2006 is immaterial, the State believes, because it was backdated to December 12, 2005.
[¶8.] We construe administrative rules with most of the same interpretive principles used to construe statutes. Schroeder v. Dept. of Social Services, 1996 SD 34, ¶9, 545 NW2d 223, 227-28 (citing Hieb v. Opp, 458 NW2d 797, 800 (SD 1990); Hartpence v. Youth Forestry Camp, 325 NW2d 292, 295 (SD 1982)). "When regulatory language is clear, certain and unambiguous, our function is confined to declaring its meaning as clearly expressed." Id. at 228 (citing US West Commc'ns v. Pub. Util. Comm'n, 505 NW2d 115, 123 (SD 1993) (citing In re Appeal of AT&T Info. Sys., 405 NW2d 24 (SD 1987) (dealing with statutory interpretation))).
[¶9.] To recertify as a canine team, Trooper Oxner and Keya attended testing in Grand Forks, Nebraska, on December 14, 2005. The canine judge, Sgt. Andrew Duis, required Trooper Oxner and Keya to, among other things, complete seven search scenarios as part of a skills assessment. At the conclusion of the testing, Sgt. Duis gave Trooper Oxner and Keya a combined score of 1.9 on a scale of 1 to 6, with 1 being the highest score possible. According to Sgt. Duis, a score of 1.9 is very good and commendable. Sgt. Duis passed Trooper Oxner and Keya ...