APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA. HONORABLE WARREN G. JOHNSON Judge.
CONSIDERED ON BRIEFS ON APRIL 27, 2009
[¶1.] Sean Haar appeals from the circuit court's denial of his motion to suppress evidence seized as a result of a canine sniff of his vehicle at an interstate highway rest area. We reverse.
Facts and Procedural History
[¶2.] On February 26, 2008, at approximately 3:20 p.m., South Dakota Highway Patrolman Brian Swets pulled into an interstate rest area located on Interstate 90, a few miles east of Beulah, Wyoming and approximately ten miles west of Spearfish, South Dakota. Upon entering the rest area, Swets observed a Subaru Outback station wagon with Illinois license plates and a cargo box mounted on the top of the vehicle. Although there was only one other vehicle in the rest area (a semi-tractor and trailer), Swets parked his patrol vehicle "just a few feet" from the Subaru, leaving his vehicle partially in the travel lane of traffic across a number of the designated parking spaces with the back of his vehicle close to the Subaru's driver's side. Because of the close proximity of the two vehicles, the driver of the Subaru would have had to have backed out toward the entrance of the rest area and then driven around Swets's vehicle to leave. [¶3.] After parking in this manner, Swets walked along the back driver's side of the Subaru. He observed the following items inside the Subaru:
* A luggage compartment cover drawn over the rear cargo area of the station wagon.
* A black duffel bag in the cargo area (beneath the cover).
* A ski vest hanging from a hanger on the driver's side, rear passenger's window.
* A City of Chicago vehicle sticker on the windshield.
* Two cellular telephones in the front passenger area.
* A woman's purse or large bag.
* A Red Bull brand beverage.
[¶4.] After walking past the rear of the Subaru, Swets proceeded toward the rest area building. As he approached the building, he observed a male, later identified as Haar, leaving the building. As the two met, they exchanged greetings. Swets testified that the man appeared nervous as he continued walking.
[¶5.] Swets indicated that at this point he did not know who was driving the Subaru. He continued to walk toward the building, but before reaching it, he turned around and saw Haar approach the Subaru. Swets immediately returned to the Subaru and initiated a conversation with Haar in front of the vehicle. Swets positioned himself between Haar and the driver's side door of the Subaru.
[¶6.] Swets asked if they could speak, who owned the Subaru, and "where [Haar] was traveling from." Haar indicated that he owned the Subaru and he was coming from "out west." Swets then informed Haar that Swets "had some concerns about some things that [he] saw in [Haar's] vehicle, and that part of what [Swets did] with the Highway Patrol is that [he was] a dog handler." Haar did not respond. Swets then "asked [Haar] if there was anything illegal in his vehicle and if my dog would smell the odor of illegal drugs coming from his vehicle." Haar replied in the negative. Next, Swets "asked if there was anything in the vehicle that he wanted to tell me about. Anything illegal." Haar again replied in the negative. Swets then "indicated to [Haar] that a lot of times I-you know, vehicles are parked in a rest area, not moving, sometimes I might take my dog around the vehicle to check for the odor of an illegal drug. Um, I asked him if he had a problem with me doing that." Haar did not consent.
[¶7.] While standing between the Subaru and Haar, Swets then told Haar and the other occupant of the vehicle they were "free to go." This statement was, however, conditional. Swets testified that although he had no prior information about the vehicle or its occupants, and although he observed no illegal substances, he had "a reasonable suspicion of an illegal activity in progress," i.e. drug trafficking. Therefore, Swets later explained that by "free to go," he meant that Haar was physically free to walk away from Swets's presence. Swets conceded that Haar would have had "difficulty" accessing his vehicle or recovering any of his other possessions. When pressed as to whether Haar could have gotten in his car and driven away at that time, Swets would only indicate that Haar was "free to try to get in his car and leave." Swets's testimony ultimately reflected that Haar was only free to walk away from the rest area or "[h]e could have got into another vehicle and drove off." This was at a time when there were no other automobiles in the rest area, Haar was wearing a short sleeve shirt, the temperature was less than thirty degrees, and the nearest town was miles away.
[¶8.] Moreover, although Swets told Haar he was "free to go," Swets simultaneously released his drug dog from the patrol vehicle by the use of a remote control device. The dog immediately began a drug sniff on the driver's side of the Subaru. Swets was wearing his Highway Patrol uniform and sidearm. Swets, a claimed student of ...