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State v. Littlebrave

December 2, 2009



The opinion of the court was delivered by: Zinter, Justice


[¶1.] A highway patrolman stopped Harvey Littlebrave (Harvey) for a "lane driving" violation on Interstate 90 near Sioux Falls. In the course of questioning Harvey and a passenger during the traffic stop, Harvey admitted possessing marijuana in the vehicle. The trooper subsequently conducted a canine sniff and search of the vehicle yielding several pounds of marijuana. Harvey moved to suppress, arguing that the trooper's investigatory detention unreasonably extended the traffic stop in violation of the Fourth Amendment. The circuit court denied the motion. We affirm.

Facts and Procedural History

[¶2.] In March 2008, Highway Patrol Trooper Chris Koltz observed a Chevrolet Suburban cross the fog line on the Interstate. The Suburban then crossed the center line, traveled between both lanes of travel, crossed the fog line again, and traveled on the shoulder of the highway. Koltz stopped the Suburban at 9:44 p.m. and observed Harvey was driving. Koltz also observed that the Suburban had Washington State license plates, contained numerous duffle bags in the back, and appeared "lived-in." Mary Littlebrave (Mary) was in the passenger seat, and three small children were in the back of the vehicle.

[¶3.] Harvey handed Koltz his driver's license, and Mary handed Koltz the rental agreement for the vehicle. The documents were handed to the officer through the passenger side window. According to Koltz, there was a "strong odor of a soap or chemical" coming from the vehicle. Additionally, both Harvey and Mary shook nervously during this initial contact. Mary shook nervously enough to drop the rental agreement when handing it to Koltz. Koltz informed Harvey of the driving violation and indicated he was going to issue a warning ticket. Koltz also initiated routine traffic stop questions, asking Harvey if he was tired. Harvey responded that he had been driving all day. Koltz then asked Harvey to have a seat in the patrol vehicle.

[¶4.] As Koltz began to write the warning ticket, he asked Harvey about his origin and destination of travel. Harvey indicated he was driving from Washington and was going to New York to pray for a sick friend. Harvey also informed Koltz that he and his family were going to stay in New York until the following Wednesday and then fly back to Washington.

[¶5.] After asking these questions, but before completing the warning ticket, Koltz left the patrol vehicle to check the Suburban's vehicle identification number and to speak to Mary because her name was the only name on the Suburban's rental agreement. After Koltz confirmed that the vehicle number matched the rental agreement, Koltz asked Mary for identification. He also asked her about their destination and purpose of travel. Mary confirmed they were traveling from Washington to New York and they were going to meet a friend. Mary, however, stated her sister was possibly coming to New York from North Carolina. She also denied that anyone in New York was sick. She finally indicated they would be returning to Washington on Friday, as opposed to Wednesday, as Harvey had indicated.

[¶6.] At 9:52, after his discussion with Mary, Koltz returned to his patrol car and resumed the conversation with Harvey, asking follow-up questions regarding the conflicting stories. Koltz asked: (1) what was the purpose of going to New York; (2) did Harvey's wife have family in New York; (3) what was the name of the man who was sick; and, (4) exactly where in New York was he going. Koltz specifically confronted Harvey with the fact that Mary had informed Koltz they were going to leave New York on Friday, not Wednesday. Harvey responded, stating he had to get back to work for a landscaping company so he was hoping to leave on Wednesday. The record does not, however, reflect any answers attempting to dispel the inconsistency regarding the "sick friend."

[¶7.] At 9:56, Koltz went back to the Suburban to return Mary's identification. Koltz also continued the conversation with Mary.*fn1 At 9:59, Koltz walked back to his patrol car and asked Harvey where he was originally from and a few other questions about the trip. At this point, approximately sixteen minutes into the stop, Koltz asked whether they had any illegal drugs in the Suburban. Harvey denied that any illegal drugs were in the Suburban. Koltz also asked his final questions about the discrepancies concerning travel. He asked about Harvey's wife's sister and where she lived. He then asked again if Harvey had any illegal drugs in the Suburban. At 10:02, Harvey denied that any illegal drugs were in his vehicle. At 10:03, Koltz asked Harvey what types of drugs were in the Suburban. At 10:04, Koltz told Harvey that Koltz was going to run a check of his driver's license and also run a drug dog around the Suburban. Koltz also told Harvey he "d [id]n't have to say anything," but if he had less than two ounces of marijuana, Koltz would only write a ticket for possession of paraphernalia and let him go. Harvey admitted having a "personal amount" of drugs in the center console of the front passenger compartment. At the time of this admission, which provided probable cause for a warrantless automobile search, approximately twenty minutes had expired from the time of the stop.

[¶8.] At 10:06, Koltz informed Harvey he "didn't have to tell [Koltz] another word," but wanted to know "how much are we talking about today"? From 10:07 to 10:08:15 there are no audible conversations on the audio tape. At 10:08:21, Koltz initiated a radio check of the driver's licenses. At 10:09, a canine sniff of the vehicle was performed. The dog alerted, and the resulting search revealed 33.71 pounds of marijuana in the duffle bags, approximately one quarter ounce of marijuana in the console, and two marijuana "joints" in the front passenger compartment. Following the search and arrest of the two adults, Koltz finished writing the warning ticket.

[¶9.] Before trial, Harvey moved to suppress the evidence. The circuit court denied the motion, and Harvey was found guilty of three drug offenses. On appeal, he concedes there was reasonable suspicion justifying the initial traffic stop. He argues that he was unconstitutionally detained longer than reasonably necessary to effectuate the purpose of the traffic stop.


[¶10.] "Constitutional challenges to a warrantless law enforcement search require a two-step inquiry: first, factual questions on what the officer [ ] knew or believed at the time of the search and what action [he] took in response; second, legal questions on whether those actions were reasonable under the circumstances." State v. Deneui, 2009 SD 99, ¶ 14, __ NW2d __, __ (citations omitted). "Although we defer to the circuit court's fact findings, it is our duty to make our own legal assessment of the evidence to decide under the Fourth ...

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