ON FEBRUARY 13, 2018
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA, THE HONORABLE SUSAN M. SABERS
J. JACKLEY Attorney General
S. SWEDLUND Assistant Attorney General Attorneys for
plaintiff and appellant.
J. BLOUIN of Office of the Minnehaha County Public Defender
Sioux Falls, South Dakota Attorneys for defendant and
Bree Barry was indicted on four felony drug charges after
marijuana and other controlled substances were found in the
vehicle she was driving. Barry moved to suppress this
evidence, claiming it was the product of an unlawful search
after the initial traffic stop of her vehicle was improperly
extended to allow time for a drug dog to arrive and complete
an exterior sniff of her vehicle. The circuit court granted
Barry's motion to suppress. The State filed a petition
for an intermediate appeal. We reverse and remand.
At approximately 9:26 a.m. on December 2, 2016, Highway
Patrol Trooper Joshua Olson (Trooper Olson) observed a black
Hyundai SUV driving nine miles over the speed limit, heading
east on I-90 near Sioux Falls. Trooper Olson stopped the
vehicle and noticed it was licensed in Colorado. He
approached the vehicle and spoke with the driver, Barry.
Trooper Olson asked Barry where she was coming from and
inquired about her speed. Barry responded she was coming from
Denver and acknowledged she had been speeding. Trooper Olson
asked for Barry's driver's license. According to
Trooper Olson, Barry's hand was shaking when she handed
over the license.
Trooper Olson asked Barry to take a seat in the front of his
patrol vehicle while he processed a speeding citation. A
patrol vehicle camera captured video and audio of the
conversation between Trooper Olson and Barry. Barry initially
explained that she was on her way home to Wisconsin after
visiting Colorado. She expounded that she had flown to
Colorado to stay with her brother for ten days while he
participated in an FDA clinical trial of an experimental
Alzheimer's drug. The registration for Barry's
vehicle showed that it belonged to a Colorado car-rental
agency. The vehicle was rented in the name of a person other
than Barry. Barry explained that her brother's girlfriend
rented the car because Barry did not have a credit or debit
card. Trooper Olson informed Barry that he was going to
reduce her citation to a violation for going five miles over
the speed limit. Throughout the initial encounter, Trooper
Olson claimed to have observed additional unusual signs of
nervousness in Barry.
Approximately six minutes after the stop, Trooper Olson
testified he began running Barry's driver's license
and criminal history. As he did so, he asked Barry if she
"had issues" with the law before. Barry stated she
was a recovering heroin addict. She further indicated that
she had worked off drug charges in Wisconsin a few years
earlier by acting as a confidential informant. Barry stated
she was now working and was in college, majoring in criminal
justice and psychology. Trooper Olson then began to question
Barry about whether she was transporting drugs in her
vehicle, and the following conversation ensued:
Olson: What all are you transporting in the vehicle today?
Barry: Just my suitcase, duffle bag, shoes.
Olson: So they give you leave at work for something like
Barry: Ya, um, I actually had two weeks of vacation saved up,
because I got hired on at Sargento, so right off the bat
after your first year you get one week, after your second
year you get two weeks. But then you have to finish them out
before January. It was kind of perfect timing.
Olson: Anything in the vehicle I need to be concerned about,
such as weapons?
Barry: Oh, no, I'm a lover not a fighter.
Olson: Transporting anything crazy like we talked about, any
cocaine in the vehicle?
Barry: Oh, no.