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State v. Barry

Supreme Court of South Dakota

March 21, 2018

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
BREE BARRY, Defendant and Appellee.

          ARGUED ON FEBRUARY 13, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA, THE HONORABLE SUSAN M. SABERS Judge

          MARTY J. JACKLEY Attorney General

          PAUL S. SWEDLUND Assistant Attorney General Attorneys for plaintiff and appellant.

          BEAU J. BLOUIN of Office of the Minnehaha County Public Defender Sioux Falls, South Dakota Attorneys for defendant and appellee.

          JENSEN, Justice

         [¶1.] 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.

         Background

         [¶2.] 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.

         [¶3.] 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.

         [¶4.] 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 that?
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.
Olson: Heroin?
Barry: No.
Olson: Methamphetamine?
Barry: ...

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