Pubdate: Wed, 26 Apr 2006
Source: Rapid City Journal (SD)
Copyright: 2006 The Rapid City Journal
Contact:  http://www.rapidcityjournal.com/
Details: http://www.mapinc.org/media/1029
Author: Chet Brokaw, AP staff writer
Bookmark: http://www.mapinc.org/find?237 (Drug Dogs)
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

COURT TO STUDY DRUG BUST

PIERRE -- The South Dakota Supreme Court was asked Tuesday to throw 
out the convictions of a woman who was caught near Sioux Falls last 
year with 53 pounds of marijuana in her car.

Sioux Falls lawyer Mike Butler said the evidence should have been 
suppressed because a state Highway Patrol dog did not give any clear 
signal that it had detected the odor of marijuana in the car driven 
by Tam Thi Thu Nguyen, 23, of Renton, Wash. The search was illegal 
because the trooper had no probable cause to search the car, he said.

The dog showed interest in the vehicle only after the trooper 
prompted it with a spoken cue, Butler said. Unless limits are set, 
law officers could use such verbal cues to make drug dogs behave in 
ways that would provide false justification for searches, he said.

"On the issue of cueing, I think this court has to draw a line when 
it's so evident what's happening," Butler told the Supreme Court.

Butler also said the court should set a standard requiring that drug 
dogs exhibit clearly recognizable signals to establish probable cause 
for searches.

Deputy Attorney General Craig Eichstadt said Nguyen's convictions 
should be upheld because the drug dog clearly indicated that it had 
smelled drugs.

The dog made biting motions to show it had detected the odor of drugs 
near the vehicle's trunk, he said.

The trooper spoke to the dog only to keep the canine focused on the 
car, not to make it falsely signal the presence of drugs, Eichstadt said.

"We're arguing there was no cueing," Eichstadt said.

The Supreme Court will decide the case in a written opinion to be issued later.

Chief Justice David Gilbertson said that before the justices decided 
the case, they would watch the trooper's videotape of the dog 
sniffing Nguyen's car.

Highway Patrol trooper Christopher Koltz stopped Nguyen March 18, 
2005, near the exchange of Interstates 90 and 29 for following too 
closely. The trooper had his drug dog, Kaz, sniff around the woman's 
car during the videotaped stop.

Nguyen was convicted of drug possession and possession with intent to 
distribute marijuana. Circuit Judge peter Lieberman sentenced her to 
25 years in prison, with 13 years suspended.

Butler said the trunk of Nguyen's car was searched when the drug dog 
merely put its paw on the rear bumper after prodding by Koltz. The 
dog is trained to scratch aggressively when it smells drugs, so the 
paw on the bumper was no justification for searching the car, he said.

When the dog made a motion with its mouth, Kaz was only reacting to 
words spoken by the trooper, Butler said.

However, Eichstadt said the trooper did not use deception to create 
an excuse to search the car. The trooper saw signs the dog was 
interested, and the dog's biting motion near the truck was a clear 
signal it had smelled drugs, the deputy attorney general said.

The dog had been trained to detect odors and then scratch or bite to 
get a training device that carried that scent, Eichstadt said.

"It's our argument that the biting behavior here is a final trained 
response," Eichstadt said.

Eichstadt said the trooper pulled the dog back before it began 
scratching because the Highway Patrol has decided it does not want 
dogs to scratch cars.

Some of the justices said an objective standard might be needed so 
courts can determine whether drug dogs give clear signals that they 
have detected the odor of drugs.

Justice Judith Meierhenry said drug dogs apparently can be trained to 
give one signal that is recognizable. "Aren't we moving away from that?"

Butler said courts should not allow troopers to justify searches by 
relying on subtle behavior they claim they can interpret in their 
dogs. The trooper who searched Nguyen's car said he could tell the 
dog was interested in the car when the dog stopped and breathed more heavily.

Butler said Koltz has acknowledged taking advantage of traffic 
violations to stop cars with Washington license plates because he 
often snares drug runners from that state. The drug dog, Kaz, 
indicated the presence of drugs during 183 stops in a 16-month 
period, but no drugs were found in 54 percent of the subsequent 
searches, Butler said.
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