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SD Supremes Overrule Technicalities on Drug, DUI Traffic Stops

The South Dakota Supreme Court issued two rulings Wednesday hinging on the rules police must follow in traffic stops. In both cases, stops for minor violations of motor vehicle laws led to arrests for larger crimes, specifically illegal drug use and DUI. In both cases, judges named Tim(m) threw out evidence based on defendants' arguments that the police had gone too far in their searches. In both cases, the State appealed. And in both cases, our law-and-order Court sided with the State and law enforcement over technicality-minded defendants.

The more straightforward case brought Attorney General Marty Jackley before the court to get after father-and-son coke- and meth-heads Shane and Richard Erwin. On January 2, 2012, the Erwins were driving west through Watertown on US 212. They turned left (south) onto 29th Street, the road to Walmart. 29th Street has two southbound lanes. Shane turned into the far lane, not the near lane as prescribed by SDCL 32-26-18. Shane executed this illegal yet oh-so-common maneuver with Watertown PD's Kirk Ellis right on his tail. Officer Ellis flashes the cherries, pulls the Erwins over, and writes Shane a ticket.

As they're sitting in the police car, Officer Ellis asks Shane if he's transporting any illegal drugs. Apparently either a bad actor or an idiot, Shane acts nervous. (Arrrggh! If you plan to break the law, you practice your poker face, right? Think ahead, people!) Officer Ellis takes his drug dog for a walk around the Erwins' vehicle. The dog says you betcha, boss! Officer Ellis finds little containers of white powder and a scale with traces of pot. Busted: charges of ingestion and possession of cocaine and meth.

The Erwins contended Officer Ellis stopped them illegally because "the intersection provides inadequate notice that southbound 29th Street is a two lane street." Judge Robert L. Timm bought that and threw out the evidence from Officer Ellis's search of the Erwins' car.

Our Supremes disagreed. The state laid stripes at the 212–29th Street intersection in 2008, and they're still there, faded but visible. (Watertown drivers, I welcome your photos of the intersection to show just how faded those stripes might be.) Judge Timm ruled in favor of the Erwins because Shane turned left on a green arrow, which meant he had full right of way. But the Supremes said that even that green arrow doesn't change the rule that when you turn left, you must turn into the nearest, leftmost lane. The Erwins thus go back to circuit court, which gets to look at the drugs Officer Ellis found.

Lesson #1: when you turn left, keep it tight. Lesson #2: don't do coke and meth!

The second case is trickier. Jerauld County Deputy Sheriff Shane Mentzer was working the night beat in Wessington Springs on September 11, 2011. Wessington Springs had a beat that night, as folks were out celebrating Patriot Day—er, actually, the Bull Bash Rodeo. At 3:25 a.m., Deputy Mentzer saw a black pickup with no rear license plate. Cherries, stop, walk to the car. Someone in the open box of the pickup sits up for a moment, then ducks down again.

Whoa—I want to talk to the guy/gal hiding from the officer's flashlight... but he/she doesn't make the credits in this drama. Deputy Mentzer is more interested in the open beer container he sees in the back seat through the open rear passenger window of the club cab. (Again, idiots! You see cherries, you get the beer out of sight!) Deputy Mentzer jumps from license plate search to DUI investigation. He recognizes the driver, student pilot Brian Dennis Amick, and asks if he's been drinking. Amick admits having "a couple." Deputy Mentzer later notices a temporary license permit in the window, but his main order of business is to arrest Amick for DUI. (We still don't get to find out who was in the back of the truck with how many beers. Nuts!)

Amick went to court and said hold on: Deputy Mentzer stopped him for a violating a traffic rule that he wasn't violating. The stop was for no license plate. If the deputy had looked, he'd have seen the new-purchase permit in the window. At that point, the stop and search should have ended.

Deputy Mentzer said he saw the new Vern Eide license plate bracket when he stopped the truck. He knew that was a sign the truck was a new purchase. He didn't first look with his stoplight. He said the people (plural! Aren't we breaking a law yet?) in the truck bed may have blocked his view of the license, as may have the tinted glass of the rear window. But Brian and his dad Dennis went out and re-enacted the stop, with photos, to show that the temporary license would have been perfectly visible to someone approaching from behind. The State didn't like that, but Judge Tim Tucker did. He said Deputy Mentzer should have focused first on investigating the cause of his stop, should have seen that "readily visible" temporary license, and "[a]t that point the officer simply returns to his vehicle and the other vehicle's free to go."

Now I'll admit, at this point, I was kind of rooting for Amick. I'll have no truck with drinking and driving, but even when police are nailing drunk drivers, they have to play by the Fourth Amendment.

But our Supremes disagree with me and with His Honor Judge Tucker. The justices agree with Judge Tucker's assessment that the bobbing heads in the back of the truck would not have obstructed Deputy Mentzer's view of the temporary license. But citing precendent, they say that even if Deputy Mentzer had spotted the license, he was still authorized (and perhaps obligated by courtesy) to approach the driver and explain his mistake. With the initial concern motivating the stop dispelled, the officer couldn't ask for license and registration or conduct any other investigation unless "new reasonable suspicion of criminal activity immediately arises that justifies further detention"... and an open beer bottle in the backseat counts as "new reasonable suspicion."

Amick could have avoided that DUI if he had just rolled that rear window up before Deputy Mentzer reached the side of his big truck. Then again, he could also have avoided it by not drinking and driving the party wagon.


  1. Rorschach 2013.05.11

    That drug dog was probably alerting on a ham sandwich in the car or the smell of someone's patootie. When they alert it may be to drugs or it may be to something dogs otherwise get excited about. But just having a dog called a "drug dog" gets police in the door to look for drugs.

  2. caheidelberger Post author | 2013.05.11

    Interesting: are we entitled to cross-examine the witness when the witness is a dog? The Supreme Court ruled this year that as long as the dog has been through a training course, the dog's sniff supports probable cause, and the state need not provide (as a Florida court had ruled) a record of the dogs hits and misses in the field.

  3. Douglas Wiken 2013.05.11

    A "drug dog" ripped a student's car to pieces in Winner School parking lot a few years ago. The administrators decided students and cars had no rights.

    The dog was looking for beef jerky.

  4. rollin potter 2013.05.11

    the longer i live here the more i think of germany pre world war two!!!!!!

  5. grudznick 2013.05.11

    Rorshack and Mr. Wiken are starting to drink from my friend Bob's canteen of dog paranoia.

  6. larry kurtz 2013.05.11

    Pat and grud are starting to smell like the same dog.

  7. John 2013.05.11

    Yawn. Old law. Nothing to see here, folks. Move along.

    Moral of the story #1) too many South Dakotans can't drive.

    Moral of the story #2) a motorist has virtually no expectation of privacy left in a motor vehicle, thanks to the continued assault on the Fourth Amendment that began with Carroll v. US, where Doug, the cops did and may dismantle the upholstery or any place large or small enough to hide the contraband subject of the probable cause. The cops had probable cause of alcohol smuggling, stopped and dismantled the upholstery of a 1921-era Oldsmobile Roadster finding 68 quarts of booze. There wasn't much upholstery in an Olds Roadster, and obviously, there was less remaining.

  8. Douglas Wiken 2013.05.11

    So, we park in a private parking lot and the business owner or homeowner gives the OK to search cars, then if a dog smells beef jerky it is ok to rip the insides to pieces.

    On the highway itself, rights pretty much disappear since driving on highways is considered a licensed privilege and in SD, we also have implied consent for DWI blood test, but I did not notice that bit of info when I last got my driver license..

    Then since it is OK to do it in parking lots, driveby scanners can be used on cars parked in driveways, and drug dogs can run around the neighborhood searching for something besides stray cats.

  9. Charlie Hoffman 2013.05.12

    Seven years ago four hunters were driving home to their hunting lodge when the DD got pulled over for speeding. After a long conversation back in the HP's car we saw our DD getting handcuffed outside the Troopers car. He came back to our car and asked if anyone was legal to drive as our driver had just been arrested for DUI. One of us luckily was around .o4 and the officer allowed us to drive home. Long story but in the end we were stopped and given a ticket for going 64 in a 55 MPH zone when in actuality we were on an UNPOSTED 65 MPH county highway. The States Attorney refused to prosecute for under the "Fruit of the Poison Tree" rule of law after having been issued a ticket for speeding on dry pavement one MPH under the legal speed limit all other charges must be dropped occurring immediately after that.

  10. caheidelberger Post author | 2013.05.12

    John, your #1 is why I was leaning toward Amick's side. From what we read in the court's ruling, he was driving just fine. He had his temporary license. The deputy did not indicate that Amick was driving erratically or showing signs of violating any other law before the stop.

  11. grudznick 2013.05.12

    You should vote out the supremes if you disagree with them. Start a campaign and blog it up like you do against poor Ms. Noem.

  12. Nick Nemec 2013.05.12

    Twenty years ago my brother was pulled over and had his van ramsacked by a highway patrolman. At the time Victor was a long haired, pony tailed, bearded, hippie musician driving a beater van on I-90 and thus raising the suspicion of this particular patrolman. He gave consent for a search and spent the next two hours sitting in the ditch as the officer removed everything from the van, this included all the band equipment, speakers, amps, sound boards, lights, guitars, keyboards and drums. The officer then disassembled the speakers, amps, keyboards and sound boards looking for this hippie's hidden stash and went so far as to pull out the floor carpet and do field drug tests on some bottles of Tylenol and aspirin he found in the glove box. After two hours the officer decided Victor wasn't running drugs and issued a warning for a broken put still functioning tail light and left him with all his gear disassembled on the shoulder and ditch of the interstate. Victor packed everything up and raced the last 50 miles to his band gig. This was before cell phones so he couldn't call the rest of the band and tell them what had happened, they eventually began playing but were late and the bar owner was none too happy.

    All because a cop wrongly profiled someone as a typical druggie and pulled him over for an extremely minor violation and wouldn't admit he was wrong even after taking the guys possessions apart and running roadside drug tests on every Tic Tac, Smartie and M&M he found under the seat.

  13. Brother Beaker 2013.05.12

    The use of a drug dog is one of the most effective ways of protecting privacy while enforcing laws! Unlike the search conducted by his handler, the dog does not learn anything about the subject of the search other than whether there is an odor of certain drugs...usually cocaine, marijuana, meth and opiates. He will never know whether there is a receipt in there from the hotel room where you were cheating on your wife, a (legal) bottle of booze that your pastor might frown on, or a copy of a Justin Bieber CD. If we have drug laws, it is the method of enforcement that best suits libertarian principles.

    As far as their accuracy, everyone has a story of how a dog indicated and no drugs were found. But they tend to forget that odor and presence are two different things. How often have you ever walked into the break room and smelled popcorn after it's gone? I have seen instances where dogs alerted to items that were (likely) present when drugs were used. Nick, was your brother likely to have let someone use around the equipment?

    But the idea that they are after beef jerkey or your cat is urban myth. A dog is not only trained to indicate to the set of smells, he is trained off others, including food and other animals. Remember, it is not just the natural reaction, but a specific trained response (either passive, i.e., sitting or lying down, or agressive, i.e., barking or scratching) that constitutes an indication.

    A few years ago, a defense attorney in Rapid compelled production of the records of a dog and handler. He learned that the success rate of finding drugs after the dog indicated was 87%. Not bad for probable cause.

  14. Nick Nemec 2013.05.12

    Let me be clear this cop didn't have a drug dog with him just his preconceived notions of what a drug runner looks like.

  15. caheidelberger Post author | 2013.05.12

    87%: more accurate than a human search rate based on hippie profiling?

  16. larry kurtz 2013.05.12

    Charlie and his ALEC buddies built The Wall.

  17. Nick Nemec 2013.05.12

    You're right Larry. Just go to a SD surplus property auction sometime, not all those cars are surplus property many are seized property. The moral of the story is never consent to a search even, if you are clean, you're just asking for trouble and inconvenience.

  18. Douglas Wiken 2013.05.12

    Cops have seized cars in some states..perhaps California or Arizona. They knew there were drugs still in the cars. Put them up for auction and then arrested the guys who bought the cars for drug possession and seized the cars again.

    Tests of drug dogs have also shown that they may key off the officers behavior to then act as if there they smell drugs. It is a bit like Pavlov's dogs salivating at the sound of a bell.

  19. Michael Black 2013.05.12

    You can be pulled over and searched at any time if an officer decides to do so. That is a fact. Later on your charges may be dropped after litigation but that knowledge will be of little comfort if you strongly and repeatedly object and the officer reacts likewise.

  20. Rorschach 2013.05.12

    Nick is right. Why would anyone volunteer to have their property rifled through by a stranger? If I want my stuff searched I'll do it myself, and not while I'm sitting alongside the road.

    When you consent to a search there are no grounds to have the evidence thrown out if you are prosecuted for something they find. On the other hand if you refuse a search but police search anyway, there are multiple ways you may have the evidence thrown out and the charges dismissed.

    But whether you're guilty or innocent, why agree to sit around waiting while someone rifles through your belongings? Assert those 4th amendment rights the founders gave you!

  21. Jenny 2013.05.12

    I never knew that happened, Nick. The things I found out about my family on the internet:) He was probably nervous, perhaps?

  22. Valerie 2013.07.02

    What amazes me about all of the posts above is that no one cares about the lives of citizens walking our roadways at risk of being killed by a drunk driver, and next time you whine about it tell it to parent who buried their child. Second, doesn't anyone see anything wrong with a son whose father condones drug use or doesn't think twice to exposing his son to that lifestyle. As a recovering meth addict I would like to say "SHAME ON YOU DADDY ERWIN", why would you want that life for your son, and I pray your not burying him someday because of your influence on him!

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