The South Dakota Supreme Court has limited the ability of police to search and interrogate innocent interstate travelers absent a reasonable and articulable suspicion of wrongdoing. The court considered the unique case of a vehicle search not made pursuant to a traffic stop, but while the owner was being detained before entering his vehicle. The ruling was based on a February 26, 2008 incident at an Interstate 90 rest stop near Spearfish. Sean Haar had parked his Subaru Outback at 3:20pm and went into the building to take a break. While inside, South Dakota Highway Patrolman Brian Swets pulled up on the scene, spotted the Illinois license plate on the Subaru, and parked in such a way as to block the vehicle from leaving.
Swets next snooped in the window of the Subaru and noted the following items in addition to the cargo box on the roof:
- A black duffel bag in the back
- A ski vest on a hanger
- A valid city of Chicago registration sticker on the windshield
- A pair of cell phones
- A large bag
- Food items
- A can of Red Bull
Haar then left the building and headed for his car — the temperature was 30 degrees and he was only wearing a short-sleeved shirt. Swets proceeded to block the driver’s door of the Subaru so he could interrogate Haar.
“I had some concerns about some of the things that I saw in his vehicle,” Swets explained to the court. “I asked if there was anything in the vehicle that he wanted to tell me about. Anything illegal. I indicated to [Haar] that a lot of times I — you know, vehicles are parked in a rest area, not moving, sometimes I might take my dog around the vehicle to check for the odor of an illegal drug. Um, I asked him if he had a problem with me doing that.”
Haar denied having anything illegal and refused to consent to the search of his vehicle. Swets then told Haar that he was “free to go,” even though the trooper was still blocking the Subaru. Swets simultaneously used a remote control to release a drug-sniffing dog from his patrol vehicle. The dog began sniffing the Subaru and found a large quantity of marijuana for which Haar was arrested and convicted. Haar appealed.
The court only considered the question of whether Swets’ initial search was justified by a reasonable and articulable suspicion that Haar was involved in some type of wrongdoing. The court first concluded that Haar’s questioning was not voluntary.
“We agree with the circuit court that Haar was detained or seized because a reasonable person in his position would not have felt free to leave or terminate the encounter,” the unanimous high court ruling stated. “The release of the dog left no room for a reasonable person to believe that he or she could have disregarded Swets’s command to the dog, disrupted the canine sniff, and left in his or her vehicle uninterrupted.”
Swets freely admitted that the Subaru had committed no traffic violations, there were no signs of intoxication and there was no odor coming from the car. Instead, he found the cargo carrier, lack of luggage and the Illinois license plate to be highly suspicious.
“We fail to see… how a cargo box, the lack of visible luggage in a vehicle that had a cover designed to hide the luggage, and an out-of-state license plate on a vehicle in an interstate rest area provide any articulable basis upon which a reasonable person would have suspected that the Subaru was transporting illegal drugs,” the court wrote.
Because the search was the result of an unconstitutional detention, its results were suppressed. The full text of the decision is available in a 130k PDF file at the source link below.
South Dakota v. Haar (Supreme Court of South Dakota, 8/26/2009)
“We agree with the circuit court that Haar was detained or seized because a reasonable person in his position would not have felt free to leave or terminate the encounter…”
Haar then left the building and headed for his car — the temperature was 30 degrees and he was only wearing a short-sleeved shirt.
In 30 degree weather a reasonable guy would be wearing at least long johns and probably a pair of pants, too, so I guess the cop figured something fishy was going down.
And people wonder why I’m paranoid in the States for having Ontario tags. Its bad enough getting past the crusty American customs officers, but to be searched with dogs on the interstate for no justified reason would be frightening as hell. It leaves it up to the imagination what they have in store for you next.
“What we’ve got here is… Failure to communicate”
In 30 degree weather a reasonable guy would be wearing at least long johns and probably a pair of pants, too, so I guess the cop figured something fishy was going down.
Sure, because normally on a long drive on a cold day, I keep the heat off and remain bundled up in outerwear while driving.
This guy would have been on his way in no time if he hadn’t been hauling around a bunch of dope. It sounds like another victory for the ACLU and the drug industry.
Like it or not the search, arrest and conviction were wrong. If you believe the end justifies the means you are opening the door to deeper searches and intrusions by the po-lice.
There are rules, they know what the rules are, and they are supposed to follow them. Otherwise why have the rules?
When he allowed the drug sniffing dog out to investigate a car he blocked in that’s when the man’s rights were violated. It matters not what he had in the car, our courts and lawmakers upheld our right to be secure in our persons. At that lovely moment he pressed his remote control he conducted an unauthorized search of the vehicle. Sorry Barney Fife, doesn’t work that way and it shouldn’t.
Just another freedom loving red state conservative letting his fellow man live in peace.
I’ve been pulled over and interrogated in Texas for having New York plates, so this is nothing new. Out of state plates are always a red flag, unfortunately.
The cop in this incident, however, is a dick. Apparently, to him, absolutely no vehicle from another state enters South Dakota for any reason other than to run drugs. This is just absurd. I’m sure he got a raise and a better shift from this.
Sure, the guy was found to be transporting marijuana, but he wasn’t doing anything illegal or suspicious that would invoke reasonable cause for a search, so I applaud the judge’s sensible ruling.
One of the top industries in South Dakota, if not number one, is tourism. If the cop really thought that out-of-state plates were a primary reason for suspicion, he’s an idiot.
i wanna know if he got the marijuana back
GS650G +1 – While unwarranted searches may sometimes yield results, the cost to our freedoms & liberty is simply unacceptable. For those who say “But if you have done nothing wrong you have nothing to fear” – be aware that you are not the one who gets to define what is “wrong”.
Surprisingly enough, I am with the cop on this one. The odors around your car are not your private space.
Having a dog sniff the outside of your car is not an unreasonable intrusion into your privacy, it is not a search of the vehicle anymore than looking in the windows and seeing the pot. If they guy didn’t have anything illegal, he would have been back on the interstate in a few minutes. Once the dog indicates there is something illegal, the cop then has his “reasonable and articulable” reason to search the vehicle.
If having a dog sniff your car is an unreasonable invasion of privacy, I need to tell all my neighbors their dogs are intrusive anti-american curs when they walk by and sniff my car. “What’s your dog looking for, huh! You want to know where my cars been and whose been peeing on the tires! Huh! get out of my driveway you nosy nazi!”
You may be “with” the cop but the law isn’t. The law does not allow unreasonable search and seizure and taking a drug sniffing dog around “trolling” for hits is not reasonable. The cop wasn’t very sophisticated though. Had he simply followed the guy and pulled him over for some trivial traffic violation he could have had the dog sniff the car. The courts had repeatedly upheld that during a valid traffic stop the police can bring in a drug sniffing dog without the consent or probable cause as long as it does not cause an unreasonable delay. This guy got lucky that the original stop was not reasonable, otherwise he’d be toast.
timotheus980,
Next thing you know the dog barks because his clothes smell of it. What if they found none? Do we strip search? Impound his car? Raid his house? Interrogate his family? What if he has friends that smoke dope around him. This could ruin his family life.
If the guy committed no crime leading up to the search why the hell are we in this predicament?
timotheus980: “Having a dog sniff the outside of your car is not an unreasonable intrusion into your privacy”
The Supreme Court of South Dakota disagrees with you.
Did Haar get his marijuana back? Was he compensated for being stripped of his rights?
Hopefully this search wasn’t racially motivated…
Once the dog indicates there is something illegal, the cop then has his “reasonable and articulable” reason to search the vehicle.
Here’s a little secret — the dogs are trained to bark on command.
Even if the dog finds nothing, the dog will bark if told to bark, and a determined cop will issue that command if the dog finds nothing on its own, which then allows the search to proceed with what would appear to be probable cause. The dog is just there to facilitate the violation of your search and seizure rights.
Most cops don’t drive around with drug sniffing dogs in their car. Meaning that this cop was likely assigned to find drugs, and he decided to pick on this guy.
The police state gets stronger each day. I never wear a coat in winter unless I will be outside for a significant period of time. Being black my family never understood this as they were cold at 55 degrees. Never made me a criminal. Never drove with pot or crack either. I would tell them to get a warrant anyway. As one of the b+b stated a few days ago, your life can be messed up because some cop is having a bad day. Sad but true.
Here’s a little secret — the dogs are trained to bark on command.
It’s true. But you can always tell if it’s a phony bark, because they wink at the same time.
I’d be paranoid too if I was hauling around a bunch of dope. But since I don’t I could care less if a cop wants to search my car or have the dog sniff it.
Tourism is SD #1 industry. But how many tourists travel solo with no visible luggage?
Give the cop some props. Something about the set of circumstances made him suspicious and HE WAS RIGHT! I’m not saying the court was wrong to throw it out, just that the cop got this one dead on.
GS650G:
When he allowed the drug sniffing dog out to investigate a car he blocked in that’s when the man’s rights were violated.
I’d go so far as to say the initial contact violated the man’s rights, even before the dog was released. If a cop blocks a car in and starts asking the driver questions, that’s a detention. Without anything more to go on than what was described in this case, it’s an illegal detention. OFC Swets even told Haar he was “free to go” before releasing the dog, which clearly implies that he wasn’t free to go during the initial questioning.
Haar’s still a dope smuggling scumbag, but to his credit, he fought the good fight and won in court. timotheus980, the problem with your argument is that the cop screwed up long before having the dog sniff the car, so everything that came of the sniff is illegal. As Dunbar said, the cop probably could’ve made a legal stop later and made a good case, but for whatever reason (my guess is laziness), he screwed up.
BTW, I seriously doubt Mr. Dope got his weed back, and I doubt he asked for it. Winning this case only to lose when he was arrested picking up his dope wouldn’t be a smart move. Also, this article’s headline is a little off. The court didn’t impose any new limits on searches, it simply ruled that the current limits were correct and that the officer exceeded those limits.
Crooked cops plant evidence when they need to.
The funniest part is that the cop was right. You can see a pothead immediately if you know where to look, which is obvious to everyone except potheads themselves.
Although, the big issue is not with potheads. We just need to decriminalize pot and throw them in jail if they’re caught driving stoned, problem solved. What are we going to do about the meth?
timotheus980: If having a dog sniff your car is an unreasonable invasion of privacy, I need to tell all my neighbors their dogs are intrusive anti-american curs when they walk by and sniff my car. “What’s your dog looking for, huh! You want to know where my cars been and whose been peeing on the tires! Huh! get out of my driveway you nosy nazi!”
You are not understanding that a dog who is trained to sniff specific compounds, such as marijuana is a specialized instrument, like an x-ray machine, and very different in that respect from your neighbors’ dogs.
Well put, carguy.
zaitcev, it just appears the cop was right. I wonder how many people he did this to that weren’t smuggling drugs.
But yeah, Legalize It!
Arminius :
Tourism is SD #1 industry. But how many tourists travel solo with no visible luggage?
You mean like a duffel bag?
You are not understanding that a dog who is trained to sniff specific compounds, such as marijuana is a specialized instrument, like an x-ray machine, and very different in that respect from your neighbors’ dogs.
Sure, but again, we need to keep in mind that these dogs are also trained to obey commands, including actions that their human handlers can use to trump up false incidents of probable cause.
You can expect that the primary role of a state trooper K-9 unit is to do drug interdiction duty. Their years of experience have taught them to profile certain types of drivers and vehicles, who they know aren’t there to admire big carvings of US presidents.
This poses a minor problem — their profiling may work, but it isn’t necessarily in line with the Constitution. Probable cause is supposed to be based upon evidence, not gut instinct or a cop playing the odds. Hence the value of the dog: a false positive from a dog that results in a fruitless search will simply be ignored, because it could be argued (falsely) that the search was conducted in good faith.
The cop was right on the facts, but his procedure was wrong on the law. His search was blatantly unconstitutional, because he didn’t have probable cause to detain or do the search in the first place.
I’m no cop, but I’ll bet that the tip offs were the combo of the out-of-state plates, two phones, the lack of touristy-type luggage and the Red Bull. When he saw that the guy was solo, that probably heightened his suspicions.
That combo told the cop that the guy is driving without stopping much, isn’t a tourist and has some reason to have two telephone numbers. That all fits in nicely with a profile, but there’s no way that such a thing could even remotely considered to be a legit cause for a stop.
PCH,
Very nice analysis. David
Let me tell you about the last time I drove through South Dakota.
I drove my 2004 Subaru Impreza WRX wagon with IL plates to Wyoming. I did not have any visible luggage; it was in the trunk under the cargo cover. As I was going to a wedding, I had clothes hanging in the rear seat. I had energy drinks and food items in the passenger seat. It wasn’t 30 degrees out but the temperature dropped from 80 in IL to 50 in the same day so I was wearing shorts. And I stopped at rest areas along the way. Oh, and I drove solo.
But I wasn’t carrying dope (and never have) and wasn’t stopped by the cops in any state. But if I was stopped in any way, I would have refused a search of my vehicle.
If Patrolman Swet had come upon my car at a rest area, the outward appearance would have been almost identical to Mr. Haar’s. But I had done nothing wrong. To say that the Patrolman was justified in searching the vehicle because he found something would imply that I would be okay with a search of my vehicle based for no apparent reason.
PCH:
I can think of a couple good reasons to have two phones. Many people carry a personal phone and a work phone. Perhaps he needed another phone because his primary phone would not get service while traveling or would be roaming so he carried a second, prepaid phone.
EDIT: Upon reading the actual decision, Mr. Haar was traveling with a companion. And when the Patrolman said he was ‘free to go’ he actually meant that Haar was free to leave but not in the Subaru.
While I, as a conservative leaning libertarian, find the drug culture annoying and borderline sociopathic, searches like this are NOT the answer.
If the US allows searches like this on a regular basis, our cops will morph into British style data collectors – they’ll live to pick the low hanging fruit of victimless crime and (mostly) ignore brutish and violent criminality.
Give the cop some props. Something about the set of circumstances made him suspicious and HE WAS RIGHT! I’m not saying the court was wrong to throw it out, just that the cop got this one dead on.
The cop’s hunch was right, but I wonder what it really was that made him suspicious ?
People from Illinois have been known to travel to other states. Frequently people from cold states don’t wear a coat while walking between the car and a building. It’s not unusual to carry bags and food items and Red Bull in a car. It’s not unusual to have a roof top carrier.
IOW, the cop had a suspicion, but he couldn’t articulate anything that made any sense. Did the guy have long hair? A legalize marijuana sticker on the bumper? What was the real root of the suspicion?
How would it have played out if the cop had simply let the dog out to sniff any and all cars in the rest stop parking lot – before detaining anyone ?
Good on the court.
@ benders:
I agree. Also, being “free to go” in this context is weak at best, since I doubt many people would consider it reasonable to expect someone to leave their car at a rest stop and continue their journey. “Free to go” means exactly that, and for whatever reason, the officer’s actions negated his words.
Dynamic:
The law is somewhat gray on canine sniffs on unattended vehicles parked in public places. The question becomes whether or not the owner would have an expectation of privacy while parked at a rest stop.
The other issue is that there was only a tractor-trailer at the rest stop in addition to the Subaru so even a sniff of all other vehicles could have been argued that the Patrolman was executing an unreasonable search.
All players in this case were white – race was not an issue. Profiling is an argument many use in defending these stops/encounters. The SD Highway Patrol will keep or destroy the weed and Vicodin found (which was only a few tablets).
“Here’s a little secret — the dogs are trained to bark on command.”
I didn’t know that but it figures.
Privacy is an illusion anyway. If most people only knew what really goes on, this would be laughably insignificant.
Anyway, I think seatbelt laws, airbag laws, speedlimits, and redlight cameras are all larger and more serious intrusions into our freedoms than the cops kicking around the potheads.
I would not be surprised if this case is overturned at the circuit court level. I don’t think S.D. is in the 9th Circuit so the cops have a chance. It is generally accepted that sniffs do not require probable cause or even reasonable suspicion as the dog does not enter an area where the subject has a reasonable expectation of privacy, i.e. the outside of his car in a public parking lot. The “hit” by the dog is enough to get police into the vehicle. Sounds like a seasoned cop making a good bust. Unless the cop’s car made it impossible for the suspect to leave I think he (the cop) has a good case. I hope he wins on appeal and the doper gets jail time. AS for the dogs being trained to bark on command, do you have proof of this? Because if so the latitude law enforcement has been afforded by the courts in K9 usage would disappear overnight! I like TTAC for its car stuff, wish we could keep the politics out.
The trooper did not have probable cause to block the car or to investigate contents of the car. WAG’s don’t count.
kcflyer:
The case is not federal – it is a state court case, so the next level of appeal is the U.S. Supreme Court. S.D. has not Court of Appeals for intermediate appeals; it one appellate court – its Supreme Court. I doubt the Attorney General from the State of South Dakota will ask for such an appeal to the U.S.C.T. out of fear there might be “bad law” made in the eyes of law enforcement. Plus, the U.S.C.T. would probably have to hear the case on “certiorari” in an attempt to answer issues decided differently between jurisdictions. The appeal process is probably over. If it were a federal case, S.D. is part of the 8th federal circuit, not the 9th.
While some dogs are trained to “bark”, their general indications and/or alerts are more passive reactions, like sitting. Many times the dog’s reactions are so unnoticable to someone other than the handler that the motives of the handler become suspect. However, there appears to be a major movement in the courts to defer to the way the dogs are trained, handled and react even if the layperson cannot detect a dog’s alert or indication – even if it is on video. Herein lies the real debate in law. The Haar case, on the other hand, really didn’t have much to do with the dog other than it was the connection between the alleged suspicion and the search. The issue was the detention by the cop, telling the defendants they were free to go when in fact the cop was not being honest with them. Here is where courts decide whether the war on drugs is above the Constitution.
It is generally accepted that sniffs do not require probable cause or even reasonable suspicion as the dog does not enter an area where the subject has a reasonable expectation of privacy, i.e. the outside of his car in a public parking lot.
The dog sniff is irrelevant in the eye of the SD Supreme Court. “The court only considered the question of whether Swets’ initial search was justified by a reasonable and articulable suspicion…” Everything that took place subsequent to the detention is inadmissible in court since they ruled the detention unconstitutional. The SD Supreme Court was just agreeing with the earlier circuit court opinion that the suspect was not free to go when the dog was released with the police car blocking his exit.
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Give the cop some props. Something about the set of circumstances made him suspicious and HE WAS RIGHT!
The fact that the cop “was right” this time could also be explained by chance. He certainly should have known from his training what constitutes reasonable suspicion/probable cause.
My former nanny and her husband, both white and in their early 20’s, were pulled over on the way to a movie. The officer asked for permission for his dog to sniff their car, explaining that he was training a new dog. Though for religious reasons neither of them use drugs, alcohol, or even coffee, they were dog people and so agreed. The dog indicated a positive (on command? smelled their dog? or one of my dogs?) and for the next 1 1/2 hours they sat by the road as several officers pulled apart the car. No movie that evening. Just one example, but for me it’s a reminder to refuse to allow a search just because I’m driving my black lowered tinted BMW 5-er alone with my lacrosse bag in the trunk.
Indeed unjustified searches were one excess the Founding Fathers used to justify the movement for independence – and we shouldn’t cede the protections they fought for even to catch all the Subaru driving potheads on I-90.
I don’t know about you guys, but a LOT of people I know have multiple mobiles….
I have 4 phone “numbers” myself — wifes cell, my personal cell, my work cell, my datacard (3g/cell).
This doesn’t count the 2 I have for my VOIP server/home lines.
The cop himself had two cell phones.
But how many tourists travel solo with no visible luggage?
Um, me? A couple of times a year for fun, several more times a year for business (I drive whenever I can; I hate to fly.) I’m also originally from Illinois. Oh, and I’ve never used drugs. Never.
The moral appears to be dont drive Subarus in South Dakota while doing anything illegal.
And what the hell does this statement mean?
seabrjim :
August 30th, 2009 at 1:05 pm
I never wear a coat in winter unless I will be outside for a significant period of time. Being black my family never understood this as they were cold at 55 degrees
I’m so glad to see even such a minimal restraint on police powers of harassment. Unfortunately, this won’t stop the rest of the cops from doing the same thing, and putting a lot of people in jail for a long time, because they don’t have the ability or intestinal fortitude to fight it.
Oh, and the question about whether he got his weed back may have been facetious, but it’s almost guaranteed that his car was auctioned off before his initial trial was done. In other words, before he was found guilty of anything at all.
@ loverofcars1969:
The moral appears to be dont drive Subarus in South Dakota while doing anything illegal.
I’d say the moral is to stand up for your rights so you can stick it to The Man.
Oh, and don’t be a dope smuggler.
Loverofcars, it was a little humor. As my european friends and employees like to joke in the winter, Im the only black person they know who is never cold. Them family trees being from colder european climes. And my roots being Ethiopian. Us black folk usually dont like the harsh winter climate. Your mileage may vary. Again, just a little levity my friend. I believe this is the second time I riled you, brother. Accept my apologies.
Loverofcars, its a little humor. My friends and employess like to joke Im the only black person they know who is never cold in the winter. They of european ancestry and mine being the hot region of Ethiopia. Get it? I bring fried chicken and greens for lunch. They eat pasta. I have been known to make light if my cultural idiosyncracies. This is the second time I ruffled your feathers, brother. Accept my apologies.
Sorry for the double post. I didnt know the spam filter was made by Chrysler.
Oh, and the question about whether he got his weed back may have been facetious, but it’s almost guaranteed that his car was auctioned off before his initial trial was done. In other words, before he was found guilty of anything at all.
And, he has little or no real recourse for that. The detention was the illegal part as it should be. I also would likely refuse a search of my vehicle under the same circumstances, at least initially, and I would certainly have asked the officer to move his car when he told me I was free to go. I also frequently drive on long trips with no visible luggage, snacks and drinks in the front seat area, and wearing shorts and a t-shirt in subfreezing weather. My wife just got back from British Columbia and she was traveling with 2 cell phones, one prepaid and her regular one. Not only have I never used illegal drugs, I have never even used a legal perscription pain killer, though I have been perscribed pain killers in the past.
If your vehicle has a lien against it that is too substantial in value to make it not worth paying off the lienholder after auction, then the government may give the car back to the owner without forfeiture proceedings. That happened in this case.
I am being sentenced on the 27th of this month for a similar search and stop. I am going to jail. How do find out this guys lawyer ?? The officer in my case did not tell the truth in the grand jury indictment and my lawyer does not feel this is a big deal. I want the judge to see the video of the search. The cop took his hand and patted my bumper, directing the dog to the bumper, the cop then took his right hand and pawed my window, directing the dog to do the same than gave the dog food to reward him. Cop said I was going 2miles over speed limit. I had cruise control set on 65. He said he smelled perfume when i opened my window. Yes, I am gay and I wear nice guy scents. I had ate an apple and set in on my dash as he pulled me over.That was suppicious to him. Some one Help me PLEASE