PIERRE, S.D. - PIERRE, S.D. (AP) — More than 97 pounds of marijuana found in a Chicago man's car cannot be used as evidence against him because a Highway Patrol trooper did not have sufficient reason to detain him at an interstate rest area in western South Dakota, the state Supreme Court has ruled.
The marijuana and another drug were found in Sean P. Haar's station wagon after a drug dog sniffed the vehicle and indicated it contained drugs, but the Supreme Court said trooper Brian Swets did not have reasonable suspicion to justify detaining Haar so the dog could check out the car.
That means Haar's constitutional protections against unreasonable search and seizure were violated and the drugs seized cannot be used as evidence against him, the high court said in a decision issued Thursday.
After Circuit Judge Warren Johnson of Deadwood ruled the drugs could be used as evidence, Haar was convicted last year of possession more than 1 pound of marijuana with intent to distribute, possession of more than 10 pounds of marijuana and possession of a prescription painkiller. He was sentenced to seven years in prison but remained free on bond during his appeal.
Haar's attorney, Matthew Kinney of Spearfish, said he will ask that Haar's conviction be vacated once the case returns to circuit court. The case likely will be dropped because the seized drugs cannot be used as evidence, he said.
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The Supreme Court's decision provides guidance for officers in situations where it's not been clear whether they can detain people, Kinney said: "I think the case offers a lot of law that perhaps tightens up some gray areas we had."
The Supreme Court ruled in previous cases that a drug dog can sniff the outside of a car or truck after a valid traffic stop without violating a driver's constitutional rights. Haar's case, however, did not involve a traffic stop.
In cases like his, officers can detain people briefly, but only if they have reasonable suspicion of criminal activity, the Supreme Court said. The trooper did not have that in this case, the justices said.
When Swets pulled into the rest area along Interstate 90 near the Wyoming border on Feb. 26, 2008, he saw Haar's station wagon with Illinois license plates. The trooper saw a cargo box on top of the car, a black duffel bag in the vehicle, and two cellular telephones and an energy drink in the passenger area.
Haar walked up to the car, and the trooper asked him where he was traveling from, according to court documents. Haar said he had driven from "out west," and Swets then asked if his dog would detect illegal drugs if it sniffed the car. Haar did not consent to having the dog sniff the car.
The trooper told Haar he was free to go. He later testified in court that he meant only that Haar could walk away but could not get into the car. The trooper then used a remote control to release his dog from the patrol car, and the dog indicated Haar's car contained drugs. A search then found marijuana and the other drug.
The trooper testified he saw no traffic violation or signs of intoxication, and he smelled no drugs. However, he said he was suspicious because Haar seemed nervous, the vehicle and its contents fit the profile of drug carriers, and Haar was traveling a route known for carrying drugs from the West Coast to Chicago.
"It's the whole picture. It's everything that's going on there that would indicate to me that a person is nervous," the trooper testified.
The Supreme Court disagreed, saying the trooper didn't have enough information to believe Haar was engaged in drug trafficking.
"Therefore, despite the fact that a canine sniff is not a search, the sniff and resulting search were the product of an unconstitutional seizure or detention requiring suppression" of the evidence," the Supreme Court said.
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