State v. LITTLEBRAVE

#25173-a-SLZ

2009 SD 104

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

HARVEY LITTLEBRAVE, JR., Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JOSEPH NEILES
Judge

* * * *

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

JULIE HOFER
Office of the Public Advocate Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *

ARGUED ON OCTOBER 5, 2009

OPINION FILED 12/02/09
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ZINTER, Justice

[¶1.] A highway patrolman stopped Harvey Littlebrave (Harvey) for a “lane

driving” violation on Interstate 90 near Sioux Falls. In the course of questioning

Harvey and a passenger during the traffic stop, Harvey admitted possessing

marijuana in the vehicle. The trooper subsequently conducted a canine sniff and

search of the vehicle yielding several pounds of marijuana. Harvey moved to

suppress, arguing that the trooper’s investigatory detention unreasonably extended

the traffic stop in violation of the Fourth Amendment. The circuit court denied the

motion. We affirm.

Facts and Procedural History

[¶2.] In March 2008, Highway Patrol Trooper Chris Koltz observed a

Chevrolet Suburban cross the fog line on the Interstate. The Suburban then

crossed the center line, traveled between both lanes of travel, crossed the fog line

again, and traveled on the shoulder of the highway. Koltz stopped the Suburban at

9:44 p.m. and observed Harvey was driving. Koltz also observed that the Suburban

had Washington State license plates, contained numerous duffle bags in the back,

and appeared “lived-in.” Mary Littlebrave (Mary) was in the passenger seat, and

three small children were in the back of the vehicle.

[¶3.] Harvey handed Koltz his driver’s license, and Mary handed Koltz the

rental agreement for the vehicle. The documents were handed to the officer through

the passenger side window. According to Koltz, there was a “strong odor of a soap

or chemical” coming from the vehicle. Additionally, both Harvey and Mary shook

nervously during this initial contact. Mary shook nervously enough to drop the

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rental agreement when handing it to Koltz. Koltz informed Harvey of the driving

violation and indicated he was going to issue a warning ticket. Koltz also initiated

routine traffic stop questions, asking Harvey if he was tired. Harvey responded

that he had been driving all day. Koltz then asked Harvey to have a seat in the

patrol vehicle.

[¶4.] As Koltz began to write the warning ticket, he asked Harvey about his

origin and destination of travel. Harvey indicated he was driving from Washington

and was going to New York to pray for a sick friend. Harvey also informed Koltz

that he and his family were going to stay in New York until the following

Wednesday and then fly back to Washington.

[¶5.] After asking these questions, but before completing the warning ticket,

Koltz left the patrol vehicle to check the Suburban’s vehicle identification number

and to speak to Mary because her name was the only name on the Suburban’s

rental agreement. After Koltz confirmed that the vehicle number matched the

rental agreement, Koltz asked Mary for identification. He also asked her about

their destination and purpose of travel. Mary confirmed they were traveling from

Washington to New York and they were going to meet a friend. Mary, however,

stated her sister was possibly coming to New York from North Carolina. She also

denied that anyone in New York was sick. She finally indicated they would be

returning to Washington on Friday, as opposed to Wednesday, as Harvey had

indicated.

[¶6.] At 9:52, after his discussion with Mary, Koltz returned to his patrol car

and resumed the conversation with Harvey, asking follow-up questions regarding

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the conflicting stories. Koltz asked: (1) what was the purpose of going to New York;

(2) did Harvey’s wife have family in New York; (3) what was the name of the man

who was sick; and, (4) exactly where in New York was he going. Koltz specifically

confronted Harvey with the fact that Mary had informed Koltz they were going to

leave New York on Friday, not Wednesday. Harvey responded, stating he had to

get back to work for a landscaping company so he was hoping to leave on

Wednesday. The record does not, however, reflect any answers attempting to dispel

the inconsistency regarding the “sick friend.”

[¶7.] At 9:56, Koltz went back to the Suburban to return Mary’s

identification. Koltz also continued the conversation with Mary. 1 At 9:59, Koltz

walked back to his patrol car and asked Harvey where he was originally from and a

few other questions about the trip. At this point, approximately sixteen minutes

into the stop, Koltz asked whether they had any illegal drugs in the Suburban.

Harvey denied that any illegal drugs were in the Suburban. Koltz also asked his

final questions about the discrepancies concerning travel. He asked about Harvey’s

wife’s sister and where she lived. He then asked again if Harvey had any illegal

drugs in the Suburban. At 10:02, Harvey denied that any illegal drugs were in his

vehicle. At 10:03, Koltz asked Harvey what types of drugs were in the Suburban.

At 10:04, Koltz told Harvey that Koltz was going to run a check of his driver’s

license and also run a drug dog around the Suburban. Koltz also told Harvey he

“d[id]n’t have to say anything,” but if he had less than two ounces of marijuana,

1. The conversation was not audible. All exterior conversations were not
recorded as a result of a mechanical failure.

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Koltz would only write a ticket for possession of paraphernalia and let him go.

Harvey admitted having a “personal amount” of drugs in the center console of the

front passenger compartment. At the time of this admission, which provided

probable cause for a warrantless automobile search, approximately twenty minutes

had expired from the time of the stop.

[¶8.] At 10:06, Koltz informed Harvey he “didn’t have to tell [Koltz] another

word,” but wanted to know “how much are we talking about today”? From 10:07 to

10:08:15 there are no audible conversations on the audio tape. At 10:08:21, Koltz

initiated a radio check of the driver’s licenses. At 10:09, a canine sniff of the vehicle

was performed. The dog alerted, and the resulting search revealed 33.71 pounds of

marijuana in the duffle bags, approximately one quarter ounce of marijuana in the

console, and two marijuana “joints” in the front passenger compartment. Following

the search and arrest of the two adults, Koltz finished writing the warning ticket.

[¶9.] Before trial, Harvey moved to suppress the evidence. The circuit court

denied the motion, and Harvey was found guilty of three drug offenses. On appeal,

he concedes there was reasonable suspicion justifying the initial traffic stop. He

argues that he was unconstitutionally detained longer than reasonably necessary to

effectuate the purpose of the traffic stop.

Decision

[¶10.] “Constitutional challenges to a warrantless law enforcement search

require a two-step inquiry: first, factual questions on what the officer[ ] knew or

believed at the time of the search and what action [he] took in response; second,

legal questions on whether those actions were reasonable under the circumstances.”

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State v. Deneui, 2009 SD 99, ¶ 14, __ NW2d __, __ (citations omitted). “Although we

defer to the circuit court’s fact findings, it is our duty to make our own legal

assessment of the evidence to decide under the Fourth Amendment whether the

[officer’s] actions were ‘objectively reasonable.’” Id. (quoting State v. Nguyen, 2007

SD 4, ¶ 12, 726 NW2d 871, 874-75).

[¶11.] The reasonableness of Koltz’s investigatory detention is judged under

Terry v. Ohio, 392 US 1, 19-20, 88 SCt 1868, 1878-79, 20 LEd2d 889 (1968), which

mandates a two-part inquiry. First, was the stop “justified at its inception.” Id. at

20, 88 SCt at 1879. Harvey concedes the initial traffic stop was justified. Second,

were the officer’s actions during the stop “reasonably related in scope to the

circumstances which justified the interference in the first place.” Id. Harvey

argues that Koltz’s questioning was unrelated to the traffic stop. Therefore, he

contends that his detention was unnecessarily prolonged, rendering it unreasonable

under the Fourth Amendment.

[¶12.] A lawful traffic stop may become unlawful “if it is prolonged beyond

the time reasonably required to complete” its purpose. Illinois v. Caballes, 543 US

405, 407, 125 SCt 834, 837, 160 LEd2d 842 (2005). “[A]n investigative detention

must be temporary and last no longer than is necessary to effectuate the purpose of

the stop. [Further], the investigative methods employed should be the least

intrusive means reasonably available to verify or dispel the officer’s suspicion in a

short period of time.” State v. Ballard, 2000 SD 134, ¶ 11, 617 NW2d 837, 841

(citing Florida v. Royer, 460 US 491, 500, 103 SCt 1319, 1325-26, 75 LEd2d 229, 238

(1983) (citations omitted)). However, “[a]n officer does not impermissibly expand

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the scope of a traffic stop by asking the driver questions, even if the subject of the

questioning is unrelated to the original purpose of the stop, as long as the

questioning does not unduly extend the duration of the initial, valid seizure.” State

v. Akuba, 2004 SD 94, ¶ 20, 686 NW2d 406, 415 (citing United States v. Ramos, 42

F3d 1160, 1165 (8thCir 1994) (Beam, J., concurring)); United States v. Shabazz, 993

F2d 431, 437 (5thCir 1993). Further, “a reasonable investigation of a traffic stop

may include” questioning on “subjects like place of origination, destination,

employment and the purpose of the trip.” Akuba, 2004 SD 94, ¶ 20, 686 NW2d at

415 (citing Ramos, 42 F3d at 1161). An “officer’s request to examine a driver’s

license and vehicle registration or rental papers during a traffic stop and to run a

computer check on both . . . are [also] within the scope of investigation attendant to

the traffic stop.” United States v. Brigham, 382 F3d 500, 508 (5thCir 2004)

(citations omitted). These questions “may efficiently determine whether a traffic

violation has taken place, and if so, whether a citation or warning should be issued

or an arrest made.” Id. For the same reasons, “an officer may undertake similar

questioning of other vehicle occupants to verify information provided by the driver.”

United States v. Foley, 206 F3d 802, 805 (8thCir 2000) (citation omitted). “If

complications arise during these routine tasks, the vehicle may reasonably be

detained ‘for a longer duration than when a stop is strictly routine.’” United States

v. Peralez, 526 F3d 1115, 1119 (8thCir 2008) (citing United States v. Olivera-

Mendez, 484 F3d 505, 510 (8thCir 2007)).

[¶13.] In this case, most of the detention involved these types of permitted

routine traffic stop questions and those necessary to follow up on the inconsistencies

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that developed during the stop. Koltz’s initial questioning only involved: the reason

for the erratic driving; routine questions concerning both occupant’s identification,

place of origination, destination and purpose of their trip; and, validation of the

vehicle identification number and rental papers. These routine traffic stop

questions led to conflicting stories regarding the Littlebraves’ destination and

purpose of travel, which permitted Koltz to extend the detention to ask the follow-

up questions clarifying the inconsistencies. See Peralez, 526 F3d at 1119 (noting

that if complications arise during routine tasks, the vehicle may be detained for a

longer duration (citing Olivera-Mendez, 484 F3d at 511)); United States v. Suitt, 569

F3d 867, 872 (8thCir 2009) (indicating that incomplete, evasive, and hesitant

answers justify further interrogation during the traffic stop).

[¶14.] Therefore, the questioning consuming the first sixteen minutes of the

stop did not unconstitutionally prolong the detention “beyond the time reasonably

required to complete” its purpose. Caballes, 543 US at 407, 125 SCt at 837. Rather,

that questioning represented “a ‘graduate[d] . . . respons[e] to the demands of [the]

particular situation.’” United States v. Sharpe, 470 US 675, 688, 105 SCt 1568,

1575, 84 LEd2d 605 (1985) (citing United States v. Place, 462 US 696, 709 n10, 103

SCt 2637, 2646 n10, 77 LEd2d 110 (1983)). 2

2. We acknowledge that during this time, Koltz did not call in the driver’s
license checks and was not actively completing issuance of the warning
ticket. Koltz was not, however, required to perform those tasks before
completing the questioning that was either part of the traffic stop or part of
the questioning necessary to resolve the inconsistent stories:

Computerized license and registration checks are an efficient
means to investigate the status of a driver and his auto, but they
(continued . . .)
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[¶15.] The remaining few minutes of the detention relating to drug

interdiction, although unrelated to the traffic stop, see Peralez, 526 F3d at 1120,

were also constitutionally permissible. We observe that the remaining four minutes

before Littlebrave’s admission of possession of drugs involved both Koltz’s last

question on the travel inconsistencies and three brief questions concerning drugs.

Other courts have found no unreasonable detention “simply by asking three brief

questions related to possible drug trafficking amidst [the officer’s] other traffic-

related inquiries and tasks.” See Olivera-Mendez, 484 F3d at 511.

[¶16.] Additionally, after the Littlebraves’ inconsistent stories regarding their

travel, reasonable suspicion justified an investigatory detention regarding illegal

drugs. As we have previously noted, an investigatory detention “should ‘last no

longer than is necessary to effectuate the purpose of the stop,’ unless the officer has

reasonable suspicion that additional criminal activity is afoot.” State v.

Kenyon, 2002 SD 111, ¶ 16, 651 NW2d 269, 274 (citing Ballard, 2000 SD 134, ¶¶

11-12, 617 NW2d at 841) (quoting Royer, 460 US at 500, 103 SCt at 1325-26). See

also Peralez, 526 F3d at 1120 (recognizing that “if the officer develops reasonable

___________________
(. . . continued)
need not be pursued to the exclusion of, or in particular
sequence with, other efficient means. Some lines of police
questioning before the initiation of a computer check are often
reasonable, as they may enable swift resolution of the stop.

Brigham, 382 F3d at 511. We caution, however, that an officer may not
delay computer checks for the sole purpose of prolonging the detention so as
to justify additional questioning. See Shabazz, 993 F2d at 436 (noting Terry’s
second prong is concerned with detentions, not questioning, but “[t]his is not
to say that questioning is unrelated to the determination that a detention
has exceeded its lawful duration”).

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suspicion that other criminal activity is afoot, the officer may expand the scope of

the encounter to address that suspicion”); United States v. Lopez-Moreno, 420 F3d

420, 431 (5thCir 2005) (concluding: “[I]f additional reasonable suspicion arises in

the course of the stop and before the initial purpose of the stop has been fulfilled,

then the detention may continue until the new reasonable suspicion has been

dispelled or confirmed.”); United States v. Barahona, 990 F2d 412, 416 (8thCir

1993) (concluding: “[A]n officer’s questions must relate to the purpose of the stop.

However, if the responses of the detainee and the circumstances give rise to

suspicions unrelated to the traffic offense, an officer may broaden his inquiry and

satisfy those suspicions.” (citing Terry, 392 US at 20, 88 SCt at 1879)). In this case,

“further reasonable suspicion, supported by articulable facts, emerg[ed]” making the

duration of this stop reasonable. See Brigham, 382 F3d at 507.

[¶17.] Brigham, an en banc decision, considered a factual situation

remarkably similar to the case we consider today. In Brigham, the driver and three

occupants were stopped for following too closely. The officer asked the driver to step

out of the car and provide his license and insurance papers. The driver complied

and produced a car rental agreement listing a 50 year-old female as the only

authorized driver on the rental agreement. Because it did not appear a 50 year-old

female was in the group, the officer became suspicious and asked the occupants a

series of questions about their travel plans. The driver’s and passengers’ responses

were inconsistent. The officer then returned to his car and ran computer checks on

the car and the occupants. He told the driver that if his license was “clean,” they

would soon be back on their way. Although the checks revealed nothing of

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substance, the officer remained suspicious because of the driver’s and occupants’

inconsistent descriptions of their travel plans. The officer then explained to the

driver that one of his responsibilities was to intercept illegal contraband and

narcotics. The driver denied that any illegal items were in the car and consented to

a request for a search. After this investigatory detention lasting approximately

thirty minutes, the officer discovered liquid codeine in the trunk. The Fifth Circuit

concluded that the extended detention was justified by the emerging facts developed

during the traffic stop.

[W]e do not presume to prescribe in the abstract the scope of
questioning, investigative techniques, or the length of
permissible detention that may be undertaken following a valid
traffic stop. The bounds of existing caselaw are clear, if fact-
intensive: a traffic detention may last as long as is reasonably
necessary to effectuate the purpose of the stop, including the
resolution of reasonable suspicion, supported by articulable facts
within the officer’s professional judgment, that emerges during
the stop.

Id. at 512 (emphasis added).

[¶18.] Like Brigham, there were developing articulable facts in this case

creating reasonable suspicion to extend Koltz’s traffic stop for the brief period

necessary to ask three drug-related questions. “[R]easonable suspicion to justify

extending the scope of a traffic stop is examined under an objective test.” Ballard,

2000 SD 134, ¶ 13, 617 NW2d at 841 (citations omitted). “It is our duty to make our

own legal assessment of the evidence to decide under the Fourth Amendment

whether the officer’s actions were ‘objectively reasonable.’” State v. Chavez, 2003

SD 93, ¶ 49, 668 NW2d 89, 103 (Konenkamp, J., concurring) (citing Maryland v.

Buie, 494 US 325, 330, 110 SCt 1093, 1096, 108 LEd2d 276 (1990)). “Consequently,

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we are not constrained by the trial judge’s legal rationale for upholding the search.

Equally important, we are not bound by a police officer’s subjective rationale.”

Id. (citing Arkansas v. Sullivan, 532 US 769, 771-72, 121 SCt 1876, 1878, 149

LEd2d 994 (2001)).

[¶19.] Harvey and Mary’s suspicious vehicle and emerging inconsistent

stories about the details of their trip established reasonable suspicion to justify the

brief detention necessary to ask the three questions regarding illegal drugs. Koltz

testified that the basis for his suspicion included: Washington State was considered

a drug-source state and New York was considered a drug destination state; those

who carry drugs try to mask the odor with agents such as soap or chemicals; 3 the

vehicle appeared “lived-in” and had duffle bags in the back; the two parents

provided inconsistent stories as to the purpose and duration of their trip; and, the

children had been traveling for an extremely long period of time, yet they were

“destined to be flown back to Washington at a time” that neither parent could

match up. 4 As Koltz testified, all of these factors “seemed to make the

3. See United States v. Villa-Chaparro, 115 F3d 797, 802 (10thCir 1997) (noting
that odor of detergent or air freshener “coupled with other indicia of criminal
activity supports a reasonabl[y] brief inquiry” (citation omitted)).

4. The Littlebraves were stopped on Sunday evening March 2, 2008, and would
have arrived in New York no earlier than Monday evening, March 3, 2008.
According to Harvey, they planned to return to Washington on Wednesday
March 5, 2008, only one day after arriving in New York. See United States v.
Sokolow, 490 US 1, 9-10, 109 SCt 1581, 1586-87, 104 LEd2d 1 (1989) (citing
unusual travel itinerary as one of several factors supporting reasonable
suspicion); United States v. Wood, 106 F3d 942, 946-47 (10thCir 1997)
(concluding: “It is true that unusual travel plans may provide an indicia of
reasonable suspicion.”).

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reasonableness for this trip unreasonable.” This conclusion was particularly

justified by the Littlebraves’ inconsistent stories concerning the purpose and length

of their trip. United States v. Mendez, 118 F3d 1426, 1431 (10thCir 1997)

(“[C]ontradictory or implausible travel plans can contribute to a reasonable

suspicion of illegal activity.”). We finally observe that Littlebraves were extremely

nervous and were driving a rental car on a one-way trip only to purchase five one-

way plane tickets to return after only one day. See United States v. Karam, 496

F3d 1157, 1165 (10thCir 2007) (noting that to purchase “‘a series of one-way plane

tickets and one-way car rentals’ was ‘financial[ly] illogic[al]’ and ‘defied common

sense’ and therefore was a factor contributing to reasonable suspicion” (quoting

United States v. Bradford, 423 F3d 1149, 1157-58 (10thCir 2005))).

[¶20.] Ultimately, Koltz was not acting on a mere hunch, but upon articulable

facts creating reasonable suspicion developed during a routine traffic stop. See

Brigham, 382 F3d at 509. Under the totality of the circumstances, the articulable

facts presented here are those commonly found to create the reasonable suspicion

necessary to justify a brief detention to ask limited questions regarding drug

trafficking. Consequently, Koltz did not unconstitutionally prolong the

investigatory detention leading to Harvey’s admission that he possessed drugs in

the vehicle. 5 Once Harvey admitted to possessing drugs in the vehicle, there was

probable cause for the canine sniff and search of the automobile.

5. Littlebrave relies upon People v. Baldwin, 388 IllApp3d 1028, 904 NE2d 1193
(IllAppCt 2009), in which an Illinois Court of Appeals concluded that the
officer unreasonably prolonged the driver’s detention after the initial traffic
stop. In Baldwin, however, the officer “became suspicious based [only] on
(continued . . .)
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[¶21.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,

and SEVERSON, Justices, concur.

___________________
(. . . continued)
nervousness, heavy breathing, and the location of the defendant’s right
hand.” Id. at 1034, 904 NE2d at 1199. That search was suppressed only
because these three “observations essentially amount[ed] to nothing more
than hunch based on the 17 year-old passenger’s nervousness.” Id. at 1035,
904 NE2d at 1200. Littlebrave’s case involved much more than a 17 year-
old’s nervousness.

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