State v. Bergee

#24564, #24565-a-JKM

2008 SD 67

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

TIMOTHY JAMES BERGEE, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
BUTTE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JOHN W. BASTIAN
Judge

* * * *

LAWRENCE E. LONG
Attorney General

GARY CAMPBELL
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

BRAD A. SCHREIBER of
Schreiber Law Firm Attorneys for defendant
Belle Fourche, South Dakota and appellant.

* * * *
ARGUED ON MAY 21, 2008

OPINION FILED 07/16/08
#24564, #24565

MEIERHENRY, Justice.

[¶1.] A jury found Timothy Bergee guilty of Distribution of a Controlled

Substance; Possession of Controlled Substance; Possession of Marijuana Less than

Two Ounces; Driving While License Suspended; and Possession of Drug

Paraphernalia. Bergee appeals the conviction, and we affirm.

FACTS

[¶2.] During the month of February, within the span of seven days, eight

Belle Fourche businesses were burglarized. All of the businesses were on or near

Fifth Avenue, also known as U.S. Highway eighty-five. In six of the burglaries, the

perpetrators entered the establishments via the back or side entrance or window.

[¶3.] Concerned about the prospect of future burglaries, Belle Fourche

Police Captain Larry Roberdeau called upon reserve officers to increase patrol

activities and positioned unmarked vehicles to stake-out different locations around

town. Three days after the last reported burglary, Officer Russell Waterbury was

patrolling Fifth Avenue, and Officer Paul Sutter was watching for suspicious

activity atop a hill with binoculars. From his vantage point, Sutter could observe

Fifth Avenue and parts of the Big D gas station and its surrounding parking lot.

The Big D was closed for the night.

[¶4.] A little before 1:00 a.m. Sutter observed a truck drive out of the Big D’s

parking lot with its headlights off. He reported his observation to Waterbury, who

immediately drove to the parking lot to investigate. As Waterbury arrived at the

parking lot, a second car driven by Bergee emerged from behind the Big D and

drove toward Fifth Avenue.

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[¶5.] Concerned about the late-night suspicious activity in light of the recent

rash of Fifth Avenue burglaries, Waterbury stopped Bergee’s vehicle before it could

leave the parking lot. Waterbury drove his vehicle along side the Bergee vehicle;

and from the driver’s seat of his patrol car, Waterbury spoke to Bergee. Waterbury

inquired into Bergee’s identity and purpose for being behind the closed gas station

at such a late-night hour. Bergee claimed to have met a friend behind the Big D

and now was on his way back to North Dakota. Waterbury then requested Bergee’s

driver’s license. At that point, Bergee became very nervous and jumpy. He spoke

quickly and appeared to be in a hurry. He also avoided eye contact with Waterbury.

Bergee admitted that he did not have a driver’s license; however, he did provide his

name and birth date.

[¶6.] Waterbury then called in a license plate and driver’s license check.

The driver’s license check revealed that three states had suspended Bergee’s driving

privileges. Waterbury informed Bergee that he would have to issue a citation for

Driving Under a Suspension, a violation of SDCL 32-12-65(2), and that Bergee

would not be permitted to drive the vehicle any further. Nevertheless, Bergee

stated, “Just give me the ticket . . . I need to get home [to North Dakota],” and, “I

need to get home [to North Dakota].” These statements along with his suspicious

demeanor amplified Waterbury’s suspicions. Based on his training and experience,

Waterbury believed that Bergee had drugs or contraband inside the vehicle.

Waterbury then contacted Sutter for assistance. Sutter was a certified drug dog

handler and had his drug dog, Brook, with him on patrol. Sutter arrived at the

location within a couple of minutes and took Brook out of his vehicle. Brook

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immediately indicated that she smelled the scent of a controlled substance by

vigorously scratching on Bergee’s driver side door. Brook was pulled back and

permitted another chance to inspect the vehicle. Again, she scratched the driver

side door indicating that a controlled substance odor was emanating from the

scratched area.

[¶7.] After Brook’s performance, the officers asked Bergee if he had

anything that they should know about in the vehicle. Bergee responded that he had

“a little [personal stuff] in a green container.” The green container held a green

leafy substance and a white powdery substance along with drug paraphernalia.

The leafy substance field tested positive for marijuana, and the white powder later

tested as methamphetamine. After a more thorough search of the vehicle, the

officers found nine more grams of methamphetamine.

[¶8.] Bergee moved to suppress the drug evidence as fruit of an unlawful

detention and the alleged unreliability of the drug dog. Both requests were denied.

Bergee appeals claiming that the trial court erred by denying Bergee’s Motion to

Suppress. He claims that the stop and subsequent search of his vehicle violated his

rights under the United States and South Dakota Constitutions. US Const amend

IV; SD Const art VI, § 11. He also claims that the trial court erred in its

determination concerning the reliability of the drug dog and its failure to grant his

motion for a drug dog expert.

DECISION

Whether the officer had reasonable suspicion to stop Bergee’s vehicle.

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[¶9.] Bergee contends that Officer Waterbury lacked reasonable suspicion

to stop his vehicle, and therefore the stop constituted a violation of his

constitutional right to be free from unreasonable search and seizure. He further

claims that all evidence derived from the stop must be suppressed as a result of the

constitutional violation. “Our review of a motion to suppress based on an alleged

violation of a constitutionally protected right is a question of law examined de

novo.” State v. Hayen, 2008 SD 41, ¶5, __ NW2d __ (quoting State v. Muller, 2005

SD 66, ¶12, 698 NW2d 285, 288 (citations omitted)).

[¶10.] Brief investigatory traffic stops are permitted when based on

objectively reasonable and articulable suspicion that criminal activity has occurred

or is occurring. See id. “While the stop may not be the product of mere whim,

caprice or idle curiosity, it is enough that the stop is based upon ‘specific and

articulable facts which taken together with rational inferences from those facts,

reasonably warrant the intrusion.’” Muller, 2005 SD 66, ¶14, 689 NW2d at 289

(citation omitted). “[I]n making a reasonable suspicion determination, we must

‘[l]ook at the ‘totality of the circumstances’ of each case to see whether the detaining

officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.”

State v. Aaberg, 2006 SD 58, ¶25, 718 NW2d 598, 604 (Zinter, J., concurring)

(emphasis added) (quoting State v. Kenyon, 2002 SD 111, ¶15, 651 NW2d 269, 273-

74 (quoting United States v. Arvizu, 534 US 266, 273, 122 SCt 744, 750-51, 151

LEd2d 740, 749 (quoting United States v. Cortez, 449 US 411, 417-18, 101 SCt 690,

694-95, 66 LEd2d 621, 628-29 (1981))). The “investigative detention must be

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

stop.” Hayen, 2008 SD 41, ¶7, __ NW2d __ (citation omitted).

[¶11.] In this case, Waterbury had reasonable suspicion to make the inquiry.

He knew that eight establishments had been burglarized within the past two weeks

on or near this Fifth Avenue location. He knew that six of these break-ins

happened on the back or side portion of the business. He had just received Officer

Sutton’s observation that a vehicle had left the Big D’s parking lot with its lights

off. He immediately drove to the Big D’s parking lot and saw Bergee’s vehicle

emerge from behind the closed gas station at 1:00 a.m. Based on his information

and knowledge, Waterbury stopped the vehicle to investigate the driver’s identity

and the purpose for being behind the Big D at this late-night hour. Considering the

totality of the circumstances, Waterbury was objectively justified in suspecting that

a crime may have occurred. Thus, he had reasonable suspicions for the

investigative stop. Furthermore, after observing Bergee’s nervous demeanor and

admission to driving without a license, Waterbury was justified in continuing the

stop until the citation and any other relevant matters were satisfied. See United

States v. Dawdy, 46 F3d 1427, 1429 (8thCir 1995) (citation omitted) (stating that

“[f]actors that may reasonably lead an experienced officer to investigate include

time of day or night, location of the suspect parties, and the parties’ behavior when

they become aware of the officer’s presence”). The trial court did not err in finding

that the officer had reasonable articulable suspicion to stop Bergee’s vehicle.

Whether the subsequent search of Bergee’s vehicle was unconstitutional.

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[¶12.] Next, Bergee claims that the search of the vehicle lacked probable

cause because Brook, the certified drug dog, lacked reliability. Even if we were to

assume that the dog was unreliable, Bergee’s admission to Officer Sutton that he

had drugs in the vehicle constituted probable cause for the search. After the drug

dog had twice signaled that Bergee’s vehicle contained the odor of controlled

substance(s), Sutter asked Bergee if there was something in the vehicle that the

police should know about. Bergee put his head down, sighed and exclaimed to the

officers that “I got a little [personal stuff] in a green container” and then pointed to

a container where marijuana and methamphetamine were located. The

circumstances surrounding this comment were sufficient for the officer to conclude

that Bergee was admitting to possessing illicit items in the vehicle. See State v.

Beckett, 383 NW2d 66, 69 (IowaCtApp 1985) (quoting State v. Hamilton, 236 NW2d

325, 330 (Iowa 1976)) (“Admissions by adoption or acquiescence can only be

established by ‘the totality of circumstances viewed in terms of probable human

behavior.’”).

[¶13.] Based on our determination that the reliability of the drug dog was

irrelevant to the constitutionality of the search, we need not discuss Bergee’s claim

that the trial court abused its discretion in denying Bergee’s motion for a drug dog

expert. We affirm.

[¶14.] GILBERTSON, Chief Justice and SABERS, KONENKAMP, and

ZINTER, Justices, concur.

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