COURT TO STUDY DRUG BUST

PIERRE -- The South Dakota Supreme Court was asked Tuesday to throw
out the convictions of a woman who was caught near Sioux Falls last
year with 53 pounds of marijuana in her car.

Sioux Falls lawyer Mike Butler said the evidence should have been
suppressed because a state Highway Patrol dog did not give any clear
signal that it had detected the odor of marijuana in the car driven
by Tam Thi Thu Nguyen, 23, of Renton, Wash. The search was illegal
because the trooper had no probable cause to search the car, he said.

The dog showed interest in the vehicle only after the trooper
prompted it with a spoken cue, Butler said. Unless limits are set,
law officers could use such verbal cues to make drug dogs behave in
ways that would provide false justification for searches, he said.

"On the issue of cueing, I think this court has to draw a line when
it's so evident what's happening," Butler told the Supreme Court.

Butler also said the court should set a standard requiring that drug
dogs exhibit clearly recognizable signals to establish probable cause
for searches.

Deputy Attorney General Craig Eichstadt said Nguyen's convictions
should be upheld because the drug dog clearly indicated that it had
smelled drugs.

The dog made biting motions to show it had detected the odor of drugs
near the vehicle's trunk, he said.

The trooper spoke to the dog only to keep the canine focused on the
car, not to make it falsely signal the presence of drugs, Eichstadt said.

"We're arguing there was no cueing," Eichstadt said.

The Supreme Court will decide the case in a written opinion to be issued later.

Chief Justice David Gilbertson said that before the justices decided
the case, they would watch the trooper's videotape of the dog
sniffing Nguyen's car.

Highway Patrol trooper Christopher Koltz stopped Nguyen March 18,
2005, near the exchange of Interstates 90 and 29 for following too
closely. The trooper had his drug dog, Kaz, sniff around the woman's
car during the videotaped stop.

Nguyen was convicted of drug possession and possession with intent to
distribute marijuana. Circuit Judge peter Lieberman sentenced her to
25 years in prison, with 13 years suspended.

Butler said the trunk of Nguyen's car was searched when the drug dog
merely put its paw on the rear bumper after prodding by Koltz. The
dog is trained to scratch aggressively when it smells drugs, so the
paw on the bumper was no justification for searching the car, he said.

When the dog made a motion with its mouth, Kaz was only reacting to
words spoken by the trooper, Butler said.

However, Eichstadt said the trooper did not use deception to create
an excuse to search the car. The trooper saw signs the dog was
interested, and the dog's biting motion near the truck was a clear
signal it had smelled drugs, the deputy attorney general said.

The dog had been trained to detect odors and then scratch or bite to
get a training device that carried that scent, Eichstadt said.

"It's our argument that the biting behavior here is a final trained
response," Eichstadt said.

Eichstadt said the trooper pulled the dog back before it began
scratching because the Highway Patrol has decided it does not want
dogs to scratch cars.

Some of the justices said an objective standard might be needed so
courts can determine whether drug dogs give clear signals that they
have detected the odor of drugs.

Justice Judith Meierhenry said drug dogs apparently can be trained to
give one signal that is recognizable. "Aren't we moving away from that?"

Butler said courts should not allow troopers to justify searches by
relying on subtle behavior they claim they can interpret in their
dogs. The trooper who searched Nguyen's car said he could tell the
dog was interested in the car when the dog stopped and breathed more heavily.

Butler said Koltz has acknowledged taking advantage of traffic
violations to stop cars with Washington license plates because he
often snares drug runners from that state. The drug dog, Kaz,
indicated the presence of drugs during 183 stops in a 16-month
period, but no drugs were found in 54 percent of the subsequent
searches, Butler said.