SEARCH OF CAR WITHOUT WARRANT IS RULED LEGAL

PIERRE - A drug bust on the heels of a lawman stopping a car for going 3
mph over the speed limit was legal, the South Dakota Supreme Court ruled
3-2 Thursday.

The decision upholds the conviction of Carl O. Lockstedt of Houston, Texas,
who was riding in a car driven by Billy C. Kinnamon on Oct. 21, 2002.
Seventeen bags of marijuana, weighing a pound apiece, were found in the trunk.

Kinnamon, 31, was stopped after a state trooper became suspicious when
pulling alongside the pair because Kinnamon was leaning his head against
the driver's side window, and neither man made eye contact with the lawman.

At the time, trooper Brian Swets was patrolling Interstate 90 near Piedmont
in Lawrence County. Swets checked with a dispatcher and learned the car was
a rental, but he did not feel he could stop it because Kinnamon was driving
70 mph in a 75 mph zone.

The trooper passed the car, sped ahead to an area where the speed limit was
65 mph and waited. He clocked Kinnamon at 68 mph and radioed ahead to
another trooper who stopped the men.

While Swets began to write Kinnamon a warning ticket for speeding, the
other trooper had his drug dog go around the car. The dog did not indicate
the presence of drugs, but Swets noticed that Kinnamon seemed nervous.

Swets next had his drug dog circle the car, and the dog hesitated briefly
while sniffing around the creases of the passenger doors, apparently
detecting marijuana. The trooper then guided the dog to the trunk and
encouraged him to "get up there" and "get after it."

When the dog jumped and pawed at the trunk, Swets decided he had a
legitimate reason to search the car without a warrant.

Both men eventually were convicted on drug charges.

In his appeal to the Supreme Court, Lockstedt, 31, argued that Swets
illegally stopped the car on a hunch. He also said the marijuana was found
in violation of his constitutional right against unreasonable search and
seizure.

The high court was unanimous in deciding the officers could legally detain
Kinnamon for doing 68 mph in a 65 mph zone.

The court majority, upholding an earlier ruling by Circuit Judge Merton
Tice of Rapid City, also decided the warrantless search was legal because
the drug dog hesitated when sniffing the door seams. That caused Swets to
think there may be drugs in the car, three of the five justices said.

Justices Judith Meierhenry and Richard Sabers did not agree that the search
should have been allowed.

"Drug dogs are not 100 percent accurate and are fallible," Meierhenry
wrote, urging reversal of Lockstedt's conviction. "We should, at least,
require the state to present evidence of the dog's clear indication of
smelling drugs before approving a search."

The court majority, however, said a review of the trooper's testimony and
videotape taken at the scene showed that Swets - at one point - had to pull
his dog away from the driver's door.