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Woman challenges drug bust
JOE KAFKA | AberdeenNews.com | Sat, Apr. 15, 2006

PIERRE, S.D. - The lawyer for a woman caught on an interstate highway near Sioux Falls with 53 pounds of pot is telling the state Supreme Court a drug dog did not indicate the presence of marijuana in the trunk of her car.

Therefore, says Michael Butler in written arguments filed ahead of an April 25 hearing, the search that turned up two large duffel bags containing $432,520 in marijuana was illegal and the evidence should have been suppressed.

A state trooper stopped Tam Thi Thu Nguyen, 23, of Renton, Wash., on March 18, 2005, near the exchange of Interstates 90 and 29 for following too closely.

Trooper Christopher Koltz had his drug dog sniff around the woman's car during the videotaped stop.

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

Butler says the trunk of Nguyen's car was searched when the trooper's dog, Kaz, merely put his paw on the rear bumper after prodding from Koltz on the second time around the vehicle. The tepid signal was hardly enough of a reason to open the trunk, the woman's lawyer says, adding that the dog was trained to aggressively scratch when it smells drugs.

"The tape shows that Kaz had every opportunity to scratch at the target area but did not. He did not even show an inclination to scratch."

Butler says Koltz has acknowledged taking advantage of traffic violations to stop cars with Washington license plates because he often snares drug runners from that state. Although the trooper denied that he targets vehicles from Washington, a record of his traffic stops in a 16-month period shows that he stopped more from that state than any other other except South Dakota, Butler says.

Nguyen's lawyer adds that Kaz indicated the presence of drugs during 183 of those searches, but was right only 46 percent of the time.

Assistant Attorney General Craig Eichstadt will tell the high court that Kaz is a well-trained and reliable drug dog. Drug dogs are trained to detect the odor of drugs, not drugs, the state lawyer writes.

Often, when dogs smell drugs but none can be found, police have later learned from informants that drugs were present but police did not find them, Eichstadt says.

Kaz is a Belgian Malinois, originally from Germany. The dog has been with the Highway Patrol since 1996. It is trained to track criminals, find lost people, protect officers and detect the odor of illegal drugs.

The Highway Patrol says the dog has been instrumental in the seizure of millions of dollars in drugs and assets of those caught with illegal drugs.

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troublemaker_42

Being from the state in question, I live in constant fear of being pulled over by the SDHP's K-9 units. This IS NOT the first time the accuracy of the dogs used has been questioned. This is very similiar to another SD Supreme Court case in the past few years, in which the search was ruled valid. I personally don't see how an accuracy rate of 46% holds water. The other case I mentioned was nearly identical....the dog showed a halfhearted reaction only after prodding by the officer. If an "indication" is supposed to trigger a stronger response, I don't see how these searches are continually being validated, especially in light of the statisitcs. One can argue there were drugs pressent at some point all you want......second info from "confidentail informents" shouldn't validate a faulty search, or justify such a poor ratio in dindications to drugs found.

I have only been stopped by a k-9 unit once. In that case, the evidence conviently disappeared before the stop was initiated.

Buzzby

I think she's got a case!


Thank you troopers! The fact that the search is on tape keeps this from being a "he said, she said" situation.


Koltz effectively planted the "evidence" that created probable cause for a search!


A "fishing expedition".


The dog's incompetent.


He probably was one, in years past.


That means the dog is at least 11 years old. Just like old humans, old dogs often lose a good portion of their sense of smell. Most police dogs are retired at the age of 8.


If the defendant wins this appeal, there's going to be as shitload of activity in the SD court system when all those cases request new trials w/o the evidence from the dog searchs. I wonder how many of those include a videotaped search?

I can see a system in which drug dogs will have to "qualify" every few months in order for their detections to be considered credible in a court of law.

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troublemaker_42

I will give the SDHP props in that dept. Every time I've been stopped, or searched for that matter, the camera has been running. On another note, they also have audio recording capability, and oftentimes record the conversations between "suspects" that take place in the patrol car while the officer is searching. (SO.....don't talk about where you stashed your drugs while in the car....DUH)

To be honest, despite the obviously incompetent dog, I really don't see the court ruling the search illegal. The courts here are beyond conservative, to the point where they nearly always side with the police no matter how questionable the search was. The case a few years ago was nearly identical, right down to the halfhearted, VIDEOTAPED indication by the dog, after being coaxed by the officer. The defendant and the the officer are different, but otherwise, the facts of the case were basically the same, and it was ruled a legal search. However, if I remember correctly, the justices were split. Maybe if they see a repeat of a pevious case, they will realize how widespread the problem is.

As a sidenote, I often joke with my wife that you couldn't pay me enough to drive through SD with Washington (or BC) plates. Its amazing how many large pot busts you read about occurring on i-90 in SD involving Washington vehicles.

OccultPizza

I am from Washington State. It is quoted as having a pot farm in every 1 in 10 houses ~grins~, so the cop is right when it comes to bud runners from Washington.

I am fortunately authorized by the state of washington to smoke Marijuana for medicinal reasons. Not that it means anything.

As you go in our courthouse there is a $5000 dollar reward banner for the information leading to the arrest and conviction of a "pot grower" ~sighs~. It's all about greed and money, but I imagine I am singing to the choir ~chuckles~. It is like no one respects anyone's authority regardless of the number of people who supposeably control this country and said "We The People" want these laws banished or lessened to no avail.

I asked my lawyer about it because I wanted to file suit against the Municipality for trying to supercede state law. It is funny because the federal government just had a big hoo-haa shit fit stating that nothing supercedes the higher power of federal mandate ~snickers~.

Anyways just wanted to say Hi and put in my two cents for what it is worth ~smiles~.

 

biggdoc12

that poor lady is screwed unless its trial by jury. i don't know the state laws there, but i don't think it will be. as long as something is found the justices will say it's a legal search no matter what. and if it's not unanamus thats only because they don't want it to look abvious. they got you behind bars so who cares. i thought the west was more laid back about the weed thing. i have a buddy thats moving out there just for that reason. boy he's in for a real surpise. i live in PA and have been pulled over plenty of times and knock on wood, never been searched. not that i would have got busted with more than a bowl full. have your lescence, registration, and proof of insurcence hanging out the window when they walk up and answer every question with a "yes". worked more me everytime.

commonsense

Sounds like she's already had her trial. All she is doing now is appealing the judge's denial of her motion to suppress the evidence. She'll most likely lose her appeal. Appelate courts rarely overturn decisions by trial court judges, especially when it comes to decisions not to suppress evidence. When it does happen, it usually hits the news and you hear a lot of people blathering on about all the crazy liberal judges ruining our judicial system. The reality is that most judges would more accurately be described as prosecutors in black robes rather than bleeding heart criminal coddling liberals. The overwhelming majority of suppression motions filed are denied, and while these decisions are often appealed by desperate people facing long sentences, the appeals are raraely successful. An appeal in most cases is not a "do over." There won't be new testimony or anything like that. In fact in many cases all the appellate court will do is read the briefs from the State and the person who is appealing along with an abstract of the transcript containing the relevant portions of the testimony and argument presented and make their decision without having even the lawyers for the parties appear before them in person.