{"id":3360,"date":"2010-01-16T06:34:48","date_gmt":"2009-09-07T00:43:27","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-09-06T11:43:27","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3360","title":{"rendered":"SD: Officer said defendant was “free to go” but it is apparent he would not think so"},"content":{"rendered":"

Despite the officer’s statement that defendant was free to go before permission to use the drug dog was sought, it was apparent that he was not. The use of the dog here was not reasonable. State v. Haar<\/a>, 2009 SD 79, 772 N.W.2d 157 (2009)*:<\/p>\n

[*P20] In addition, we agree with the circuit court that Haar was detained or seized because a reasonable person in his position would not have felt free to leave or terminate the encounter. Haar and the other occupant were alone at the rest area without the ability to leave in their vehicle. Further, Swets parked his vehicle, positioned himself, questioned Haar, and released the dog in a manner such that a reasonable person would not feel he or she was free to leave. Under the totality of the circumstances, we agree with the circuit court that any initially consensual encounter became an investigatory detention. The circumstances justifying this conclusion include the remote location of the encounter, Haar’s restricted access to his vehicle and jacket on a cold February day, the investigatory nature of the conversation, Swets’s conceded show of authority, and the release of the dog. Even disregarding Swets’s concession, his actions amounted to a show of authority such that a reasonable person would not have felt free to leave. See Royer, 460 U.S. at 501-02, 103 S. Ct. at 1326, 75 L. Ed. 2d 229 (concluding that analogous actions by law enforcement with respect to an airport traveler surely amounted to a show of official authority such that “a reasonable person would have believed he was not free to leave”).<\/p>\n

[*P21] Although we acknowledge that Swets told Haar he was “free to go,” the seizure of the car together with the simultaneously release of the dog made this statement demonstrably false. Furthermore, the release of the dog left no room for a reasonable person to believe that he or she could have disregarded Swets’s command to the dog, disrupted the canine sniff, and left in his or her vehicle uninterrupted. We conclude that Swets affected a Terry detention or seizure of Haar and his vehicle.<\/p><\/blockquote>\n

Defendant was sitting in a parked car and he was approached by a law enforcement officer who was asking him questions. The officer concededly believed that a hand to hand drug deal had gone down, but the appeals court is not persuaded. People v. Estrada<\/a>, 394 Ill. App. 3d 611, 333 Ill. Dec. 260, 914 N.E.2d 679 (2009):<\/p>\n

The thrust of the State’s argument here is that Officer Cloherty had a reasonable suspicion that defendant was in the midst of a narcotics transaction. The State gleans support from the fact that defendant was seated in a vehicle with the engine running, engaged in a “brief conversation with a man standing near the driver’s side of the vehicle,” and then “attempted to conceal a white plastic bag by removing it from the front seat and placing it on the floor of the rear passenger seat.” The State posits, that in light of the foregoing circumstances as well as Officer Cloherty’s assignment and training, there existed a reasonable and articulable suspicion to support a Terry stop of defendant. We disagree. The State further maintains that, in addition to Cloherty’s initial observations, the revelation that defendant’s vehicle lacked a city sticker provided “further suspicion to investigate.” However, we are not persuaded that this additional factor in any measure alters our initial disagreement with the State’s position.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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