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SD: Officer said defendant was "free to go" but it is apparent he would not think so

By John Wesley Hall, Jr.

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, 2009 SD 79, 2009 S.D. LEXIS 150 (August 26, 2009)*: [*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...continue to full post

Full post as published by Fourth Amendment on September 07, 2009 (boomark / email).