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Appellant says routine traffic stop prolonged to summon drug dog

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A Sioux Falls man charged with conspiracy to distribute a controlled substance is challenging the traffic stop that led to his arrest. Alex Olin Johnson made his case before the Eighth Circuit Court of Appeals on Friday, May 13. Johnson was driving his brother’s car in late 2019 when he was pulled over because the tinted windows were too dark. He says the stop was illegal.

Ashley Rae Brost represented Alex Olin Johnson at a federal evidentiary hearing in 2021 as well as before the Eighth Circuit Court of Appeals.

Johnson is seeking to suppress evidence found during a search of the car he was driving in November 2019. The car was registered to his brother, who was a person of interest in an ongoing investigation.

Ashley Brost argued that the purportedly routine traffic stop had been prolonged to give officers time to get a drug dog to sniff the car.

At oral arguments, she refuted the government’s contention that Officer Nicholas Stevens had delayed the encounter to make sure Johnson did not drive away with a suspended license and that the car was secure.

“At the evidentiary hearing, when I was questioning Officer Stevens, I asked him at one point, I said, ‘What are you waiting for when you’re doing all these things that are unrelated to the traffic stop?’ And he said, ‘I’m waiting for Officer Westrum to come with his canine.’”

Brost said Officer Stevens chatted with Johnson about Covid-19, babysitting, and working at a bank but never suggested Johnson should call someone to get the car.

The federal prosecutor, Alexis Anne Warner, argued that what Officer Stevens said is not as important as what he did, and what he did was reasonable.

“There were two things…that Officer Stevens had to address,” she said. “He had to address the window tint, and he had to address the suspended license.”

But Warner also noted that when Officer Stevens asked to search the car for public safety reasons, Johnson agreed to a search of the interior but not the trunk. Warner said that exchange indicated the encounter was consensual, making it legal under findings of previous cases.

The three-judge panel will deliberate and later issue an opinion whether evidence uncovered as a result of this traffic stop should be suppressed.

Rapid City freelancer Victoria L. Wicks has been producing news for SDPB since August 2007.