BISMARCK-A South Central District judge dismissed felony charges late last month against a father and son arrested in February after 210 pounds of marijuana was seized from their pickup.
Christopher Conkey, Oregon, and Robert Smith, Washington state, were charged with three counts each of possession of a controlled substance with intent to deliver and another specific to methamphetamine, after a Feb. 4 traffic stop west of Mandan on Interstate 94.
Attorneys for Conkey and Smith filed motions to suppress evidence seized during the stop, arguing that James Ellefson, a deputy with the Morton County Sheriff's Department, did not have reasonable suspicion to search their pickup, nor did a K-9 provide a proper alert to allow the search.
According to court documents, Ellefson stopped the pickup for speeding and crossing the center line on I-94. Conkey, the driver, told Ellefson that he and Smith were traveling to the Super Bowl in Minneapolis.
At a motion to suppress hearing June 8, Ellefson testified that Conkey was rubbing his leg and acting nervous during questioning. Ellefson said a K-9 sniff also alerted positively to a controlled substance in the vehicle.
On July 27, Judge Bruce Romanick sided with the defense attorneys and granted their motions to suppress evidence.
"Ellefson had a hunch there was illegal activity afoot based on his finding it off the defendants were traveling to the Super Bowl the day of the game, they were traveling from a drug source state, and Conkey rubbed his leg as if nervous. Based on this type of information, every out-of-state plate or rental car would be subject to a drug sniff if stopped on our highways," Romanick wrote in his order granting the motion.
On Monday, Aug. 27, Romanick signed an order to dismiss the charges.
Justin Vinje, attorney for Smith, said his client is pleased with the outcome.
"The judge very clearly went through the facts of the case in making his decision. And the decision was a very good one, it is in line with the law, and obviously we're very happy with the decision," he said.
In response to a request for comment, Morton County Assistant State's Attorney Gabrielle Goter, who prosecuted both cases, pointed to the motions to dismiss she filed last week as a result of the motion to suppress being granted.
In a statement, Morton County Sheriff Kyle Kirchmeier said that law enforcement has to use discretion and often make quick decisions on "whether to arrest, investigate, search, or question."
"The deputy involved in this traffic stop is trained in drug interdiction and made decisions based on officer and public safety at the time," he said. "Law enforcement understands that each case must go through the court process, and that prosecutors and judges will also make decisions based on the information before them."
The marijuana and other items seized in the cases will be disposed of pursuant to state law, according to Goter and Kirchmeier.