People v. Haley, No. 01SA148

• Decision Date: 27 November 2001
• Docket Number: No. 01SA148, No. 01SA149, No. 01SA150.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Dedrick HALEY, Defendant-Appellee. The People of the State of Colorado, Plaintiff-Appellant, v. Gene Dunlap, Defendant-Appellee. The People of the State of Colorado, Plaintiff-Appellant, v. Larry Daniels, Defendant-Appellee.
• Court: Colorado Supreme Court

41 P.3d 666

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Dedrick HALEY, Defendant-Appellee.

The People of the State of Colorado, Plaintiff-Appellant, v. Gene Dunlap, Defendant-Appellee.

The People of the State of Colorado, Plaintiff-Appellant, v. Larry Daniels, Defendant-Appellee.

Nos. 01SA148, 01SA149, 01SA150.

Supreme Court of Colorado, En Banc.

November 27, 2001.

Frank J. Daniels, District Attorney, 21st Judicial District, Brian J. Flynn, Deputy District Attorney, Grand Junction, CO, Attorneys for Plaintiff-Appellant.

Nugent & Palo, LLC, Edward J. Nugent, Grand Junction, CO, Attorneys for Defendant-Appellant Dedrick Haley.

David S. Kaplan, Colorado State Public Defender, Frederick M. Callaway, Deputy State Public Defender, Grand Junction, CO, Attorneys for Defendant-Appellant Gene Dunlap.

Colleen B. Scissors, Grand Junction, CO, Attorney for Defendant-Appellant Larry Daniels.

Justice HOBBS delivered the Opinion of the Court.

In these three consolidated interlocutory appeals, the prosecution challenges the trial court's suppression of evidence obtained as a result of a dog sniff search of a car after the reason for the traffic stop had been completed. In accordance with our prior case law interpreting Article II, Section 7 of the Colorado Constitution, a dog sniff search of an object can constitute a search requiring reasonable suspicion to justify the governmental intrusion. We agree with the trial court that the drug investigation in this case lacked reasonable suspicion and the dog sniff search of the automobile contravened protections of the Colorado Constitution.

I.

These interlocutory appeals have been consolidated for opinion because they have identical facts and legal issues. Officer Mike Miller, a member of the Grand Valley Joint Drug Task Force, was performing highway drug interdiction on Interstate 70 in Mesa County on December 16, 2000, when he saw the defendants' automobile heading eastbound. Officer Miller thought that the vehicle was following the truck in front of it too closely, so he conducted a traffic stop. The statute for the offense of following too closely, section 42-4-1008, 11 C.R.S. (2001), states in part, "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." In the automobile were three African-Americans, Dedrick Haley, Gene Dunlap, and Larry Daniels. Officer Miller approached the vehicle and asked the driver, Haley, for his license and registration. Haley produced his Kansas driver's license and a rental agreement for the car. Officer Miller told Haley he thought he was following the truck in front of him too closely. He asked Haley to come with him to the patrol car; Haley complied.

In response to Officer Miller's questioning, Haley explained that he was coming from Sacramento, California, where he had visited friends for a few days, and was now heading home to Kansas. Haley stated that he and his passengers had flown to Sacramento, but could not afford to fly back home, so they rented a car. Officer Miller noticed that the cost of the rental car was approximately $600 a week, and the car had been rented the previous day at the Sacramento airport for a week. Throughout this conversation, Officer Miller observed several nervous behaviorisms: Haley's hands were shaking, he was licking his lips indicating that his mouth was dry, he was stuttering, and he was shuffling his feet.

Because Haley had not provided him with the vehicle registration, Officer Miller returned to the vehicle and asked Dunlap to find it in the glove compartment. In response to Officer Miller asking Dunlap where he was going, Dunlap did not answer and exhibited shaking hands and a facial twitch. Daniels also did not answer the question until Officer Miller suggested the answer Haley had given, that they were going home. Daniels agreed with the officer's suggestion.

After Dunlap handed him the registration document, Officer Miller returned to Haley to give him back his paperwork. According to Officer Miller, Haley was walking in circles and appeared nervous. Officer Miller decided not to issue him a citation for the traffic offense and told Haley he was free to go, but immediately following thereafter, he asked Haley whether he "had any drugs or anything illegal in the vehicle." Haley said no. Next, according to Officer Miller, Haley consented to a dog sniff search of the luggage, saying, "Do you want to check it out?" Officer Miller asked for consent to have the dog sniff the car also, Haley said no. Haley removed three bags from the trunk of the car, and placed them about five feet away from the rental car. The dog did not alert to the luggage. Officer Miller then proceeded with the dog towards the vehicle, despite Haley's vehement protests. The dog alerted to several places around the car. Haley yelled, "What are you doing searching my car?" The dog stopped sniffing the car and moved to protect Officer Miller, the dog's handler. Officer Miller then placed the dog inside the police vehicle and called for assistance. Officer Daley responded to the call. Officer Miller also called Detective Norcross via Nextal, a police network system.

During this time, Haley managed to hide a bottle of tequila under Miller's patrol vehicle. Haley and Officer Miller talked for about ten minutes until the other two officers arrived. Officer Miller asked Haley about the tequila and requested identification from the other men in the car to establish their age. They supplied the identification.

Upon the other officers' arrival, Officer Miller asked Haley if he had any weapons. Haley said no; one of the officers patted him down, finding no weapon. The police asked Daniels to get out of the vehicle; they found no weapons on him. The police then asked Dunlap to get out of the vehicle. Officer Miller noticed that Dunlap was trembling and had a large bulge in his waistband. Patting down Dunlap, the police found a package in his waistband that appeared to contain drugs.

Officer Miller attempted to place Dunlap under arrest; Dunlap resisted. A struggle ensued involving Dunlap, Haley, and the police. Daniels was not involved. Dunlap fled the scene on foot. Officer Daley chased after Dunlap on foot. Dunlap threw Christmas stockings into the brush. Officer Daley apprehended Dunlap. The police recovered the stockings, which contained kilo-sized bricks of cocaine. Daniels made a statement after signing a Miranda waiver.

The police placed the three men under arrest. The prosecution charged them with several offenses.¹ Haley, Dunlap, and Daniels pleaded not guilty and requested a jury trial. The trial court conducted a pretrial motions hearing on May 11, 2001. The trial court judge ordered the evidence suppressed on grounds of an illegal search. The trial court ruled that a dog sniff of an automobile from its exterior to detect substances therein constitutes a search under Article II, Section 7, of the Colorado Constitution, and that reasonable suspicion, rather than probable cause, must support it. The trial court determined that the police did not have reasonable suspicion for the drug investigation after the reason for the traffic stop had been concluded; consequently, it suppressed the evidence.

II.

We hold under Article II, Section 7, of the Colorado Constitution that the prolonged police detention and investigation of the persons and automobile for illegal substances, after the consensual dog sniff of the luggage proved to be negative, was a search and seizure not supported by reasonable suspicion. Consequently, the trial court properly suppressed the evidence the police obtained after the reason for the traffic stop had concluded.

A. Standard of Review

When reviewing a trial court's suppression order, we defer to its findings of fact, but review its conclusions of law de novo. Outlaw v. People, 17 P.3d 150, 157 (Colo.2001); People v. Garcia, 11 P.3d 449, 453 (Colo.2000). We must determine on appeal whether the trial court applied the correct legal standards to the facts of the case, and whether sufficient evidence in the record supports its legal conclusions. People v. Rivas, 13 P.3d 315, 320 (Colo.2000)("[T]he trial court's application of legal standards to those facts is treated as a question of law to be reviewed de novo."); People v. Jordan, 891 P.2d 1010, 1015 (Colo.1995). The legality of the detention and search of these persons and their automobile is a question we review de novo. See People v. Hopkins, 870 P.2d 478, 482 (Colo.1994)

; People v. McKinstrey, 852 P.2d 467, 473 n. 6 (Colo.1993).

B. Dog Sniff Searches

The Fourth Amendment to the United States Constitution and Article II, Section 7 of the Colorado Constitution protect a person's reasonable expectation of privacy from governmental intrusion. See U.S. Const. amend. IV; Colo. Const. art. II, § 7; Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); People v. Sporleder, 666 P.2d 135, 139 (Colo.1983). The prosecution argues that the United States Supreme Court's interpretation of the Fourth Amendment in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), should apply here. In Place, the court held that exposing an individual's luggage located in a public place to a dog sniff did not constitute a "search" under the Fourth Amendment.² Id. at 707, 103 S.Ct. 2637.

Nevertheless, in applying Article II, Section 7 of the Colorado Constitution, we have ruled that Colorado law affords broader protections in some instances than the Fourth Amendment. See People v. Oates, 698 P.2d 811, 815 (Colo.1985)

("Several times we have determined that the Colorado proscription against unreasonable searches and seizures protects a greater range of privacy interests than does its federal counterpart."); People v. Sporleder, 666 P.2d 135, 140 (Co...