State v. Howard

• Decision Date: 05 October 2021
• Docket Number: Docket No. 47367
• Citation: 496 P.3d 865,169 Idaho 379
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Aaron James HOWARD, Defendant-Appellant.

169 Idaho 379

496 P.3d 865

STATE of Idaho, Plaintiff-Respondent,

v.Aaron James HOWARD, Defendant-Appellant.

Docket No. 47367

Supreme Court of Idaho, Boise, November 2020 Term.

Opinion Filed: October 5, 2021

Eric D. Fredericksen, Idaho State Appellate Public Defender, Boise, for appellant. Jenny Swinford argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Andrew Wake argued.

BRODY, Justice.

Aaron Howard appeals from the denial of a motion to suppress evidence obtained after a police drug-sniffing dog put its nose through the open window of a car Howard had been driving. Howard argues the intrusion of the dog into the physical space of the car was a trespass, and therefore, an unlawful search under the common law trespassory test articulated in United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). We agree, reverse the denial of Howard's motion to suppress, vacate his conviction, and remand this case for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

In March 2019, police officers stopped Howard for a traffic violation and took him into custody after discovering an outstanding warrant for his arrest. Officers then brought in a drug-sniffing dog ("Pico") to sniff the exterior of the car. Pico alerted to the presence of illegal drugs, and a subsequent search of the car uncovered methamphetamine, heroin, and drug paraphernalia. Neither Howard nor his passenger was the registered owner of the vehicle, and police contacted the owner who took possession of the vehicle at the scene.

After prosecutors charged Howard with drug trafficking offenses related to the heroin and methamphetamine, Howard moved to suppress all evidence arising from the search of the car. During the hearing on the motion, Howard argued Pico momentarily put his nose through the open window of the car before giving his final, trained response to indicate the presence of illegal drugs, and that this was a trespass constituting an unlawful search in violation of his Fourth Amendment rights under United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The only witness testifying at the hearing was Officer Amy Knisley, Pico's handler. A portion of Knisley's body camera footage showing the dog sniff was also admitted into evidence.

The district court orally denied the motion to suppress. Pursuant to a plea agreement, Howard entered a conditional plea of guilty to trafficking in heroin and the State moved to dismiss the methamphetamine charge. The district court sentenced Howard to six years imprisonment, with three years fixed. Howard timely appealed.

II. STANDARD OF REVIEW

We review of the denial of a motion to suppress using a bifurcated standard. State v. Danney , 153 Idaho 405, 408, 283 P.3d 722, 725 (2012). We will "accept the trial court's findings of fact unless they are clearly erroneous but will freely review the trial court's application of constitutional principles to the facts found." Id.

III. ANALYSIS

A. Pico's intrusion into the car constituted a search.

The district court denied Howard's motion to suppress because it found the Court of Appeals opinion in State v. Naranjo , 159 Idaho 258, 359 P.3d 1055 (Ct. App. 2015), was controlling. In Naranjo , the Court of Appeals held that a drug dog's sniff through the open window of a vehicle had been "instinctual"—as opposed to facilitated or encouraged by the police—and therefore was not a "search" for the purposes of the Fourth Amendment. The district court found the decision in Naranjo was "definitely as close to being on point as one can imagine," and denied Howard's motion to suppress in reliance on that case.

Howard argues that Naranjo is inconsistent with United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). In Jones , the United States Supreme Court articulated a trespassory test for determining when a Fourth Amendment search has occurred, which Howard argues renders Naranjo inapplicable. Howard contends that any trespass by the government against private property for the purpose of obtaining information—whether by dog or human, instinctual or otherwise—is a violation of the Fourth Amendment unless police have a warrant, or a warrant exception applies. Because Pico trespassed by putting his nose through the window of the car before giving his final indication, and a final indication was necessary before probable cause could exist to justify a warrantless search of the car, Howard argues that his Fourth Amendment rights were violated. The State counters that Officer Knisley had probable cause before Pico's entry, but in any event, that Pico's entry was instinctual, and the district court was correct to deny Howard's motion under Naranjo .

The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures. A warrantless search is presumed unreasonable unless it falls within a recognized exception to the warrant requirement. State v. Anderson , 154 Idaho 703, 706, 302 P.3d 328, 331 (2012). However, neither a warrant nor warrant exception is required for an exterior sniff of a car by a reliable drug dog. See Illinois v. Caballes , 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). This is so because there is no legitimate interest in possessing contraband. Because a sniff by a well-trained dog only reveals the presence of contraband, it does not compromise a legitimate privacy interest and is not a "search." Id.

We agree with Howard that Naranjo is inconsistent with Jones and that Pico's entry was a search. Jones is clear that for purposes of the Fourth Amendment, a search occurs when the government trespasses in order to obtain information. In State v. Randall , ––– Idaho ––––, 496 P.3d 844 (2021), also decided today, we rejected the rule in Naranjo because there is no asterisk to the Fourth Amendment excusing the unconstitutional acts of law enforcement when they are accomplished by means of a trained dog. Here, much as in Randall , the drug dog entered the car during a sniff, an activity that is self-evidently conducted for the purpose of obtaining information. Further, the entry was a trespass because it was without Howard's express or implied consent. Thus, much as in Randall , a search occurred in this case to which the Fourth Amendment applies.

However, this case differs significantly from Randall in one way—the degree of the dog's intrusion. In Randall , the dog leapt through an open window, fully entering the car, and it remained in the car until it alerted to the presence of narcotics. Here, only Pico's nose entered the car and the entry was momentary. We take this opportunity to observe there is no de minimis exception to the test articulated in Jones .

Though not squarely on point, and certainly not binding on this Court, we find that the Sixth Circuit Court of Appeals decision in Taylor v. City of Saginaw , 922 F.3d 328 (6th Cir. 2019) is instructive. In Taylor , the city enforced time limits for parking by tire chalking, i.e., placing chalk marks on the tread of car tires—marks that rub off as soon the cars are moved—to determine whether the cars have remained in place longer than allowed. Id. at 330–31. The plaintiff, apparently a frequent recipient of parking tickets, alleged that the practice violated her Fourth Amendment rights. Id. The city responded, in part, by arguing that chalking was not a search for purposes of the Fourth Amendment. Taylor v. City of Saginaw , No. 17-CV-11067, 2017 WL 4098862, *1 (E.D. Mich. Sept. 15, 2017), rev'd and remanded , 922 F.3d 328 (6th Cir. 2019). The Sixth Circuit disagreed. It held that chalking, though a slight interference with private property, was nevertheless an interference for the purpose of obtaining information and therefore a "search" under Jones. 922 F.3d at 332–33.

Like the marking of chalk on a car tire's tread, a dog's nose passing through an open window is a minimal interference with property. But the right to exclude others from one's property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception. Further, by simply adhering to the Jones test as it is formulated, courts, law enforcement, and the public benefit from the clarity of a bright line rule for determining when a non-search exterior sniff becomes a search. We hold: when a law enforcement drug dog intrudes, to any degree, into the interior space of a car during a drug sniff, without express or implied consent to do so, a search has occurred under the Fourth Amendment.

B. The State failed its burden to demonstrate probable cause existed before the search.

Though we conclude a warrantless search occurred, the State maintains the search was constitutional because the automobile exception to the warrant requirement still applies. Under the automobile exception, officers may conduct a warrantless search of a vehicle if they have probable cause to believe it contains contraband or evidence of a crime. State v. Anderson , 154 Idaho 703, 706, 302 P.3d 328, 331 (2012). "Probable cause is established when the totality of the circumstances known to the officer at the time of the search would give rise—in the mind of a reasonable person—to a fair probability that contraband or evidence of a crime will be found in a particular place." Id. A reliable drug dog's alert, standing alone, is sufficient to establish probable cause for a warrantless search of a car. Id.

Though Pico did not perform his trained alert before entry, the State argues that Officer Knisley's testimony about Pico's pre-entry behavior allows us to determine that probable cause existed to trigger the exception. On the record before us, we hold it did not.

Because the district court found no search had occurred under Naranjo , it did not consider whether probable cause existed before the entry. However, whether probable cause exists is a question of law we review de novo with deference given...