People v. Haley

¶1dissenting:

¶2In my view, a dog sniff of the exterior of a car in a public place does not constitute a search within the meaning of the Fourth Amendment or Article II, Section 7 of the Colorado Constitution. Further, even if it were a search, I would find it here supported by the requisite reasonable suspicion and would therefore admit the evidence obtained from the search. Because the majority concludes that under Article II, Section 7 of the Colorado Constitution, a dog sniff of a person's automobile intrudes upon a reasonable expectation of privacy and constitutes a search, and because the majority discerns no reasonable suspicion, I respectfully dissent.

¶3I

¶4The purpose of both the Fourth Amendment of the United States Constitution and Article II, Section 7 of the Colorado Constitution is to protect a person's legitimate expectation of privacy from unreasonable governmental intrusion. People v. Sporleder, 666 P.2d 135, 139 (Colo.1983). In determining whether an expectation of privacy is legitimate, courts must determine whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); People v. Oates, 698 P.2d 811, 814 (Colo.1985).

¶5In 1983, the United States Supreme Court concluded that a defendant did not have a reasonable expectation of privacy in the odors emanating from his luggage and that, therefore, a dog sniff of that luggage was not a search. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). While the Court acknowledged that a person possesses a privacy interest in the contents of personal luggage, it held that a canine sniff is "an investigative procedure that is so limited in both the manner in which the information is obtained and in the content of the information revealed by the procedure" that it does not constitute a search under the Fourth Amendment. Id. The Court specifically noted that a canine sniff is much less intrusive than a typical search because it does not require opening the luggage to reveal information about personal non-contraband items, but rather only discloses the presence or absence of an illegal substance. Id.

¶6In a subsequent case, the United States Supreme Court observed that lawmakers have enacted laws against the private possession of cocaine, and that a test designed only to detect the presence of that substance did not invade a reasonable expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Because the test did not reveal information that actually compromised any legitimate interest in privacy, the court concluded that the testing was not a search. Id. at 124, 104 S.Ct. 1652. Most recently in City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), the United States Supreme Court held that the dog sniff of a car is not a search.1

¶7*678Most courts around the nation, both state and federal, have similarly. held that the use of trained dogs to sniff for illegal drugs is not a search. See State v. Scheetz, 286 Mont. 41, 950 P.2d 722, 725 (1997) (noting that although states are free to grant citizens greater protection based on state constitutional provisions than the United States Supreme Court divines from the United States Constitution, most states that have addressed the use of drug-detecting canines have followed United States v. Place in holding that their use does not constitute a search); see generally Brian L. Porto, Annotation, Use of Trained Dog To Detect Narcotics Or Drugs As Unweasonable Search In Violation Of Fourth Amendment,. 150 ALR. Fed. 399 (2001). Those courts reason that dog sniffs are not searches because they are only minimally intrusive and because they occur in places where individuals do not have heightened expectations of privacy. E.g., United States v. Morales-Zamora, 914 F.2d 200, 205 (10th Cir.1990) (holding that there is no intrusion on a legitimate privacy interest where a dog sniff of an automobile reveals only information regarding contraband items and concluding that society does not recognize a legitimate expectation of privacy in the public airspace surrounding a vehicle where the odor of narcotics escapes from the interi- or of a vehicle into that public airspace); State v. Paredes, 167 Ariz. 609, 810 P.2d 607, 611 (1991) (holding that a dog sniff of the outside of a car subsequent to a valid traffic stop did not constitute a search); State v. Bergmann, 633 N.W.2d 328, 385 (Iowa 2001) (holding that the airspace around the car is not a protected area and police do not need a reasonable suspicion of drug-related activity prior to subjecting an otherwise lawfully detained vehicle to a canine sniff); State v. Kalie, 699 So.2d 879, 881 (La.1997) (holding that a dog sniff of a vehicle's exterior surfaces did not constitute a search); Wilkes v. State, 364 Md. 554, 774 A.2d 420, 487 (2001) (holding that an officer does not need reasonable articulable suspicion of drug-related criminal activity prior to subjecting defendant's car to a dog sniff subsequent to a lawful traffic stop); State v. England, 19 S.W.3d 762, 766 (Tenn.2000) (holding that a dog sniff during a legitimate traffic stop does not constitute a search because there is no expectation of privacy in contraband and a dog sniff does not violate any privacy interest).

¶8Hence, the United States Supreme Court and most state supreme courts conclude that a dog sniff of a vehicle is not a search.

¶9IL.

¶10Colorado case law on point begins with People v. Unruh, 713 P.2d 370 (Colo.1986), in which this court held that the use of a nareot-ics detecting dog to sniff a locked safe in the defendant's basement was a search. The court distinguished the holding in United States v. Place by suggesting that individuals have a reduced expectation of privacy in luggage or closed containers in airports, but that such reduced expectation did not apply to the home.2 The court discussed, but did *679not rely upon an expansion of the Colorado Constitution. The next case was People v. Wieser, 796 P.2d 982 (Colo.1990), in which the court divided. Three members of the court concluded that a dog sniff of the door of a personal storage locker in a commercial storage facility was not a search, relying upon United States v. Place. Four members of the court concluded that the sniff was a search, two by reliance upon the Colorado Constitution and two by reliance on the Fourth Amendment. In 19983, the court decided People v. Boylan, 854 P.2d 807 (Colo.1993), involving the use of a drug-sniffing dog to detect the contents of an express carrier package. The court held in that case that the defendant had a reasonable expectation of privacy in the contents of the private courier package and that the use of a drug-sniffing dog to detect its contents was a search, apparently in reliance upon the Colorado Constitution. In People v. May, 886 P.2d 280 (Colo.1994), the court applied People v. Boylan to a package sent by regular mail and similarly concluded that the dog sniff was a search.

¶11Most recently, this court decided in People v. Ortega, 34 P.3d at 988-991 (Colo.2001), that a dog sniff of luggage on a Greyhound bus did not constitute a search. We expressly followed United States v. Place in stating that subjecting luggage to drug-sniffing canine detection does not constitute a search.

¶12In my view, this line of cases supports a conclusion that the nature of the item or place being subjected to the dog sniff is the focal factor. If the sniff is of a home safe, a personal storage locker or a package, whether sent through the mail or through a private courier, it is a search. On the other hand, if the sniff is of luggage at a bus station, it is not a search.

¶13This court has specifically acknowledged that there is a reduced expectation of privacy in vehicles. People v. Litchfield, 918 P.2d 1099, 1103 (Colo.1996) (a reduced privacy interest in automobiles requires only a reasonable suspicion for search under any circumstances); People v. Thiret, 685 P.2d 193, 202 (Colo.1984) (noting that there is a diminished expectation of privacy in an object designed exclusively as a means of transportation).

¶14I, therefore, analogize the automobile to the luggage at the bus station-and not to an item in someone's home, and would conclude that an individual has no reasonable expectation of privacy in the illegal contents of a vehicle that are detected by means of odors emanating from that vehicle. Instead, I would rely upon United States v. Place and People v. Ortega to conclude that the dog sniff here was not a search.

¶15TIL

¶16The majority here declines to follow the United States Supreme Court's analysis of the Fourth Amendment and instead reads the Colorado Constitution as providing protection that would not be available under the Fourth Amendment. I disagree that there is a basis for that expansion. In my view, such a divergence is only warranted when the language of the state constitution differs from its federal counterpart, or when the historical or legal context in which the state constitution was framed or has existed over time differs from its federal counterpart. I find neither to be present here.

¶17The language addressing searches and seizures and our interpretation of that language is nearly identical for both the United States Constitution and the Colorado Constitution. See Oates, 698 P.2d at 814; Sporleder, 666 P.2d at 189. Furthermore, neither this case nor any of our prior cases suggest a history unique to Colorado. In fact, our own court has been inconsistent in its application of the state constitution to afford more protection in cases involving dog sniffs.

¶18In my view, it is not enough that a state supreme court differs with the United States Supreme Court. Sporleder, 666 P.2d at 149 (Erickson, C.J., dissenting); see, e.g., People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, 1341 (1976) (Clark, J., dissenting) (observing that when a majority of the court decides which United States Supreme Court decisions to follow, deference to appellate courts quickly deteriorates into a "shell game"); People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, 283 (1976) *680(Richardson, J., dissenting) (noting that "something more than personal disagreement by a majority of members of a state court with the decision of the United States high tribunal on search and seizure is required if the persuasion of that court is not to be followed." Further observing that "the shifting winds of judicial policy and personal predilection, is not calculated to produce that kind of uniformity or harmony conducive to the logical and uniform development of constitutional law").

¶19In summary, because the United States Supreme Court has read the Fourth Amendment as inapplicable to dog sniffs of a vehicle, and because I find no support in our constitution or our case law to hold otherwise, I would hold that a dog sniff is not a search.

¶20IV.

¶21If it were a search, I suggest that it is here supported by ample reasonable suspicion of criminal activity. Reasonable suspicion, as the majority notes, arises from specific and articulable facts that create a reasonable inference of wrongdoing. Maj. op. at 674.

¶22First, I agree with the majority that the traffic stop was fully justified. After observing the traffic violation, the officer, Mike Miller, approached the vehicle in his patrol car and Haley accelerated and attempted to change lanes. Once Miller stopped the vehicle, he obtained information that led to an objectively reasonable suspicion. He learned that Haley, Dunlap, and Daniels had rented the car in Sacramento, a city that Miller referred to as a drug source city, and were returning inland to Kansas City allegedly because the cost of the rental car ($665.38) was less expensive than the air fare. Further, the officer testified that purchasing a one way ticket to a drug source city and driving back was indicative of drug couriers because of the desire to avoid heightened security in airports. He observed that the driver and the passengers were all unusually nervous. Throughout the contact Haley "was just I mean physically shaking. His hands, everything, was shaking." Haley's mouth was dry and he was licking his lips, stuttering, shuffling his feet, and nervously pacing in circles. Daniel was also extremely nervous and exhibited a facial twitch and shaking hands and neither Dunlap nor Daniels knew their point of destination. Miller informed Haley that he was free to leave and asked him if he had any drugs or anything illegal in the vehicle, and Haley responded, "No. You want to check it out?" Haley asked the officer, "would you want to look at the bags or something?" Lastly, when Haley removed the bags from the trunk of the vehicle, he placed them directly outside the vehicle and then moved them an unusual distance away from the car and attempted to limit his consent to a search of the bags alone.3

¶23Reasonable suspicion is a less exacting standard than probable cause. People v. Smith, 13 P.3d 300, 304 (Colo.2000). This reduced standard requires only an objectively reasonable suspicion on the part of trained law enforcement officers that the " 'facts known to the officer [at the time of the encounter], [when] taken together with rational inferences from these facts, createl ] a reasonable suspicion of criminal activity'" People v. Sutherland, 886 P.2d 681, 686 (Colo.1994) (quoting People v. Thomas, 660 P.2d 1272, 1274 (Colo.1983); alterations in Sutherland ), Outlaw v. People, 17 P.3d 150, 157 (Colo.2001) (holding that "[al trial court must take into account the totality of the cireumstances known to police officers at the time of the intrusion, combined with any rational inferences therefrom"). - Courts must be deferential to a law enforcement officer's ability to distinguish between innocent and suspicious actions. United States v. Wood, 106 F.3d 942, 946 (10th Cir.1997); see also People v. Ratcliff, 778 P.2d 1371, 1379 (Colo.1989) (holding that a defendant's actions, while appearing innocent to a casual observer, assume added significance when considered in the context of a police officer's training and experience in drug enforcement). Here, that objectively reasonable suspicion existed. Miller concluded that the facts he knew at the time he trained the dog

¶24*681on the vehicle were suspicious and led him to question whether or not the defendant was transporting contraband.4

¶25This court has held that originating in a drug source city is one factor supporting a determination of reasonable suspicion. People v. Morales, 935 P.2d 936, 941 (Colo.1997). We have concluded that discrepancies or differing stories also add support to a finding of reasonable suspicion. Id. Further, we have acknowledged that reasonable suspicion of drug trafficking may be predicated, in part, on a cash transaction for a one way ticket and on nervous conduct. Id. n. 7 (citing Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (stating that "appearance and conduct" may be factors supporting reasonable suspicion)). Unusual travel plans and inconsistencies in information provided to the officer during a traffic stop may also give rise to reasonable suspicion of criminal activity. Wood, 106 F.3d at 946-47. Because reasonable suspicion is based on any rational inferences an officer may draw from the totality of the circumstances, a court must examine the combination of all the facts to determine whether an officer had reasonable suspicion of criminal activity. Morales, 935 P.2d at 941; Boylan, 854 P.2d at 812 (holding that, while each separate item standing alone did not provide reasonable suspicion, a combination of factors clearly satisfied the reasonable suspicion requirement). We have held that "there are 'cireumstances in which wholly lawful conduct might justify the suspicion that eriminal activity was afoot.'" Morales, 935 P.2d at 941 (quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)). This case presents such circumstances.

¶26Although we defer to the trial court in findings of fact, the majority acknowledges that this court reviews a trial court's conclusions of law de novo. Outlaw, 17 P.3d at 157; People v. Garcia, 11 P.3d 449, 453 (Colo.2000). This court must independently determine whether the trial court applied the correct legal standard 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). Here I would suggest that the trial court applied an inappropriately high threshold and drew the wrong legal conclusion as to the presence of reasonable suspicion.

¶27v.

¶28Because the United States Supreme Court has held that the dog sniff of a vehicle is not a search; because we held in Ortega that the dog sniff of luggage is not a search and I find that case instructive if not controlling; and because I would decline to invoke the Colorado Constitution to reach a different result, I would conclude that the dog sniff at issue here was not a search. Further, if the sniff here was indeed a search, I would conclude that it was supported by an objectively reasonable suspicion of wrongdoing.

¶29Accordingly, I dissent from the majority opinion and would reverse the trial court's exclusion of the evidence at issue.

¶30I am authorized to state that Justice RICE and Justice COATS join in this dissent.