State v. Sidor ( 2024 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JOHN JOSEPH SIDOR, Appellant.
No. 1 CA-CR 22-0387
FILED 10-17-2024
Appeal from the Superior Court in Mohave County
No. S8015CR202100051
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee
Law Office of Shawn B. Hamp, Kingman
By Virginia L. Crews
Counsel for Appellant
STATE v. SIDOR
Opinion of the Court
OPINION
Judge Andrew M. Jacobs delivered the decision of the Court, in which
Chief Judge David B. Gass joined. Presiding Judge Michael J. Brown
dissented.
J A C O B S, Judge:
¶1 John Joseph Sidor was convicted of transporting narcotic and
dangerous drugs for sale after a Department of Public Safety (DPS) officer
found cocaine and methamphetamine in his car during a traffic stop. On
December 31, 2020, the officer stopped Sidor after using DEASIL1, the
United States Drug Enforcement Agency’s database of pictures of license
plates captured in travel, to obtain travel history data for the car Sidor was
driving. The officer obtained the data by certifying to the DEA (so he could
access DEASIL) that he had a reasonable articulable suspicion that the car
Sidor was driving had been involved in “narcotics trafficking or bulk cash
smuggling” before stopping Sidor. The officer used DEASIL data showing
the car Sidor was driving had come through Kingman on October 30, 2020
and November 30, 2020 to justify detaining him on December 31 until a
drug-detecting DPS K-9 arrived and alerted to drugs in the car. Sidor
moved unsuccessfully to suppress the drugs.
¶2 Sidor appeals the superior court’s decision not to suppress,
arguing: (1) he was detained beyond the scope of the traffic stop without
reasonable suspicion of criminal activity; (2) the officer’s use of DEASIL was
a limited search requiring reasonable suspicion, which the officer lacked;
and (3) the alert by Turbo, the DPS K-9 who sniffed Sidor’s vehicle, did not
establish probable cause for the search. We hold: (1) there were insufficient
grounds to detain Sidor without the DEASIL information; (2) Sidor’s
argument to exclude the DEASIL data fails because he lacked a reasonable
expectation of privacy in data concerning other drivers on other trips; and
(3) Turbo’s alert gave DPS probable cause to search Sidor’s car. We thus
affirm Sidor’s convictions.
1 DEASIL stands for Drug Enforcement Agency Special Intelligence Link.
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FACTS AND PROCEDURAL HISTORY
A. A DPS Officer Accesses DEASIL and Pulls Over Sidor After
Learning the Nissan He Was Driving Appeared to Be
Involved in a Distinct Pattern of Travel Through Arizona.
¶3 On December 31, 2020, a DPS officer was monitoring
eastbound traffic from the median on Interstate 40, near Lake Havasu City,
Arizona, in a marked law enforcement vehicle when Sidor drove past him
in a Nissan Rogue “staring straight ahead” at the highway with “his hands
at the 10 and 2 position.” The officer later testified he was suspicious Sidor
was involved in drug trafficking because he found Sidor’s posture and
hand position atypical of drivers as they passed him, and because Sidor,
unlike the “innocent motoring public,” did not “wav[e]” but instead
“ignor[ed him] like [he was not] even sitting there or not even existing.”
¶4 The officer pulled onto the Interstate and followed Sidor for
four miles. At that point, the officer saw Sidor commit a moving violation,
as he followed a semitrailer truck too close. The officer timed Sidor
traveling 1.19 seconds behind a semi truck in a 75-mile-per-hour zone.
¶5 After the officer had seen a moving violation that would allow
him to stop the car, he “saw it had the Minnesota plate.” The officer drove
up behind Sidor’s car to get a clear view of the Minnesota license plate so
he could type the license plate information into DEASIL, which he was
already logged into in anticipation of running searches while he drove.
¶6 To get access to plate information under DEASIL, the officer
first represented to the DEA that he had a “[r]easonable [a]rticulable
[s]uspicion [of criminal activity] to support a [license plate] query.”
DEASIL employs this Fourth Amendment verbiage as a prerequisite to
running queries with its data.
¶7 The officer had to make a second representation before
DEASIL would return information about Sidor’s vehicle’s Minnesota plate.
The second representation was of what specific criminal activity the officer
had a “reasonable articulable suspicion.” The officer represented that he
had a reasonable articulable suspicion that Sidor’s vehicle was “associated
with narcotics trafficking or bulk cash smuggling.” The officer always
chooses this representation to obtain DEASIL data, because “that’s what
[he’s] doing as criminal interdiction, looking for drug smuggling and
terrorists, and money laundering or bulk cash.”
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¶8 As he drove behind Sidor, the officer waited for the
information from DEASIL before initiating the traffic stop. His DEASIL
query showed the Nissan had traveled (1) westbound through Seligman at
3:56 a.m. on October 30, 2020, (2) eastbound through Kingman at 7:56 a.m.
on October 31, 2020, (3) eastbound through Kingman on November 30,
2020, and (4) westbound through Kansas on December 29, 2020. The officer
then pulled Sidor over at about 5:22 p.m. on December 31, 2020.
B. The Officer Questioned Sidor About His Trip and Other
Trips the Car May Have Taken to California.
¶9 Video captured the stop. The officer told Sidor he was
following a semi too closely and that he would issue Sidor a warning, no
ticket, then “get you out of here.”
¶10 At the officer’s request, Sidor produced his North Dakota
driver license and the Nissan’s insurance and registration information.
Sidor got out of the car while the officer conducted a records check, and the
officer began asking him questions. Sidor said he was a restaurant server
who had traveled to Los Angeles, staying just one night, to pick up a
bulldog puppy he had purchased. The officer questioned Sidor’s claimed
purchase price of $500, and asked Sidor if he knew what they normally go
for, to which Sidor answered “fifteen [hundred].” Sidor explained he had
the trip planned for about a month because the puppy was now six weeks
old.
¶11 Sidor said he borrowed the Nissan from his friend Jason, who
lived in Minnesota, because his own “car doesn’t run the best.” When the
officer asked Sidor about “Christopher”—the name on the registration—
Sidor said Jason had borrowed the vehicle from Christopher.
¶12 Sidor said this was his first time driving the Nissan and he
had not been to California in a few years. The officer asked Sidor whether
everything in the Nissan “belonged to [him],” and Sidor indicated that was
true as far as he knew. A little later, Sidor volunteered the luggage in the
vehicle was his but other items might not be. When the officer asked if
anyone had placed anything in the Nissan in California that did not belong
to him, he said no.
¶13 The officer asked Sidor why he was “so nervous,” while Sidor
responded that he wasn’t nervous. The officer then asked Sidor to expose
his neck by removing his Covid-era gaiter, which Sidor did. The officer said
he could see Sidor’s carotid artery pulsing when Sidor did so, although the
video does not corroborate that. The officer asked Sidor to confirm where
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he lived, his hair color, height, and body weight. The officer learned that
Sidor stayed at a Doubletree in California, had never driven the car before
this trip, and that the trip takes a little more than 24 hours. The officer later
testified that Sidor appeared to him to grow more nervous to the officer
during their interaction. Sidor spoke in a calm, low tone during the
interview, and is conversational and responsive to the officer.
¶14 About 10 minutes after pulling Sidor over, the officer
returned his license and other documents to him. The officer then asked
Sidor “how often” Jason went to California in the Nissan, and Sidor said he
did not “know if he ever has.” The officer asked if Chris has, and Sidor
responded, “I don’t even know him.” The officer issued the warning.
C. Based on the DEASIL Information and His Interview of
Sidor, the Officer Detained Sidor Until a Drug-Sniffing K-
9 Arrived and Alerted, Leading to the Discovery of Drugs.
¶15 Right after handing Sidor the warning, the officer said there
was “a big problem with criminal activity on Interstate 40” and asked Sidor
if there was “anything illegal” in the Nissan such as drugs, large amounts
of money, or weapons. Sidor answered “no.” The officer asked if he could
search the vehicle or if Sidor would wait for a K-9 to sniff the exterior—both
of which Sidor declined. The officer then told Sidor to “hang tight,” and he
called for a K-9 officer and dog.
¶16 When Sidor asked how long it would take, the officer told him
the K-9 officer was off duty and would need to get dressed and drive over.
While they waited, the officer repeatedly told Sidor he was “not free to
leave” and the officer refused Sidor’s request to call an attorney due to
safety concerns with Sidor using his phone—which was still in the Nissan.
The officer told Sidor he believed “there [was] large drug smuggling
occurring,” explaining “there[] [were] just a lot of indicators” of drug
trafficking.
¶17 The K-9 officer lived 33 to 36 miles away from the location of
the traffic stop, and it took him about 45 minutes to arrive with the drug
sniffing dog named Turbo. Turbo was certified to detect odors of
methamphetamine, cocaine, and heroin. Turbo alerted near the driver’s
side door, in the lower part of the Nissan. The officer then handcuffed Sidor
and found a glass pipe and a white crystalline substance resembling
methamphetamine in his pockets. Both officers searched the vehicle, where
they discovered a hidden compartment below the floorboard that contained
plastic-wrapped bundles. The vehicle was towed to the highway patrol
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office where a full search, and subsequent testing, revealed 13 bundles of
cocaine totaling 32.5 pounds and an additional one-pound bundle of
methamphetamine.
D. Sidor Was Convicted After Unsuccessfully Moving to
Suppress the Drugs, Arguing His Stop Was Unreasonably
Prolonged, the Officer Lacked Probable Cause, and Turbo
Was Unreliable.
¶18 Relevant here, the State charged Sidor with transportation of
narcotic drugs for sale, a class 2 felony, and transportation of dangerous
drugs (methamphetamine) for sale, a class 2 felony.2 Sidor moved to
suppress the drug evidence before trial challenging the constitutionality of
both the investigative stop and vehicle search. See U.S. Const. amends. IV,
XIV; Ariz. Const. art. 2, § 8; Ariz. R. Crim. P. 16.2. He argued that the officer
lacked reasonable suspicion to stop him for a traffic violation, the officer
unreasonably prolonged the stop, and Turbo’s alert was not sufficiently
reliable to provide probable cause for searching the vehicle.
¶19 The superior court denied Sidor’s motion after an evidentiary
hearing. The court first determined the officer lawfully stopped Sidor for
following too closely and that the time from the stop to issuance of the
warning was not unreasonably prolonged. The court found reasonable
suspicion for the officer to detain Sidor for the dog sniff. The court also
found that the duration of the detention for the dog sniff was reasonable
and that Turbo’s alert was reliable based on certification and training
records.
¶20 After the court ruled on Sidor’s motion, Sidor sought and
obtained additional discovery on DPS policies and procedures for using the
DEASIL database. Sidor then filed another motion to suppress the drug
evidence on the ground that the officer’s use of DEASIL was unlawful
under the federal and Arizona constitutions. See U.S. Const. amends. IV,
XIV; Ariz. Const. art. 2, § 8; Ariz. R. Crim. P. 16.2. Based on the briefing and
without an evidentiary hearing, the superior court denied the motion,
reasoning that Sidor did not show good cause to reconsider its prior
decision and that Sidor’s arguments failed on the merits in any event
because the officer’s use of DEASIL was not a Fourth Amendment “search”
2 The State also charged Sidor with possession of drug paraphernalia, a class
6 felony. The court dismissed that charge on the first day of trial at the
State’s request.
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and the officer’s noncompliance with DEA requirements for using the
database did not require suppression.
¶21 A jury convicted Sidor of transportation of narcotic drugs for
sale and transportation of dangerous drugs for sale (methamphetamine)
and. Given his prior criminal history, the superior court sentenced Sidor as
a category 2 repetitive offender to concurrent prison terms, the longest of
which was for 10 years’ imprisonment. We have jurisdiction over Sidor’s
appeal under Article VI, Section 9 of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
DISCUSSION
¶22 Sidor argues that the drug evidence should have been
suppressed because: (1) the officer unlawfully detained him beyond the
time required to issue the warning; (2) the officer’s use of DEASIL was
unlawful; and (3) Turbo’s alert did not supply probable cause to search the
vehicle.
¶23 We review the superior court’s factual findings on the motion
to suppress for an abuse of discretion, State v. Jean, 243 Ariz. 331, 334 ¶ 9
(2018), and view the facts of the suppression hearing in the light most
favorable to sustaining the superior court’s ruling. Id. at 333 ¶ 2. We review
whether reasonable suspicion exists de novo, because it is a mixed question
of fact and law. State v. Majalca, 251 Ariz. 325, 328 ¶ 11 (2021).
I. The Officer Only Had Probable Cause to Detain Sidor After Citing
Him for His Moving Violation if the DEASIL Data Were Not
Obtained in Violation of the Federal and Arizona Constitutions.
A. The Officer Reasonably Detained Sidor from the Time of
the Moving Violation Through Issuing the Warning and
Returning the Nissan’s Insurance and Registration to Sidor.
¶24 Sidor concedes the moving violation justified the traffic stop.
Warrantless traffic stops are permitted if the officer has reasonable
suspicion that the driver committed a traffic violation. State v. Evans, 237
Ariz. 231, 233 ¶ 1 (2015).
¶25 Instead, Sidor questions the length of his detention as a result
of the traffic stop. Police may “inquir[e] into matters unrelated to the
justification for the traffic stop . . . so long as those inquiries do not
measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S.
323, 333 (2009); Rodriguez v. United States, 575 U.S. 348, 355 (2015) (“An
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officer . . . may conduct certain unrelated checks during an otherwise lawful
traffic stop. But . . . may not do so in a way that prolongs the stop, absent
the reasonable suspicion ordinarily demanded to justify detaining an
individual.”)
¶26 About 11 minutes elapsed from the time the officer pulled
Sidor over to when he issued the warning. The officer testified that such
amount of time was typical for conducting a records check and issuing a
warning. The record supports the superior court’s ruling that this initial
detention of Sidor was not unreasonably prolonged by the officer’s
inquiries into matters unrelated to the traffic violation. No evidence was
presented that the officer completed, or reasonably could have completed,
“tasks tied to the traffic infraction” sooner had he not made those unrelated
inquiries. Rodriguez, 575 U.S. at 354. The detention through the issuance of
the warning was thus proper.
B. The DEASIL Data Showing the Distinctive Pattern in the
Car’s Travels and the Fact That Sidor Was Driving a
Borrowed Car Whose Owner He Did Not Know Created
Reasonable Suspicion for Sidor’s Continued Detention.
¶27 The officer was only permitted to detain Sidor involuntarily
until Turbo sniffed the Nissan if he had a reasonable suspicion of criminal
activity. See State v. Sweeney, 224 Ariz. 107, 112, ¶ 17 (App. 2010). “By
definition, reasonable suspicion is something short of probable cause.”
Majalca, 251 Ariz. at 330 ¶ 20 (2021). “Although ‘reasonable suspicion’ must
be more than an inchoate ‘hunch,’ the Fourth Amendment only requires
that police articulate some minimal, objective justification for an
investigatory detention.” State v. Teagle, 217 Ariz. 17, 23 ¶ 25 (App. 2007).
Reasonable suspicion exists where “‘the totality of the circumstances—the
whole picture’ of what occurred at the scene” provides a law enforcement
officer with “‘a particularized and objective basis for suspecting the
particular person stopped of criminal activity.’” Evans, 237 Ariz. at 234 ¶ 8
(quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). The
determination of reasonable suspicion “is dependent upon both the content
of information possessed by police and its degree of reliability.” Alabama v.
White, 496 U.S. 325, 330 (1990).
¶28 We agree with our dissenting colleague that Sidor’s behavior
up through the issuance of the citation did not justify continuing to detain
him. The superior court properly rejected the officer’s observations that
Sidor was suspicious because his hands were at 10 and 2 on the steering
wheel, observing that the judge himself was taught to drive that way in
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school. Looking “straight ahead” as one passes a law enforcement vehicle
is likewise not a reliable indicator of criminal activity. See State v.
Maldonado, 164 Ariz. 471, 473–74 (App. 1990) (citing cases in which little
weight was given to evidence that a driver was “sitting erectly” or “rigidly”
and did not look at a patrol car). The court was properly cautious about
giving too much weight to evidence of Sidor’s nervousness, as the video
evidence does not show the “overly nervous” behavior to which the officer
testified. See State v. Magner, 191 Ariz. 392, 397–98 ¶¶ 14–15 (App. 1998)
(cautioning courts to “be wary of granting much weight to a law
enforcement officer’s subjective observation that a defendant was nervous”
absent “‘dramatic’ indications of nervousness” that “both objectify and
quantify the nervousness exhibited”) (overruled in part on another ground,
State v. O’Meara, 198 Ariz. 294 (2000)). Finally, the officer acknowledged at
the evidentiary hearing that the records check disclosed nothing amiss
about Sidor or the Nissan and that Sidor’s answers to his questions revealed
no inconsistencies with other information provided by Sidor or otherwise
known to the officer.
¶29 Our analysis of the superior court’s conclusion that there was
reasonable suspicion for the officer to detain Sidor for the dog sniff thus
rests on the officer’s use of the DEASIL data, and the fact that Sidor was
driving a borrowed Nissan across the country, a Nissan Sidor borrowed
from someone other than the owner. The DEASIL data showed the Nissan
made two trips through Kingman (first westbound and then eastbound)
two months earlier. Then the next month, the Nissan again was traveling
eastbound through Kingman. Both trips may have involved the Nissan
going to and coming from California. Then a few days before Sidor’s arrest,
the Nissan traveled westbound through Kansas, which was consistent with
Sidor’s explanation of his trip to and from California. At bottom, Sidor’s
trip was the third time in three months, at precise one-month intervals, at
which the Nissan went through Kingman at the end of a month. By Sidor’s
own explanation, he had been to and from California on that third trip.
Even on a de novo review, that evidence supports the superior court’s
finding the officer reasonably could conclude Sidor might have been
engaged in drug trafficking.
¶30 The suggestive force of these facts is where we differ with the
dissent. We agree with the dissent that “[r]easonable suspicion cannot rest
solely on ‘circumstances or factors that do not reliably distinguish between
suspect and innocent behaviors . . . because they may cast too wide a net
and subject all travelers to ‘virtually random seizures.’” Sweeney, 224 Ariz.
at ¶ 22. The DEASIL data strongly suggest that Sidor’s travel to Los
Angeles formed a pattern with trips others took in the same Minnesota-
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plated car from the upper Midwest through western Arizona, to southern
California and back on each of October 30, November 30, and December 31.
We agree with the superior court’s choice to credit law enforcement’s
inference that this highly distinctive pattern of travel is distinguishable
from “innocent behaviors.” We thus disagree that crediting that inference
subjects the public to “virtually random seizures.” See id.¶31 One of our recent memorandum decisions illustrates the
difference between facts that give rise to reasonable suspicion in a traffic
stop, as here, and those that do not. State v. Kochendarfer, No. 1 CA-CR 20-
0364, 2021 WL 3674160 (Ariz. App. Aug. 19, 2021) (mem. decision). In
Kochendarfer, another driver of a car with out-of-state plates passing
through western Arizona was pulled over on Interstate 40 for following
another large vehicle too closely. Id. at *1 ¶ 2. While those facts match
Sidor’s case perfectly, the rest do not. That driver was driving repetitively
between California and Texas because he was “in the process of moving
from California to Texas and had made multiple trips in the last several
months,” a common and mundane activity. Id. at *1 ¶ 3.
¶32 There is also no indication in Kochendarfer that the driver
borrowed the car, or didn’t know its owner, as was true here, heightening
suspicion. See United States v. Pettit, 785 F.3d 1374, 1382 (10th Cir. 2015) (“In
the trooper’s professional experience, and in our case law, driving a vehicle
registered to an absent third party can indicate drug trafficking.”). Sidor,
by contrast, drove a borrowed car cross-country without knowing its
owner. See id. Despite claiming he had just bought a bulldog puppy in
southern California, Sidor when pulled over was reprising a quick
turnaround trip that others drove before him in the same car between
Minnesota and southern California. See United States v. Eymann, 962 F.3d
273, 282 (7th Cir. 2020) (affirming denial of motion to suppress, holding
pattern of quick turn-around flights between California and Pennsylvania
supported inference that criminal activity was afoot: “[s]uch quick-turn
flights, although not necessarily illegal, may contribute to reasonable
suspicion of criminal conduct.”). Moreover, those three trips fell in a highly
regular pattern implying a common purpose: on October 30, November 30,
and December 31. All of this supports crediting law enforcement’s
suspicion that criminal activity was afoot. See id.¶33 Given the facts and case law, the superior court did not err by
denying Sidor’s motion to suppress. We agree with the superior court that
the record, in particular the DEASIL data and the fact that Sidor borrowed
the car, created reasonable suspicion to detain Sidor for the dog sniff. The
question then becomes whether the State was entitled to rely on the DEASIL
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data as a basis to search Sidor’s vehicle, or whether any reliance on it is
improper, as Sidor argues.
II. The State Had the Right to Search the Car Sidor Was Driving
Based in Part on the DEASIL Data, Because They Primarily
Concerned the Movements of Others, in Which He Had No
Reasonable Expectation of Privacy.
¶34 Sidor argues the officer’s use of DEASIL requires suppression
because: (1) the database infringed privacy interests protected by the Fourth
Amendment; (2) even if use of the database did not constitute a “full
search” requiring a warrant supported by probable cause, it was at
minimum a “limited search” requiring reasonable suspicion; and (3) the
officer lacked reasonable suspicion before using DEASIL and falsely
attested to having it in violation of DEA requirements.
¶35 The State responds that the officer’s use of DEASIL did not
infringe Sidor’s Fourth Amendment rights because: (1) he had no
reasonable expectation of privacy in the Nissan’s license plate or its
movements on public roads; (2) the information captured by the automated
license plate readers (ALPRs3) that fed into DEASIL was minimal and did
not constitute a trespass; and (3) the officer’s alleged misuse of the database
did not require suppression. As explained next, we agree with the State’s
position, given the particular facts of this case.
A. The Limited Use of DEASIL Data Here Did Not Infringe on
Sidor’s Reasonable Expectation of Privacy.
¶36 We reject Sidor’s argument that the State’s use of DEASIL
information here violated the Fourth Amendment because it was like the
cell site location information (CSLI) in Carpenter v. United States, 585 U.S.
296 (2018). Carpenter involved the “tireless and absolute surveillance” a cell
phone’s location enables whenever it makes or receives a call. Id. at 305,
3 ALPRs are “high-speed cameras that photograph each license plate
that passes by the devices,” which “can image about 2,000 license plates per
minute,” at any time of the day, and which “can be placed anywhere from
police vehicles to stationary objects like poles, traffic lights, and
overpasses.” Samuel D. Hodge, Jr., Big Brother Is Watching: Law
Enforcement’s Use of Digital Technology in the Twenty-First Century, 89 Univ.
Cin. L. Rev. 30, 38 (2020). Images captured by ALPRs “are transmitted and
analyzed by a computer that identifies the owner of the vehicle, affixes a
time and location stamp, and uploads the images to a central server.” Id.
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312. The Supreme Court held in Carpenter that “an individual maintains a
legitimate expectation of privacy in the record of his physical movements
as captured through CSLI.” Id. at 310. The Court found the use of CSLI to
be a search under the Fourth Amendment requiring a warrant because of
the “all-encompassing record of the holder’s whereabouts” it afforded. Id.
at 311.
¶37 Here, the DEASIL database information concerning Sidor was
entirely the opposite. It consisted of one picture of the Nissan’s license
plate, taken as Sidor traveled west through Kansas toward California the
day before he was stopped near Kingman on his return. Carpenter made
clear that one has “a reasonable expectation of privacy in the whole of their
physical movements.” 585 U.S. at 310 (citing United States v. Jones, 565 U.S.
400, 430 (2012) (Alito, J., concurring)); id. at 415 (Sotomayor, J., concurring).
But the officer only accessed a single picture of the Nissan’s license plate
while Sidor drove it, which is hardly “the whole of [Sidor’s] physical
movements.” See id. We thus agree with the Massachusetts Supreme
Judicial Court’s statement in Commonwealth v. McCarthy that while the right
to privacy from comprehensive surveillance “could be implicated by the
widespread use of ALPRs, that interest is not invaded by the limited extent
and use of ALPR data in this case.” 142 N.E.3d 1090, 1095, 1106 (Mass. 2020)
(“While we cannot say precisely how detailed a picture of the defendant’s
movements must be revealed to invoke constitutional protections, it is not
that produced by four cameras at fixed locations on the ends of two
bridges.”).
¶38 Sidor lacked a reasonable expectation of privacy in the
DEASIL data that justified detaining him for Turbo’s sniff of the Nissan
because those data principally concerned other drivers of the Nissan on
other trips. DEASIL revealed two trips the Nissan had taken through
Arizona on October 30 and November 30, 2020, seemingly consistent with
Sidor’s own. But Sidor did not own the Nissan, and did not participate in
those trips. He thus lacked a reasonable expectation of privacy in those
other travelers’ locational data. See, e.g., United States v. Beaudion, 979 F.3d
1092, 1100 (5th Cir. 2020) (holding that defendant lacked a “reasonable
expectation of privacy in a [CSLI] record that reveals someone else’s
location”). Arizona law likewise makes clear that Sidor cannot assert a right
to privacy in the Nissan’s travel for its absent owners or prior drivers. See
State v. Juarez, 203 Ariz. 441, 444, 447 ¶¶ 13, 24 (App. 2002) (interpreting
Article 2, Section 8 of the Arizona Constitution as “imply[ing] that a person
must show that his or her personal privacy rights were infringed before
attacking the legality of a search or seizure” and holding that neither that
provision nor Arizona case law confers “automatic standing to challenge a
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search and seizure in which someone else’s rights may have been
violated.”).
¶39 Sidor makes an excellent point – the use of ALPR data may
soon be so widespread as to risk offering government the very
comprehensive surveillance decried in Carpenter and against which the
Fourth Amendment stands. See, e.g., United States v. Tuggle, 4 F.4th 505, 509
(7th Cir. 2021) (“[W]e are steadily approaching a future with a constellation
of ubiquitous public and private cameras accessible to the government that
catalog the movement and activities of all Americans.”); United States v.
Yang, 958 F.3d 851, 863, 864 (9th Cir. 2020) (Bea, J., concurring) (discussing
ALPR database containing over 10 billion images and stating, “[i]f the
technology evolves in the way amici hypothesize, then perhaps in the
future a warrant may be required for the government to access the LEARN
database [of ALPR data], but this should only be the case if the database
evolves to provide comparable location information to the records in
Carpenter.”).
¶40 But his point founders because this record contains little
information about DEASIL’s scope. No evidence was offered, for example,
of how many ALPRs feed into DEASIL or where they are located. This case
did not suggest that ALPRs are rife along the interstate highway system,
because Sidor’s December 2020 cross-country drive of more than 24 hours
triggered the generation of only one ALPR image contained in the record.
That ALPRs can generate privacy concerns akin to those in Carpenter awaits
a bleaker future and a case with a more developed record.
B. While ALPRs Implicate Privacy Concerns, on the Record
Presented, Their Use Was Not a Limited Search Under the
Fourth Amendment.
¶41 Sidor’s objections that the use of ALPRs was a limited search
under the Fourth Amendment and that the officer’s false certification of a
reasonable articulable suspicion of drug trafficking before pulling him over
fail because the mere use of ALPRs is not yet a search in American law –
though in a more developed record, or a future more rife with cameras, it
might well be a search.
¶42 While we do not know DEASIL’s reach, its use affects privacy
interests. The DEA – the proprietor of the database – makes this clear by
requiring that an officer have “[r]easonable [a]rticulable [s]uspicion” of
specific criminal activity in order to run a license plate query in the
database. The phrase “reasonable articulable suspicion” comes directly
13
STATE v. SIDOR
Opinion of the Court
from interpretations of the Fourth Amendment. See United States v. Place,
462 U.S. 696, 702–03 (1983). The phrase has come to signify the objective,
particularized showing required of police before they may conduct a
limited invasion of a person’s Fourth Amendment rights. See Terry, 392 U.S.
at 20–22; see also State v. Superior Court (Blake), 149 Ariz. 269, 273–74 (1986).
¶43 State laws regulating the use of ALPRs illustrate a broadly-
held belief that information captured by ALPRs and compiled in databases
like DEASIL impact privacy interests. See Nat’l Conf. State Legislatures,
State Statutes Related to Privacy and Data Retention, Automated License
Plate Readers: State Statutes (Feb. 3, 2022),
https://www.ncsl.org/technology-and-communication/automated-
license-plate-readers-state-statutes (last visited Aug. 16, 2023)
(summarizing laws in 17 states). Such laws limit ALPR use to specified
purposes, prevent public disclosure of ALPR information, and impose
destruction and reporting requirements. See, e.g., Me. Rev. Stat. tit. 29-a,
§ 2117-A(3)(C), (4), (5) (2019) (allowing the use of ALPRs by law
enforcement in crime prevention only if the officer has “specific and
articulable facts of a concern for safety, wrongdoing or a criminal
investigation or pursuant to a civil order or records from the National
Crime Information Center database or an official published law
enforcement bulletin” and requiring that such data be kept confidential and
destroyed within 21 days under most circumstances); Minn. Stat.
§ 13.824(2)(d), (3), (5), (6) (2021) (prohibiting the use of ALPRs “to monitor
or track an individual who is the subject of an active criminal investigation
unless authorized by a warrant, issued upon probable cause, or exigent
circumstances justify the use without obtaining a warrant” and imposing
nondisclosure, destruction, and public reporting requirements); Neb. Rev.
Stat. §§ 60-3203(2), 60-3204 (2018) (limiting law enforcement’s use of ALPRs
to identifying “[o]utstanding parking or traffic violations,” “[a]n
unregistered or uninsured vehicle,” “[a] vehicle in violation of the vehicle
equipment requirements,” “[a] vehicle in violation of any other registration
requirement,” “[a] vehicle registered to an individual for whom there is an
outstanding warrant,” “[a] vehicle associated with a missing person,” “[a]
vehicle that has been reported as stolen,” or “[a] vehicle that is relevant and
material to an ongoing criminal investigation”; permitting manual queries
only in cases of “an ongoing criminal or missing persons investigation”;
and requiring officers to “document the reason” for any such manual
query); West’s Utah Code Ann. §§ 41-6a-2003(2)(a), 41-6a-2004 (West 2023)
(permitting law enforcement use of ALPRs only “as part of an active
criminal investigation,” “to apprehend an individual with an outstanding
warrant,” “to locate a missing or endangered person,” or “to locate a stolen
vehicle,” and imposing destruction and nondisclosure requirements).
14
STATE v. SIDOR
Opinion of the Court
¶44 While often recognizing the privacy issues ALPRs pose,
courts considering the question have thus far uniformly held that the uses
of ALPRs before them were not Fourth Amendment searches requiring
warrants or probable cause. See McCarthy, 142 N.E.3d 1090, 1106
(explaining it was not a search when defendant’s vehicle was tracked by
ALPRs on two Cape Cod bridges after police had reason to believe
defendant was trafficking drugs in the area); United States v. Rubin, 556 F.
Supp. 3d 1123, 1127-30 (N.D. Cal. 2021) (explaining ALPR database query
run on license plate associated with robbery); United States v. Graham, Crim.
No. 21-645 (WJM), 2022 WL 4132488 (D. N.J. Sept. 12, 2022) (same); United
States v. Porter, No. 21-cr-00087, 2022 WL 124563 (N.D. Ill. Jan. 13, 2022)
(same); United States v. Brown, No. 19 CR 949, 2021 WL 4963602 (N.D. Ill.
Oct. 26, 2021) (same); United States v. Bowers, No. 2:18-CR-00292-DWA, 2021
WL 4775977, *1 (W.D. Pa. Oct. 11, 2021) (explaining that the ALPR database
query run on defendant’s license plate was “two days after the date of the
offense”); United States v. Toombs, 671 F. Supp. 3d 1329, 1335 (N.D. Ala. 2023)
(affirming a magistrate judge’s recommendation to deny a suppression
motion challenging the use of DEASIL, where there was reasonable
suspicion to detain the defendant for a dog sniff regardless of the DEASIL
search); see also Yang, 958 F.3d at 862–64 (Bea, J., concurring) (disagreeing
with majority’s decision that defendant lacked standing but finding no
“search” where defendant’s license was entered into an ALPR database
after the vehicle was linked to a string of thefts). This reinforces our
conclusion that Sidor was not subjected to an unconstitutional search by the
officer on the particular facts of this case, where the DEASIL query only
resulted in a single snapshot of his car travel taken the day before, and
where the relevant pattern in the DEASIL data consisted almost entirely of
the movements of other persons.
¶45 No one should misread this case, or those others, as
establishing a rule that using DEASIL cannot be a Fourth Amendment
search. For one thing, as DEASIL becomes more comprehensive, its reach
backwards in time to map the activities of defendants will continue to
improve, making it ever more CSLI-like. See, e.g., Yang, 958 F.3d at 864 (Bea,
J., concurring) (suggesting that when ALPRs become CSLI-like in their
ability to track movements, the logic of Carpenter would apply to their use);
Tuggle, 4 F.4th at 509 (warning of rise of ubiquitous camera surveillance and
likely evolution of legal landscape in reaction to it). For another, as the
parentheticals in Paragraph 44 explain, all but one of the cases finding the
ALPR data not to be a search involved ALPR data obtained after police had
reason to believe that a particular vehicle was involved in a specific crime.
Those courts all reviewed uses of ALPR where the reasonable articulable
suspicion to use the ALPR was a given. Where, as here, an officer uses the
15
STATE v. SIDOR
Opinion of the Court
DEASIL database to generate the facts necessary to constitute reasonable
suspicion, the database may elicit information providing a far more
elaborate picture of travel in which the car-owner had a reasonable
expectation of privacy, justifying suppression. Whether fortuitously or
otherwise, this was simply not that case.
C. The Record of This Case Does Not Allow Us To Conclude
That the Officer’s Certification to Obtain the DEASIL Data
Compelled the Suppression of the Fruits of the Traffic Stop.
¶46 We are troubled by the use of DEASIL based on an automatic
certification of articulable reasonable suspicion in all cases. Yet while Sidor
argues that the officer violated DEA’s policies, those policies or guidelines
are not part of this record, so we see no legal error in the superior court
finding no violation. The United States Supreme Court has applied the
exclusionary rule where “the excluded evidence arose directly out of
statutory violations that implicated important Fourth and Fifth
Amendment interests.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006).
Yet the briefing before us identifies no statutory violation. For these
reasons, and those stated in Paragraphs 36 to 45, Sidor has not shown that
the superior court misapplied the law in declining to exclude the ALPR
data, consisting of one photograph of the Nissan with Sidor driving it, and
other data concerning other drivers.
III. Turbo’s Alert Was a Reliable Basis For Searching the Nissan.
¶47 We reject Sidor’s claim that Turbo’s alert was not sufficiently
reliable to establish probable cause for searching the Nissan. As Sidor
recognizes, “a well-trained dog’s alert establishes a fair probability—all that
is required for probable cause—that either drugs or evidence of a drug
crime . . . will be found.” Florida v. Harris, 568 U.S. 237, 246 n.2 (2013); see
also Teagle, 217 Ariz. at 27 ¶ 36 n.7. Courts should apply a ”flexible, all-
things-considered approach” to determining a dog’s reliability. Harris, 568
U.S. at 244.
¶48 The superior court did not abuse its discretion by finding
Turbo’s alert reliable based on his certification and training logs. Turbo was
certified, about 12 weeks before he was deployed to sniff Sidor’s vehicle, to
detect heroin, cocaine, and methamphetamine. While certification required
an 80 percent pass rate, Turbo’s training logs between the date he was
certified and when he sniffed the Nissan show 100 percent accuracy in
alerting when those drugs were present and not alerting when they were
16
STATE v. SIDOR
Opinion of the Court
absent. The superior court’s finding as to Turbo’s reliability was well-
supported.
¶49 Sidor’s argument that potential errors in Turbo’s field
deployment render him unreliable is unavailing. The United States
Supreme Court has explained that such episodes do not undermine a dog’s
reliability because they do not conclusively demonstrate mistakes. Turbo
could have, for example, “detected substances that were too well hidden or
present in quantities too small for the officer to locate.” Harris, 568 U.S. at
245. Likewise, Turbo’s inability to rule out residual odors does not negate
the reliability of his alerts because “[a] detection dog recognizes an odor,
not a drug,” the dog “should alert whenever the scent is present, even if the
substance is gone,” and “[i]n the usual case, the mere chance that the
substance might no longer be at the location” does not detract from a
finding of probable cause based on the alert. Id. at 246 n.2. Finally, field
deployment records have limited ability to show false negatives because
searches are not typically done if a dog does not alert. See id. at 245. For all
of these reasons, Turbo’s performance in the field does not undermine his
reliability.
CONCLUSION
¶50 For the reasons stated, we affirm the superior court’s denial
of Sidor’s motions to suppress, and thus, his convictions.
17
STATE v. SIDOR
Brown, J. dissenting
B R O W N, J., dissenting:
¶51 I agree with the majority that the officer’s access to the
DEASIL data was not a search under the Fourth Amendment. Our record
does not contain information sufficient to say that the DEASIL data
intruded on Sidor’s reasonable expectation of privacy, though other cases
have shown that this kind of data can be far more expansive and detailed
in describing a person’s whereabouts. Thus, I am concerned such
information may come closer to re-creating a person’s movements and
capture images unrelated to where the person has traveled, warranting
more rigorous Fourth Amendment scrutiny. See United States v. Ceja-Torres,
No. 3:21-CR-141-CHB, 2022 WL 9936376, at *4 (W.D. Ky. 2022) (DEASIL
search revealing three pages of results, tracking defendant’s movements
through numerous states over 18 days); Bowers, No. 2:18-CR-00292-DWA,
at *1 (ALPR search finding 106 entries on 33 different locations over the
course of five months); see also Yang, 958 F.3d at 864 (Bea, J., concurring);
David J. Mudd, Privacy Impact Assessment for the National License Plate Reader
Program (NLPRP), Drug Enf’t Admin. (Apr. 19, 2019),
https://www.dea.gov/sites/default/files/2023‑03/DEA%20NLPRP%20
PIA%20r1.pdf (explaining that ALPR images may capture “the
environment surrounding the vehicle, which may include drivers,
passengers, passersby, and/or other license plates”).
¶52 I also echo the majority’s concerns addressing the officer’s
automatic certification to the DEA that he had reasonable suspicion of
narcotics trafficking based only on Sidor’s driving position. No reasonable
interpretation of such conduct permits an inference of criminal activity,
much less drug trafficking. I am particularly concerned that the officer
testified he was trained to always check the box indicating he has
reasonable suspicion of narcotic trafficking and bulk cash smuggling.
Though our record does not indicate why the DEA has such a requirement,
the DEA has made it clear that access to such data is limited to those “who
have an investigative need and reasonable articulable suspicion that a
particular license plate is involved in criminal activity” or if such
information “is relevant to the mission of a traffic stop.” Id. If cases like
this (accessing DEASIL before the traffic stop in violation of access
requirements) become the norm, use of that data to support a finding of
reasonable suspicion is problematic if there is no evidence indicating who
was driving the car when prior ALPR data was gathered.
¶53 Turning to the lawfulness of the warrantless search, I disagree
with the majority’s conclusion that the officer had reasonable, articulable
suspicion to believe criminal activity was afoot. See Sweeney, 224 Ariz. at
18
STATE v. SIDOR
Brown, J. dissenting
112, ¶ 17. The information the officer acquired through accessing DEASIL
was too vague and incomplete for the officer to infer a pattern of travel to
indicate that Sidor was trafficking drugs. See id. at 113, ¶ 22 (Reasonable
suspicion cannot rest solely on “circumstances or factors that do not reliably
distinguish between suspect and innocent behaviors . . . because they may
cast too wide a net and subject all travelers to ‘virtually random seizures.’”).
¶54 The majority states that the DEASIL data showed the vehicle
Sidor was driving “may have involved . . . going to and coming from
California.” Supra ¶ 29. The majority thus acknowledges there is no
evidence in the record showing the car was actually used for the earlier trips
to California. Instead, the only inference that the prior trips from the car
Sidor was driving were to California appear to flow from the officer’s
testimony at the suppression hearing where, without explanation, he
simply indicated that the DEASIL data showed “two previous one-day
turnaround trips from the Minnesota area to Southern California.” The
DEASIL data, however, merely showed that the car had been driven
through northern Arizona three separate times and once in Kansas. The
only trip with a confirmed California destination was that from Kansas, as
Sidor acknowledged that he had just come back from California.
¶55 Nothing about this car’s whereabouts nor Sidor’s explanation
of his travel shows there was reasonable suspicion of criminal activity. Cf.
United States v. Simpson, 609 F.3d 1140, 1148–52 (10th Cir. 2010) (noting that
implausible or inconsistent travel plans may contribute to reasonable
suspicion, but that merely unusual plans do not contribute to reasonable
suspicion). Other than speculation, the record does not show the car had
been in California before Sidor’s current trip, and even if such an inference
can be reasonably drawn, nothing shows he was driving the car on those
alleged “two previous one-day turnaround trips from the Minnesota area
to Southern California.”
¶56 And regardless of the vehicle’s destination, the State has not
met its burden of showing how the DEASIL information indicates potential
criminality. See Rodriguez v. Arellano, 194 Ariz. 211, 215, ¶ 12 (App. 1999)
(“[A] defendant who establishes that evidence was seized pursuant to a
warrantless search has satisfied the burden of going forward under [Rule
16.2] and has triggered the State’s burden of proving the lawfulness of the
acquisition of the challenged evidence.”).
¶57 Beyond a generic affirmation that this information was
“indicative of drug trafficking” based on the officer’s training and
experience, the officer never explained how such incomplete information
19
STATE v. SIDOR
Brown, J. dissenting
would indicate some sort of criminal activity. Though an officer can
“perceive and articulate meaning” in seemingly innocent conduct that
would imply criminal activity, the officer needs to articulate what that
meaning is for courts to assess whether there are objective grounds for
extending a stop. See e.g., United States v. Gooding, 695 F.2d 78, 82 (4th Cir.
1982) (citation omitted); see also State v. Boteo-Flores, 230 Ariz. 105, 108, ¶ 12
(2012) (“[S]eemingly innocent behavior can form the basis for reasonable
suspicion if an officer, based on training and experience, can ‘perceive and
articulate meaning in given conduct[,] which would be wholly innocent to
the untrained observer.’”) (citation omitted); United States v. Johnson, 171
F.3d 601, 604 (8th Cir. 1999) (“[T]he Fourth Amendment requires an officer
to explain why the officer's knowledge of particular criminal practices gives
special significance to the apparently innocent facts observed.”); State v.
Harning, 507 P.3d 145, 150–51, ¶ 20 (Mont. 2022) (finding that a stop was
improperly extended when an officer asserted he observed “subtle kinds of
things” about the defendant’s behavior without any explanation as to how
they were consistent with criminal behavior); State v. Wills, 930 N.W.2d 77,
81–82, ¶¶ 17–18 (N.D. 2019) (finding that an officer’s conclusion that
“something just didn’t seem right” based on a group of passengers’
smoking, indirect travel route, and criminal histories did not meet
reasonable suspicion); Hodnett v. Commonwealth, 530 S.E.2d 433, 436 (Va. Ct.
App. 2000) (noting that continued detention of defendant was not
unreasonable when an officer explained that based on his experience,
drivers who have an identification card did not hold an operator’s license).
¶58 When asked about the prior trips, the officer stated only that
it was indicative of “[s]ome kind of criminal activity.” His vague assertion
shows he was acting on a mere hunch rather than reasonable, articulable
suspicion. See Teagle, 217 Ariz. at 23, ¶ 25 (recognizing that reasonable
suspicion must be more than an inchoate hunch).
¶59 Nothing else presented at the suppression hearing otherwise
convinces me that the officer had reasonable suspicion. I agree with the
majority’s conclusion that the officer’s testimony of Sidor’s nervousness
throughout the stop was not compelling. The officer testified that Sidor was
breathing rapidly, “would not make eye contact” and that he “kept looking
around” while they were talking. At several points, the officer stated he
could see Sidor’s carotid artery pulsing. My review of the video does not
align with the officer’s descriptions.
¶60 The officer’s actions before stopping Sidor cast further doubt
on a finding of reasonable suspicion of criminal activity. Though the officer
noted that he pulled Sidor over for following a semitrailer too closely, a
20
STATE v. SIDOR
Brown, J. dissenting
practice he described as unsafe, he allowed Sidor to remain unsafely close
for two miles. This was because the officer’s vehicle was not equipped with
an ALPR; the officer had to manually enter the data into a laptop in his
computer. After seeing the traffic violation, the officer saw that Sidor’s car
had a Minnesota license plate, and then determined that he needed to begin
a search query for the car. After exiting the median, however, the officer
testified that he believed he had “reasonable articulable suspicion that Mr.
Sidor, or whoever [was] driving that vehicle, was associated with narcotic
trafficking or bulk cash smuggling[.]” That purely speculative assertion
lacks any basis in Fourth Amendment jurisprudence.
¶61 I recognize that reasonable suspicion cannot be dismissed by
examining various factors in a vacuum and finding them individually
innocent. Id. at 24–25, ¶ 25. Even a host of innocent factors, when viewed
in their totality, may give an officer reasonable suspicion. Id. But even
viewed together, these factors do not meet the threshold required for
reasonable suspicion. Because the officer did not explain how he could
discern criminality in the limited DEASIL data, and the evidence fails to
sufficiently “eliminate a substantial portion of innocent travelers,” he
lacked reasonable suspicion. Id.
¶62 Moreover, the conclusion that accessing the DEASIL data in
this case does not constitute a search under the Fourth Amendment cuts
against any finding that the officer had reasonable suspicion to further
detain Sidor. As the majority recognizes, the DEASIL data showed that the
car Sidor was driving included a single picture of the license plate, along
with a record of the couple of prior trips the car made through northern
Arizona. However, when discussing reasonable suspicion, the majority
decides the data creates a pattern of the vehicle’s movements from which
the officer was able to reasonably suspect that Sidor was engaged in drug
trafficking. In other words, the majority concludes the DEASIL data
sufficiently details Sidor’s movements to create reasonable suspicion, but at
the same time says those movements are essentially meaningless in terms
of assessing a potential Fourth Amendment violation.
¶63 The trooper acknowledged at the evidentiary hearing that the
records check disclosed nothing amiss about Sidor or the car he was driving
and the answers he gave during the stop did not reveal any inconsistencies
with other information provided by Sidor or otherwise known to the
trooper. Ultimately, the fact that Sidor was driving a borrowed vehicle
making its third trip out west in a little more than two months does not
provide reasonable suspicion that he was engaged in drug trafficking.
21
STATE v. SIDOR
Brown, J. dissenting
Because the superior court erred in denying Sidor’s motion to suppress, I
would reverse the convictions.
AMY M. WOOD • Clerk of the Court
FILED: AGFV
22