State v. Steven Clay Anderson ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36406
STATE OF IDAHO, ) 2011 Opinion No. 24
)
Plaintiff-Respondent, ) Filed: April 28, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
STEVEN CLAY ANDERSON, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia
County. Hon. Michael R. Crabtree, District Judge.
Judgment of conviction for unlawful possession of a firearm, affirmed.
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
Attorney General, Boise, for respondent.
________________________________________________
GRATTON, Chief Judge
Steven Clay Anderson appeals from his judgment of conviction for unlawful possession
of a firearm. Specifically, Anderson argues that the district court erred in denying his motion to
suppress evidence of the weapon found in his vehicle. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Cassia County Deputy Antonio Bernad was patrolling in Burley when he stopped a van
driven by Anderson. Incident to the stop, Officer Bernad called for a drug dog. While Officer
Bernad was processing information and proceeding to write citations, the dog alerted on the
passenger side door of the van. Officer Bernad directed that the dog be placed in the van. The
dog did not alert while inside the van. Officer Bernad and another officer searched the van and
located a firearm, but no drugs. Anderson, who had a prior felony conviction, was charged with
possession of a firearm by a felon, Idaho Code § 18-3316, and failure to provide proof of
1
insurance, I.C. § 49-1232. He filed a motion to suppress evidence of the firearm, asserting that
the search of the van violated his constitutional rights. After taking evidence and argument at a
suppression hearing and reviewing the video and audio evidence submitted at the hearing, the
district court entered a memorandum decision denying Anderson’s motion to suppress.
Thereafter, Anderson entered a conditional guilty plea to possession of a weapon by a felon,
reserving his right to challenge the denial of his suppression motion. This appeal followed.
II.
ANALYSIS
When a decision on a suppression motion is challenged, we accept the trial court’s
findings of fact if they are supported by substantial evidence, but we freely review the
application of constitutional principles to the facts as found. State v. McCall, 135 Idaho 885,
886, 26 P.3d 1222, 1223 (2001); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.
App. 1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve
factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v.
Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786,
789, 979 P.2d 659, 662 (Ct. App. 1999).
The Fourth Amendment to the United States Constitution and Article I, § 17 of the Idaho
Constitution prohibit unreasonable searches and seizures. Warrantless searches are presumed to
be unreasonable unless they fall within one of a few narrowly drawn exceptions. Coolidge v.
New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Aschinger, 149 Idaho 53, 56, 232 P.3d
831, 834 (Ct. App. 2009). One such exception, the “automobile exception,” allows officers to
search an automobile if they have probable cause to believe that it contains contraband or
evidence of a crime. United States v. Ross, 456 U.S. 798, 807-08 (1982); State v. Wigginton, 142
Idaho 180, 182, 125 P.3d 536, 538 (Ct. App. 2005). Probable cause is established if the facts
available to the officer at the time of the search would warrant a person of reasonable caution in
the belief that the area or items to be searched contain contraband or evidence of a crime. Ross,
456 U.S. at 808 n.10; State v. Yeoumans, 144 Idaho 871, 873, 172 P.3d 1146, 1148 (Ct. App.
2007). Probable cause is a flexible, common-sense standard. Yeoumans, 144 Idaho at 873, 172
P.3d at 1148. “In dealing with probable cause, . . . as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v. Gates,
2
462 U.S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). See
also Texas v. Brown, 460 U.S. 730, 742 (1983); State v. Gibson, 141 Idaho 277, 281, 108 P.3d
424, 428 (Ct. App. 2005). In determining probable cause, the court must consider the totality of
the circumstances known to the officer at the time of the search. Gates, 462 U.S. at 230-33.
“Because many situations which confront officers in the course of executing their duties are
more or less ambiguous, room must be allowed for some mistakes on their part. But the
mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions
of probability.” Brinegar, 338 U.S. at 176.
Anderson raised two arguments in the district court. First, he asserted that the stop was
illegally extended by the officers. He does not make this claim on appeal. Second, Anderson
claimed that “when the drug dog failed to produce any contraband within the vehicle the officers
lost their probable cause to be in the vehicle and therefore should not have reentered it.” In his
argument regarding this second claim, Anderson stated: “As to the second issue once the drug
dog hit on the van it then gave the officer’s probable cause to allow the dog to search the
vehicle.” Therefore, contrary to certain arguments advanced on appeal, Anderson did not
challenge below the officers’ probable cause, based upon the drug dog’s positive alert, to search
the interior of the van, and we will not further address any such claim. 1 Additionally, Anderson
never claimed below that the drug dog was unqualified, by training and experience, or unreliable.
Anderson did not argue to the district court that foundation regarding the dog’s training and
reliability was insufficient to allow admission of the evidence. See State v. Howard, 135 Idaho
727, 24 P.3d 44 (2001) (challenging sufficiency of foundation to admit drug dog evidence).
Although the dog handler testified that the dog had two prior false positive alerts, which were
explained by the circumstances, Anderson did not argue to the district court, as he does on
appeal, that the dog had an inability to distinguish between residual odors from present drugs or
how that fact, if established, affected the probable cause analysis. See State v. Braendle, 134
Idaho 173, 997 P.2d 634 (Ct. App. 2000) (challenging sufficiency of evidence to demonstrate
probable cause). In Yeoumans, 144 Idaho at 875, 172 P.3d at 1150, this Court held that an
otherwise reliable, certified drug dog’s alert is sufficient to demonstrate probable cause even if
1
There is no question that a reliable drug dog’s alert on the exterior of a vehicle provides
probable cause for a warrantless search of the interior. Gibson, 141 Idaho at 281, 108 P.3d at
428; State v. Tucker, 132 Idaho 841, 843, 979 P.2d 1199, 1201 (1999).
3
there exists a possibility that the dog has alerted on residual odors. While the Yeoumans Court
further indicated that a district court may take the fact that a drug dog sometimes responds to
residual odors into account to assess the dog’s reliability, id., Anderson, at no time raised any
question as to the dog’s reliability. In fact, Anderson argued in the district court that since the
alert of the “trained dog” on the outside of the van was sufficient to establish probable cause to
search the interior, that same dog’s failure to alert when inside the van dissipated or eliminated
the probable cause. Thus, Anderson argued the “trained” dog’s failure to alert inside the van
was, in fact, reliable. We will not further address issues raised on appeal regarding the training
and reliability of the drug dog.
We return then to the sole issue on appeal, which is whether, under the circumstances, the
drug dog’s failure to alert inside the van precluded the officers from searching themselves.
While the drug dog’s alert on the passenger door alone provided the officers with probable cause
to search the van, we also consider the other factors existing at the time. Prior to making the
stop, Officer Bernad observed Anderson’s vehicle straddling the center line of southbound lanes
of traffic, causing other vehicles to drive out of their lane to go around Anderson’s vehicle.
Anderson nearly side-swiped a vehicle on the right, causing the other vehicle to swerve to avoid
collision. After Officer Bernad activated his emergency lights, the van did not immediately stop.
After activating his siren, the van traveled another block before stopping. Upon making contact
with Anderson, Officer Bernad was told by Anderson that the van was not his, but was his
brother’s, and that the license plates on the van were not issued for the van and that he had put
them on. After exiting the van, Anderson told Officer Bernad that his erratic driving was
because he was paying attention to a metal bar of platinum, which Officer Bernad later observed
between the seats of the van. Anderson advised Officer Bernad that he had no insurance.
Anderson told Officer Bernad that he had charges pending for controlled substance sales and
delivery.
Officer Bernad told Anderson that he would be issuing citations. Officer Bernad directed
Anderson to get back into the driver’s seat of the van and keep his hands on the wheel where he
could see them. Officer Bernad began processing a driver and vehicle check. While doing so, he
observed that Anderson was doing quite a bit of moving around in the vehicle and it did not
appear that he was abiding by the direction to keep his hands on the wheel. Officer Bernad
indicated that he was concerned by these movements for his own safety, not knowing what
4
Anderson was doing, and that these fast movements, coupled with Anderson’s pending criminal
charges, made him concerned that Anderson might be under the influence of stimulants. At that
point, contrary to instructions, Anderson began to exit the van and Officer Bernad ordered him to
the back of the van where he was searched for weapons, which produced two pocket knives, and
was thereafter watched by another officer on the scene. While Officer Bernad completed the
records check and issuance of citations, the drug dog arrived and alerted on the passenger door.
Officer Bernad directed the handler to place the dog in the van, which was done, but no further
alerts were observed while the dog was inside. The dog was then placed in the patrol car and the
officers searched the van, locating the weapon, but no drugs.
The district court correctly held that the officers had probable cause to conduct a search
of the interior of the vehicle. The district court further pointed out that Anderson had failed to
cite any authority for the proposition of probable cause dissipation. The State also argues that
the officers were entitled to conduct the search in a manner that employed manual search as well
as use of the drug dog and that Anderson failed to cite to any authority that failure of one search
method to locate contraband foreclosed the other.
The question of dissipation of probable cause appears to be one of first impression in
Idaho. Thus, the Idaho appellate courts have yet to define or expound on the contours of this
proposition. We have located cases discussing the general nature of dissipation of probable
cause. In United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005), the court stated:
If probable cause is established at an early stage of the investigation, it may be
dissipated if the investigating officer later learns additional information that
decreases the likelihood that the defendant has engaged, or is engaging, in
criminal activity. . . . ”As a corollary . . . of the rule that the police may rely on
the totality of facts available to them in establishing probable cause, they also may
not disregard facts tending to dissipate probable cause.” Bigford v. Taylor, 834
F.2d 1213, 1218 (5th Cir. 1988).
We have located no decisions with the precise facts presented here; however, numerous
cases discuss the impact on a probable cause determination of a drug dog’s failure to alert.
These courts generally hold that a drug dog’s failure to alert is but one factor to be considered.
Illustrative of the cases is then--Judge Breyer’s opinion in United States v. Jodoin, 672 F.2d 232
(1st Cir. 1982), which holds that a “dog’s failure to react does not . . . destroy the ‘probable
cause’ that would otherwise exist. It is just another element to be considered.” Id. at 234-236
(holding that officers’ actions did not violate the Fourth Amendment when, supported by
5
probable cause, they held defendant’s suitcase for several days, even though “a detector dog
sniffed the suitcase but the dog did not signal the presence of narcotics”). See also United States
v. Ramirez, 342 F.3d 1210, 1213 (10th Cir. 2003) (”We will not require investigators to cease an
otherwise reasonable investigation solely because a dog fails to alert, particularly when we have
refused to require that a dog sniff test be conducted at all.”); United States v. Gill, 280 F.3d 923,
926 n.3 (9th Cir. 2002) (denying defendant’s suppression motion although a drug “dog did not
alert” and noting that drug dogs “are not trained to detect PCP or methamphetamine due to the
risk these substances pose to the dogs”); United States v. Glover, 104 F.3d 1570, 1577 (10th Cir.
1997) (“[Defendant] relies on a line of cases holding that probable cause is established once a
drug dog alerts on a package for the mistaken proposition that absent such an alert, officers are
not entitled to detain the package any further. Contrary to [defendant’s] assertion, drug-detecting
dogs have not supplanted the neutral and detached magistrate as the arbiter of probable cause.”);
United States v. Frost, 999 F.2d 737, 744 (3rd Cir. 1993) (”When one includes both the fact that
the drug sniffing dog did not alert to the suitcase and the fact that drug couriers often mask the
scent of drugs in suitcases so that a drug sniffing dog will not alert, the failure to alert to the
suitcase is not inconsistent with the substantial probative thrust of information which [the
officer] did include [in the warrant].”). 2
2
See also United States v. Davis, 430 F.3d 345, 366 (6th Cir. 2005) (Judge Sutton,
concurring in part and dissenting in part):
Our circuit, in an unpublished disposition, has upheld the detention of a suitcase
although “[n]either [of two] dog[s] alerted to the bag” before a dog named “Pete
alerted positively to the bag.” United States v. Stephens, 96-6551, 1997 WL
720412 at *2-3 1997 U.S. App. LEXIS 33049, at *7-8 (6th Cir. Nov. 14, 1997).
The Stephens panel noted that the defendant had used dryer sheets to mask the
odor of the drugs, see id. at 3, n.2; United States v. 141,770.00 in United States
Currency, 157 F.3d 600, 604 n.4 (8th Cir.1998) (“The wide-spread use of scented
dryer sheets to mask the smell of illegal narcotics is well documented in the
decisions of the Courts of Appeals.”), and reasoned that the defendant’s lies to an
officer and her drug-courier profile independently gave the police “probable cause
to believe that [the] defendant’s luggage contained contraband at the time it was
seized and detained,” Stephens, 1997 WL 720412 at *4, 1997 U.S. App. LEXIS
33049, at *11-12; see also United States v. Lartigue, Nos. 93-5356/93-5369, 1994
WL 151337, at *5-6, 1994 U.S. App. LEXIS 9342, at *14-15 (6th Cir. Apr. 26,
1994) (noting that the defendants “cite no authority in support of th[e]
proposition” that “the failure of [the] canine ‘Pete’ to alert on the bag negated the
existence of probable cause” and holding that “the failure of a dog to alert does
6
In McKay v. State, 814 A.2d 592 (Md. 2002), officers possessed probable cause to search
a vehicle for drugs. However, moments before beginning the search, a drug dog failed to alert to
the presence of drugs. The Maryland court noted that a positive alert from a drug dog provides
probable cause to search but held: “It does not follow from this settled proposition, however,
that probable cause is dissipated by the dog’s failure to alert.” Id. at 598 (emphasis in original).
The McKay court further held that a drug dog’s failure to detect the presence of drugs does not
negate probable cause, but is one factor to consider in the probable cause determination. Id. at
599. 3 In State v. Sanchez-Loredo, 220 P.3d 374, 378 (Kan. Ct. App. 2009), the court held:
The district court also concluded that the failure of the drug dog to alert to
possible contraband did not eliminate the probable cause that the facts of this case
already supported, and we agree. See State v. Gonzales, 2004 WL 2085586, at *4
(Kan. App. 2004) (unpublished opinion), rev. denied 278 Kan. 849 (2005) (failure
of a drug dog to alert is only one factor to be considered in a probable-cause
determination).
In State v. Siluk, 567 So. 2d 26 (Fla. Ct. App. 1990), a drug dog alerted to a bag of
luggage in Houston, but after the bag was allowed to proceed to Orlando, a second drug dog
failed to alert. The court held: “We do not accept the argument that the failure of the local
narcotics dog to ‘alert’ to the luggage neutralized the probable cause flowing from [a prior]
alert.” Id. at 28; cf. United States v. Guzman, 75 F.3d 1090, 1096 (6th Cir. 1996) (noting that a
“dog’s interest in defendant Guzman’s bag” could be taken into account “when determining
whether the totality of the circumstances established probable cause to seize [the] defendant”);
United States v. Spetz, 721 F.2d 1457, 1464 (9th Cir. 1983); Schmid v. State, 615 P.2d 565, 577
(Alaska 1980). United States v. Sullivan, 625 F.2d 9, 12 (4th Cir. 1980) (upholding detention
when a “dog did not show a ‘full alert’” but “did show an interest in one blue bag”).
not nullify the officers’ suspicions”); United States v. Vidal, No. 87-5952, 1988
WL 24216 at *1-2, 1988 U.S. App. LEXIS 3374, at *4-5 (6th Cir. Mar. 17, 1988)
(rejecting defendant’s argument that “once the narcotics sniffing dog registered a
negative response to the existence of drugs, any probable cause finding was
destroyed”).
3
Longshore v. State, 924 A.2d 1129 (Md. 2007), cited by the dissent, distinguished but did
not overrule McKay.
7
We have located no cases which specifically hold that a search based upon probable
cause must be aborted when a drug dog fails to alert or the initial search proves fruitless. In
United States. v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007), a drug dog alerted on a vehicle,
establishing probable cause for a search. Two roadside searches produced no drugs, although
some evidence suggested that drugs may have been cleverly concealed. A third search at a
highway patrol garage, six hours later, produced contraband. The court rejected the claim that
probable cause dissipated, noting first that “[i]f probable cause justifies the search of lawfully
stopped vehicle, it justifies the search of every part of the vehicle and its contents that may
conceal the object of the search.” Id. at 512 (quoting Ross, 456 U.S. at 825). See United States
v. Patterson, 140 F.3d 767 (8th Cir. 1998) (fruitless manual search, conducted upon probable
cause, did not cause loss of probable cause, allowing for employment of drug dog to locate
contraband in the vehicle).
In determining probable cause, the court must consider the totality of the circumstances
known to the officer at the time of the search. Gates, 462 U.S. at 230-33. The rationale that the
drug dog’s failure to alert is but one factor to be considered appears consistent with the totality of
the circumstances approach. Even considering the drug dog’s unexplained failure to alert in the
vehicle, the officers’ manual search of the vehicle was supported by probable cause based upon
the totality of the circumstances. In this case, although probable cause was established by the
drug dog’s initial alert on the vehicle, more information than just the activity of the drug dog was
in play. The officer encountered Anderson late at night, driving erratically, in an unregistered
vehicle which he did not own, upon which he had placed fictitious plates, and for which there
was no insurance. The officer was forced to employ both lights and siren in order to get
Anderson to stop. Anderson failed to follow the officer’s directions, engaging in furtive
movements of unknown and suspicious purpose, and attempting to exit the vehicle. He also was
under pending charges for controlled substance sales and delivery. 4 Applying a common sense
approach to these facts, the officers had probable cause to believe drugs would be found in the
van. As noted, “In dealing with probable cause, . . . as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.” Gates, 462 U.S.
4
Anderson states in his brief that he had a “pending drug possession charge.”
8
at 231 (quoting Brinegar, 338 U.S. at 175). See also Brown, 460 U.S. at 742; Gibson, 141 Idaho
at 281, 108 P.3d at 428. We conclude that, under the totality of the circumstances, the officers’
search of the vehicle was supported by probable cause.
III.
CONCLUSION
The drug dog alert on the outside of the vehicle provided probable cause to search the
interior of the vehicle. Given the totality of the information and circumstances available to the
officers at the time, the drug dog’s failure to alert while in the vehicle, did not cause the loss of
probable cause for the officers to search the vehicle. Anderson’s judgment of conviction and the
district court’s order denying his motion to suppress are affirmed.
Judge GUTIERREZ CONCURS.
Judge LANSING, DISSENTING
I respectfully dissent, for I conclude that the evidence here does not show probable cause
to believe that Anderson’s van contained illegal drugs at the point when the search was
conducted.
The majority opinion cites an impressive array of cases holding that the failure of a drug
dog to alert on a vehicle or container does not necessarily nullify probable cause that has arisen
from other, independent information known to the officer. I do not take exception to that
proposition. That, however, is not the issue presented by this appeal. The question here is
whether probable cause that has arisen only because a trained drug dog alerted on the exterior of
a vehicle survives after the same trained drug dog fails to alert when allowed to conduct another,
more intrusive examination of the vehicle’s interior. I would hold that in this circumstance, the
State did not meet its burden to prove probable cause for the search of Anderson’s van.
Probable cause for a search exists when the facts available to the officer at the time of the
search would “warrant a [person] of reasonable caution in the belief” that the area or items to be
searched contains evidence of a crime. Safford Unified School Dist. No. 1 v. Redding, ___ U.S.
___, ___, 129 S. Ct. 2633, 2639 (2009); New Jersey v. T.L.O., 469 U.S. 325, 358 (1985); Carroll
v. United States, 267 U.S. 132, 162 (1925); State v. Yeoumans, 144 Idaho 871, 873, 172 P.3d
1146, 1148 (Ct. App. 2007). The determination of probable cause requires consideration of the
totality of the circumstances known to the officers at the time of the search. Illinois v. Gates,
462 U.S. 213, 230-31 (1983); State v. Chandler, 140 Idaho 760, 762, 101 P.3d 704, 706 (Ct.
9
Ohio App. 2004). This standard does not allow law enforcement officers or the courts to “cherry-
pick” the facts and consider only those that would contribute to probable cause while ignoring
those facts known to the officer at the time of the search that would tend to negate probable
cause. Further, once probable cause emerges from information received or observations made by
officers, it does not become fixed and immutable. Rather, it is a “fluid concept--turning on the
assessment of probabilities in particular factual contexts.” Gates, 462 U.S. at 232. Accordingly,
just as gradually unfolding circumstances becoming known to an officer may evolve into
probable cause to believe that a search would yield evidence of a crime, the continuing
enfoldment of additional facts and circumstances may dispel the reason for such belief. The
Ninth Circuit Court of Appeals so noted in United States v. Lopez, 482 F.3d 1067 (9th Cir.
2007), stating:
In some instances there may initially be probable cause justifying an
arrest, but additional information obtained at the scene may indicate that there is
less than a fair probability that the defendant has committed or is committing a
crime. In such cases, execution of the arrest or continuation of the arrest is illegal.
....
It will not suffice that at some earlier point in time--before the police
gleaned certain “dissipating” facts--the police may have had probable cause.
Id. at 1073. See also United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (“If
probable cause is established at an early stage of the investigation, it may be dissipated if the
investigating officer later learns additional information that decreases the likelihood that the
defendant has engaged, or is engaging in criminal activity,” and “[police] may not disregard facts
tending to dissipate probable cause.”).
As the Maryland Court of Appeals stated in Longshore v. State, 924 A.2d 1129 (Md.
2007):
[A] failed drug sniff is exactly the type of evidence that tends to
undermine the conclusion of the presence of drugs. It is a negating factor that has
a substantial impact on the determination of probable cause, and cannot be lightly
ignored. Moreover, the weight to be given to the dog sniff is directly related to
the credibility of the dog’s abilities, which, in turn, can be inferred from the dog’s
performance under the circumstances. If a dog fails to alert to the presence of
drugs, and no explanation for why such a failure occurred is given, the trial court
should weigh this differently than it would a failure of the drug dog to alert,
accompanied by a plausible justification for the failure. Additionally, any
10
inconsistencies between multiple alert results must be taken into consideration,
under the totality of the circumstances.
Id. at 1156.
In the present case, the drug dog’s failure to alert on anything inside the van is a
prominent factor in the totality of the circumstances that must be considered. Although this
failure to alert would not necessarily have destroyed any probable cause that might have arisen
from independent information, it did directly contradict the same dog’s prior alert on the exterior.
The failure to alert inside thereby extinguished or counterbalanced any weight that otherwise
could have been assigned to the initial alert in the probable cause calculus. No evidence was
proffered to suggest that the dog’s alert on the exterior should be considered more reliable than
the omission to alert inside. To the contrary, the dog’s known inability to distinguish between
the odor of present drugs and residual odors gave reason for the officers to suspect that the
exterior alert was the inaccurate response.
This circumstance is analogous to that where probable cause is predicated upon an
apparently well-grounded tip from a normally trustworthy informant. If the informant thereafter
persuasively recants, or admits to facts showing that his information is inherently unreliable, the
totality of the facts known to the officers would no longer add up to probable cause. Likewise,
after the dog’s failure to alert inside Anderson’s van, its initial alert no longer “warrant[ed] a
person of reasonable caution in the belief” that the van’s interior contained drugs.
In my view, when the dog’s alert is properly discounted, no probable cause for the search
of Anderson’s van was shown. 1 “While conclusive evidence of guilt is not necessary to establish
probable cause, ‘[m]ere suspicion, common rumor, or even strong reason to suspect are not
enough.’” Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009). See also State v.
Cook, 106 Idaho 209, 221, 677 P.2d 522, 534 (Ct. App. 1984) (“[P]robable cause must consist of
more than mere suspicion . . . .”).
The only facts known to the officers here that could contribute to probable cause, apart
from the dog’s initial alert, were Anderson’s aberrant driving before he was stopped, his
admission to Deputy Bernad that he had a drug charge pending, and Deputy Bernad’s
observation that Anderson moved around in his vehicle after the deputy had told him to sit still
1
The State does not contend that probable cause existed absent the dog’s alert.
11
with his hands on the steering wheel. Although the deputy at one point testified that he
suspected that Anderson might be under the influence of a stimulant because of his rapid
movements while seated in the van and his admission of pending drug charges, the deputy later
acknowledged that this was just a hunch. He acknowledged that he did not observe Anderson’s
eyes to be bloodshot or the pupils dilated, and he made no mention in his police report of any
suspicion that Anderson had been using drugs. Nor did the deputy ask Anderson to perform any
sobriety tests. Additionally, a video of the event shows that when Anderson was outside of the
vehicle he was not stumbling or evidencing poor balance nor displaying fidgeting or
uncontrolled muscle movements that might be indicative of drug use. The majority implies that
Anderson did not stop quickly enough after Deputy Bernad activated his lights and siren.
However, the transcript shows that he traveled over a bridge, on which there was no place to pull
over, and continued about an additional block before he stopped. This hardly indicates an effort
to evade or an unreasonable delay in stopping. The majority also cites, as supporting probable
cause, the fact that the vehicle that Anderson was driving was unregistered and that he had no
proof of insurance. 2 While these facts indicate a violation of the law that would warrant issuance
of citations and perhaps further investigation, they are not indicative of drug use or possession.
Thus, when the initial dog alert on the exterior of Anderson’s van is properly discounted
because of the same dog’s “retraction,” the factors cited by the majority do not add up to
probable cause to believe that there were illegal drugs in Anderson’s van when the search was
conducted. Accordingly, I would reverse.
2
Before the search, the deputy confirmed that the vehicle was not stolen.
12