People v. Bartelt ( 2008 )

Filed 9/4/08 NO. 4-07-0311
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Adams County
CHERYL L. BARTELT, ) No. 06CF442
Defendant-Appellee. )
) Honorable
) Scott H. Walden,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In July 2006, the State charged defendant, Cheryl L.
Bartelt, with unlawful possession of methamphetamine (720 ILCS
646/60(b)(1) (West 2006)). In September 2006, defendant filed a
motion to suppress evidence obtained during a traffic stop. In
March 2007, the trial court granted defendant's motion. The
State filed this interlocutory appeal pursuant to Supreme Court
Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)). On appeal, the State
argues the trial court erred by granting defendant's motion to
suppress the evidence. We reverse.
I. BACKGROUND
At the December 2006 hearing on the defendant's motion
to suppress, Officer Mike Tyler testified he was employed with
the Quincy police department for seven years. He also noted he
was formally trained in proper procedures for search and seizure.
On July 29, 2006, Tyler observed a pickup truck parked
on the sidewalk. He recognized the truck as belonging to defen-
dant, whom he had heard used methamphetamines. He watched the
truck for 1 1/2 hours from a one-block distance. At approxi-
mately 8:15 p.m., defendant and a man came out of an apartment
building and put garbage bags in the bed of the truck. Defendant
reentered the apartment, returned to the truck, got into the
driver's seat, and pulled off the sidewalk onto the street.
Tyler followed her vehicle a short distance to a gas station. As
defendant pulled up to the gas station, Tyler turned on the
lights of his police car.
Tyler approached the truck and told defendant her truck
was sitting on the sidewalk for 1 1/2 hours, in violation of the
Illinois Vehicle Code (625 ILCS 5/11-1303(a)(1)(b) (West 2006)).
Tyler explained defendant's violation, got her insurance and
driver's license information, and returned to his vehicle to run
the driver's license through the LEADS system.
Officer Darin Kent arrived on the scene while Tyler was
running the driver's license, and he asked Tyler to set up the
truck for a canine sniff. Tyler ordered defendant to roll up the
windows and turn the vents "on high" blowing out air. Tyler did
not observe any illegal items in plain view. Kent then ran Max,
his canine, around the truck. Max alerted on both doors. Tyler
ordered defendant out of the vehicle and asked whether anything
illegal was in the vehicle. Tyler sent defendant to the rear of
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the truck to talk to Kent.
Tyler testified Kent briefly searched both defendant
and passenger. Tyler then watched defendant and the passenger
while Kent searched the cab of the truck. Kent did not ask
permission to search the vehicle because the dog had alerted to
the vehicle. Kent found a pen casing in a wallet, a digital
scale, and a burnt piece of tinfoil. More burnt tinfoil was
found inside the garbage bags in the bed of the truck. Defendant
was arrested. Officer Darla Pullins arrived and searched defen-
dant and then drove her to police headquarters, where defendant
was read her rights. Defendant asked for an attorney, and Tyler
did not question her.
Tyler stated when he first noticed the truck parked on
the sidewalk he did not know who was responsible for the vehicle
violation. After he looked up the license plate, Tyler became
interested in conducting a traffic stop and drug sniff and
alerted Kent he was waiting for the driver. Tyler estimated Kent
arrived within three minutes of the traffic stop.
Tyler testified when he ordered defendant to set up the
car, he directed her to roll up all the windows and turn the
vents on high blowing air. Tyler said when he goes through the
set up he directs the driver put the car on auxiliary power and
then says, "Can you go ahead [and] close all your windows and
turn your blowers on high."
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Tyler also testified the set-up procedure is one taught
at the canine academy and Kent prefers officers do so to prepare
for a dog sniff. This technique forces air out of a vehicle.
Officer Darin Kent testified he was employed as a
Quincy police officer for 10 1/2 years and had been a canine
handler for the street-crimes unit since 2002. His canine's name
was Max, and Max was a full-service police canine trained in drug
detection, tracking, article searches, and area searches. Kent
initially took a 10-week training course, and he and Max
recertified with an independent evaluator every six months. Kent
had also been trained in advance techniques for canine SWAT and
later became an instructor for new canine handlers through the
Illinois State Police.
Immediately before a canine sniff, Kent stated he
directed the driver to turn the engine off, turn the key to
auxiliary, turn the blower on high, roll up the windows, and
close the doors to force drug odors through the seams of the
vehicles. Canines are trained to specifically sniff a vehicle's
seams. Kent tells drivers they need to comply with the set up,
but he does not threaten them into complying.
During the traffic stop in this case, Kent conducted
the exterior sniff of the vehicle. Max alerted on both the
driver and passenger sides. When Max alerted, he squared his
body to the odor, breathed rapidly, put his paw out, and barked.
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Kent returned Max to the squad car and searched the vehicle. He
found a pen casing with a burnt end and a powder substance on the
inside, several burnt strips of tinfoil, and a digital scale.
Kent also said he was taught the set-up technique by
the Illinois State Police and he in turn taught officers the
same. Drivers are not given a warning before officers request
the vehicle set up. Kent testified to avoid issues regarding a
search before probable cause he would not reach his own hand into
a vehicle to turn on the auxiliary power or blower.
The trial court then questioned Kent about how he would
get consent to search a vehicle. Kent testified officers
typically "finish a traffic stop, completely release them from
the traffic stop, *** [and] then ask if they have time to speak
with us[,] at which time we will then ask for consent to search
the vehicle." When they set up a vehicle for a dog sniff, the
officer says, "[Y]ou need to roll your windows up and turn your
vents on high." Kent does not present it as an option to the
occupants of the vehicle.
Upon conclusion of arguments of counsel, the trial
court granted the motion to suppress evidence, reasoning as
follows:
"The officers had no probable cause to
enter the vehicle before Max alerted. By
requiring the defendant, without her consent,
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to close the doors and windows and turn the
blower on high, the officers in effect moved
and manipulated the air within the vehicle
that would not otherwise have been subject to
their plain view or smell. Max could not
lawfully be where the officers could not
lawfully be. The officers could not lawfully
be in the vehicle, and therefore Max could
not lawfully be in the vehicle. In order for
the 'plain view' or 'plain smell' doctrines
to be applicable, the officer, and in this
case Max, had to be in a place where they
could lawfully be before they could lawfully
view or smell. The court recognizes that Max
was still outside the defendant's truck when
he alerted, but the analogy from [United
States v.] Hutchinson [,471 F. Supp. 2d 497,
(M.D. Pa. 2007)], seems applicable and logi-
cal. In effect, Max was placed inside the
vehicle by the officers. Applying Hutchinson
logic, the court finds that the directing of
the defendant to close the truck's windows
and door and to turn on the blower on high
turned the dog sniff into an unreasonable
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search under the fourth amendment."
II. ANALYSIS
This court will reverse a trial court's ruling on a
motion to suppress where it involves credibility assessments or
factual determinations only if it is against the manifest weight
of the evidence. People v. Driggers, 222 Ill. 2d 65, 70, 853
N.E.2d 414, 417 (2006). A reviewing court examines de novo the
ultimate ruling granting or denying the motion to suppress.
Driggers, 222 Ill. 2d at 70, 853 N.E.2d at 417.
At the outset, we note the arguments on appeal are
limited to the set-up technique employed by the police prior to
the dog sniff and no other portion of the stop is at issue. The
question is whether the police order to defendant to roll up her
windows and turn the blower to high intruded upon a legitimate
privacy interest and constituted a search under the fourth
amendment.
The State argues the trial court's decision should be
reversed because Tyler's orders to set up the vehicle did not
change the nature of the sniff to an unlawful search because (1)
Max remained outside the vehicle and (2) defendant had no legiti-
mate expectation of privacy in the potentially incriminating
odors emanating from her lawfully stopped vehicle.
"A 'search' occurs when an expectation of privacy that
society is prepared to consider reasonable is infringed." United
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States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 94, 104
S. Ct. 1652, 1656 (1984). A field test that has a remote possi-
bility of revealing a noncriminal fact is highly unlikely to
"actually compromise any legitimate interest in privacy" and
cannot be characterized as a search subject to the fourth amend-
ment. Jacobsen, 466 U.S. at 124, 80 L. Ed. 2d at 101, 104 S. Ct.
at 1662 (holding a field test to determine whether a white powder
substance was cocaine was not a search). More recently, the
Court found a dog sniff does not compromise defendant's legiti-
mate interest in privacy because no one has a legitimate interest
in possessing contraband, and the canine drug-sniff, properly
performed, was likely to reveal only the presence of contraband.
Illinois v. Caballes, 543 U.S. 405, 408-09, 160 L. Ed. 2d 842,
847, 125 S. Ct. 834, 837-38 (2005).
The State argues the set-up technique was more properly
compared to government agents prepping luggage for a dog sniff
than to opening a vehicle or a container in its interior.
Federal precedent suggests government agents do not violate the
fourth amendment when they prepare a defendant's luggage to
facilitate a canine sniff for drugs. See United States v. Viera,
644 F.2d 509, 510-11 (5th Cir. 1981) (holding that where govern-
ment agents prepare bags by pressing lightly with the hands and
slowly circulating the air, this does not constitute a search);
see also United States v. Lovell, 849 F.2d 910, 915 (5th Cir.
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1988) (noting where Drug Enforcement Administration (DEA) agents
touched and compressed the sides of defendant's bags to force air
out of them to facilitate a canine sniff, this did not amount to
a search).
The State also argues the decisions relied on by the
trial court to grant the motion to suppress do not by analogy
make the "set up" technique a search. See Arizona v. Hicks, 480
U.S. 321, 324-25, 94 L. Ed. 2d 347, 353-54, 107 S. Ct. 1149, 1152
(1987) (noting the plain-view exception does not allow the police
to seize an item and then further investigate the item's parts
that are not in plain view). Guided by Hicks, the court in
Hutchinson, 471 F. Supp. 2d at 510, stated the "'plain smell'"
doctrine should have no application where an officer "opens a
vehicle or other container to assist a canine in detecting the
presence of contraband, and where the canine has not already
positively alerted or indicated that it has detected the scent of
contraband within the container." In contrast, "the plain-sniff
rule would apply because the dog was not aided in its sniff by an
intervening officer and the dog detected the odor in an area in
which it was lawfully present." Hutchinson, 471 F. Supp. 2d at
510; see also United States v. Winningham, 140 F.3d 1328, 1329
(10th Cir. 1998) (suppressing evidence where border patrol agents
opened the van's sliding door to allow the dog's entry into the
vehicle).
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The State further contends the driver of a car on a
public street has no legitimate expectation of privacy in the
ambient air from his vehicle, if lawfully detained. Specifi-
cally, the order to turn on the blower did not intrude upon a
legitimate privacy interest and was not the equivalent of a
physical entry into the vehicle. In this case, Max's nose did
not intrude into the constitutionally protected area of the
defendant's truck. Max's sniff was limited to the exterior of
the truck, where he had a right to be, and the incriminating
odors from the methamphetamine were expelled outside into the
public air. The canine sniff was focused to reveal only the
presence or absence of contraband and thus was not a fourth-
amendment search.
Defendant argues the trial court made the correct
decision in granting the motion to suppress. The court looked at
the conduct of the police after the stop to determine its valid-
ity. The court distinguished this case from Caballes, 543 U.S.
405, 160 L. Ed. 2d 842, 125 S. Ct. 834, and Driggers, 222 Ill. 2d
65, 853 N.E.2d 414, because the officer ordered the car's blower
turned on. The order turned the lawful dog sniff into an unrea-
sonable search under the fourth amendment.
In Hutchinson, the court noted it was not clear the
decisions in City of Indianapolis v. Edmond, 531 U.S. 32, 148 L.
Ed. 2d 333, 121 S. Ct. 447 (2000), and Caballes, 543 U.S. 405,
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160 L. Ed. 2d 842, 125 S. Ct. 834, "would support a dog sniff
that moves from the exterior of an automobile to the interior of
the car." Hutchinson, 471 F. Supp. 2d at 505. In United States
v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), the Tenth Circuit
opined people have a reasonable expectation of privacy in the
interiors of their automobiles, but it upheld an interior sniff
as lawful where a canine jumped though an open hatchback and
alerted on a duffle bag. In Stone, the police never asked the
defendant to open the hatchback and did not encourage the canine
to jump into the car. Stone, 866 F.2d at 364. Whereas in
Winningham, evidence was suppressed where (1) the officers lacked
reasonable suspicion of narcotics in a van, (2) the officers
opened the van's door, and (3) the canine officer unleashed the
dog as it approached the open door. Winningham, 140 F.3d at
1331.
The trial court here relied on the Hutchinson logic.
The court found a greater expectation of privacy in the interior
of the vehicle than on the exterior. Further, the dog sniff was
tainted by the set-up orders of the police because it invaded the
interior of the car via police action and the orders were made
before reasonable suspicion or probable cause existed.
Defendant points to People v. Love, 199 Ill. 2d 269, 769
N.E.2d 10 (2002), to support her fourth-amendment argument. In
Love, officers made a stop in accordance with Terry v. Ohio, 392
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U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), after observing
"what appeared to be a drug transaction," in which the defendant
exchanged money for something pulled from her mouth. Love, 199
Ill. 2d at 277, 769 N.E.2d at 16. Our Illinois Supreme Court
found an order to defendant to spit out what was in her mouth was
lawful as a search incident to arrest because probable cause
existed before the order was given. Love, 199 Ill. 2d at 280,
769 N.E.2d at 17-18.
Defendant argues the police order in this case was
designed to magnify the odors from the interior of the car for
the canine's plain sniff and is analogous to police being allowed
to order defendant sitting in her vehicle to open a purse or
other container within the car to increase plain view of the
interior. Defendant contends the sequence required to satisfy
the fourth amendment is first a drug-dog alert and then permissi-
ble requests or orders, rather than first impermissible requests
or orders followed by a canine inspection.
A recent decision by the Supreme Court illuminates
reasonable search and seizure under the fourth amendment. In
Virginia v. Moore, 553 U.S. ___, 170 L. Ed. 2d 559, 128 S. Ct.
1598 (2008), the Court stated:
"When history has not provided a conclu-
sive answer, we have analyzed a search or
seizure in light of traditional standards of
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reasonableness 'by assessing, on the one
hand, the degree to which it intrudes upon an
individual's privacy and, on the other, the
degree to which it is needed [to] the promo-
tion of legitimate governmental interests.'"
Moore, 553 U.S. at ___, 170 L. Ed 2d at 567,
128 S. Ct. at 1604, quoting Wyoming v.
Houghton, 526 U.S. 295, 300, 143 L. Ed. 2d
408, 414, 119 S. Ct. 1297, 1300 (1999).
The Court later noted, "[i]n determining what is reasonable under
the [f]ourth [a]mendment, we have given great weight to the
'essential interest in readily administrable rules.'" Moore, 553
U.S. at ___, 170 L. Ed. 2d at 569, 128 S. Ct. at 1606, quoting
Atwater v. City of Lago Vista, 532 U.S. 318, 347, 149 L. Ed. 2d
549, 573, 121 S. Ct. 1536, 1554 (2001).
The Idaho Supreme Court considered what is reasonable
under the fourth amendment in Idaho v. Irwin, 143 Idaho 102, 137
P.3d 1024 (2006). In Irwin, the defendant argued police officers
subjected her to an unreasonable search when the officers opened
the door of the defendant's automobile before directing the
defendant to exit. Irwin, 143 Idaho at 104, 137 P.3d at 1026.
That court reviewed fourth amendment jurisprudence in determining
whether the search was consistent with constitutional standards.
In that case, the court noted there was no question the officers
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possessed reasonable suspicion to detain the defendant for
traffic violations. Given that, the officers were entitled to
order the defendant out of the vehicle. Irwin, 143 Idaho at 105,
137 P.3d at 1027. The court found because officers have clear
authority to order people out of vehicles during a roadside stop,
it is constitutionally irrelevant whether the officer or the
occupant opens the car door. Irwin, 143 Idaho at 106, 137 P.3d
at 1028. The Idaho Supreme Court noted under Pennsylvania v.
Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 337, 98 S. Ct. 330,
333 (1977), that a mere inconvenience cannot prevail when
balanced against legitimate concerns about officer safety.
At oral argument, defense counsel conceded that (1) the
officer could properly order the driver to get out of the truck
essentially whenever the officer wished and (2) had the officer
waited until the dog was present at the truck's front door,
through which the driver would get out of the vehicle, before
ordering the driver out (thereby bringing the ambient air with
her), then she would have no basis to complain about the police
conduct. In light of traditional standards of reasonableness,
the degree to which this conduct intruded on defendant's privacy
borders on de minimis. The driver is being asked to expose a
little more ambient air than would have otherwise been exposed.
The conduct may be needed for the promotion of legitimate govern-
mental interests, i.e., detecting the presence of illegal drugs
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in the ambient air of the vehicle's interior by a trained dog.
We find the set-up technique to be a practical tool of
police work that does not interfere with the reasonable expecta-
tion of privacy in the interior of defendant's car. Under
Caballes, "[a] dog sniff conducted during a concededly lawful
traffic stop that reveals no information other than the location
of a substance that no individual has [the] right to possess does
not violate the [f]ourth [a]mendment." Caballes, 543 U.S. at
410, 160 L. Ed. 2d at 848, 125 S. Ct. at 838. The amplification
of odors emanating from noncontraband within the car is otherwise
innocuous.
The set-up procedure is quick and nonintrusive; thus,
it does not impermissibly lengthen the duration of the stop. It
also ensures the canine remains outside the vehicle during the
sniff, as both the doors and windows are closed. This is a
practical technique that balances a defendant's reasonable
expectation of privacy with the opportunity to allow law enforce-
ment to ferret out crime. No fourth-amendment violation occurs
when an officer lawfully investigating a traffic violation orders
the occupant to roll up the windows and turn on the blowers to
facilitate a dog sniff.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment suppressing evidence and remand for further proceedings.
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Reversed.
STEIGMANN, J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
I respectfully dissent and would affirm the decision of
the circuit court.
A police officer who has stopped a vehicle for a
traffic violation does not have unbridled authority to order and
conduct chemical tests. The officer may not search the vehicle,
absent probable cause or consent. The officer may not force the
driver, and certainly not the passengers, to submit to a
Breathalyzer test, although the driver's failure to do so will be
admissible in a DUI prosecution. People v. Jones, 214 Ill. 2d
187, 201, 824 N.E.2d 239, 247 (2005). However, the officer is
not required to ignore things in plain view. "Plain view"
includes items that would be within the "plain smell" of a dog at
the exterior of a vehicle. In the present case, the officer
impermissibly went beyond what was in plain view and ordered the
occupants of the vehicle to engage in testing.
The circuit court gave a lot of thought to this case
and set out its reasoning in a carefully written order:
"Having determined that the stop was
proper, the issue really boils down to
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whether or not the defendant's [f]ourth
[a]mendment rights were violated by the
officers instructing her to close the truck's
windows and doors and turn the blowers on
high. This seems to be a case of first im-
pression. There was no basis for the officers
to search the truck before Max alerted on the
truck. There was no consent to search prior
to Max's alert, and in fact, no consent to
search the truck was ever requested by the
officers. There was no probable cause to
search the truck before Max alerted.
It is important to note that the length
of the stop was not unreasonably extended by
virtue of involving the canine officer in
this stop. Officer Kent arrived with Max
within approximately three minutes of Officer
Tyler stopping the car, and Officer Tyler
was still writing the parking ticket when
Max alerted on the truck. (See People v.
Brownlee, 186 Ill. 2d 501[, 713 N.E.2d 556]
(1999), People v. Gonzalez, 204 Ill. 2d 220[,
789 N.E.2d 260] (2003), and People v. Bunch,
207 Ill. 2d 7[, 796 N.E.2d 1024] (2003).)
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Illinois v. Caballes, 543 U.S. 405[,
160 L. Ed. 2d 842, 125 S. Ct. 834] (2005),
holds that a dog sniff for drugs does not
change the character of an already proper
stop and that such a dog sniff does not in-
fringe on a constitutionally protected right
of privacy. Therefore, it is not a search
subject to the [f]ourth [a]mendment. A drug
dog's sniff reveals only the presence of
contraband, and people have no legitimate
interest in possessing contraband. Thus, no
legitimate privacy interest is compromised
by a drug dog's sniff. [Caballes, 543 U.S.
at 408[, 160 L. Ed. 2d at 897, 125 S. Ct. at
837-38].
It seems important to note that in
Caballes and People v. Driggers, 222 Ill. 2d
65[, 853 N.E.2d 414] (2006), another drug dog
case in which the sniff was not found to im-
plicate the [f]ourth [a]mendment, the sniffs
occurred on the exterior of the vehicle. In
the case at hand, Max alerted on the defen-
dant's truck from the outside of the truck,
but he had some help. The drug-tainted air
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from the interior was being forced out of
the truck by the turned- up blowers. The
blowers were turned up by the defendant, but
only upon the demand of the officers. The
State would argue that since the defendant
does not have a constitutionally protected
interest in contraband or its odor, the dis-
tinction makes no substantive difference.
The State argues that since the police had
the right to direct the defendant to get out
of her truck, then the air inside is exposed
by the opening of the door. If Max had
alerted on the truck from the exterior of
the truck through the open door, then
Caballes and Driggers would clearly apply.
However, that is not all that happened in this
case.
While, again, there does not appear to
be a case exactly on point, the court finds
the case of [United States] v. Hutchinson, [471]
F. Supp. 2d [497] (M.D. Pa. [2007]), to be help-
ful in addressing the issue. Hutchinson
contains a rather thorough discussion of a
line of cases that holds that when a drug
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dog enters a vehicle through an already
opened door or window of its own accord,
driven by its natural instincts, that the
dog's entry into the vehicle does invalidate
an otherwise lawful sniff. (Among the cases
cited are two supplied in this case by the
defense: [United States] v. Stone, 866 F.2d
359 ([10th Cir.] 1989), and [United States] v.
Winningham, 140 F.3d 1328 ([10th Cir.] 1998).)
In Winningham, the drug dog alerted after
entering the van through a door opened by
the defendant at the direction of the officer
making a lawful stop. The court held that
the defendant had not given consent for the
dog to enter the van, and therefore the re-
sulting discovery of drugs was in violation
of the [f]ourth [a]mendment. The court in
Hutchinson used the 'plain view' and 'plain
smell' doctrines in its analysis of the impact
of a drug dog's entry into a vehicle to deter-
mine the legality of the seizure. '[T]he
majority of federal courts *** have concluded
that canine sniffs of the interior of a
vehicle or other container are lawful, but
- 20 -
suggest that such interior sniffs may become
constitutionally infirm in the event that the
interior sniff is accomplished or facilitated
by the officer-handler.' [Hutchinson, 417 F.
Supp. 2d] at [508]. 'Notably, the Supreme
Court has held that where an officer who is
lawfully present at [a] particular location
moves or manipulates an object seen in plain
view, and where the officer has no probable
cause to search the item, the act of moving
or manipulating the object constitutes an
unreasonable search under the [f]ourth [a]mend-
ment that is not subject to the plain[-]view
doctrine.' [Hutchinson, 471 F. Supp. 2d] at
[509]. The court in Hutchinson goes on to
hold that 'Where an officer opens a vehicle
or other container to assist a canine in
detecting the presence of contraband, and
where the canine has not already positively
alerted or indicated that it has detected
the scent of contraband within the container,
it seems logical to conclude that the "plain
smell" doctrine should have no application,
since the positive sniff that results was
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presumably aided or achieved impermissibly
by the officer's manipulation of the con-
tainer.' [Hutchinson, 471 F. Supp. 2d at 510].
Courts in at least two other states have
ruled, consistent with this reasoning, that
when an officer encourages a drug dog to
enter a vehicle when it had not first alerted
on the vehicle's exterior, that the dog's
actions constituted an unlawful search. (See
State v. Warsaw, 125 N.M. 8, [12,] 956 P.2d 139[,
143] (1997), and State v. Freel, 29 Kan. App. 2d
852, [860,] 32 P.3d 1219 [, 1225] (2001).)
While again not directly on point, the
Hutchinson logic seems applicable to the
case at hand. The officers had no probable
cause to enter the vehicle before Max alerted.
By requiring the defendant, without her con-
sent, to close the doors and windows and turn
the blower on high, the officers in effect
moved and manipulated the air within the
vehicle that would not otherwise have been
subject to their plain view or smell. Max
could not lawfully be where the officers could
not lawfully be. The officers could not law-
- 22 -
fully be in the vehicle, and therefore Max
could not lawfully be in the vehicle. In
order for the 'plain view' or 'plain smell'
doctrines to be applicable, the officer, and
in this case Max, had to be in a place where
they could lawfully be before they could law-
fully view or smell. The court recognizes
that Max was still outside the defendant's
truck when he alerted, but the analogy from
Hutchinson seems applicable and logical. In
effect, Max was placed inside the vehicle by
the officers. Applying the Hutchinson logic,
the court finds that the directing of the
defendant to close the truck's windows and
doors and to turn the blower on high turned
the dog sniff into an unreasonable search
under the [f]ourth [a]mendment. Therefore,
the court grants the defendant's motion to
suppress evidence, and all evidence seized
from the defendant's truck is hereby supp-
ressed."
We should affirm.
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