State of Arizona v. Rosa Elene Becerra

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
ROSA ELENA BECERRA,
Appellant.
No. 2 CA-CR 2014-0295
Filed January 25, 2016
Appeal from the Superior Court in Pima County
No. CR20111519001
The Honorable Scott Rash, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
STATE v. BECERRA
Opinion of the Court
OPINION
Judge Miller authored the opinion of the Court, in which Judge
Espinosa concurred and Chief Judge Eckerstrom dissented.
M I L L E R, Judge:
¶1 Rosa Becerra was convicted after a jury trial of
possession of drug paraphernalia and methamphetamine for sale
and sentenced to a combined prison term of five years. On appeal,
she contends the trial court erred in denying her motion to suppress
the methamphetamine when it concluded that her written and oral
consent to search her car included inspection by a drug-detection
dog (K-9). For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 In reviewing a trial court’s ruling on a motion to
suppress, the appellate court considers only the evidence presented
at the suppression hearing. State v. Spears, 184 Ariz. 277, 284, 908
P.2d 1062, 1069 (1996). In addition, we “view the facts in the light
most favorable to sustaining the trial court’s ruling.” State v.
Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). Only the
officer who conducted the search testified at the suppression
hearing.
¶3 In 2011, a Department of Public Safety officer stopped
Becerra’s car for speeding and a cracked windshield. After issuing a
written warning for the traffic violation and a repair warning for the
windshield, the officer asked Becerra if he could search the vehicle,
to which she said yes. The officer then gave her a consent-to-search
form, which stated in both English and Spanish:
I, [name], give consent to search my vehicle
and any of its contents under my control. I
understand that:
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STATE v. BECERRA
Opinion of the Court
(1) I can refuse to allow my vehicle to be
searched.
(2) I can withdraw my consent to search at
any time.
(3) Any evidence found during this search
can be used against me in court.
(4) This consent does not include property
of any individual adult passengers.
Separate consent must be obtained from
those individuals.
After confirming that Becerra could read Spanish, the officer asked
her to read through the form and sign it if she agreed, and added
that if she had any questions she could ask him. She signed the
Spanish portion of the form. He asked her if she understood the
form, and she said yes.1 Their conversation was in English.
¶4 The officer directed Becerra and her passengers to exit
the car and stand on a sidewalk about twenty feet from the car. He
went to his patrol car, which was parked behind Becerra’s car, and
retrieved his K-9. The officer testified that his patrol car was visible
from the sidewalk and Becerra was able to see him take the K-9 out
of the patrol car. Becerra was standing close enough that the officer
“[m]ost definitely” could have heard her if she had said something
to him, but she did not. He testified that throughout the
investigation, he never saw or heard her do or say anything to
indicate that she withdrew her consent to search the car.
1After the opening brief was filed in this appeal, the United
States Supreme Court issued its opinion in Rodriguez v. United States,
___ U.S. ___, ___, 135 S. Ct. 1609, 1612 (2015), holding that police
may not prolong an otherwise-completed traffic stop to conduct a
dog sniff absent reasonable suspicion of criminal activity. Because
the parties disagreed as to what effect Rodriguez might have on the
present case, we solicited supplemental briefing. We conclude the
record does not permit us to address the issue and express no
opinion about its application here.
3
STATE v. BECERRA
Opinion of the Court
¶5 The officer had the K-9 conduct an exterior sniff of
Becerra’s car by walking all the way around it. The K-9 did not alert
to the exterior of the car. The officer next directed the K-9 to sniff
the interior of the car. The K-9 alerted to a purse placed on the
driver’s seat.2 The officer returned the K-9 to his vehicle and then
searched the purse, finding the methamphetamine inside.
¶6 In her motion to suppress Becerra argued the seizure of
the methamphetamine violated the Fourth Amendment because the
use of a K-9 to sniff the interior of the car exceeded the scope of her
consent. The trial court denied the motion, finding Becerra freely
and intelligently consented to a search and the actual search
remained within the bounds of her consent. A jury found her guilty
of the charge and after she was convicted and sentenced as
described above, she appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Consent to Search Vehicle With K-9
¶7 A warrantless search of a car without the driver’s
consent or probable cause to believe it contains contraband or other
evidence of a crime violates the Fourth Amendment. See U.S. Const.
amend. IV; California v. Carney, 471 U.S. 386, 390 (1985) (automobile
exception to warrant requirement justified by lessened expectation
of privacy in vehicle); see also Ariz. Const. art. II, § 8; State v. Reyna,
205 Ariz. 374, 375, ¶ 5, 71 P.3d 366, 367 (App. 2003). Because the
state did not assert the officer had probable cause to search her car,
Becerra’s consent was the only issue addressed at the suppression
hearing. We review the trial court’s ruling on a motion to suppress
for an abuse of discretion. State v. Butler, 232 Ariz. 84, ¶ 8, 302 P.3d
609, 612 (2013).
¶8 Determining the validity of a law enforcement officer’s
search based on consent generally involves two factors: (1) whether
the consent was voluntarily given and (2) whether the search was
within the scope of the consent. See State v. Paredes, 167 Ariz. 609,
2Becerra conceded in her motion that the purse belonged to
her.
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STATE v. BECERRA
Opinion of the Court
612-13, 810 P.2d 607, 610-11 (App. 1991). Becerra acknowledges that
her oral and written consent was voluntary. Her single contention
on appeal, as she argued below, was that the scope of her consent
did not reasonably extend to a search of the inside of her car by the
officer’s K-9.
¶9 A general consent to search is unqualified, absent any
announcement of the object of the search or other express limitation,
subject only to the bounds of reasonableness. See United States v.
McWeeney, 454 F.3d 1030, 1034-35 (9th Cir. 2006). Even after a
person initially consents to a search, she nevertheless remains free to
withdraw or narrow the scope of her consent at any time. Id. at
1034. “The standard for measuring the scope of a suspect’s consent
under the Fourth Amendment is that of ‘objective’ reasonableness—
what would the typical reasonable person have understood by the
exchange between the officer and the suspect?” Florida v. Jimeno, 500
U.S. 248, 251 (1991). 3
¶10 Becerra argues “no reasonable person would believe
that a dog was going to be placed into the interior of their vehicle”
when consenting to a search. She reasons that absent an explicit
question by the officer, such as “whether he and his dog could
search,” the officer should assume consent does not include the
assistance of a K-9. She supports her reasonable person argument
with examples of why some people do not want dogs around them
or their property: the presence of hair, claws, saliva, and
indiscriminately wagging tails. Although it is undoubtedly true that
3In its expanded statement of the issue, the Court actually asks
whether the officer’s beliefs about the consent exchange were
“objectively reasonable.” Jimeno, 500 U.S. at 249, 251. An officer’s
beliefs, to be objectively reasonable, must be based on what a
reasonable lay person in those circumstances would have believed.
For instance, in State v. Ahumada, which relied on Jimeno, the court
discussed circumstances from which the officer might have
concluded the scope of consent included a search of the pockets, but
based its holding on what “reasonable persons” would have
understood. 225 Ariz. 544, 546, ¶¶ 7, 14, 241 P.3d 908, 910, 912 (App.
2010).
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STATE v. BECERRA
Opinion of the Court
some people prefer to avoid dogs for those reasons, the issue of
objective reasonableness to determine the scope of a consent to
search does not turn on the personal likes or dislikes of the
defendant, or even the preferences of a group of people. See, e.g.,
United States v. Marshall, 348 F.3d 281, 287 (1st Cir. 2003) (consenting
party’s subjective belief irrelevant). Instead, it depends on the
rational beliefs and knowledge of a reasonable person. For instance,
in Jimeno, the defendant argued and the Florida appellate court
agreed that consent to search a vehicle would not reasonably include
the closed containers within it. 500 U.S. at 250. The Supreme Court
rejected this per se rule, however, because a “reasonable person may
be expected to know that narcotics are generally carried in some sort
of container.” Id. at 251 (emphasis added). Here, the issue is
whether a person who has generally consented to a search of her
vehicle may expect that a law enforcement officer could use a K-9 to
assist in the search.
¶11 K-9s have assisted law enforcement officers conducting
searches for more than a century because of their superior olfactory
abilities. See, e.g., Hodge v. State, 13 So. 385, 385 (Ala. 1893) (search
capabilities of K-9s “common knowledge” by 1893); see also Charles
F. Sloane, Dogs in War, Police Work and on Patrol, 46 J. Crim. L. &
Criminology 385, 388 (1955) (noting dogs have been used to track
criminals since at least fifteenth-century England). They have been
used to detect drug contraband for more than forty years. See, e.g.,
United States v. Fulero, 498 F.2d 748, 749 (D.C. Cir. 1974) (per curiam)
(marijuana-sniffing K-9 “had been working at the port of entry at
San Luis, Arizona regularly for at least two years” by time of trial).
In fact, K-9s are a ubiquitous part of modern law enforcement. See,
e.g., United States v. Howard, 448 F. Supp. 2d 889, 891 (E.D. Tenn.
2006) (noting the “great number of criminal cases” involving drug
detection K-9s); see also Charles L.W. Helm, Note, A Huff and a Puff Is
No Longer Enough: How the Supreme Court Built a House of Bricks With
Its Decision In Florida v. Jardines, 9 Liberty U.L. Rev. 1, 12 (2014)
(noting that in addition to drug investigations, K-9s are used “to
find missing persons, sweep for explosives, find remains of murder
victims, locate discarded pieces of evidence, or even assist fire
investigators in determining if an accelerant might have been
used”).
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STATE v. BECERRA
Opinion of the Court
¶12 Knowledge about the role of K-9s in law enforcement is
not limited to criminal justice circles. Many patrol vehicles display
prominent signs that the officer is accompanied by a K-9. See, e.g.,
People v. Bell, 51 Cal. Rptr. 2d 115, 117 (Ct. App. 1996) (noting “patrol
car was marked ‘K-9’”), abrogated on other grounds by People v.
Brendlin, 136 P.3d 845 (Cal. 2006), vacated, Brendlin v. California, 551
U.S. 249 (2007). In fact, placing K-9 markings on a private car may
be particularly important in determining whether a person is
attempting to impersonate a police officer. See State v. Beaubrun, 36
So. 3d 897, 900 (Fla. Dist. Ct. App. 2010).
¶13 The training and work of K-9s is recognized in widely
viewed documentaries, such as ones produced by National
Geographic and Animal Planet. See Alpha Dogs, National
Geographic, http://channel.nationalgeographic.com/wild/alpha-dogs/
(last visited Jan. 8, 2016); K-9 Cops Videos, Animal Planet,
http://www.animalplanet.com/tv-shows/other/videos/k9-cops/
(last visited Jan. 8, 2016). K-9s even have a place in popular culture
as demonstrated by their leading roles in movies and television. See,
e.g., K-9 (Universal Pictures 1989); Rin Tin Tin: K-9 Cop (The Family
Channel 1988-93). The reasonable person in the United States would
not be surprised or find any novelty in a law enforcement officer’s
use of a K-9, just as he or she might use a flashlight, to search a
vehicle for drug contraband. Therefore, we cannot accept Becerra’s
contention that the constitution mandates a per se rule excluding
K-9s from the scope of a general consent and requiring officers to
explicitly ask for permission to search with a K-9.
¶14 Rejection of Becerra’s proposed bright-line rule does not
mean adoption of the opposite rule—i.e., everyone must assume a
K-9 will be used in all searches. Instead, trial courts must look to the
totality of the circumstances in the exchange between the officer and
person to determine whether a consensual search remained within
the bounds of the consent actually given, and appellate courts will
affirm the trial court’s judgment absent clear error. State v. Swanson,
172 Ariz. 579, 583, 838 P.2d 1340, 1344 (App. 1992). Arizona
precedent and persuasive federal case law guide our consideration
of the suppression ruling.
7
STATE v. BECERRA
Opinion of the Court
¶15 In State v. Paredes, this court held the trial court erred in
concluding that the use of a K-9 in a vehicle search exceeded the
scope of a general consent. 167 Ariz. at 613, 810 P.2d at 611. In that
case the officer had asked if he “could look through the vehicle,”
Paredes consented, and then the officer retrieved his K-9 from the
patrol vehicle. Id. at 610, 810 P.2d at 608. In rejecting Paredes’s
argument, we observed that when he consented, the K-9 was on the
scene and “the defendant did not revoke his consent when the dog
was brought to the vehicle.”4 Id. at 613, 810 P.2d at 611. Finding
instructive the Fifth Circuit’s reasoning in United States v. Gonzalez-
Basulto, 898 F.2d 1011 (5th Cir. 1990) (per curiam), we found the
presence of the K-9 and the absence of an objection by the defendant
or revocation of his consent crucial to our determination that the
trial court had erred by granting the motion to suppress. 167 Ariz.
at 613, 810 P.2d at 611.
¶16 In Gonzalez-Basulto, border patrol agents at an
immigration checkpoint asked the defendant if he would “mind
opening the trailer for an inspection,” to which he replied, “‘No
problem.’” 898 F.2d at 1012. Unlike the officer here, the border
patrol agents did not inform Gonzalez-Basulto of his right to refuse
or to withdraw consent to search. Id. at 1013. Nonetheless, the court
held that because the defendant could observe K-9s at the
checkpoint before he gave his consent and he stood by silently as the
K-9 entered the trailer, the district court properly concluded search
with a K-9 did not exceed the scope of consent. Id. Becerra provides
no authority rejecting the reasoning in Gonzalez-Basulto, and our
own research discloses general acceptance of it. See, e.g., Bell, 51 Cal.
Rptr. 2d at 126 (defendant who knew officer was accompanied by K-
9 should expect it would assist search); Castro v. State, 755 So. 2d 657,
659 (Fla. Dist. Ct. App. 1999) (no objection when K-9 began search).
4 Becerra contends this language is dicta because the K-9 in
Paredes also alerted to the trunk, but we conclude the holding cannot
be limited to an exterior search, especially in light of the court’s
reliance on United States v. Gonzalez-Basulto, 898 F.2d 1011 (5th Cir.
1990) (per curiam).
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STATE v. BECERRA
Opinion of the Court
¶17 Both parties cite United States v. Woods, 445 F. Supp. 2d
1328 (M.D. Ala. 2006), as additional persuasive authority. In that
case a police officer stopped the defendant’s car based on reasonable
suspicion that the defendant was involved in drug activity. Id. at
1330. The defendant denied having contraband in the car. Id. “‘So,
you don’t mind if I search it?’” the officer asked, and the defendant
replied, “‘[N]o.’” Id. The officer began to search inside the vehicle.
Id. About ten minutes into the stop, a K-9 team arrived. Id. The
handler spoke to the defendant for a few minutes. Id. The K-9
subsequently alerted to drugs hidden in the center console. Id. at
1330-31. In denying the defendant’s motion to suppress the drugs,
the court reasoned that “before the canine search began, [the
defendant] had been fully aware for some time of the dog’s presence
and its purpose; that a canine search ensued as part of [his] consent
came as no surprise to anyone present.” Id. at 1332. The defendant
“‘had ample opportunity to limit the scope of the search, or request
that it be discontinued’” after realizing a K-9 would be used, but he
did not do so. Id., quoting United States v. Harris, 928 F.2d 1113, 1117-
18 (11th Cir. 1991). On these facts, the court concluded that the
defendant’s general consent to a search of the car reasonably
included the use of a drug-sniffing K-9 in the interior of the car
where narcotics might reasonably be hidden. Id. at 1332-33.
¶18 Becerra attempts to distinguish Paredes, Gonzalez-
Basulto, and Woods on the basis that in each case “it was abundantly
clear to the defendant that dogs were being utilized for the vehicle
searches prior to obtaining the consent or conducting the search.”
She essentially argues the facts in those cases are more compelling,
but by this argument also implicitly contends the trial court
committed clear error in finding that the search with the K-9 “was
within the bounds of consent.” We disagree. There was sufficient
evidence that Becerra, like the defendant in Woods, was “fully aware
. . . of the dog’s presence and its purpose” before the K-9 entered the
vehicle. 445 F. Supp. 2d at 1332. Moreover, as in Paredes, Gonzalez-
Basulto, and Woods, the trial court had before it uncontested evidence
that Becerra did not object when presented with unambiguous
indications that the officer would use a K-9 to assist in the search.
On this record, we cannot conclude the trial court committed clear
error in its factual finding regarding the scope of consent.
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STATE v. BECERRA
Opinion of the Court
¶19 Becerra also relies on Dominguez v. State, 616 So. 2d 506(Fla. Dist. Ct. App. 1993), to distinguish Woods. There, the defendant
consented to a warrantless search of his apartment for narcotics. Id.
at 506. Fifteen minutes later, a K-9 was brought to the scene. Id. at
506-07. After the K-9 alerted to a sink in the apartment, the officers
opened the wall behind the sink to find narcotics hidden there. Id. at
507 & n.1. The court found the use of the K-9 exceeded the
reasonable scope of the defendant’s consent. Id. at 507. But
Dominguez is distinguishable for two reasons. First, the court was
careful to note that its holding rested on the absence of any
“circumstances from which consent to the use of the drug detection
dog could be reasonably implied.” Id. For instance, it distinguished
Gonzalez-Basulto because the K-9s were “openly used and were visible
to [the] defendant.” Id. (emphasis added). Likewise, the K-9 was
visible to Becerra. Second, the court emphasized that the search in
question was an invasive search of a private home, where one’s
reasonable expectation of privacy under the Fourth Amendment is
at its apex. Id. The court thus scrutinized defendant’s consent
“‘with special care.’” Id., quoting Gonzalez v. State, 578 So. 2d 729, 734
(Fla. Dist. Ct. App. 1991). Courts have long recognized that one has
a lesser expectation of privacy in a vehicle than in a private home.
See, e.g., Carney, 471 U.S. at 390-91; Carroll v. United States, 267 U.S.
132, 153 (1925). Similarly, cases involving a K-9 brought onto the
curtilage of a home are inapposite. See Florida v. Jardines, ___ U.S.
___, ___, 133 S. Ct. 1409, 1415-16 (2013); State v. Foncette, 238 Ariz. 42,
¶¶ 15-16, 356 P.3d 328, 331-32 (App. 2015) (K-9 sniff of hotel hallway
did not invade constitutionally protected area even though in close
proximity to one).
K-9 Exterior Vehicle Search Affecting Consent to Interior Search
¶20 The dissent seemingly would adopt Becerra’s proposed
per se rule, or at least concludes the Fourth Amendment requires the
state to show something more than the fact that the defendant had
given a general consent to search and had been able to see the K-9
with the officer as the officer approached the vehicle to conduct the
search. We will not repeat the discussion of Becerra’s arguments our
colleague finds persuasive, but separately consider his additional
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STATE v. BECERRA
Opinion of the Court
reasoning that a K-9 exterior sniff eliminates a person’s ability to
withdraw her consent.
¶21 The dissent reasons that because law enforcement
officers are not required to obtain consent for a K-9 sniff of the
exterior of a car under Illinois v. Caballes, 543 U.S. 405 (2005), a
person would never know the officer’s intentions until the moment
the K-9 was in the car. This rationale places too much weight on
Caballes. First, even assuming a person knows she has no basis for
objecting to an exterior sniff, it does not inhibit a reasonable person
from asking whether the officer will direct the K-9 to enter the
vehicle. For instance, Becerra was close by and easily could have
made that inquiry but did not do so. Second, there was no evidence
before the trial court establishing or even suggesting Becerra was
surprised or concerned when the K-9 was directed to the driver’s
seat. 5 Had Becerra indicated that she only expected the K-9 to
conduct an exterior sniff, the trial court could have considered that
fact as part of the totality of the circumstances. See, e.g., State v.
Ontiveros-Loya, 237 Ariz. 472, ¶ 24, 352 P.3d 941, 948 (App. 2015)
(scope of consent is question of fact to be determined from totality of
circumstances). Finally, the argument contradicts the reasoning in
Paredes, Gonzalez-Basulto, and Woods. The presence of the K-9 is the
impetus for the person to make additional inquiries or to withdraw
consent. In this respect, Paredes is directly on point because consent
to search was given before the K-9 left the officer’s patrol car. 167
Ariz. at 610, 613, 810 P.2d at 608, 611. Additionally, Caballes does not
negate the reasoning in those cases because the defendant declined
to give consent; therefore, the holding and the Court’s reasoning
does not apply here. 543 U.S. at 410 (K-9 exterior sniff during lawful
traffic stop does not violate Fourth Amendment because it only
reveals location of contraband person has no right to possess).
¶22 In sum, contrary to our dissenting colleague’s
characterization, we do not “contend that only an unreasonable
person would be uncomfortable with a strange animal entering her
5It is not clear from the record that the K-9 actually entered the
car; instead, it could have alerted to the purse as soon as the car door
was opened. Nonetheless, we assume the K-9 entered the vehicle.
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STATE v. BECERRA
Opinion of the Court
private space.” Rather, we conclude that when a person has
consented to a search of her vehicle after having been unequivocally
informed the consent could be withdrawn at any time, a reasonable
person would do so if she felt the use of a K-9 in conducting the
search was objectionable or unacceptable for any reason. This
conclusion is consistent with our jurisprudence and the protections
of the Fourth Amendment.
Disposition
¶23 For the reasons stated, the trial court did not abuse its
discretion in denying Becerra’s motion to suppress. We therefore
affirm the convictions and the sentences imposed.
E C K E R S T R O M, Chief Judge, dissenting:
¶24 A person’s general consent to a search, during a routine
traffic stop, neither foreseeably nor reasonably includes an
expectation that a dog will be invited into the interior of one’s
vehicle. Therefore, the state was obliged here to demonstrate that
Becerra waived her Fourth Amendment right to protection from
such an additional intrusion. Because Becerra had no legal duty to
object to a search exceeding the scope of her consent, and because
she could not divine the officer’s unspoken intention to ultimately
invite the dog inside her car even if she possessed such a duty, I
cannot agree that her mere silence sufficed to demonstrate her
consent to that intrusion.
¶25 When an officer conducts a search pursuant to consent,
“[t]he scope of [that] search is generally defined by its expressed
object.” Florida v. Jimeno, 500 U.S. 248, 251 (1991). If an officer has
not provided any express purpose for the search, the consent is
understood as a general and unqualified consent. United States v.
Snow, 44 F.3d 133, 135 (2d Cir. 1995). In that context, a defendant’s
failure to object to an action that would reasonably be perceived as
part of the general search may be taken as consent. See United States
v. Starr, 533 F.3d 985, 996 (8th Cir. 2008); United States v. Gordon, 173
F.3d 761, 766 (10th Cir. 1999); Guy v. State, 913 A.2d 558, 563-64 (Del.
2006).
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STATE v. BECERRA
Opinion of the Court
¶26 But a general consent is not without limits. A general
consent “is constrained by the bounds of reasonableness: what a
police officer could reasonably interpret the consent to encompass.”
United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990). Courts
have found that a general consent does not encompass a search that
destroys property, see United States v. Osage, 235 F.3d 518, 521-22
(10th Cir. 2000); Strickland, 902 F.2d at 941-42, or that is overly
invasive of a person’s bodily privacy. See United States v. Blake, 888
F.2d 795, 800 (11th Cir. 1989).
¶27 I would conclude that the use of a dog to search the
interior of a car falls outside the scope of a general consent to a
search, at least in the absence of some circumstances that would put
a reasonable person on notice at the time consent is given that a dog
might be so used. See State v. McLeod, 664 So. 2d 983, 984-85 & 984
n.1 (Fla. Dist. Ct. App. 1995). As the majority has correctly noted, the
scope of consent is defined by what a reasonable person would have
understood the consent to mean. Jimeno, 500 U.S. at 251. The state
contends the use of a dog was analogous to any other tool that an officer
might use in conducting a search, such as a flashlight, and therefore
required no separate consent. In apparent accord with this analogy, the
majority observes that dogs are frequently and openly used as a tool by
law enforcement in a number of contexts.
¶28 But, in addressing the Fourth Amendment issue before us,
the pertinent question is not whether flashlights and dogs bear some
analogy as law enforcement tools. Rather, we must address whether a
reasonable person would expect, under the totality of the circumstances
here, for her general consent to permit the additional intrusion of a dog
into her car. The encounter here occurred neither at a border checkpoint
nor at an airport, where police dogs are commonly encountered, but
rather in a parking lot as part of a routine traffic stop. The officer
inquired only whether he could search the car; he neither suggested the
object of the search nor that an animal would be used as part of it. Most
importantly, the state has presented no evidence suggesting that, at the
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STATE v. BECERRA
Opinion of the Court
time the consent was given, Becerra had any awareness that the officer
intended to use a dog or that a dog was even present at the scene. 6
¶29 In this context, I cannot agree that a reasonable person
would expect that a dog would be deployed to search inside her car
during a routine traffic stop. Nor can I agree that a reasonable person
would consider a dog search to involve no greater level of intrusion
than a flashlight. Indeed, there are multiple reasons that a reasonable
person might consent to the intrusion of a human officer with a
flashlight but refuse entry to a dog. Flashlights neither shed, drool,
nor leave scratches in upholstery. Unlike flashlights, many people
have an allergy to, or fear of, a dog. And, even those who allow their
own familiar pet to travel in their vehicle have reasonable grounds to
display a more cautious attitude towards strange dogs. Such
considerations lead reasonable people, in their ordinary lives, to
understand that an invitation to a person does not extend to that
person’s dog. See, e.g., Abigail Van Buren, Friend’s Dog Is Off the Guest
List for Dinner Parties, Dear Abby (Oct. 24, 2015),
http://www.uexpress.com/dearabby/2015/10/24/volunteering-with
-infants-may-gratify-wannabe. Although the majority contends that
only an unreasonable person would be uncomfortable with a strange
animal entering her private space, dogs are commonly prohibited from
entering restaurants, private businesses, shopping malls, and the
interior of public buildings.
¶30 Neither the state nor the majority has cited any case
concluding that a general consent to search a vehicle includes the
use of a dog. Pertinent jurisprudence suggests otherwise. It is
undisputed that a general consent to search a vehicle or home does
not include consent to damage property therein. See Osage, 235 F.3d
at 521-22; Strickland, 902 F.2d at 941-42. Yet dogs pose an inherent
and foreseeable risk of doing precisely that. The canine propensity
for destruction of property is so well known that “my dog ate it” is a
6 The majority observes many vehicles containing dogs are
visibly marked as “K-9” units. Nothing in the record suggests that
the officer’s car here was so marked. We therefore cannot consider
that possibility among the totality of the circumstances in evaluating
the scope of consent.
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Opinion of the Court
clichéd excuse for failure to complete schoolwork. See Barbara J.
Brunner, Before They Even Start: Hope and Incoming 1Ls, 48 Duq. L. Rev.
473, 489 (Spring 2010); see also Steven R. Selsberg & Maelissa Brauer
Lipman, “My Dog Ate It”: Spoliation of Evidence and the Texas Supreme
Court’s Ortega Decision, 62 Tex. B.J. 1014, 1014 (Nov. 1999). A dog
search inside a vehicle necessarily involves four active paws in a
confined space, with the attendant risks of trampling important
papers, electronic equipment, or freshly dry-cleaned clothes. And, a
dog will predictably both explore the enticing smells of any food
being transported and leave behind its hair and dander.
¶31 Moreover, each pertinent case cited by the majority has
emphasized circumstances that would alert the defendant that use of
a dog was contemplated in the requested search. This reasoning
suggests a threshold conclusion that a dog is not otherwise included
in a general consent to search. See United States v. Gonzalez-Basulto,
898 F.2d 1011, 1013 (5th Cir. 1990); United States v. Woods, 445 F.
Supp. 2d 1328, 1332-33 (M.D. Ala. 2006); State v. Paredes, 167 Ariz.
609, 613, 810 P.2d 607, 611 (App. 1991); cf. Florida v. Jardines, ___ U.S.
___, ___, 133 S. Ct. 1409, 1415-16 (2013) (officer accompanied by
trained narcotics dog exceeds implied consent for officer alone to
enter curtilage); Dominguez v. State, 616 So. 2d 506, 506-07 (Fla. Dist.
Ct. App. 1993) (consent to search of home by officers did not include
consent for use of dog).7 I would therefore expressly hold that a
general consent to a vehicle search, pursuant to a routine traffic stop,
does not include an invitation to have a dog enter the vehicle unless
the circumstances demonstrate, at the time consent is given, that the
search would involve such an additional intrusion.8
7The majority suggests Jardines and Dominguez are inapposite
because they both involved searches of homes, a context wherein
privacy rights are elevated. But those cases are premised on the
assumption that dogs involve a greater level of intrusion than an
officer alone.
8 Contrary to the suggestion of the majority, this approach,
which focuses on the circumstances at the time consent is given,
does not erect a bright-line rule requiring an officer to expressly
convey his intention to invite a police dog into a vehicle.
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STATE v. BECERRA
Opinion of the Court
¶32 For this reason, Becerra’s general consent to allow the
officer to search her car did not provide the officer license to usher a
dog into her vehicle. We thus must consider whether any of her
actions thereafter expanded her consent to allow it.
¶33 As a threshold matter, the state has the burden of
showing that a search was within the scope of consent. State v.
Ahumada, 225 Ariz. 544, ¶ 14, 241 P.3d 908, 912 (App. 2010). If a
search exceeds the original scope of consent, or exceeds the
boundaries of what a reasonable person would have believed they
were consenting to, a defendant who fails to object does not thereby
demonstrate consent to the expanded scope of the search. See United
States v. Cotton, 722 F.3d 271, 274, 277 (5th Cir. 2013); United States v.
Neely, 564 F.3d 346, 350-51 (4th Cir. 2009); Osage, 235 F.3d at 521-22;
United States v. Wald, 216 F.3d 1222, 1228 (10th Cir. 2000); Strickland,
902 F.2d at 941-42. This principle, uncontested in our law, resolves
the case before us. The state offers only Becerra’s failure to object to
the dog’s entry into her car as grounds for demonstrating her
consent.
¶34 As the majority correctly observes, circumstances
present at the time consent is given may allow an inference that the
consent includes the use of a dog. See Gonzalez-Basulto, 898 F.2d at
1013; Paredes, 167 Ariz. at 613, 810 P.2d at 611. And, circumstances
occurring after consent is given might arguably illustrate that the
suspect originally consented to the use of a dog.9
9Although the reasoning of several cases cited by the majority
suggests that a person’s actions subsequent to granting consent can
be used to demonstrate the scope of consent, that approach arguably
contradicts the objective reasonable person standard set forth in
Jimeno, 500 U.S. at 251. As the Court has emphasized, that standard
is objective because it “allows the police to determine in advance
whether the conduct contemplated will implicate the Fourth
Amendment . . . [and] ensures that the scope of Fourth Amendment
protection does not vary with the state of mind of the particular
individual.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988).
However, because I conclude that Becerra’s post-consent actions
would not at any rate demonstrate consent, and because those
16
STATE v. BECERRA
Opinion of the Court
¶35 In Woods, 445 F. Supp. 2d at 1332-33, the court reasoned
that because the defendant was aware that the police officers were
looking for drugs, and the defendant spent “some time” talking with
the dog-handler before the search began, the defendant was ”aware
. . . of the dog’s presence and its purpose” when he provided
consent. Here, the majority takes this principle a step further in
concluding that a person’s mere failure to object when a dog appears
on the scene after consent is given demonstrates that a person
intended to consent to a dog search. But, as discussed, mere silence
does not generally demonstrate consent as a matter of law and
suspects have no duty to narrow or limit a search exceeding the
original consent provided. See Osage, 235 F.3d at 521-22; Strickland,
902 F.2d at 941-42. Rather, the state possessed the affirmative duty
to demonstrate that the suspect has agreed to this expansion. See
Ahumada, 225 Ariz. 544, ¶ 14, 241 P.3d at 912.
¶36 Most importantly, the majority’s conclusion—that a
person’s mere silence during a search implicitly authorizes police to
go beyond the boundaries of what a reasonable person would have
expected the search to entail—overlooks the practical realities of a
police encounter involving a search.
¶37 Here, at the time Becerra gave consent to the search,
nothing in the record supports a finding that she was aware the dog
was present. The dog did not exit the officer’s vehicle until after
Becerra signed the consent form. Nor did the officer testify that his
patrol car was marked as a “K-9” unit or that the dog would have
necessarily been visible to Becerra. And after consent was given, the
record shows nothing but Becerra’s silence as the search was
conducted.
¶38 That Becerra was advised she had the right to withdraw
or revoke her consent does not change the calculus. The advisory
did not confer upon the officer the right to unilaterally expand upon
the consent secured. Nor did the advisory suggest the search would
include a dog within her vehicle or that she had any right to oversee
actions are at the center of the majority’s reasoning, I assume
arguendo that such circumstances may be considered.
17
STATE v. BECERRA
Opinion of the Court
the search once it began. To the contrary, Becerra was instructed to
stand twenty feet away from her car as the search occurred. Put
another way, the advisory alerted Becerra that she possessed the
hypothetical power to revoke the search, but it failed to advise her
that she had the affirmative obligation to revoke or limit the search if
it exceeded her understanding of the consent she had provided. An
advisory that a person has a right to terminate a general search does
not inform a reasonable person what the search will encompass. See
Jimeno, 500 U.S. at 251; Strickland, 902 F.2d at 941.10
¶39 This controlling principle—that mere silence does not
equate with consent—is consistent with the “practical realities” of
law enforcement. Wyoming v. Houghton, 526 U.S. 295, 306 (1999). An
officer conducting a search has unique knowledge of what he
intends the search to entail and is in the best position to clarify any
ambiguities. See United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st
Cir. 1994). And, it imposes little burden on an officer intending to
deploy a dog inside a vehicle to clarify that intention to the vehicle’s
owner.
¶40 In addition, suspects are typically removed from the
near vicinity of searches for officer safety reasons, as Becerra was
here, and are not usually able to oversee the search sufficiently to
object to any expansion of its scope. See Arizona v. Gant, 556 U.S.
332, 362 (2009) (Alito, J., dissenting) (noting law enforcement
practice of securing defendants away from vehicle during search
incident to arrest). Reasonable people are understandably reluctant
to interrupt an officer who is actively conducting a search. For
Becerra, that would have required her to either violate the officer’s
order to stand twenty feet away or to raise her voice to him.
¶41 The majority reasons Becerra was placed on notice that
the officer intended to exceed the scope of a general consent when
10Officers are not required to advise a defendant that consent
to a search can be revoked. See United States v. Drayton, 536 U.S. 194,
206 (2002). The majority opinion does not address whether a
person’s mere silence expands the scope of consent when an officer
provides no such advisory.
18
STATE v. BECERRA
Opinion of the Court
he ushered his dog around the exterior of her car. I cannot agree
that a reasonable person would necessarily draw that conclusion.
Police dogs are commonly used to search the exterior of vehicles and
packages without intruding inside those effects. And the state needs
no consent or cause to conduct a dog sniff on a vehicle’s exterior.
See Illinois v. Caballes, 543 U.S. 405, 409-10 (2005). For this reason, an
officer’s use of a dog around the exterior of a vehicle, an event which
implicates no recognized privacy interest, see id., does not objectively
demonstrate that an officer intends to invite the animal inside the
car.11 Thus, when an officer brings a dog around the exterior of a
vehicle, a reasonable person has no way of determining whether the
officer intends to stop there, as police routinely do, or invite the dog
inside the car.
¶42 The majority apparently accepts the state’s reasoning
that Becerra could have objected during the twenty seconds between
when the dog first began walking around her car and when it
entered. But she was not placed on notice of the officer’s intentions
until the moment the officer invited the dog into the car. The record
is wholly silent as to whether the officer verbally directed the dog to
enter or merely so signaled. It is therefore possible that Becerra had
no notice the dog would enter her car until it had already done so.
¶43 In short, both our jurisprudence, which prohibits the
state from claiming it has secured consent from a suspect’s mere
silence, and the practicalities of the encounter, wherein the officer
alone knows how he intends to deploy his dog, logically place the
burden on the officer to clarify the scope of consent. Because the
majority’s holding bluntly shifts that burden to the suspect, I cannot
join in its novel reasoning. To the extent Paredes can be read to
11 Because an exterior sniff invades no privacy interest, a
person generally has no basis to object to a dog sniff of the outside of
her vehicle. See Caballes, 543 U.S. at 409-10. I do not suggest with
this observation that “a K-9 exterior sniff eliminates a person’s
ability to withdraw her consent.” Supra ¶ 19. I contend only that a
person’s lack of objection to a dog sniff of a vehicle’s exterior does
not demonstrate acquiescence to a dog search inside of a vehicle—an
event which, by contrast, does implicate a privacy interest.
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STATE v. BECERRA
Opinion of the Court
impose on the suspect a duty to object or inquire, that case does not
conform to settled jurisprudence.
¶44 In sum, no circumstances existed at the time Becerra
gave consent that would support an inference such consent included
permission to search the inside of her vehicle with a dog. The state
marshalled no evidence, other than her silence, that she agreed to
expand the scope of her general consent to include that intrusion.
Accordingly, I would conclude the state failed to meet its burden of
demonstrating Becerra’s consent to the dog’s entry into her vehicle.
20