State of Washington v. Jon Louis Souza

FILED
JULY 11, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34154-2-111
Respondent, )
)
V. )
) UNPUBLISHED OPINION
JON L. SOUZA, )
)
Appellant. )
FEARING, CJ. - Jon Souza appeals his convictions for possession of a controlled
substance and use of drug paraphernalia by challenging the constitutionality of a police
dog's sniff of his truck. We uphold the constitutionality of the sniff and affirm Souza's
convictions.
FACTS
This factual statement mixes testimony from hearings on motions to suppress
evidence and a bench trial. On August 8, 2015, defendant Jon Souza traveled north, on
Republic's Clark Street, in a gray truck. No passengers rode in the truck.
Simultaneously, Republic Police Sergeant Loren Culp performed routine traffic patrol
alongside South Clark Street near the Beaver Trap store. The speed limit was 25 m.p.h.
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When Souza passed Sergeant Culp's location, the patrol car's radar clocked Souza's
speed at 35 m.p.h. Souza looked directly at Culp and continued driving.
Sergeant Loren Culp yielded to another vehicle traveling a few car lengths behind
Jon Souza, before Culp entered the traffic on Clark Street. Culp did not activate his
patrol lights because the street afforded no safe place for vehicles to park. Culp intended
to stop Souza at a NAP A store parking lot, several blocks ahead. When Culp crested the
small hill between Beaver Trap and the NAPA store, he lost sight of Souza's truck. Culp
expected to observe Souza around the next corner on Clark Street, but his expectation
failed. Culp knew that, if Souza drove at the speed limit, Souza would have remained in
Culp's view, so Sergeant Culp concluded that Souza attempted to evade him. Culp sped
and espied Souza several blocks forward on the north end of Keller Street. Culp actuated
his emergency lights and pursued Souza. With Loren Culp in pursuit, Souza turned from
Keller Street to Klondike Street and then onto Thornton Drive and into a hospital parking
lot. Culp also stopped his patrol car in the parking lot.
Sergeant Loren Culp worried for his safety as he exited his patrol car and marched
to Jon Souza's truck. Culp's singularity and Souza's evasion heightened Culp's concern.
When Culp approached Souza's vehicle, Culp directed Souza to show his hands. Souza
rested his hands outside the window. Culp next ordered Souza to exit the vehicle. Culp
handcuffed Souza, frisked him for weapons, and deposited him on the bumper of his
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patrol car. Before reading Souza his Miranda rights, Culp asked Souza why he attempted
to avoid the traffic stop. Souza denied any eluding.
Republic Police Sergeant Loren Culp next requested Jon Souza's driver's license,
vehicle registration form, and proof of insurance. According to Culp, patrol officers
always request these three documents during a routine traffic stop. Souza responded that
his backpack, located in the front seat of his truck, contained his license. Souza bestowed
Sergeant Culp permission to retrieve the license from the backpack. Culp escorted Souza
to the passenger side door, and Souza identified which backpack pocket contained the
license. Souza volunteered that the State suspended his driver's license, that his vehicle
was not registered, and that he lacked car insurance.
Sergeant Loren Culp asked Jon Souza if his truck contained drugs. Souza replied
in the negative.
Sergeant Loren Culp called Officer Marcusen for back-up. On confirmation from
dispatch that Souza's license was suspended, Sergeant Culp arrested Souza for driving
with his license suspended in the third degree and for failure to transfer title. Culp then
read Souza his Miranda rights. Souza told Culp that he did not want to speak.
Officer Marcusen arrived at the hospital parking lot after Jon Souza's arrest.
Marcusen searched Souza incident to arrest and sat him in Marcuson's patrol car. While
Marcusen secured Souza, Culp walked his police dog, Isko, around Souza's vehicle.
Law enforcement trained Isko to "alert" when he detects the presence of marijuana,
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heroin, methamphetamine, cocaine or ecstasy. Isko signaled the presence of a controlled
substance at the driver's side door of Souza's truck. As a result oflsko's signal, Culp
impounded Souza's vehicle and applied for a search warrant. Marcuson transported
Souza to jail.
Sergeant Loren Culp's search warrant affidavit described the events detailed
above, as well as his and canine Isko's training. The State of Washington trained and
certified Isko for law enforcement work before the effective date of Initiative 502, which
legalized limited amounts of marijuana. Isko learned to detect the presence of marijuana,
heroin, methamphetamine, crack cocaine, cocaine, and ecstasy, including miniscule
amounts of these substances. Isko, however, cannot communicate what substance he
detects or whether the detected substance is present as a residue or in a measurable
quantity. Despite these limitations, Culp averred in his affidavit that Isko's alert provided
probable cause to believe that evidence of a violation of a Uniform Controlled Substances
Act, chapter 69.50 RCW may be found in Souza's vehicle.
The district court judge granted Sergeant Loren Culp's application for a search
warrant. Culp searched Jon Souza's impounded vehicle and located a box in the glove
compartment. The box contained three pipes commonly used to smoke
methamphetamine. The box also contained a small plastic bag with a substance that
looked like methamphetamine. Sergeant Culp sent the plastic bag and its contents to the
Washington State Patrol Crime Laboratory for testing. Forensic scientist Steven Reid
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tested the contents and concluded it was methamphetamine.
PROCEDURE
The State of Washington charged Jon Souza with possession of a controlled
substance, use of drug paraphernalia, driving while license suspended or revoked in the
third degree, and failure to transfer title within 45 days after date of delivery. Prior to
trial, Souza moved on two occasions to suppress evidence of the controlled substance and
paraphernalia that Sergeant Loren Culp seized from Souza's vehicle. During the first
I< suppression hearing, Souza argued that using a trained canine dog to sniff a vehicle
Il constituted an unlawful search. During the second hearing, Souza contended that the dog
sniff did not support the issuance of a search warrant. The trial court denied both
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motions.
Jon Souza later moved to suppress the statements he made to Sergeant Culp. The
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i trial court denied the motion, except with regard to Souza's answer to Culp's question of
whether· Souza possessed drugs in the car.
It The trial court conducted a bench trial. The court found Jon Souza guilty of
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possession of a controlled substance, possession of drug paraphernalia, and driving with a
suspended license. The court dismissed, for insufficient evidence, the charge of failure to
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transfer a vehicle title. In its findings of fact 1.4, the trial court determined:
Detective Culp activated his emergency lights and increased speed to
1 overtake the defendant's vehicle. The detective soon contacted the
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defendant after the pickup sped into the hospital parking lot and made a
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I quick stop. Detective Culp approached the vehicle and observed only one
occupant, namely the defendant. Drawing his service weapon, Detective
I Culp ordered the defendant to show his hands. Defendant complied, after
which Detective Culp ordered defendant from the vehicle, frisked his
person for weapons, then placed him on the push bar on the front of his
patrol vehicle.
Clerk's Papers at 129 (emphasis added). Jon Souza appeals only his two possession
charges.
LAW AND ANALYSIS
Finding of Fact 1.4
Jon Souza first contends that no facts support two passages in the trial court's
finding of fact 1.4. The first passage declares that Souza sped into the hospital parking
lot and quickly stopped. The second passage states that Detective Loren Culp drew his
service weapon. Souza does not discuss, in his brief, this alleged error or cite to any
authority. The State does not respond to the assignment of error.
This court does not review errors alleged but not argued, briefed, or supported
with citation to authority. RAP 10.3; Valente v. Bailey, 74 Wn.2d 857,858,447 P.2d 589
(1968); Meeks v. Meeks, 61 Wash. 2d 697, 698, 379 P.2d 982 (1963); Avellaneda v. State,
167 Wash. App. 474, 485 n.5, 273 P.3d 477 (2012). Appellate courts are precluded from
considering such alleged errors. Hollis v. Garwall, Inc., 137 Wash. 2d 683, 689 n.4, 974
P.2d 836 (1999); Escude v. King County Public Hospital District No. 2, 117 Wash. App.
183, 190 n.4, 69 P.3d 895 (2003).
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RAP 10.3(a)(6) directs each party to supply, in his brief, "argument in support of
the issues presented for review, together with citations to legal authority and references to
relevant parts of the record." We do not consider conclusory arguments that are
unsupported by citation to authority. Joy v. Department ofLabor & Industries, 170 Wn.
App. 614,629,285 P.3d 187 (2012). Passing treatment of an issue or lack of reasoned
argument is insufficient to merit judicial consideration. West v. Thurston County, 168
Wash. App. 162, 187, 275 P.3d 1200 (2012); Holland v. City of Tacoma, 90 Wash. App. 533,
538, 954 P.2d 290 (1998). Therefore, we decline to address this assignment of error. We
also note that the claimed erroneous passages in the finding of fact bear no import in our
decision.
Dog Sniff
Jon Souza appeals the trial court's order denying his motion to suppress evidence
seized from his vehicle with a search warrant obtained after police used a narcotics dog to
determine whether drugs were present in the vehicle. Souza focuses on whether a dog
sniff constitutes a search. He argues the dog sniff was an unconstitutional search and,
absent the sniff, the remaining facts in the search warrant affidavit do not create probable
cause. Souza characterizes the canine smell as an unreasonable governmental intrusion
into his automobile and its contents. Accordingly, Souza claims the trial court erred in
denying his motion to suppress the drugs and paraphernalia garnered from his vehicle's
glove box pursuant to the search warrant.
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The State contends that Sergeant Loren Culp needed no warrant to direct Isko to
sniff Jon Souza's truck. The State characterizes the dog smell as reasonable and non-
intrusive. We agree with the State.
Jon Souza challenges the dog smell only under the state constitution. According
to federal law, a dog smell does not constitute a search under the United States
Constitution's Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 409, 125 S. Ct.
834, 160 L. Ed. 2d 842 (2005); United States v. Jensen, 425 F.3d 698, 706 n.2 (9th Cir.
2005).
Washington's Constitution provides: "[n]o person shall be disturbed in his private
affairs, or his home invaded, without authority oflaw." WASH. CONST. art. I,§ 7. The
unique language of article I, section 7, generally provides greater protection to persons
under the Washington Constitution than the Fourth Amendment of the federal
constitution provides. State v. Snapp, 174 Wash. 2d 177, 187, 275 P.3d 289 (2012). The
Washington Constitution provides added safeguards, in part, because, unlike the Fourth
Amendment, article I, section 7 clearly recognizes an individual's right to privacy with
no express limitations. State v. Ferrier, 136 Wn.2d 103,110,960 P.2d 927 (1998).
Searches conducted without prior approval by a judge or magistrate are per se
unreasonable under article I, section 7 of the Washington State Constitution, subject only
to a few established exceptions. State v. Duncan, 146 Wash. 2d 166, 171, 43 P .3d 513
(2002). Since Sergeant Loren Culp garnered no search warrant before Isko's sniff of Jon
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Souza's truck, we must decide whether a dog sniff constitutes a search under the state
constitution. Since the Washington Constitution does not employ the word "search," the
more apt question is whether a dog sniff unreasonably disturbs a citizen's private affairs.
State v. Boland, 115 Wash. 2d 571, 577, 800 P.2d 1112 (1990). Nevertheless, Washington
cases still analyze whether law enforcement conducted a search.
When a law enforcement officer can detect something by using one or more of her
senses while being lawfully present at a vantage point, the detection does not constitute a
search. State v. Seagull, 95 Wash. 2d 898, 901, 632 P.2d 44 (1981). An officer's
surveillance does not constitute a search if the officer observes an object or activity with
an unaided eye from a nonintrusive location. State v. Young, 123 Wash. 2d 173, 182, 867
P.2d 593 (1994). This means of surveillance does not expose a person's private affairs.
State v. Dearman, 92 Wash. App. 630, 634, 962 P.2d 850 (1998). Nevertheless, a
particularly intrusive method of viewing may constitute a search. State v. Myers, 117
Wn.2d 332,345,815 P.2d 761 (1991).
Canine lsko's search did not entail sight. Isko searched by his sense of smell.
Sergeant Loren Culp lacked the acuity of smell to detect controlled substances in Jon
Souza's truck.
Unlike the United States Supreme Court, Washington courts have not adopted a
blanket rule regarding whether a dog sniff constitutes a search. Instead, Washington
courts have adopted a situational approach that in part focuses on whether the dog's smell
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intrudes into air emanating from a home or air oozing from an object outside the home.
Whether a dog sniff amounts to a search depends on the privacy rights at stake due to the
intrusion. State v. Boyce, 44 Wash. App. 724, 729, 723 P.2d 28 (1986). As long as the
canine sniffs an object from an area where the defendant lacks a reasonable expectation
of privacy and the canine is minimally intrusive, no search occurs. State v. Boyce, 44
Wash. App. at 730. A person lacks a reasonable expectation of privacy in the air outside of
a car window. State v. Mecham, 186 Wn.2d 128,147,380 P.3d 414 (2016).
Jon Souza contends that Isko's inhalation of methamphetamine molecules
unreasonably intruded in his privacy interest in his truck. In support of his contention,
Souza cites State v. Young, 123 Wash. 2d 173 (1994) and State v. Dearman, 92 Wash. App.
630 (1998). Nevertheless, both of these cases involve a police investigation into a
defendant's home. The privacy implications of a person's home exceed the privacy
implications of a person's vehicle. The Washington Constitution grants heightened
protection of private dwellings. State v. Dearman, 92 Wash. App. at 633 n.5. As a result,
Young and Dearman lack relevance.
We consider State v. Hartzell, 156 Wn. App. 918,237 P.3d 928 (2010)
controlling. Hartzell addressed whether a dog sniff of a motor vehicle constituted a
search. This court held that a dog smelling through an open window of a vehicle from a
lawful vantage point is not a search.
In State v. Hartzell, the police linked Charles Hartzell to an apartment shooting
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where a witness saw someone shoot from the sun roof of a vehicle. Later, when
responding to a call reporting a man with a gun, a law enforcement officer waited for
backup outside the house. Hartzell arrived in a sports utility vehicle. The officer noticed
a bullet hole through the passenger door of the vehicle. A canine officer later arrived
with his dog in order to look for the gun that shot the bullet through the passenger side
door of the vehicle. The dog jumped on the car and sniffed the passenger door. The dog
then wandered down the road and found a semiautomatic handgun one hundred yards
distant. On appeal, this court ruled that Hartzell lacked a reasonable expectation of
privacy in the air coming from his vehicle. Hartzell was outside the vehicle when the dog
sniff occurred and the sniff was minimally intrusive. Accordingly, the dog sniff was not
a search requiring a warrant under article I, section 7 of the Washington Constitution.
We conclude that Jon Souza lacked a reasonable expectation of privacy in the air
surrounding his vehicle in a public parking lot. Similar to Hartzell, Souza was not in the
vehicle when canine Isko sniffed around it from a lawful vantage point. Isko' s sniff was
less intrusive than the police dog smell in Hartzell. Isko did not jump on the vehicle to
smell the air coming from the window. Isko merely sauntered around the vehicle.
Probable Cause for Search Warrant
Jon Souza next argues that, because of an unconstitutional dog sniff, insuffici~nt
evidence supported the issuance of the search warrant for his truck. Because we affirm
the propriety of the sniff, we need not address this contention. Souza also argues that,
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even assuming the constitutionality of Isko's smell of the truck, insufficient evidence
supported issuance of the warrant because law enforcement trained Isko to alert to both
legal and illegal substances and Isko might have only smelled a legal substance in the
truck. Finally, Souza argues that Sergeant Loren Culp's affidavit did not support
probable cause to search his.truck because the affidavit lacked information about the
accuracy of Isko's alerts or information about the dog's ongoing training.
The issuance of a search warrant is reviewed only for abuse of discretion. State v.
Maddox, 152 Wn.2d 499,509, 98 P.3d 1199 (2004). Courts afford a magistrate's
determination of probable cause great deference. State v. Maddox, 152 Wash. 2d at 509;
State v. Clark, 143 Wash. 2d 731, 748, 24 P.3d 1006 (2001).
Article I, section 7 of our state constitution requires that a search warrant issue
only upon a determination of probable cause by a neutral magistrate. State v. Myers, 117
Wash. 2d at 337 (1991). Probable cause exists when facts and circumstances suffice to
establish a reasonable inference that the defendant engages in criminal activity and that
evidence of the criminal activity can be found at the place to be searched. State v.
Maddox, 152 Wash. 2d at 505. An affidavit supporting a search warrant must show
criminal activity is at least probable. State v. Ellis, 178 Wash. App. 801, 805-06, 327 P.3d
1247 (2014). Evidence obtained from a warrant issued without probable cause should be
suppressed under the fruit of the poisonous tree doctrine. State v. Eisfeldt, 163 Wn.2d
628,640, 185 P.3d 580 (2008).
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Jon Souza fleetingly argues that the dog sniff does not create probable cause
because Isko was trained to alert to marijuana, among other drugs, and marijuana is now
legal in the State of Washington. Accordingly, Souza contends that any information
gleaned from Isko's alert could not, by its nature, be sufficient to establish an inference
that Souza was involved in criminal activity. Souza contends Sergeant Loren Culp did
not know if the drugs Isko detected were illegal. Souza cites no case law to support this
contention. The State concedes that canines trained to "hit" on marijuana could lead to
problematic search warrants when the warrant relies solely on the canine alert. The State,
however, points out that Sergeant Culp forwarded other independent factors including his
belief that Souza attempted to outrun him and Souza's denial of drugs in his truck.
In Washington, an alert by a trained drug dog is sufficient to establish probable
cause for the presence of a controlled substance. State v. Jackson, 82 Wash. App. 594, 606,
918 P .2d 945 ( 1996). While we acknowledge that the State trained Isko to detect
miniscule amounts of marijuana before the substance's legalization, such training does
not disqualify his alert. As the State highlights, marijuana remains illegal for some
persons and under some circumstances. More importantly, Sergeant Culp declared that
he believed Jon Souza tried to elude him. When asked, Souza replied that his truck
contained no drugs. Souza did not disclose the presence of a legal amount of marijuana
in the vehicle. All of these factors combined equate to a reasonable probability that
Souza's truck housed unlawful drugs.
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I When arguing about the lack of qualifications rendered for Isko, Jon Souza relies
on State v. Neth, 165 Wash. 2d 177, 196 P.3d 658 (2008). Souza argues that the Neth trial
court excluded the dog sniff from the probable cause determination because the search
warrant affidavit lacked information to establish the dog's reliability. The trial court's
decision to exclude the dog sniff, however, was not at issue on appeal. The Washington
State Supreme Court briefly mentioned the trial court's holding in the high court's
procedural recitation and noted in parenthesis that "[t]he affidavit says only that the dog
was '[t]rained to recognize the odor of illegal narcotics."' State v. Neth, 165 Wash. 2d at
181 (alteration in original). The opinion omits any discussion or analysis of the
information required in an affidavit to establish a narcotics dog's reliability.
Accordingly, we rely not on Neth.
Reliability may be premised on a statement that the dog is trained and certified
without a showing of the dog's reliability record. State v. Gross, 57 Wn. App. 549,551,
789 P.2d 317 (1990). Unlike in Neth, Sergeant Loren Culp's warrant affidavit contained
information on Isko's certification, training, and limitations. Sergeant Culp declared that
the State of Washington certified him and canine Isko as a Narcotics K9 Team. ·1sko
received training to detect miniscule amounts of marijuana, heroin, methamphetamine,
crack cocaine, cocaine, and ecstasy. Based on these facts, Culp's affidavit contained
sufficient facts to establish Isko's reliability.
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CONCLUSION
We affirm the trial court's denial of Jon Souza's motions to suppress. We thereby
affirm Souza's convictions for possession of a controlled substance and use of drug
paraphernalia.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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