Argued and submitted on November 20, 2012.
Union County Circuit Court F17039 Phillip A. Mendiguren, Judge.
Kenneth A. Kreuscher argued the cause for appellant. With him on the brief was Portland Law Collective, LLP.
Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
Law-enforcement officers conducted a warrantless search of defendant's car based, in part, on an alert by a drug-detection dog. The officers found methamphetamine and marijuana in the car, and the state subsequently charged defendant with one count of possession of methamphetamine, ORS 475.894, and one count of possession of less than one ounce of marijuana, ORS 475.864(3). Defendant filed a motion to suppress the results of the search, arguing, inter alia, that the search violated Article I, section 9, of the Oregon Constitution because it was not supported by probable cause. The trial court denied the motion. Thereafter, defendant entered conditional guilty pleas, and the trial court entered a judgment convicting defendant of the two possession counts.
Defendant appeals the trial court's judgment, assigning error to the court's denial of his motion to suppress. On appeal, defendant renews his argument that the law-enforcement officers did not have probable cause to search his car. He argues that the state failed to establish that the drug-detection dog's alert was reliable and, therefore, the alert could not factor into the probable cause calculation; he further argues that, without the alert, the officers did not have probable cause. We agree with defendant and, therefore, reverse and remand.
When reviewing a trial court's denial of a defendant's motion to suppress, we are bound by the trial court's findings of fact, provided that the findings are supported by constitutionally sufficient evidence. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). If the court does not make explicit findings on disputed issues of fact, we presume that the court made findings consistent with its ultimate ruling. Id. Stated in accordance with those standards, the relevant facts are as follows.
On February 5, 2010, at approximately 6:45 p.m., Oregon State Police troopers Routt and Jackson were in a marked patrol car parked on an overpass above Interstate Highway 84, watching for drivers violating the speed limit. They noticed a car drive up the exit ramp from the highway, stop at the top of the ramp, and park nearby. The driver got out and walked to the front of the car, where he remained for one to two minutes. The troopers could not tell what the driver was doing; it was dark out and they could see only the driver's silhouette as he stood in front of the car's headlights. The driver got back into the car and drove down the entrance ramp to return to the highway. At that point, the troopers saw the headlights of a second car turn on. The second car, which was near where the first car had parked, followed the first car down the entrance ramp to the highway.
The troopers decided to follow the cars, which were headed east toward North Powder. While following the cars, the troopers radioed the state police dispatch center and asked a dispatcher to conduct record checks based on the cars' license plates. The dispatcher informed the troopers that the first car was registered to Cody Sorey and the second car was registered to defendant. The dispatcher also informed the officers that neither Sorey nor defendant had outstanding warrants for their arrest.
The troopers initially focused their attention on Sorey's car, but did not observe any traffic-code violations. They then turned their attention to defendant's car and noticed that defendant's license plate was not illuminated as required by the traffic code and his windows appeared to be tinted darker than allowed by the traffic code.
Routt, who was driving the patrol car, stopped defendant's car for the two violations. Both troopers got out of the patrol car and walked toward defendant's car. As Routt approached defendant's car, he saw that there were three people inside: the driver, a front-seat passenger, and a back-seat passenger. Defendant was the driver, and Routt spoke to him through the front passenger-side window. Routt asked for, and received, defendant's driver's license. According to Routt, defendant was polite and cooperative. However, defendant's front-seat passenger appeared nervous.
As he later testified, Routt smelled a "very strong odor coming from the car." The odor smelled "like several different odors mixed together." Routt was "able to faintly distinguish * * * what [he] believed to be the odor of marijuana." He "couldn't tell * * * what the other odors were." Jackson testified that he smelled a "strong odor" coming from defendant's car. Jackson could not tell "what it was"; he could not tell "if it was marijuana." According to Jackson, "It was just a strong odor coming from the vehicle."
Routt took defendant's license back to the patrol car to "[run] a driver's license check and [write] the citation." He contacted the dispatch center and asked a dispatcher to check defendant's criminal history for narcotics activity. The dispatcher informed Routt that defendant had a prior drug conviction. The dispatcher did not specify the nature or date of the conviction.
While Routt was in the patrol car, Jackson went to the front passenger-side window of defendant's car to speak with defendant and his passengers. Jackson asked what they were doing, and defendant explained that they had met with Sorey and were on the way to Sorey's house in North Powder. Jackson noticed that defendant had sores on his face consistent with methamphetamine use. Jackson also noticed that the front-seat passenger was fidgeting and that, during his questioning, she put her foot on a metal case. According to Jackson, the passenger "was nervous and she seemed to be nervous about [the] case."
After speaking with defendant and his passengers, Jackson spoke to two other law-enforcement officers by phone and learned that defendant had a pending charge for distribution of marijuana. One of the officers told Jackson that defendant "dealt in marijuana and methamphetamine." At that point, which was about 10 to 12 minutes into the traffic stop, Jackson believed that he had reasonable suspicion that defendant was engaged in drug activity. Jackson asked defendant to consent to a search of his car, and defendant refused. Jackson then called a K-9 officer, Trooper McDowell, to come to the scene with his drug-detection dog, Mauri. According to McDowell, it is state police policy not to use a drug-detection dog unless there is reasonable suspicion that drugs are present.
McDowell arrived at the scene about 15 to 20 minutes later. He circled defendant's car with Mauri, who "alerted" to "the driver's side * * * seam between the door and the body of the car." Based on Mauri's alert, McDowell believed there was probable cause to search defendant's car. McDowell relayed that information to Jackson, and the troopers searched the car and found methamphetamine and marijuana.
Defendant filed a motion to suppress "all evidence obtained * * * following [the] unlawful extension of [the traffic] stop * * * [and the] unlawful warrantless search." In the motion, defendant asserted that the troopers unlawfully seized him by expanding the scope of the stop to include a drug investigation that was not supported by reasonable suspicion. Defendant also asserted that McDowell's deployment of Mauri was a warrantless search that was not supported by probable cause. Defendant later filed a written addendum to his motion, asserting that "the drug dog sniff * * * was unreliable and therefore did not establish probable cause to search the * * * vehicle."
At the hearing on defendant's motion to suppress, the state presented evidence about the reliability of Mauri's alert to defendant's car, including testimony from McDowell about the training he and Mauri had received. According to McDowell, Mauri was trained by a master trainer, Christina Bunn, who owns Puget Sound Security. Bunn trained Mauri by saturating a towel with an odor, hiding the towel, having Mauri find the towel, and then playing with Mauri as a reward. Mauri was trained to detect marijuana, methamphetamine, cocaine, and heroin.
McDowell began working with Mauri in October 2009, after Mauri had been trained by Bunn. McDowell attended a three-week training course to learn, as he testified, "what to look for, what changes of behavior in [Mauri] * * * tell me that she is detecting the presence of a controlled substance." According to McDowell, an "alert" has two components: an "area alert" and a "specific alert." An area alert is a change in behavior, such as "[a] head snap, change of direction, tail wagging, intense sniffing, and closed mouth breathing." A specific alert is a particular behavior--scratching--which Mauri does "on the controlled substance or [as] close to it as she can get." An alert requires both an area alert and a specific alert. When Mauri alerts, McDowell rewards her by giving her a clean towel as a toy and playing with her. McDowell explained that
"the ultimate goal is when she alerts to a vehicle--when she scratches on an object, whether it's a vehicle, a locker, whatever the case may be, it's her belief that she's scratching at the odor and the towel is coming from the scratch, not from me circling and throwing the towel."
McDowell and Mauri were initially certified as a handler-dog team in November 2009, less than four months before the February 2010 traffic stop of defendant. McDowell testified that, in order to maintain the certification, he is required to train with Mauri for four hours each week. In addition, McDowell testified that there are "quarterly trainings where the whole K-9 team across the state gathers * * * [to] train as a team[, ]" but McDowell did not specify whether he and Mauri had been to any such trainings before the traffic stop of defendant. McDowell also testified, "Every time [Mauri has] alerted to the presence of a controlled substance in the field, during the search we have found a controlled substance. So her accuracy record is 100 percent." But, McDowell did not specify how many times Mauri had alerted in the field.
Regarding Mauri's use in this case, McDowell explained that he and Mauri circled defendant's car while Mauri was on a leash. McDowell's practice is to use the leash to "detail[ ] [Mauri] to certain parts of the vehicle." He "[doesn't] just run around holding the leash." Instead, he uses the leash to "focus [Mauri] on different areas of the vehicle. Detail her to a door seam. Detail her to a trunk seam. Door handles, whatever the case may be." When asked whether he had detailed Mauri to the area where she alerted to defendant's car, McDowell answered that it was his job to do so and he hoped that he had "detailed her right to that door seam."
According to McDowell, when he and Mauri circled defendant's car, Mauri's "area alert" was "intense sniffing, closed mouth breathing after she came out of the driver's side door." After she sniffed the driver's-side door seam, she "backed out and gave a specific alert." McDowell testified that, after Mauri's specific alert, "[s]he was rewarded. She had her towel ...