366 P.3d 567
Ariz. Ct. App.2016Background
- Rosa Becerra was stopped for speeding and a cracked windshield; after warnings she signed a bilingual written consent-to-search form and orally confirmed understanding.
- Officer directed Becerra and passengers to stand ~20 feet away, returned to his patrol car, and retrieved a drug-detection K-9 that was visible from the sidewalk.
- The K-9 conducted an exterior sniff (no alert), then was directed into the vehicle where it alerted to a purse on the driver’s seat; methamphetamine was found inside the purse.
- Becerra moved to suppress, arguing the K-9 interior sniff exceeded the scope of her consent; the trial court denied the motion and a jury convicted her of possession and possession for sale.
- On appeal Becerra’s sole contention was that a general consent to search did not reasonably include use of a K-9 inside the vehicle; the court reviewed the denial of suppression for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a general consent to search a vehicle includes use of a K-9 inside the vehicle | Becerra: a reasonable person would not expect a dog would be placed inside their car; silence is not consent to that additional intrusion | State: general consent is unqualified absent limitations; presence of K-9 and absence of objection show consent included the dog search | The court held the consent reasonably included use of the K-9 under the totality of the circumstances and affirmed denial of suppression |
| Whether the officer must obtain express permission to use a K-9 after a general consent | Becerra: officer should ask specifically before using a dog; suspect has no duty to object | State: no per se rule requiring express ask; a reasonable person could expect K-9 assistance similar to other search tools | The court rejected a per se rule; no requirement officer explicitly ask if a dog will be used |
| Whether an exterior K-9 sniff defeats a suspect’s opportunity to withdraw consent to an interior sniff | Becerra/dissent: exterior sniff is lawful without consent and may conceal intent to enter the vehicle; silence during exterior sniff shouldn’t be treated as assent | State/majority: exterior sniff and visible K-9 put suspect on notice and provided opportunity to withdraw consent; no evidence Becerra attempted to withdraw | The court found Becerra had opportunity and did not object; exterior sniff did not preclude withdrawal and did not render the interior sniff unauthorized |
| Standard of review for scope of consent when K-9 is used | Becerra: scope must be determined objectively from circumstances at time consent given; subsequent silence insufficient | State: scope determined by totality of circumstances, including defendant’s awareness and post-consent conduct | The court applied an objective-reasonableness/totality test and found no clear error in trial court’s factual finding that consent encompassed K-9 use |
Key Cases Cited
- California v. Carney, 471 U.S. 386 (U.S. 1985) (automobile exception and reduced expectation of privacy in vehicles)
- Florida v. Jimeno, 500 U.S. 248 (U.S. 1991) (scope of consent measured by objective reasonableness)
- Illinois v. Caballes, 543 U.S. 405 (U.S. 2005) (K-9 exterior sniff during lawful traffic stop does not violate Fourth Amendment)
- State v. Paredes, 167 Ariz. 609 (Ariz. Ct. App. 1991) (use of K-9 did not exceed general consent where dog was present and no objection was made)
- United States v. Gonzalez-Basulto, 898 F.2d 1011 (5th Cir. 1990) (observability of K-9 and silence supported inference consent included canine)
- United States v. McWeeney, 454 F.3d 1030 (9th Cir. 2006) (general consent unqualified absent express limitation; consent may be withdrawn)
- United States v. Woods, 445 F. Supp. 2d 1328 (M.D. Ala. 2006) (defendant aware of K-9 presence and did not object; canine search fell within consent)
- Florida v. Jardines, 133 S. Ct. 1409 (U.S. 2013) (use of a drug-detection dog on home curtilage implicates different Fourth Amendment concerns)