State of Washington v. Jon Louis Souza, 34154-2

Background

On Aug. 8, 2015, Sgt. Loren Culp attempted to stop Jon Souza for speeding; Souza accelerated and took evasive turns before stopping in a hospital parking lot.
Culp activated emergency lights and, after detaining and handcuffing Souza (then arresting him for driving with a suspended license), Culp had K9 Isko sniff Souza’s parked truck while Souza was in custody and outside the vehicle.
Isko, trained and certified to detect multiple controlled substances (including marijuana, heroin, methamphetamine, cocaine, and ecstasy), alerted at the driver’s side door.
Based on Culp’s affidavit (including the dog’s alert and other facts such as Souza’s attempted evasion and his denial that the truck contained drugs), a magistrate issued a search warrant for the impounded truck.
The search recovered methamphetamine and pipes; Souza was charged with possession of a controlled substance and use of drug paraphernalia (among other counts). The trial court denied Souza’s suppression motions and convicted him after a bench trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a dog sniff of a vehicle is a "search" under art. I, § 7 of the WA Constitution	Souza: a canine sniff intruded into private affairs (smell of methamphetamine molecules), so it was an unconstitutional search	State: sniff from a lawful vantage point is minimally intrusive; no reasonable privacy expectation in air around a vehicle	The sniff was not a search under art. I, § 7; Souza lacked a reasonable expectation of privacy in the air around his vehicle
Whether the dog alert provided probable cause for a warrant	Souza: Isko was trained to detect both legal (marijuana) and illegal substances; alert alone insufficient, and affidavit lacked reliability data about the dog	State: Isko’s certification, training, and surrounding facts (evasion, denial of drugs) supplied probable cause	Magistrate’s probable-cause finding upheld; Isko’s alert plus other facts supported the warrant
Sufficiency of affidavit to establish canine reliability	Souza: affidavit did not include accuracy/recency of training or alert reliability (labels Neth)	State: affidavit stated State certification and training; reliability can be supported by training/certification statements	Affidavit sufficiently described Isko’s training and certification to establish reliability
Preservation/assignment-of-error on certain factual findings	Souza: challenges portions of a trial-court fact finding (e.g., drawing service weapon, vehicle speeding)	State: no response; appellate court requires briefing and authority to review alleged errors	Court declined to review those factual-issue assignments for lack of briefing; they did not affect the decision

Key Cases Cited

Illinois v. Caballes, 543 U.S. 405 (dog sniff of vehicle not a Fourth Amendment search)
United States v. Jensen, 425 F.3d 698 (9th Cir. treatment of canine-sniff principles)
State v. Snapp, 174 Wn.2d 177 (Washington Constitution often affords greater privacy protection)
State v. Mecham, 186 Wn.2d 128 (no reasonable expectation of privacy in air outside a car window)
State v. Hartzell, 156 Wn. App. 918 (dog sniff of vehicle from lawful vantage not a search under art. I, § 7)
State v. Jackson, 82 Wn. App. 594 (canine alert can establish probable cause for controlled-substance presence)
State v. Neth, 165 Wn.2d 177 (discussion of affidavit language regarding canine training; trial-court exclusion noted in record)
State v. Gross, 57 Wn. App. 549 (training/certification statements can support canine reliability)
State v. Seagull, 95 Wn.2d 898 (officer detection by lawful senses while at lawful vantage is not a search)
State v. Young, 123 Wn.2d 173 (heightened privacy protection for homes; limits on visual surveillance techniques)
State v. Myers, 117 Wn.2d 332 (intrusive investigative methods may constitute searches)
State v. Duncan, 146 Wn.2d 166 (warrantless searches are per se unreasonable under art. I, § 7, subject to exceptions)
State v. Maddox, 152 Wn.2d 499 (standard of review for magistrate’s probable-cause determinations)
State v. Eisfeldt, 163 Wn.2d 628 (fruit-of-the-poisonous-tree suppression principles)