State of Iowa, Appellee, vs. Ashlee Marie Mumford, Appellant.
No. 23-1075
In the Iowa Supreme Court
Submitted October 10, 2024—Filed December 6, 2024
Appeal from the Iowa District Court for Madison County, Kevin Parker (motion to suppress) and Erica Crisp (bench trial), judges.
McDonald, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, Mansfield, and May, JJ., joined. Oxley, J., filed a dissenting opinion, in which McDermott, J., joined. McDermott, J., filed a dissenting opinion.
Colin C. Murphy of Gourley, Rehkemper & Lindholm, P.L.C., West Des Moines, for appellant.
Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney General, for appellee.
A police officer initiated a traffic stop of motorist Ashlee Mumford after the police officer was unable to read two of the numbers on the vehicle’s dirt-and-grime-covered license plate. During the traffic stop, a second officer used a drug detection dog to conduct a sniff around the exterior of the stopped vehicle. In the course of the sniff around the exterior of the vehicle, the dog’s paws touched the passenger door, and the dog’s nose momentarily, almost imperceptibly, broke the plane of the passenger window. The dog then alerted to the presence of controlled substances. The officers searched the vehicle and found two bags of methamphetamine in the glove compartment, and they searched Mumford’s purse and found marijuana and a methamphetamine pipe. Mumford was placed under arrest and charged with possession of methamphetamine, marijuana, and drug paraphernalia. Following a bench trial, Mumford was acquitted of possession of methamphetamine but convicted of possession of marijuana and drug paraphernalia. On appeal, Mumford contends the district court erred in denying her motion to suppress evidence allegedly obtained in violation of her constitutional right to be free from unreasonable searches and seizures. She challenges the sufficiency of the evidence supporting her conviction for possession of marijuana. And she claims the district court erred in denying her motion in arrest of judgment. We affirm her convictions.
I.
In the district court, Mumford moved to suppress the evidence of contraband obtained from the traffic stop and subsequent search of the vehicle and her purse. She claimed that the traffic stop and the officers’ use of the drug detection dog during the traffic stop violated her federal and state constitutional rights to be free from unreasonable seizures and searches. The district court
A.
The Fourth Amendment to the Federal Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court holds that the Fourth Amendment applies to the states and state actors via the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655 (1961); State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997). The text of article I, section 8 of the Iowa Constitution is materially indistinguishable from the text of the Fourth Amendment. “This fact however does not compel us to follow the construction placed on the language by the United States Supreme Court.” State ex rel. Kuble v. Bisignano, 28 N.W.2d 504, 508 (Iowa 1947). Instead, “it is our duty to independently interpret [article I,] section 8 based on its words and history[, and] [d]epending on the issue, this inquiry may lead us to conclude that section 8 provides protections that are the same as, greater than, or less than the protections provided by the Fourth Amendment.” State v. Burns, 988 N.W.2d 352, 365 (Iowa 2023).
B.
We first address the constitutionality of the traffic stop. The record reflects that Winterset Police Officer Logan Camp initially observed the vehicle parked at the residence of a man known to be involved in drug activity. Camp attempted to run the license plate at that time, but he could not read the last two digits of
The “ ‘detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of’ article I, section 8 and the Fourth Amendment.” Bauler, 8 N.W.3d at 897 (plurality opinion) (quoting State v. Warren, 955 N.W.2d 848, 859 (Iowa 2021)). A traffic stop is constitutional “when supported by probable cause or reasonable suspicion of a crime.” State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015). “Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed” and the detained person “committed or is committing it.” Bauler, 8 N.W.3d at 897 (plurality opinion) (quoting State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004)). A peace officer’s observation of a traffic violation, however minor, provides probable cause to stop a motorist. Id.
We conclude there was probable cause to stop the vehicle Mumford was driving. The Code provides that “[e]very registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued . . . in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible.”
Mumford does not contest the legal conclusion, but she does contest the facts. She contends that the videos of the traffic stop and still photos taken from the videos show that the entirety of the rear license plate was clearly visible and clearly legible. We disagree. The videos and still shots are not clear, at all. Further, the videos and still shots taken from several feet away from the vehicle are not particularly relevant. The videos and photos show the vehicle “at close range at a dead stop.” State v. Griffin, 997 N.W.2d 416, 420 (Iowa 2023). The videos and photos do not “show what the [vehicle] looked like at highway speeds” at night. Id. at 420–21. The videos do not show what Officer Camp “saw or could have seen when [he] made [his] decision to stop” Mumford. Id. at 421. Camp testified that he could not read the last two digits of the license plate from a couple of car lengths behind the vehicle. Like the district court, we credit his testimony and find he observed a violation of
Mumford suggests that the traffic stop nonetheless should be deemed unconstitutional because the traffic stop was merely a pretext for drug interdiction. She argues Officer Camp observed the vehicle parked at a known drug house and was merely looking for a reason to pull the vehicle over and search for drugs. Even if this were Camp’s true motivation, the true “motivation
C.
The more contentious issue in this case is whether use of the drug dog to conduct an exterior sniff of a lawfully stopped vehicle was an unlawful search in violation of the Fourth Amendment or article I, section 8 of the Iowa Constitution. The record shows that around the same time Camp initiated the traffic stop, he contacted Winterset Police Officer Christian Dekker to assist. Dekker was the K-9 handler for the Winterset Police Department. Dekker arrived at the scene only shortly after Camp initiated the traffic stop. Camp and Dekker intended to conduct a dog sniff around the exterior of the vehicle, and they asked Mumford and her passenger to exit the vehicle for their own safety. Mumford and her passenger complied, although not without some objection. Mumford exited the vehicle with her purse in her possession. Mumford’s passenger left the passenger window down when he exited the vehicle. Dekker walked the drug dog around the exterior of the vehicle. The entire examination lasted approximately fifteen to twenty seconds. Dekker started on the driver’s side of the vehicle, proceeded to the rear of the vehicle, and then proceeded to the front passenger door. The dog stood on its hind legs and placed its front paws on the passenger door. The dog’s
State v. Bauler, 8 N.W.3d 892, largely controls our resolution of Mumford’s claims. In that case, the majority of this court held that a drug dog’s quick, incidental touch of the exterior of a vehicle in a public place during a lawful traffic stop did not violate the Fourth Amendment or article I, section 8. See id. at 902 (plurality opinion) (“We find the dog sniff of Bauler’s vehicle did not violate the Fourth Amendment, notwithstanding the brief touching of the exterior of the vehicle.”), id. at 907 (stating that “the dog sniff of Bauler’s vehicle did not violate article I, section 8”); id. at 913 (McDonald, J., concurring specially) (stating that “momentary touching of Bauler’s vehicle in a public place during a lawful traffic stop was not unlawful, tortious, or otherwise prohibited under Iowa law” and that there was thus “no obligation to obtain a search warrant prior to conducting the search” under the Iowa Constitution and rejecting Fourth Amendment claim). The same rationales apply here with respect to the drug dog’s placement of its paws on the passenger door.
Other courts have addressed the issue of whether a K-9 unit’s entry into the cabin of a vehicle constituted an unconstitutional search. Those courts have come to different conclusions under a variety of rationales. See, e.g., United States v. Wilson, No. 22–20100, 2024 WL 3634199, at *2 & n.1 (5th Cir. Aug. 2, 2024) (per curiam) (holding that there was no search where dog instinctively entered cabin without direction and collecting cases); United States v. Pulido-Ayala, 892 F.3d 315, 318–19 (8th Cir. 2018) (concluding that officers had probable cause to search the vehicle prior to K-9’s entry into vehicle cabin); United States v. Pierce, 622 F.3d 209, 214–15 (3rd Cir. 2010) (finding no Fourth Amendment violation); United States v. Handley, No. 23–CR–57–CJW–MAR, 2024 WL 1536750, at *6–7 (N.D. Iowa Apr. 9, 2024) (discussing caselaw); United States v. Corbett, 718 F. Supp. 3d 537, 561 (S.D.W. Va. 2024) (same); United States v. Buescher, 691 F. Supp. 3d 924, 936–37 (N.D. Iowa 2023) (same).
After reviewing these cases and other relevant authorities, we conclude that a drug dog’s momentary breach into the cabin of a vehicle through an open window of a legally stopped vehicle does not require the suppression of evidence under either the Fourth Amendment or article I, section 8. With respect to the Fourth Amendment, Illinois v. Caballes, 543 U.S. 405 (2005), remains the controlling case. See Bauler, 8 N.W.3d at 902 (plurality opinion) (explaining that Caballes is controlling on the Fourth Amendment question). In Caballes, the
We are also bound to follow the Supreme Court’s jurisprudence regarding the federal exclusionary rule. “To trigger the exclusionary rule, police conduct must be . . . sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009). The exclusionary rule was intended to deter “deliberate, reckless, or grossly negligent conduct.” Id. This case does not involve deliberate, reckless, or grossly negligent conduct. Here, the officers used a drug dog to conduct an exterior sniff of the vehicle, a practice which the Supreme Court explicitly approved in Caballes. See 543 U.S. at 410. The drug dog’s fleeting touch of the passenger door and de minimis intrusion into the vehicle cabin through a window left open by a passenger does not justify the exclusion of evidence under the Supreme Court’s Fourth Amendment jurisprudence. See, e.g., United States v. Lyons, 486 F.3d 367, 373–74 (8th Cir. 2007) (affirming denial of motion to suppress where K-9 unit breached cabin of vehicle through open window and there was no evidence that peace officers opened the window or directed the window to be opened); Handley, 2024 WL 1536750, at *9 (denying motion to suppress where K-9’s head entered window and concluding that suppression was not required because “this conduct is not culpable enough to trigger the harsh sanction of exclusion”).
On the state constitutional claim, the de minimis crossing of the drug dog’s nose into the open window of the vehicle is of no constitutional import under either of the rationales that sustained the outcome in Bauler. See 8 N.W.3d at 906 (plurality opinion); id. at 911 (McDonald, J., concurring specially). The law
D.
In sum, Camp had probable cause to initiate a traffic stop of the vehicle based on his observation of a completed violation of
II.
This case was tried to the district court rather than a jury. As noted above, the district court acquitted Mumford of possession of methamphetamine but convicted her of possession of marijuana and drug paraphernalia. Mumford challenges the sufficiency of the evidence supporting her conviction for possession of marijuana. Mumford does not contest that she was in possession of a green, leafy substance the officers identified as marijuana. Instead, she challenges whether there was sufficient evidence to show the green, leafy substance was in fact marijuana. She insists the State must introduce evidence from a laboratory showing that the substance was in fact marijuana. She believes such evidence is required now because of recent changes to the law allowing the possession of hemp.
The primary case on which Mumford relies is State v. Brubaker, 805 N.W.2d 164 (Iowa 2011), abrogated on other grounds by State v. Crawford, 972 N.W.2d 189, 197–98 (Iowa 2022). In Brubaker, this court reversed a judgment for unlawful possession of a prescription drug, Clonazepam, for want of sufficient evidence of the identity of the drug. Id. at 174. In that case, the state did not test the pills found in the defendant’s possession but instead relied on an expert to compare the pills found in the defendant’s possession to pictures of Clonazepam. Id. at 172–73. We noted several deficiencies in the state’s case. The expert did not testify that the pills were in fact Clonazepam but only that the
Brubaker provides little support for Mumford’s challenge to the sufficiency of the evidence here. Contra to Mumford’s contention, Brubaker does not stand for the proposition that lab testing is always required to establish the identity of a controlled substance. It merely stands for the proposition that the state must present sufficient evidence to establish the identity of a controlled substance, whether direct or circumstantial. See id. As we explained in Brubaker, “[w]e have always recognized that, for a person to be convicted of a drug offense, the State is not required to test the purported drug.” Id. at 172 (citing In re C.T., 521 N.W.2d 754, 757 (Iowa 1994)). “The identity of a substance as an illegal drug may be proved by circumstantial evidence.” In re C.T., 521 N.W.2d at 757. “The reason for this rule is that circumstantial evidence is not inferior to direct evidence.” Brubaker, 805 N.W.2d at 172. In Brubaker, we then identified a variety of circumstances that would support a finding that a substance was an illegal drug in the absence of testing, including “the physical appearance of the substance involved in the transaction,” “evidence that the substance was called by the name of the illegal narcotic by the defendant or others in [her] presence,” and “whether the known odor of the substance identified it as an illegal drug.” Id. at 173 (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)).
Unlike in Brubaker, the State did present sufficient circumstantial evidence to prove beyond a reasonable doubt that the substance in Mumford’s possession was marijuana. Camp testified that he was a certified drug recognition officer. Mumford stipulated to Camp’s credentials and qualifications. Camp testified that the substance found in Mumford’s purse was marijuana. See State v. Silva, No. 11–1336, 2012 WL 3195994, at *4 (Iowa Ct. App. Aug. 8, 2012) (holding that evidence was sufficient to support conviction where officer testified he “recognized the green leafy substance in the baggie as raw marijuana”); see also United States v. Durham, 464 F.3d 976, 984–85 (9th Cir. 2006) (holding that the “government need not introduce scientific evidence to prove the identity of a substance so long as there is sufficient lay testimony or circumstantial evidence from which a jury could find that a substance was identified beyond a reasonable [doubt]” and collecting cases (alteration in original)); In re Ondrel M., 918 A.2d 543, 546 n.6 (Md. Ct. Spec. App. 2007) (stating that “there is authority, from both federal and state courts, that the testimony of a witness, who is familiar with marijuana through past experience, that the substance in question was marijuana, is admissible into evidence to support a finding that the accused was in possession of marijuana,” and citing cases). Camp’s testimony was confirmed in two respects by contemporaneous bodycam footage. First, the footage showed, at the time of the search, Camp quickly identified the green, leafy substance found in Mumford’s purse as “weed,” a common slang term for marijuana. Second, the substance itself was clearly visible and had the distinctive look of marijuana. See Commonwealth v. Wilkins, No. 621 MDA 2013, 2014 WL 11015648,
Mumford raises one final contention. She argues that there is insufficient evidence to support her conviction because the State failed to disprove the green, leafy substance found in her purse was legal hemp. We disagree. Mumford never raised this issue at trial, and, in any case, “the State is not required to negate any and all rational hypotheses of the defendant’s innocence.” State v. Jones, 967 N.W.2d 336, 342 (Iowa 2021). A federal circuit court recently rejected a similar argument:
Contrary to Rivera’s argument, the government did not need to prove this fact. By excluding hemp from the definition of marijuana, the Farm Bill carved out an exception to marijuana offenses: Someone with cannabis possesses marijuana except if the cannabis has a THC concentration of 0.3% or less. The government need not disprove an exception to a criminal offense unless a defendant produces evidence to put the exception at issue. Because Rivera did not put the hemp exception at issue, the government bore no burden to prove that it was inapplicable. We will therefore affirm the District Court’s judgment of conviction.
United States v. Rivera, 74 F.4th 134, 136 (3d Cir. 2023) (footnote omitted). We agree with the analysis in Rivera.
In a criminal case tried to the district court rather than a jury, the district court’s “findings of fact have the effect of a special verdict, see
After the district court issued its findings and verdict, Mumford filed a motion in arrest of judgment. Her motion in arrest of judgment challenged the sufficiency of the evidence supporting her conviction for possession of marijuana on the same grounds discussed above. The district court denied the motion. Mumford contends the district court erred or abused its discretion in denying Mumford’s motion in arrest of judgment. We disagree. “A motion in arrest of judgment may not be used to challenge the sufficiency of evidence.” State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990); see also State v. Oldfather, 306 N.W.2d 760, 762 (Iowa 1981) (stating that a motion in arrest of judgment cannot be used to challenge the sufficiency of the evidence); State v. Moore, No. 18–0755, 2019 WL 1486604, at *3 n.7 (Iowa Ct. App. Apr. 3, 2019) (“
IV.
The district court did not err in denying Mumford’s motion to suppress evidence. The evidence, when viewed in the light most favorable to the district court’s verdict, is sufficient to establish Mumford was in possession of marijuana. The district court did not err in denying Mumford’s motion in arrest of judgment challenging the sufficiency of the evidence.
Affirmed.
Oxley, Justice (dissenting).
The majority continues to hide behind Illinois v. Caballes, 543 U.S. 405 (2005), even though its Katz-based holding “is irrelevant to” a property-based Fourth Amendment challenge. State v. Bauler, 8 N.W.3d 892, 913 (Iowa 2024) (Oxley, J., dissenting); see also Florida v. Jardines, 569 U.S. 1, 11 (2013) (“The Katz reasonable-expectations test . . . is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas.”); United States v. Jones, 565 U.S. 400, 409 (2012) (“[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” (alteration in original)).
Caballes has even less to say in this case where Orozco, the drug dog, did not alert until after breaking the plane of the passenger window and putting his nose inside the vehicle. See State v. Randall, 496 P.3d 844, 853 (Idaho 2021) (“Though the Supreme Court has not directly addressed the question, Jones and Jardines make clear that a drug dog’s trespass into a car during an exterior sniff converts what would be a non-search under Caballes into a search.”). Caballes did not involve the interior of a vehicle. Rather, it merely approved of a “free air sniff,” which the Supreme Court has described as “an exterior sniff of an automobile [that] does not require entry into the car,” where the dog “simply walks around a car.” City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (emphasis added) (describing a free air sniff used at a checkpoint found to be unconstitutional); see also State v. Bergmann, 633 N.W.2d 328, 334–35 (Iowa 2001) (“[W]e are persuaded by the following long-standing viewpoint. ‘Having the trained dog sniff the perimeter of [defendant’s] vehicle . . . did not of itself constitute a search.’ ‘[T]he airspace around the car is not an area protected
Even the State recognizes that this appeal “presents a distinct ‘interior sniff’ component of . . . Fourth Amendment jurisprudence.” Nonetheless, the majority refuses to address the distinction between the interior and exterior of a vehicle. I respectfully dissent from its conclusion that Mumford’s Fourth Amendment rights were not violated.
I.
In State v. Bauler, a majority of our court concluded that a drug dog’s “[m]inimal contact with the exterior of a vehicle” does not violate the Fourth Amendment. 8 N.W.3d at 900 (plurality opinion); id. at 913 (McDonald, J., concurring specially). The plurality explicitly conditioned its Fourth Amendment holding: “so long as there was no entry into the private space inside the vehicle.” Id. at 895. Faced with that exact scenario here, the majority now dismisses the property-based challenge by characterizing the drug dog’s actions as involving an “almost imperceptible entry into the open window of the vehicle.”
But that distinction is critical in Fourth Amendment jurisprudence. “The inside of a car . . . is typically a different story. Police ordinarily cannot search the interior of an automobile unless they have probable cause to believe that the vehicle contains contraband or other evidence of a crime.” United States v. Pulido-Ayala, 892 F.3d 315, 317–19 (8th Cir. 2018) (concluding that probable cause to search the vehicle existed “before the [drug] dog entered the interior” based on the drug dog “immediately” pulling the canine officer toward the open passenger door such that there was no unlawful search when the dog jumped
Rather than tackle that question, the majority here continues to hide behind Caballes even where federal courts do not. See, e.g., United States v. Newberry, No. 24–CR–1026–LTS, 2024 WL 4590159, at *13–17 (N.D. Iowa Oct. 28, 2024) (finding that “the Government conducted a warrantless and unreasonable search of Defendant’s vehicle” when a drug dog’s nose and head entered the open driver’s window); United States v. Handley, No. 23–CR–57–CJW–MAR, 2024 WL 1536750, at *6–7 (N.D. Iowa Apr. 9, 2024) (concluding that the defendant’s Fourth Amendment rights were violated when a drug dog stuck its nose inside a vehicle—breaking the plane of the driver’s window by four to six inches—before alerting, and noting the “important distinction between cases where the government has probable cause to search a vehicle before a dog enters the interior of a vehicle, based on the dog’s strong reactions while outside the vehicle, and cases where the dog gives no strong reaction or final indication until after entering the interior of the vehicle,” as discussed by the Eighth Circuit in Pulido-Ayala); United States v. Buescher, 691 F. Supp. 3d 924, 936 (N.D. Iowa 2023) (“While some courts have found no Fourth Amendment violation when a drug-sniffing dog breaks the plane of an open window, those decisions were largely prior to Jones and Jardines.”); United States v. Joshua, 564 F. Supp. 3d 860, 877 (D. Alaska 2021) (“[The] K-9 put her paws inside the door of the Porsche and extended the upper half of her body into
That Orozco’s entry inside the vehicle here was “almost imperceptible” is of no moment. See State v. Wright, 961 N.W.2d 396, 413–14 (Iowa 2021) (“A constitutional search occurs whenever the government commits a physical trespass against property, even where de minimis, conjoined with ‘an attempt to find something or to obtain information.’ ” (quoting Jones, 565 U.S. at 408 n.5)). Officer Dekker testified that the drug dog’s “nose went inside the vehicle . . . through an open window” on the passenger side, a point the State concedes on appeal. As the majority notes, it was not until “[a]fter the dog’s nose entered the vehicle[ that] the dog alerted to the presence of controlled
II.
Nor is this a case where the drug dog’s actions could be considered “instinctual,” to the extent that distinction matters. See Randall, 496 P.3d at 853–55 (discussing cases distinguishing between a drug dog being encouraged to enter a vehicle and instinctually doing so and holding “that [the drug dog’s] motivation, instinctual or otherwise, is irrelevant[ because t]he proper inquiry is whether [the officer] had probable cause to believe illegal drugs were in [the defendant’s] car before [the drug dog] jumped through the window”). Officer Dekker gave Orozco a trained command to conduct a “scan search”—i.e., Officer Dekker encouraged the dog to search the entire vehicle, giving it full range to search Mumford’s vehicle, including by jumping up on both sides of the vehicle and sticking its head into the open window as it was trained to do in performing a scan search. Indeed, while actively engaged in that pursuit, Orozco exhibited a “high final” alert in this case by “stand[ing] high and look[ing] at” Officer Dekker immediately after sticking his nose through the window and while his feet were still on the side of the car. Orozco did as he was trained to do.
III.
Finally, the majority ducks the hard work by suggesting we are bound by the federal exclusionary rule in any event. But exclusion is proper under federal law if the drug dog acted on its training, as happened here. See Handley, 2024 WL 1536750, at *9 (distinguishing Buescher, which excluded evidence
I would hold that Mumford’s Fourth Amendment rights were violated and that the district court erred in denying her motion to suppress evidence obtained following the drug dog’s alert.
McDermott, J., joins this dissent.
McDermott, Justice (dissenting).
Mumford argues that her search-and-seizure protections under both the
We interpret the
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.
This language divides the analysis into four questions: (1) Is the subject of the alleged intrusion a person, house, paper, or effect? (2) If so, was it searched or seized? (3) If so, was it the defendant’s (“their”) person, house, paper, or effect?
In State v. Wright, we examined whether the police officer’s conduct in accessing the defendant’s trash bin violated positive law—meaning some existing enacted law or legal doctrine recognized by courts—to determine whether the officer infringed the defendant’s rights under
The appeal in this case comes on the heels of another case in which we analyzed whether a vehicle search involving a police dog violated the
I dissented in Bauler, having concluded both that Wright’s analysis applies to vehicle searches and that the officer’s conduct permitting the police dog to climb onto the side of the vehicle to sniff constituted a physical trespass that made the search unconstitutional. Id. at 924 (McDermott, J., dissenting). Under the common law, a person commits a “trespass to chattel” when the person unlawfully “intermeddles” with another’s personal property. See Restatement (Second) of Torts § 217 cmt. e, at 417, 419 (Am. L. Inst. 1965). To “intermeddle” with another’s personal property is to “intentionally bring[] about a physical contact” with the property. Id. at 417. When the officer guided the police dog to climb up onto the side of the vehicle, the officer “intermeddled” with Bauler’s personal property and thus committed a trespass. See State v. Dorff, 526 P.3d 988, 997–98 (Idaho 2023). Whether the property owner could or would sue for the trespass is immaterial for purposes of determining the relative rights of the parties under
Because the officer in Bauler had no warrant, and no recognized exception to the warrant requirement applied, I would have held that the district court erred in failing to exclude the fruits of the improper search under the
The facts in this case are materially identical to Bauler—only more egregious. We left open the question in Bauler about “whether a dog sniff wherein a dog has been previously trained to put its head inside the car and in fact does so has violate[d] the
The majority finds all this climbing, pawing, and plunging by police dogs onto and into cars “of no constitutional import.” I doubt many car owners would agree. The sight of a dog propped up on the side of one’s car, literally pawing its panels to gain position as it noses the car’s crevices and crannies, presents an alarming picture. More importantly, it constitutes an illegal trespass. That trespass expands further when a police dog also thrusts its head into the passenger compartment. Until today, we had only sanctioned a police dog’s sniffs of the free air outside a vehicle. See State v. Bergmann, 633 N.W.2d 328, 334–35
Equally worrisome, in pondering the majority’s approval today of this further incursion on the rights of citizens in vehicles, I struggle to find any limiting principle. May a police dog climb completely onto the hood or trunk or roof on all four legs to sniff about? Or, to twist the line in George Orwell’s Animal Farm, are two legs good but four legs bad? On what rationale would such a distinction rest after today? And may police now direct their dogs to climb completely inside the passenger compartment too? On this question, if a police dog’s actual searching tool—its nose—presents no constitutional problem inside a car, why would the rest of its body? Having now approved as constitutional what four justices of this court would agree is in fact a trespass, I fail to see how the court in a future case draws any line to find police dog searches involving a vehicle unconstitutional.
But unconstitutional it certainly is. The target of the search—Mumford’s car—is an “effect.” See United States v. Jones, 565 U.S. 400, 404 (2012) (“It is beyond dispute that a vehicle is an ‘effect’ as that term is used” in our search-and-seizure cases). The officer conducted a “search” of the car when he directed the dog to sniff for drugs. See State v. Wright, 961 N.W.2d 413 (defining a “search” as “an examination conducted for the ‘purpose of discovering proof of . . . guilt in relation to some crime.’ ” (quoting 2 John Bouvier, A Law Dictionary 498 (3d ed. 1848))). The search was unreasonable because the officer
The majority contends that even if the State violated the
I thus respectfully dissent and would hold that the officer’s actions violated the search-and-seizure protections of both the