                                                                          FILED
                                                                       APRIL 17, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )        No. 34765-6-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
MEGAN CHERISSE LARES-STORMS,                  )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, J. — Megan Lares-Storms appeals her convictions for possession of

methamphetamine with intent to deliver and for use of drug paraphernalia by challenging

the constitutionality of a police dog’s sniff of her automobile. We uphold the

constitutionality of the sniff and affirm Lares-Storms’ convictions.

                                          FACTS

        This appeal concerns purported unlawful drug sales by appellant Megan

Lares-Storms. Since Lares-Storms challenges, on appeal, the issuance of a search

warrant, most of these facts arise from an affidavit of a law enforcement officer in

support of the issuance of the warrant to search the car of Lares-Storms.
No. 34765-6-III
State v. Lares-Storms


       In early 2016, the County and City of Walla Walla Law Enforcement Drug

Unit received information about Megan Lares-Storms selling methamphetamine. We

do not know the origin or specifics of the information. Nevertheless, from past

encounters with Lares-Storms, law enforcement officers earlier suspected her to sell

narcotics.

       The County and City Drug Unit also learned that Megan Lares-Storms drove a

2005 black four door Chevy Malibu with Washington license plate AWN-4415.

Again, we do not know the source of the information. Walla Walla Police

Department Detective Steve Harris perused Department of Motor Vehicle records

and learned that Ines Moreno, not Lares-Storms, was the registered owner of the

Malibu. The car’s registration listed the vehicle as tan, not black, in color, so

Detective Harris checked the vehicle identification number and confirmed the car

was not stolen and the license plates had not been switched.

       On February 25, 2016, the Walla Walla County and City Drug Unit, led by

Detective Steve Harris, attempted a controlled buy, whereby a confidential informant

would purchase methamphetamine from a known seller. When the informant met with

the seller, the seller explained that he or she did not then possess the methamphetamine

and asked the informant to journey to a location near the Border Tavern in west Walla

Walla. The seller stated that he or she would rendezvous with his or her supplier at the

location and procure methamphetamine to sell to the confidential informant. When law

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State v. Lares-Storms


enforcement officers arrived at the Border Tavern area to observe the drug transaction,

they eyed a 2005 black Chevy Malibu with plate AWN-4415 occupied only by a female

driver. Officers peered as the seller entered the Malibu, promptly exited the car, and

delivered methamphetamine to the confidential informant. Officers later showed a

picture of Megan Lares-Storms to the informant. The informant could not definitely

identify Lares-Storms as the lady pictured in the photograph, but the informant “felt”

that the photographed person drove the black Chevy Malibu to the location of the

methamphetamine sale. Clerk’s Papers (CP) at 36.

       More than a month later and on March 30, 2016, Detective Steve Harris saw the

black Chevy Malibu with Washington license plate AWN-4415 parked on Chestnut

Street near a Walla Walla residence. Detective Harris then confirmed with police

dispatch that the Department of Corrections had issued a warrant for Megan Lares-

Storms’ arrest. Harris spied Lares-Storms, while toting a bag and backpack, exit the

residence and enter the Malibu. When Lares-Storms drove away, Harris followed as he

called for backup. Lares-Storms later parked at a Taj gas station and food mart. Walla

Walla Police Department Officer Nick Henzel responded to the request for assistance.

Henzel and Harris situated their cars to block Lares-Storms from driving from the

mart’s parking lot.

       Officer Nick Henzel walked to the driver’s side of the Malibu and knocked on

the window. Megan Lares-Storms did not respond to the knock, so Officer Henzel

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State v. Lares-Storms


opened the car door, grabbed Lares-Storms’ arm, and forcibly removed her from the

car. While Detective Steve Harris told Lares-Storms that she was under arrest, she

dialed the cell phone in her hand. Detective Harris seized the cell phone from Lares-

Storms’ hand and laid the phone on the driver’s seat of the vehicle. Unbeknownst to

Harris, Lares-Storms maintained a blue tooth ear piece in her ear. Lares-Storms

received a call and told the caller that a police officer arrested her, at which time Harris

removed the blue tooth device from her ear and also laid it on the driver’s seat of the

vehicle.

       Megan Lares-Storms expressed concern to Detective Steve Harris about her

personal possessions in the Malibu and expressed a desire to lock the car doors.

Detective Harris responded that her possessions would remain in the car, which law

enforcement would lock. After this exchange, officers transported Lares-Storms to the

county jail.

       With Lares-Storms removed from the Taj parking lot, Walla Walla Police

Detective Steve Harris summoned Officer Gunner Fulmer and his drug sniffing dog

Pick to travel to the parking lot so the dog could sniff the Malibu. No officers could

smell any odor of methamphetamine outside the car. After Pick’s arrival, the dog

sauntered around the vehicle. Pick purportedly changed behavior when he smelled a

controlled substance. We do not know the nature of the alleged change in behavior.

Based on Pick’s alerting behavior, Detective Harris directed a towing company to tow

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State v. Lares-Storms


the vehicle to a secure storage facility where Harris locked the car and placed evidence

tape on the doors and trunk.

       On March 31, the next day, Detective Steve Harris applied for a warrant to

search the Chevrolet Malibu. Harris signed and submitted an affidavit to support the

warrant, which affidavit detailed the facts recited above. The affidavit attached an

affidavit from Officer Gunner Fulmer, Pick’s handler. In his affidavit, Officer Fulmer

detailed his training and experience, including a course from Puget Sound Detection

Dogs and his certification in drug detection with two dogs, including Pick, from the

Pacific Northwest Detection Dog Association and the Pacific Northwest Canine

Association. Fulmer’s affidavit also noted that he attended a week’s training with the

Pacific Northwest Canine Association for drug concealment techniques and street level

drug interdiction and a week’s training with the same association for drug detection and

dog health and first aid.

       Officer Gunner Fulmer’s affidavit continued with regard to Pick’s training and

experience and with Fulmer referring to himself in the third person:

              K9 “Pick” has successfully completed a 16 week course of training
      for the detection of odors emanating from Cocaine, Heroin, and
      Methamphetamine. This course of training was conducted at Puget Sound
      Security Detection Dogs, Arlington Washington; under the direction of
      trainer Christina Bunn. Further, K9 “Pick” and his handler Officer Fulmer
      successfully completed [indecipherable] 200 hours prior to be[ing] certified
      by Pacific Northwest Detection Dog Association on January 26, 2015. K9
      “Pick” is a 2 year old, female black lab. K9 Pick will recertify every year
      she is in service.

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State v. Lares-Storms


               K9 “Pick” is trained to give a “Passive” alert to the presence of odors
       emanating from controlled substances. This alert is described as a change of
       behavior, characterized by a tail flag, intensive rapid sniffing and/or
       focusing on a specific area. This alert phase manifests itself by culminating
       into a specific alert where K9 “Pick” will passively sit/stand and stare at the
       source of the odor.
               K9 “Pick” and her handler, Officer Fulmer has performed over 400
       applications where controlled substances were discovered and / or the odors
       of controlled substances were present. K9 “Pick” is Officer Fulmer’s second
       service K9, following K9 “Rev” who has since retired from service after 6
       1/2 years of serving the Walla Walla Community.
               K9 “Pick” and Officer Fulmer are regularly utilized by the
       Washington State Patrol, Oregon State Patrol, Umatilla County Sheriff,
       College Place PD, Walla Walla County Sheriff, Washington State
       Penitentiary, DEA, FBI, and the City of Walla Walla PD for their detection
       expertise.

CP at 33-34. The affidavit does not indicate whether Pick ever falsely reported the

presence of controlled substances or whether he failed to detect the presence of controlled

substances.

       The Walla Walla District Court granted the search warrant. The warrant

authorized law enforcement to enter the Chevy Malibu and seize any illegal narcotics,

smoking devices, drug paraphernalia, packaging materials, weighing scales, money

from controlled substances sales, written or electronically stored records of drug sales,

cell phones, and documents indicating dominion over the Malibu. When officers

searched the Chevy Malibu, they snatched a small electronic scale with residue thereon

and five plastic sealed bags with suspected methamphetamine in each. Officers’ field

testing suggested the presence of methamphetamine. The methamphetamine inside the


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No. 34765-6-III
State v. Lares-Storms


bags weighed thirty grams. Officers discovered other empty plastic bags and $700 in

cash.

                                       PROCEDURE

        The State of Washington charged Megan Lares-Storms with possession with intent

to distribute methamphetamine and use of drug paraphernalia. Lares-Storms moved,

under CrR 3.6, to suppress the evidence found inside her car. The trial court denied the

motion after ruling that Pick’s sniffing of the Malibu did not constitute a search under the

Washington Constitution. The parties submitted stipulated facts to the trial court, with

Lares-Storms reserving the right to appeal the suppression ruling. The stipulation

included facts emanating from the execution of the search warrant. The trial court found

Lares-Storms guilty of both charges.

                                  LAW AND ANALYSIS

        Megan Lares-Storms appeals the trial court’s order denying her motion to suppress

evidence seized from the Chevrolet Malibu with a search warrant obtained after a police

narcotics dog sniffed the car to determine the presence of drugs. Lares-Storms focuses on

whether a dog sniff constitutes a search. Lares-Storms characterizes the canine smell as

an unreasonable governmental intrusion into her automobile and its contents. She argues

that the dog sniff was an unconstitutional search and, absent the sniff, the remaining facts

in the search warrant affidavit do not create probable cause.

        The State contends that Officer Gunner Fulmer needed no warrant to direct Pick to

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No. 34765-6-III
State v. Lares-Storms


sniff the Malibu. The State characterizes the dog smell as reasonable and nonintrusive.

Based on the circumstances of the case, we agree with the State.

         Megan Lares-Storms 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 of law.” 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 Wn.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). For example

with regard to motor vehicles, the Fourth Amendment acknowledges an “automobile

exception” to the warrant requirement, but Washington law recognizes no such exception.

State v. Snapp, 174 Wn.2d at 192. Sobriety checkpoints pass Fourth Amendment muster,

but violate Washington’s article I, section 7. City of Seattle v. Mesiani, 110 Wn.2d 454,

457-58, 755 P.2d 775 (1988); Michigan Department of State Police v. Sitz, 496 U.S. 444,

                                             8
No. 34765-6-III
State v. Lares-Storms


455, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990). Under federal law, law enforcement may

search a car incident to arrest if officers hold a reasonable belief that the vehicle contains

evidence of the crime of arrest. State v. Snapp, 174 Wn.2d at 190-91. But, pursuant to

Washington law, a warrant must be obtained in such circumstances. State v. Snapp, 174

Wn.2d at 197. Megan Lares-Storms emphasizes these strong protections afforded one’s

privacy inside one’s motor vehicle.

       The State of Washington preliminarily argues that Megan Lares-Storms did not

provide a necessary Gunwall analysis when arguing that Washington Constitution article I,

section 7 provides no greater protection against dog smells than the federal constitution.

Washington appellate courts will generally not examine whether the Washington

Constitution provides greater protection than the United States Constitution unless a party

adequately briefs the Gunwall factors. Sprague v. Spokane Valley Fire Department, __

Wn.2d __, 409 P.3d 160, 172 (2018). Under State v. Gunwall, 106 Wn.2d 54, 720 P.2d

808 (1986), we review six nonexclusive neutral criteria to help determine whether the state

constitutional clause carries meaning different from its federal counterpart: (1) the textual

language of the state constitution, (2) significant differences in the texts of parallel

provisions of the federal and state constitutions, (3) state constitutional and common law

history, (4) preexisting state law, (5) differences in structure between the federal and state

constitutions, and (6) matters of particular state interest or local concern. State v.

Gunwall, 106 Wn.2d at 61-62. Lares-Storms actually addresses two of these factors.

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No. 34765-6-III
State v. Lares-Storms


Nevertheless, the Washington Supreme Court previously announced that article I, section

7 bestows greater protection than the Fourth Amendment, such that a Gunwall analysis is

no longer necessary. State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003); State v.

Vrieling, 144 Wn.2d 489, 495, 28 P.3d 762 (2001).

       The State contends that Megan Lares-Storms must still provide the court with a full

Gunwall analysis because no Washington decision has extended the protections of the

state constitution from a dog smell beyond protections afforded by the federal Fourth

Amendment. We read Jackson and Vrieling, however, as not requiring the Gunwall

analysis no matter the context in which the accused asserts Washington Constitutional

article I, section 7 protection.

       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 Wn.2d 166, 171, 43 P.3d 513

(2002). Since Officer Gunner Fulmer garnered no search warrant before Pick’s sniff of

the Malibu, we must decide whether a dog’s inhaling of odors from a car 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 Wn.2d 571, 577, 800 P.2d 1112 (1990).

Nevertheless, Washington cases still analyze dog smells based on the question of whether

the sniff falls within the rubric of a search.

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No. 34765-6-III
State v. Lares-Storms


       When a law enforcement officer can detect something by using one or more of his

or her senses while being lawfully present at a vantage point, the detection does not

constitute a search. State v. Seagull, 95 Wn.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 Wn.2d 173, 182, 867

P.2d 593 (1994). This means of surveillance does not expose a person’s private affairs.

State v. Dearman, 92 Wn. 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).

       Any search by K9 Pick did not entail sight. Pick searched by her sense of smell.

Officer Gunner Fulmer lacked the acuity of smell to detect controlled substances in the

Malibu.

       Unlike the United States Supreme Court, Washington courts, when applying

Washington law, have not adopted any blanket rule rejecting a dog sniff as constituting a

search. State v. Boyce, 44 Wn. App. 724, 729, 723 P.2d 28 (1986). Instead, in

Washington, whether a dog sniff amounts to a search depends on the privacy rights at

stake due to the intrusion. State v. Boyce, 44 Wn. App. at 729-30. 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).



                                             11
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State v. Lares-Storms


       Megan Lares-Storms contends that Pick’s inhalation of methamphetamine

molecules unreasonably intruded in her privacy interest in the Malibu. In support of her

contention, Lares-Storms cites State v. Young, 123 Wn.2d 173 (1994) and State v.

Dearman, 92 Wn. 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 Wn. 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

does not qualify as a search.

       In State v. Hartzell, the police linked Charles Hartzell to an apartment shooting

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.

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No. 34765-6-III
State v. Lares-Storms


On appeal, this court ruled that Charles Hartzell lacked a reasonable expectation of

privacy in the air emerging from his vehicle. Hartzell stood outside the vehicle when the

dog sniff occurred and the sniff was minimally intrusive. Accordingly, we held the dog

sniff did not comprise a search requiring a warrant under article I, section 7 of the

Washington Constitution.

       Megan Lares-Storms distinguishes State v. Hartzell on the facts that Charles

Hartzell had an open window and the window to Lares-Storms’ Malibu was closed.

Lares-Storms cites no decision, however, that makes such a distinction. No decision

stands for the proposition that a car with an open window deserves less protection than a

fully enclosed car. In both cases, the police dog merely smelled around the car, not inside

the car.

       We conclude that law enforcement did not unreasonably intrude on Megan Lares-

Storms’ private affairs by Pick sniffing the air surrounding the Malibu in a business’s

parking lot. Pick’s sniff was less intrusive than the police dog smell in Hartzell. We have

no facts that Pick jumped on the Malibu to smell air coming from the window. Pick

merely sauntered around the car.

       Megan Lares-Storms and amicus also challenge the reliability of canine sniffs.

Lares-Storms in particular asks us to reject the credibility of Pick’s sniff of the Malibu

because the affidavit for the search warrant did not identify the accuracy of Pick’s sense of

smell. The affidavit disclosed that Pick identified controlled substances on four hundred

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State v. Lares-Storms


occasions, but the affidavit does not inform the reader as to how many times Pick

mistakenly identified unlawful drugs or failed to detect the presence of drugs. Lares-

Storms asks for a rule that demands police officers disclose the false positive rates of

police canines in search warrant affidavits.

       As part of this challenge, Megan Lares-Storms and amicus afford this court with

literature questioning the trustworthiness of dog smells of contraband. According to one

legal article, some dogs rarely err and possess a false positive rate of only eight percent,

but others dogs react unreliably, with false positive rates reaching over fifty percent,

meaning one of every two alerts constitutes a false positive. See Lewis R. Katz & Aaron

P. Golembiewski, Curbing the Dog: Extending Protection of the Fourth Amendment to

Police Drug Dogs, 85 NEB. L. REV. 735, 757 (2007). Since warrant applications typically

omit the false positive rates of the investigating dog, a reviewing court does not know the

range of false alerts that befall the subject police dog.

       Lares-Storms observes that dogs alert to compounds inside a controlled substance,

which compounds also comprise a lawful substance. For example, dogs do not smell

heroin per se, but rather alert to the acetic acid in heroin, which acid is a common

ingredient in pickles and glue. Katz & Golembiewski, supra at 754-55. Methyl benzoate,

the chemical compound to which a dog alerts in cocaine, comprises many lawful products.

Katz & Golembiewski, supra at 755-56. Evidence also shows that a dog’s handler may

influence the canine’s response.

                                               14
No. 34765-6-III
State v. Lares-Storms


       We recognize recent studies and literature that question the reliability of dog sniffs.

Nevertheless, we decline to review Megan Lares-Storms’ challenge to Pick’s credibility.

Lares-Storms did not challenge the reliability before the trial court. A party may not

generally raise a new argument on appeal that the party did not present to the trial court.

In re Detention of Ambers, 160 Wn.2d 543, 557 n.6, 158 P.3d 1144 (2007).

       Megan Lares-Storms asks us to address her contention despite her failure to raise

the argument before the trial court because her contention addresses manifest

constitutional error. Assuming any constitutional error, however, any error is not clear or

manifest. This court previously held that law enforcement may premise the reliability of a

dog’s sniff solely on an attestation of the dog’s training and certification. State v. Gross,

57 Wn. App. 549, 551, 789 P.2d 317 (1990). The court came to this conclusion by citing

federal circuit decisions from the 1970s and 1980s. Lares-Storms cites no decision in

American jurisdictions contrary to Gross. The rejection of the ruling in State v. Gross and

the formulation of a new rule requiring disclosure of a police dog’s record of reliability

before the issuance of a search warrant based on a sniff is a subject best left to the trial

court after a full exploration of the evidence supporting and opposing the reliability of a

sniff or best reserved for our Supreme Court or the state legislature.




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State v. Lares-Storms


                                      CONCLUSION

       We affirm the trial court's denial of Megan Lares-Storms' motion to suppress

evidence seized from the Malibu. We affirm her convictions for possession of a

controlled substance with intent to deliver and for 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.

                                             J,£2,1          .~
                                          Fearin~~

WE CONCUR:




Lawrence-Berrey, C.J. •




                                             16
