               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43700

STATE OF IDAHO,                                )   2016 Unpublished Opinion No. 736
                                               )
       Plaintiff-Appellant,                    )   Filed: October 19, 2016
                                               )
v.                                             )   Stephen W. Kenyon, Clerk
                                               )
DEBRA JOAN NOELLER,                            )   THIS IS AN UNPUBLISHED
                                               )   OPINION AND SHALL NOT
       Defendant-Respondent.                   )   BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Stephen S. Dunn, District Judge.

       Order granting motion to suppress, affirmed.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for appellant.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Reed P, Anderson,
       Deputy Appellate Public Defender, Boise, for respondent.

                   ________________________________________________

HUSKEY, Judge
       The State appeals from the district court’s order granting Debra Joan Noeller’s motion to
suppress.   The State argues the district court erred when it concluded the officer lacked
reasonable suspicion to stop Noeller’s vehicle for a suspected violation of Idaho Code
Section 49-944 because the plain language of the statute applies to any vehicle driven in Idaho.
Noeller contends even if the officer had reasonable suspicion, the district court can be affirmed
on the alternative theory that the stop was unreasonably extended and Noeller’s consent to search
the vehicle was involuntary. Although we hold the district court erred in finding I.C. § 49-944
applies only to vehicles registered in Idaho, we affirm the district court’s order granting the
motion to suppress because the stop was unreasonably extended and Noeller’s consent to search
was ineffective.




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                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       An officer stopped Noeller’s vehicle, which had Arizona license plates, on Interstate 86
because the vehicle appeared to have window tinting that was too dark on the side and rear
windows in violation of I.C. § 49-944. The officer approached the vehicle on the passenger side.
Upon initial contact, the officer observed Noeller and the passenger were the only occupants.
The officer informed Noeller of the reason for the stop and asked for license, registration, and
insurance. The officer had a tint meter, a device used to measure the tint darkness and/or light
transmission in percentages, but he was not carrying it at the time he approached the vehicle, and
he did not make any attempt to check the vehicle’s window tint during the stop.
       As Noeller and the passenger were retrieving the requested information, the officer asked
several questions.   The officer was standing on the passenger side of the vehicle and the
passenger responded to the majority of the questions. Once the officer was given the registration
and insurance, he conducted a records check which indicated there were no outstanding warrants
for Noeller. When the officer noticed Noeller’s name was not on the registration, the passenger
informed the officer the vehicle belonged to his wife. The officer asked for the passenger’s
identification and confirmed the passenger had no warrants. The officer did not notice any
indication of drug use during his conversation with Noeller and the passenger, and both Noeller
and the passenger remained calm during the questioning.
       Despite Noeller’s and the passenger’s calm demeanor, the lack of evidence of drug use,
the valid license, registration, and insurance, and the lack of warrants, the officer nevertheless
believed Noeller and her passenger were involved in drug activity. Thus, while running the
records check on the passenger, the officer requested back-up so the officer could deploy his
drug dog.
       When the second officer arrived at the scene, the initial officer requested the second
officer take over the investigation of the stop. The initial officer gave the second officer the
drivers’ licenses, registration, and proof of insurance and advised him of the reason for the stop.
The initial officer testified he abandoned the initial purpose of the stop, the possible window tint
violation. The second officer testified that he did not have a tint meter in his patrol vehicle, did
not make any attempt to check the tint, and never dealt with the original purpose of the stop. The
second officer made contact with Noeller and the passenger, asked them to step out of the

                                                 2
vehicle, and had them stand separately while the initial officer deployed his drug dog. The drug
dog did not alert.
       At this point, the officers did not inform Noeller or the passenger that they were free to
leave. Additionally, the officers did not return the licenses, registration, or insurance to Noeller
or the passenger. While the drug dog conducted the free-air sniff, the second officer continued
questioning Noeller. After the failed sniff, the initial officer returned the drug dog to the police
vehicle and continued questioning the passenger. The two officers conferred and determined that
the occupants’ stories did not match. The initial officer testified this indicated the possibility of
criminal activity.
       The initial officer re-contacted Noeller and requested her consent to search the vehicle,
which Noeller gave. The officers testified they did not request consent from the passenger. A
search of the interior of the vehicle yielded methamphetamine and a pipe in Noeller’s purse.
Noeller was arrested. A more thorough search of the vehicle produced approximately 500 grams
of methamphetamine in the bumper of the vehicle.
       Noeller was charged with felony trafficking in methamphetamine, I.C. § 37-
2732(a)(4)(C). Noeller filed a motion to suppress and stipulated to submit briefs regarding the
motion to suppress. After the briefs were submitted, the district court granted the motion to
suppress, finding that Idaho law regarding window tinting, I.C. § 49-944, applies only to vehicles
registered in Idaho. Because the vehicle was registered in Arizona, the district court held, “the
mere existence of window tinting cannot serve as a basis for reasonable suspicion to allow an
officer to stop a vehicle to test the window tint when the vehicle is not registered in Idaho.” The
district court also noted that “although other issues could be addressed as to the appropriateness
of further investigation, length of the stop, reasonable suspicion, etc., the Court need not address
those issues because of the decision made herein.” The State timely appeals.
                                                 II.
                                   STANDARD OF REVIEW
       The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,

                                                 3
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
                                                III.
                                           ANALYSIS
       On appeal, the State argues the district court erred when it concluded the officer lacked
reasonable suspicion to stop Noeller’s vehicle for a suspected violation of I.C. § 49-944 because
the plain language of the statute applies to any vehicle driven in Idaho. Noeller contends the
district court did not err for two reasons. First, Noeller argues the district court correctly found
I.C. § 49-944 applies only to vehicles registered in Idaho. Second, Noeller argues this Court can
affirm the district court on the alternative theory that the stop was unreasonably extended and
Noeller’s consent to search the vehicle was ineffective.
A.     The Plain Language of I.C. § 49-944(2) Applies to Any Car Driven in Idaho
       On appeal, the State argues the district court’s reliance on State v. Morgan, 154 Idaho
109, 294 P.3d 1121 (2013) is misplaced. The State argues the officer had reasonable suspicion
to stop Noeller for a suspected violation of I.C. § 49-944(2) because unlike the statute analyzed
in Morgan, the plain language of I.C. § 49-944(2) applies to any vehicle driven in Idaho, not just
those registered in Idaho. Noeller asserts two reasons why the district court was correct to rely
on Morgan and hold that out-of-state vehicles cannot be expected to comply with Idaho vehicle
requirements. First, Noeller argues a properly displayed out-of-state license plate carries with it
the presumption that window tinting is valid in the state where it is registered. Second, Noeller
argues the terms “any person,” “no person,” and “any motor vehicle” render the statute
ambiguous as those terms are capable of more than one conflicting construction. As such,
Noeller argues the statute must be construed as a whole and because the term “any person” in
section one can mean any citizen of Idaho, section two must be construed in the same way.
       A traffic stop by an officer constitutes a seizure of the vehicle’s occupants and implicates
the Fourth Amendment’s prohibition against unreasonable searches and seizures. Delaware v.
Prouse, 440 U.S. 648, 653 (1979); Atkinson, 128 Idaho at 561, 916 P.2d at 1286. Under the
Fourth Amendment, an officer may stop a vehicle to investigate possible criminal behavior if
there is a reasonable and articulable suspicion that the vehicle is being driven contrary to traffic
laws. United States v. Cortez, 449 U.S. 411, 417 (1981); State v. Flowers, 131 Idaho 205, 208,

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953 P.2d 645, 648 (Ct. App. 1998). The reasonableness of the suspicion must be evaluated upon
the totality of the circumstances at the time of the stop. State v. Ferreira, 133 Idaho 474, 483,
988 P.2d 700, 709 (Ct. App. 1999). The reasonable suspicion standard requires less than
probable cause but more than mere speculation or instinct on the part of the officer. Id. An
officer may draw reasonable inferences from the facts in his or her possession, and those
inferences may be drawn from the officer’s experience and law enforcement training. State v.
Montague, 114 Idaho 319, 321, 756 P.2d 1083, 1085 (Ct. App. 1988).
         This Court exercises free review over the application and construction of statutes. State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219
(1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of
the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659,
978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to
resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d
at 67.
         We are not persuaded by Noeller’s argument that the statute is ambiguous. A statute is
ambiguous where the language is capable of more than one reasonable construction. Porter v.
Bd. of Trustees, Preston School Dist. No. 201, 141 Idaho 11, 14, 105 P.3d 671, 674 (2004).
Although Noeller asserts a different interpretation of the terms in the statute, ambiguity is not
established merely because different interpretations are presented by the parties. Bonner County
v. Cunningham, 156 Idaho 291, 295, 323 P.3d 1252, 1256 (Ct. App. 2014). As such, we will
construe I.C. § 49-944 as written.
         Idaho Code Section 49-944(1) states it is “unlawful for any person to place, install, affix
or apply any window tinting film or sunscreening device to the windows of any motor
vehicle . . . .” However, the statute allows the front side vents, driver’s front side windows, and
the rear window to have a nonreflective window tinting film or a sunscreening device if the light
transmission is not less than thirty-five percent (35%). The side windows to the rear of the driver
must have a light transmission of not less than twenty percent (20%). Idaho Code Section 49-
944(2) states: “[n]o person shall operate on the public highways, sell, or offer to sell any motor



                                                  5
vehicle with a windshield or windows which are not in compliance with the provisions of this
section.”
       The district court found that Morgan:
       established that vehicle requirements, such as license plates, are made with regard
       to the prevailing laws within the state the vehicle is registered. . . . [T]his Court is
       guided by the Morgan decision and finds that the Idaho law regarding window
       tinting, I.C. § 49-944, applies only to vehicles registered in Idaho.
The district court further explained, “[i]f an officer notices that a vehicle has out-of-state plates
as well as window tinting, possibly darker than allowed by Idaho law, then the officer is on
notice that the window tinting on the out-of-state vehicle is not controlled by Idaho law, but by
the home state.” As such, the district court held, “the mere existence of window tinting cannot
serve as a basis for reasonable suspicion to allow an officer to stop a vehicle to test the window
tint when the vehicle is not registered in Idaho.”
       The statute at issue in Morgan was I.C. § 49-428 which states, in pertinent part: “license
plates assigned to a motor vehicle shall be attached, one (1) in the front and the other in the
rear . . . .” In Morgan, an officer initiated a traffic stop after observing Morgan’s out-of-state
vehicle did not have a front license plate. Morgan, 154 Idaho at 111, 294 P.3d at 1123. The
Court found I.C. § 49-428 requires “a vehicle registered in Idaho display both front and rear
license plates,” but “this requirement does not extend to vehicles registered in other states.”
Morgan, 154 Idaho at 111, 294 P.3d at 1123. As such, the Court held the officer did not have
reasonable suspicion to believe a violation of I.C. § 49-428 had occurred. Morgan, 154 Idaho at
111, 294 P.3d at 1123.
       Unlike the statute in Morgan which governed how to properly display an Idaho license
plate on a vehicle registered in Idaho, the statute in this case prohibits behavior on Idaho public
highways. By prohibiting behavior, the statute governs a person’s conduct in Idaho. Because
I.C. § 49-944 governs conduct, it applies to any person, whether they are an Idaho citizen or not,
driving any motor vehicle in Idaho that is not in compliance with I.C. § 49-944. Although
Noeller’s vehicle was registered in Arizona, the officer had reasonable suspicion for the stop
because Noeller was driving that vehicle in Idaho and because the officer suspected the vehicle’s
window tinting was not in compliance with I.C. § 49-944.




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B.     The District Court’s Order is Affirmed on the Alternative Theory That the Stop
       Was Unreasonably Extended
       Noeller argues even if the officer had reasonable suspicion, the district court’s order
granting her motion to suppress should be affirmed on the alternative theory that the stop was
unreasonably extended. Noeller asserts that even if the initial traffic stop was valid, the officer
unconstitutionally extended the stop since the officer had no reasonable, articulable suspicion of
criminal activity. Because the stop was unreasonably extended, Noeller contends her consent to
search the vehicle was ineffective. The State argues the district court declined to address
whether there was reasonable suspicion to extend the stop and therefore, this Court cannot
determine if the stop was unlawfully prolonged and Noeller’s consent was thereby involuntary
because there are no relevant factual findings.
       1.      There is a sufficient factual record
       Even if the district court erred, we can affirm on grounds that the stop was unreasonably
extended. Where a ruling in a criminal case is correct, though based upon an incorrect reason, it
still may be sustained upon the proper legal theory. State v. Diaz, 158 Idaho 629, 636, 349 P.3d
1220, 1227 (Ct. App. 2015). We will not, however, do so in the absence of a sufficient factual
record. State v. Case, 159 Idaho 546, 552, 363 P.3d 868, 874 (Ct. App. 2015).
       Here, the three issues presented on appeal were the same three issues presented to the
district court in Noeller’s motion to suppress. Evidence on each theory was presented during the
motion to suppress hearing. Because the district court found the mere existence of window
tinting cannot serve as a basis for reasonable suspicion to allow an officer to stop a vehicle to test
the window tint when the vehicle is not registered in Idaho, the district court did not address
whether the officer had reasonable suspicion to prolong the stop to investigate additional
criminal activity or whether Noeller’s consent was valid. Nonetheless, these issues were raised
in the motion to suppress and addressed during the motion to suppress hearing; therefore, there is
a sufficient factual record for this Court to render a decision.
       2.      The drug dog sniff unlawfully extended the stop
       Noeller contends the stop was unreasonably extended because at the time the officer ran
his drug dog around her vehicle and the dog failed to alert, the officer could not have had
reasonable, articulable suspicion of additional criminal activity. Noeller contends that both
constitutions were violated, but she provides no cogent reason why Article I, Section 17 of the
Idaho Constitution should be applied differently than the Fourth Amendment to the United States
                                                  7
Constitution in this case. Therefore, this Court will rely on judicial interpretation of the Fourth
Amendment in its analysis of Noeller’s claims. See State v. Schaffer, 133 Idaho 126, 130, 982
P.2d 961, 965 (Ct. App. 1999).
       The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures. Generally, evidence obtained as a result of an unreasonable search or seizure must
be suppressed. Wong Sun v. United States, 371 U.S. 471, 485 (1963). A traffic stop by an
officer constitutes a seizure of the vehicle’s occupants and implicates the Fourth Amendment’s
prohibition against unreasonable searches and seizures. Prouse, 440 U.S. at 653; Atkinson, 128
Idaho at 561, 916 P.2d at 1286. The purpose of a traffic stop is not permanently fixed, however,
at the moment the stop is initiated, for during the course of the detention there may evolve
suspicion of criminality different from that which initially prompted the stop. State v. Parkinson,
135 Idaho 357, 362, 17 P.3d 301, 306 (Ct. App. 2000). The determination of whether an
investigative detention is reasonable requires a dual inquiry--whether the officer’s action was
justified at its inception and whether it was reasonably related in scope to the circumstances
which justified the interference in the first place. State v. Roe, 140 Idaho 176, 181, 90 P.3d 926,
931 (Ct. App. 2004); Parkinson, 135 Idaho at 361, 17 P.3d at 305. An investigative detention is
permissible if it is based upon specific articulable facts which justify suspicion that the detained
person is, has been, or is about to be engaged in criminal activity. State v. Sheldon, 139 Idaho
980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003). The reasonableness of the suspicion must be
evaluated upon the totality of the circumstances at the time of the stop. Ferreira, 133 Idaho at
483, 988 P.2d at 709. The reasonable suspicion standard requires less than probable cause but
more than mere speculation or instinct on the part of the officer. Id. An officer may draw
reasonable inferences from the facts in his or her possession, and those inferences may be drawn
from the officer’s experience and law enforcement training. Montague, 114 Idaho at 321, 756
P.2d at 1085.
        In Parkinson, 135 Idaho at 362-63, 17 P.3d at 306-07, this Court held it was permissible
for one officer to question a vehicle’s driver about drugs and weapons and to take a drug dog
around the car while another officer checked with dispatch on the driver’s status and wrote a
traffic citation. In Parkinson, the questioning and use of a drug dog did not extend the duration
of the stop beyond what was necessary to address the traffic violation. Id. By contrast, in State
v. Aguirre, 141 Idaho 560, 563-64, 112 P.3d 848, 851-52 (Ct. App. 2005), this Court held where

                                                 8
officers abandon the initial purpose of a routine traffic stop and extend the stop to allow for a
drug dog search, the extension must be justified by a reasonable suspicion that criminal activity
is afoot.
            In Aguirre, officers stopped Aguirre for failing to stop prior to entering the roadway. Id.
at 564, 112 P.3d at 852. By the time officers stopped Aguirre, they had already checked for
warrants and other pertinent information. Id. One officer approached Aguirre, informed him of
the purpose of the stop, and obtained Aguirre’s license and registration. Id. However, instead of
pursuing the issuance of the citation, the officer asked Aguirre if anything illegal was in the
vehicle and asked for consent to search. Id. When denied consent, the officer employed a drug
dog around the vehicle. Id. Though other officers were on the scene, none of the officers
continued the initial purpose of the stop; rather, the officers all pursued the drug investigation.
Id. This Court noted, the “purpose that justified the stop--the issuance of a traffic citation--was
immediately abandoned.” This Court held, “the use of the drug dog impermissibly extended the
duration of the detention authorized by Terry.”1 Id.
        The present case is more similar to the officers’ behavior in Aguirre than the
simultaneous drug investigation and issuance of a traffic citation in Parkinson. Here, the officer
stopped Noeller’s vehicle because he suspected a violation of window tint laws. The officer
approached the passenger side of Noeller’s vehicle, asked how Noeller and her passenger were
doing, and informed them of the reason for the stop. The officer asked for Noeller’s license and
registration.
        As Noeller and the passenger were retrieving the requested information, the officer asked
several questions.       The officer was standing on the passenger side of the vehicle and the
passenger responded to the majority of the questions. Once the officer was given the registration
and insurance, he conducted a records check which indicated there were no outstanding warrants
for Noeller. When the officer noticed Noeller’s name was not on the registration, the passenger
informed the officer the vehicle belonged to his wife. The officer asked for the passenger’s
identification and confirmed there were no warrants for the passenger. The officer did not notice
any indication of drug use during his conversation with Noeller and the passenger, and both
Noeller and the passenger remained calm during the questioning.



1
        See Terry v. Ohio, 392 U.S. 1 (1968).
                                                    9
       Despite Noeller’s and the passenger’s calm demeanor, the lack of evidence of drug use,
the valid license, registration and insurance, and the lack of warrants, the officer nevertheless
believed Noeller and her passenger were involved in drug activity. Thus, while running the
records check on the passenger, the officer requested back-up so the officer could deploy his
drug dog.
       When the second officer arrived at the scene, the initial officer requested the second
officer take over the investigation of the stop. The initial officer gave the second officer the
drivers’ licenses, registration, and proof of insurance and advised him of the reason for the stop.
The second officer did not continue investigating the window tint violation. The initial officer
testified that he abandoned the initial purpose of the stop. Like Aguirre, once Noeller was
stopped and her information was verified, no effort was made to issue a traffic citation. The
initial officer had a tint meter but he was not carrying it and did not make any attempt to check
the window tint of the vehicle during the stop. Further, the second officer had no tint meter and
did not make any attempt to check the tint.
       The record indicates the officers were not conducting concurrent investigations like those
in Parkinson--one aimed at resolution of the traffic offense and another aimed at drug
interdiction. Rather, like Aguirre, the collective effort of the officers was uniformly directed at a
drug investigation completely unrelated to the traffic stop. When the officers removed the
occupants from the vehicle and deployed the drug dog, they did so without reasonable suspicion
of a drug-related offense. Further, when the drug dog failed to alert, the officers continued to
question Noeller and the passenger notwithstanding all the evidence rebutting any indication of
criminal activity. Besides the lack of conversation between the initial officer and Noeller, the
only fact giving the initial officer reasonable suspicion of criminal activity was Noeller’s lack of
conversation. The officer did not articulate any other basis to support a reasonable inference that
Noeller had either committed or was about to commit a crime. Absent other articulable facts that
Noeller was engaged in criminal activity and given all of the evidence rebutting such a belief, the
drug dog sniff of Noeller’s vehicle unlawfully extended the scope of the traffic stop. Therefore,
we hold because the officer abandoned the purpose of the stop without reasonable suspicion, the
district court did not err in granting Noeller’s motion to suppress.




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       3.      Noeller’s consent was ineffective because it was given during an illegal
               detention
       Noeller contends her consent to search the vehicle was ineffective because it was tainted
by the illegal detention. Although a warrantless entry or search of a vehicle is generally illegal
and violative of the Fourth Amendment, such an entry or search may be rendered reasonable by
an individual’s consent. State v. Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986);
State v. Abeyta, 131 Idaho 704, 707, 963 P.2d 387, 390 (Ct. App. 1998). In such instances, the
State has the burden of demonstrating consent by a preponderance of the evidence. State v.
Kilby, 130 Idaho 747, 749, 947 P.2d 420, 422 (Ct. App. 1997). The State must show that consent
was not the result of duress or coercion, either direct or implied. Schneckloth v. Bustamonte, 412
U.S. 218, 248 (1973); State v. Whiteley, 124 Idaho 261, 264, 858 P.2d 800, 803 (Ct. App. 1993).
The voluntariness of an individual’s consent is evaluated in light of all the circumstances.
Whiteley, 124 Idaho at 264, 858 P.2d at 803. Consent to search may be in the form of words,
gestures, or conduct. State v. Knapp, 120 Idaho 343, 348, 815 P.2d 1083, 1088 (Ct. App. 1991).
Whether consent was granted voluntarily, or was a product of coercion, is a question of fact to be
determined by all the surrounding circumstances. State v. Hansen, 138 Idaho 791, 796, 69 P.3d
1052, 1057 (2003).
       Here, the drug dog sniff of Noeller’s vehicle unlawfully extended the scope of the traffic
stop. After the drug dog failed to alert, the officers did not return Noeller’s license or the
vehicle’s registration or insurance, did not inform Noeller she was free to leave, and continued to
question both Noeller and the passenger. The officers then requested consent to search the
vehicle, which Noeller granted. Because Noeller’s search was given during an illegal detention,
her consent was tainted by the illegality and, therefore, was ineffective. See Florda v. Royer,
460 U.S. 491, 507-08 (1983).
                                                IV.
                                         CONCLUSION
       For the reasons set forth above, the district court erred in finding the officer did not have
reasonable suspicion to stop Noeller for a suspected violation of I.C. § 49-944(2).      However,
because the officer unreasonably extended the scope of the traffic stop, Noeller’s consent was
tainted by the illegality and, therefore, was ineffective. Thus, the district court’s order granting
Noeller’s motion to suppress is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.
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