Filed 9/4/08                 NO. 4-07-0311

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellant,         )    Circuit Court of
          v.                           )    Adams County
CHERYL L. BARTELT,                     )    No. 06CF442
          Defendant-Appellee.          )
                                       )    Honorable
                                       )    Scott H. Walden,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE KNECHT delivered the opinion of the court:

          In July 2006, the State charged defendant, Cheryl L.

Bartelt, with unlawful possession of methamphetamine (720 ILCS

646/60(b)(1) (West 2006)).    In September 2006, defendant filed a

motion to suppress evidence obtained during a traffic stop.     In

March 2007, the trial court granted defendant's motion.   The

State filed this interlocutory appeal pursuant to Supreme Court

Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)).    On appeal, the State

argues the trial court erred by granting defendant's motion to

suppress the evidence.   We reverse.

                             I. BACKGROUND

          At the December 2006 hearing on the defendant's motion

to suppress, Officer Mike Tyler testified he was employed with

the Quincy police department for seven years.   He also noted he

was formally trained in proper procedures for search and seizure.

          On July 29, 2006, Tyler observed a pickup truck parked
on the sidewalk.   He recognized the truck as belonging to defen-

dant, whom he had heard used methamphetamines.   He watched the

truck for 1 1/2 hours from a one-block distance.   At approxi-

mately 8:15 p.m., defendant and a man came out of an apartment

building and put garbage bags in the bed of the truck.   Defendant

reentered the apartment, returned to the truck, got into the

driver's seat, and pulled off the sidewalk onto the street.

Tyler followed her vehicle a short distance to a gas station.     As

defendant pulled up to the gas station, Tyler turned on the

lights of his police car.

          Tyler approached the truck and told defendant her truck

was sitting on the sidewalk for 1 1/2 hours, in violation of the

Illinois Vehicle Code (625 ILCS 5/11-1303(a)(1)(b) (West 2006)).

Tyler explained defendant's violation, got her insurance and

driver's license information, and returned to his vehicle to run

the driver's license through the LEADS system.

          Officer Darin Kent arrived on the scene while Tyler was

running the driver's license, and he asked Tyler to set up the

truck for a canine sniff.   Tyler ordered defendant to roll up the

windows and turn the vents "on high" blowing out air.    Tyler did

not observe any illegal items in plain view.   Kent then ran Max,

his canine, around the truck.   Max alerted on both doors.   Tyler

ordered defendant out of the vehicle and asked whether anything

illegal was in the vehicle.   Tyler sent defendant to the rear of


                                - 2 -
the truck to talk to Kent.

          Tyler testified Kent briefly searched both defendant

and passenger.    Tyler then watched defendant and the passenger

while Kent searched the cab of the truck.    Kent did not ask

permission to search the vehicle because the dog had alerted to

the vehicle.    Kent found a pen casing in a wallet, a digital

scale, and a burnt piece of tinfoil.    More burnt tinfoil was

found inside the garbage bags in the bed of the truck.    Defendant

was arrested.    Officer Darla Pullins arrived and searched defen-

dant and then drove her to police headquarters, where defendant

was read her rights.    Defendant asked for an attorney, and Tyler

did not question her.

          Tyler stated when he first noticed the truck parked on

the sidewalk he did not know who was responsible for the vehicle

violation.   After he looked up the license plate, Tyler became

interested in conducting a traffic stop and drug sniff and

alerted Kent he was waiting for the driver.    Tyler estimated Kent

arrived within three minutes of the traffic stop.

          Tyler testified when he ordered defendant to set up the

car, he directed her to roll up all the windows and turn the

vents on high blowing air.    Tyler said when he goes through the

set up he directs the driver put the car on auxiliary power and

then says, "Can you go ahead [and] close all your windows and

turn your blowers on high."


                                - 3 -
            Tyler also testified the set-up procedure is one taught

at the canine academy and Kent prefers officers do so to prepare

for a dog sniff.    This technique forces air out of a vehicle.

            Officer Darin Kent testified he was employed as a

Quincy police officer for 10 1/2 years and had been a canine

handler for the street-crimes unit since 2002.      His canine's name

was Max, and Max was a full-service police canine trained in drug

detection, tracking, article searches, and area searches.      Kent

initially took a 10-week training course, and he and Max

recertified with an independent evaluator every six months.       Kent

had also been trained in advance techniques for canine SWAT and

later became an instructor for new canine handlers through the

Illinois State Police.

            Immediately before a canine sniff, Kent stated he

directed the driver to turn the engine off, turn the key to

auxiliary, turn the blower on high, roll up the windows, and

close the doors to force drug odors through the seams of the

vehicles.    Canines are trained to specifically sniff a vehicle's

seams.   Kent tells drivers they need to comply with the set up,

but he does not threaten them into complying.

            During the traffic stop in this case, Kent conducted

the exterior sniff of the vehicle.      Max alerted on both the

driver and passenger sides.    When Max alerted, he squared his

body to the odor, breathed rapidly, put his paw out, and barked.


                                - 4 -
Kent returned Max to the squad car and searched the vehicle.      He

found a pen casing with a burnt end and a powder substance on the

inside, several burnt strips of tinfoil, and a digital scale.

           Kent also said he was taught the set-up technique by

the Illinois State Police and he in turn taught officers the

same.   Drivers are not given a warning before officers request

the vehicle set up.    Kent testified to avoid issues regarding a

search before probable cause he would not reach his own hand into

a vehicle to turn on the auxiliary power or blower.

           The trial court then questioned Kent about how he would

get consent to search a vehicle.    Kent testified officers

typically "finish a traffic stop, completely release them from

the traffic stop, *** [and] then ask if they have time to speak

with us[,] at which time we will then ask for consent to search

the vehicle."   When they set up a vehicle for a dog sniff, the

officer says, "[Y]ou need to roll your windows up and turn your

vents on high."    Kent does not present it as an option to the

occupants of the vehicle.

           Upon conclusion of arguments of counsel, the trial

court granted the motion to suppress evidence, reasoning as

follows:

                  "The officers had no probable cause to

           enter the vehicle before Max alerted.   By

           requiring the defendant, without her consent,


                                 - 5 -
to close the doors and windows and turn the

blower on high, the officers in effect moved

and manipulated the air within the vehicle

that would not otherwise have been subject to

their plain view or smell.    Max could not

lawfully be where the officers could not

lawfully be.   The officers could not lawfully

be in the vehicle, and therefore Max could

not lawfully be in the vehicle.    In order for

the 'plain view' or 'plain smell' doctrines

to be applicable, the officer, and in this

case Max, had to be in a place where they

could lawfully be before they could lawfully

view or smell.   The court recognizes that Max

was still outside the defendant's truck when

he alerted, but the analogy from [United

States v.] Hutchinson [,471 F. Supp. 2d 497,

(M.D. Pa. 2007)], seems applicable and logi-

cal.   In effect, Max was placed inside the

vehicle by the officers.     Applying Hutchinson

logic, the court finds that the directing of

the defendant to close the truck's windows

and door and to turn on the blower on high

turned the dog sniff into an unreasonable


                     - 6 -
          search under the fourth amendment."

                           II. ANALYSIS

          This court will reverse a trial court's ruling on a

motion to suppress where it involves credibility assessments or

factual determinations only if it is against the manifest weight

of the evidence.   People v. Driggers, 222 Ill. 2d 65, 70, 853

N.E.2d 414, 417 (2006).   A reviewing court examines de novo the

ultimate ruling granting or denying the motion to suppress.

Driggers, 222 Ill. 2d at 70, 853 N.E.2d at 417.

          At the outset, we note the arguments on appeal are

limited to the set-up technique employed by the police prior to

the dog sniff and no other portion of the stop is at issue.    The

question is whether the police order to defendant to roll up her

windows and turn the blower to high intruded upon a legitimate

privacy interest and constituted a search under the fourth

amendment.

          The State argues the trial court's decision should be

reversed because Tyler's orders to set up the vehicle did not

change the nature of the sniff to an unlawful search because (1)

Max remained outside the vehicle and (2) defendant had no legiti-

mate expectation of privacy in the potentially incriminating

odors emanating from her lawfully stopped vehicle.

          "A 'search' occurs when an expectation of privacy that

society is prepared to consider reasonable is infringed."     United


                               - 7 -
States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 94, 104

S. Ct. 1652, 1656 (1984).   A field test that has a remote possi-

bility of revealing a noncriminal fact is highly unlikely to

"actually compromise any legitimate interest in privacy" and

cannot be characterized as a search subject to the fourth amend-

ment.   Jacobsen, 466 U.S. at 124, 80 L. Ed. 2d at 101, 104 S. Ct.

at 1662 (holding a field test to determine whether a white powder

substance was cocaine was not a search).   More recently, the

Court found a dog sniff does not compromise defendant's legiti-

mate interest in privacy because no one has a legitimate interest

in possessing contraband, and the canine drug-sniff, properly

performed, was likely to reveal only the presence of contraband.

Illinois v. Caballes, 543 U.S. 405, 408-09, 160 L. Ed. 2d 842,

847, 125 S. Ct. 834, 837-38 (2005).

           The State argues the set-up technique was more properly

compared to government agents prepping luggage for a dog sniff

than to opening a vehicle or a container in its interior.

Federal precedent suggests government agents do not violate the

fourth amendment when they prepare a defendant's luggage to

facilitate a canine sniff for drugs.   See United States v. Viera,

644 F.2d 509, 510-11 (5th Cir. 1981) (holding that where govern-

ment agents prepare bags by pressing lightly with the hands and

slowly circulating the air, this does not constitute a search);

see also United States v. Lovell, 849 F.2d 910, 915 (5th Cir.


                               - 8 -
1988) (noting where Drug Enforcement Administration (DEA) agents

touched and compressed the sides of defendant's bags to force air

out of them to facilitate a canine sniff, this did not amount to

a search).

            The State also argues the decisions relied on by the

trial court to grant the motion to suppress do not by analogy

make the "set up" technique a search.    See Arizona v. Hicks, 480

U.S. 321, 324-25, 94 L. Ed. 2d 347, 353-54, 107 S. Ct. 1149, 1152

(1987) (noting the plain-view exception does not allow the police

to seize an item and then further investigate the item's parts

that are not in plain view).    Guided by Hicks, the court in

Hutchinson, 471 F. Supp. 2d at 510, stated the "'plain smell'"

doctrine should have no application where an officer "opens a

vehicle or other container to assist a canine in detecting the

presence of contraband, and where the canine has not already

positively alerted or indicated that it has detected the scent of

contraband within the container."    In contrast, "the plain-sniff

rule would apply because the dog was not aided in its sniff by an

intervening officer and the dog detected the odor in an area in

which it was lawfully present."     Hutchinson, 471 F. Supp. 2d at

510; see also United States v. Winningham, 140 F.3d 1328, 1329

(10th Cir. 1998) (suppressing evidence where border patrol agents

opened the van's sliding door to allow the dog's entry into the

vehicle).


                                - 9 -
          The State further contends the driver of a car on a

public street has no legitimate expectation of privacy in the

ambient air from his vehicle, if lawfully detained.   Specifi-

cally, the order to turn on the blower did not intrude upon a

legitimate privacy interest and was not the equivalent of a

physical entry into the vehicle.   In this case, Max's nose did

not intrude into the constitutionally protected area of the

defendant's truck.   Max's sniff was limited to the exterior of

the truck, where he had a right to be, and the incriminating

odors from the methamphetamine were expelled outside into the

public air.   The canine sniff was focused to reveal only the

presence or absence of contraband and thus was not a fourth-

amendment search.

          Defendant argues the trial court made the correct

decision in granting the motion to suppress.   The court looked at

the conduct of the police after the stop to determine its valid-

ity.   The court distinguished this case from Caballes, 543 U.S.

405, 160 L. Ed. 2d 842, 125 S. Ct. 834, and Driggers, 222 Ill. 2d

65, 853 N.E.2d 414, because the officer ordered the car's blower

turned on.    The order turned the lawful dog sniff into an unrea-

sonable search under the fourth amendment.

          In Hutchinson, the court noted it was not clear the

decisions in City of Indianapolis v. Edmond, 531 U.S. 32, 148 L.

Ed. 2d 333, 121 S. Ct. 447 (2000), and Caballes, 543 U.S. 405,


                               - 10 -
160 L. Ed. 2d 842, 125 S. Ct. 834, "would support a dog sniff

that moves from the exterior of an automobile to the interior of

the car."   Hutchinson, 471 F. Supp. 2d at 505.    In United States

v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), the Tenth Circuit

opined people have a reasonable expectation of privacy in the

interiors of their automobiles, but it upheld an interior sniff

as lawful where a canine jumped though an open hatchback and

alerted on a duffle bag.    In Stone, the police never asked the

defendant to open the hatchback and did not encourage the canine

to jump into the car.    Stone, 866 F.2d at 364.   Whereas in

Winningham, evidence was suppressed where (1) the officers lacked

reasonable suspicion of narcotics in a van, (2) the officers

opened the van's door, and (3) the canine officer unleashed the

dog as it approached the open door.     Winningham, 140 F.3d at

1331.

            The trial court here relied on the Hutchinson logic.

The court found a greater expectation of privacy in the interior

of the vehicle than on the exterior.    Further, the dog sniff was

tainted by the set-up orders of the police because it invaded the

interior of the car via police action and the orders were made

before reasonable suspicion or probable cause existed.

     Defendant points to People v. Love, 199 Ill. 2d 269, 769

N.E.2d 10 (2002), to support her fourth-amendment argument.       In

Love, officers made a stop in accordance with Terry v. Ohio, 392


                               - 11 -
U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), after observing

"what appeared to be a drug transaction," in which the defendant

exchanged money for something pulled from her mouth.       Love, 199

Ill. 2d at 277, 769 N.E.2d at 16.    Our Illinois Supreme Court

found an order to defendant to spit out what was in her mouth was

lawful as a search incident to arrest because probable cause

existed before the order was given.     Love, 199 Ill. 2d at 280,

769 N.E.2d at 17-18.

            Defendant argues the police order in this case was

designed to magnify the odors from the interior of the car for

the canine's plain sniff and is analogous to police being allowed

to order defendant sitting in her vehicle to open a purse or

other container within the car to increase plain view of the

interior.    Defendant contends the sequence required to satisfy

the fourth amendment is first a drug-dog alert and then permissi-

ble requests or orders, rather than first impermissible requests

or orders followed by a canine inspection.

            A recent decision by the Supreme Court illuminates

reasonable search and seizure under the fourth amendment.      In

Virginia v. Moore, 553 U.S. ___, 170 L. Ed. 2d 559, 128 S. Ct.

1598 (2008), the Court stated:

                 "When history has not provided a conclu-

            sive answer, we have analyzed a search or

            seizure in light of traditional standards of


                               - 12 -
          reasonableness 'by assessing, on the one

          hand, the degree to which it intrudes upon an

          individual's privacy and, on the other, the

          degree to which it is needed [to] the promo-

          tion of legitimate governmental interests.'"

          Moore, 553 U.S. at ___, 170 L. Ed 2d at 567,

          128 S. Ct. at 1604, quoting Wyoming v.

          Houghton, 526 U.S. 295, 300, 143 L. Ed. 2d

          408, 414, 119 S. Ct. 1297, 1300 (1999).

The Court later noted, "[i]n determining what is reasonable under

the [f]ourth [a]mendment, we have given great weight to the

'essential interest in readily administrable rules.'"     Moore, 553

U.S. at ___, 170 L. Ed. 2d at 569, 128 S. Ct. at 1606, quoting

Atwater v. City of Lago Vista, 532 U.S. 318, 347, 149 L. Ed. 2d

549, 573, 121 S. Ct. 1536, 1554 (2001).

          The Idaho Supreme Court considered what is reasonable

under the fourth amendment in Idaho v. Irwin, 143 Idaho 102, 137

P.3d 1024 (2006).    In Irwin, the defendant argued police officers

subjected her to an unreasonable search when the officers opened

the door of the defendant's automobile before directing the

defendant to exit.    Irwin, 143 Idaho at 104, 137 P.3d at 1026.

That court reviewed fourth amendment jurisprudence in determining

whether the search was consistent with constitutional standards.

In that case, the court noted there was no question the officers


                               - 13 -
possessed reasonable suspicion to detain the defendant for

traffic violations.   Given that, the officers were entitled to

order the defendant out of the vehicle.   Irwin, 143 Idaho at 105,

137 P.3d at 1027.   The court found because officers have clear

authority to order people out of vehicles during a roadside stop,

it is constitutionally irrelevant whether the officer or the

occupant opens the car door.   Irwin, 143 Idaho at 106, 137 P.3d

at 1028.   The Idaho Supreme Court noted under Pennsylvania v.

Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 337, 98 S. Ct. 330,

333 (1977),   that a mere inconvenience cannot prevail when

balanced against legitimate concerns about officer safety.

           At oral argument, defense counsel conceded that (1) the

officer could properly order the driver to get out of the truck

essentially whenever the officer wished and (2) had the officer

waited until the dog was present at the truck's front door,

through which the driver would get out of the vehicle, before

ordering the driver out (thereby bringing the ambient air with

her), then she would have no basis to complain about the police

conduct.   In light of traditional standards of reasonableness,

the degree to which this conduct intruded on defendant's privacy

borders on de minimis.   The driver is being asked to expose a

little more ambient air than would have otherwise been exposed.

The conduct may be needed for the promotion of legitimate govern-

mental interests, i.e., detecting the presence of illegal drugs


                               - 14 -
in the ambient air of the vehicle's interior by a trained dog.

          We find the set-up technique to be a practical tool of

police work that does not interfere with the reasonable expecta-

tion of privacy in the interior of defendant's car.       Under

Caballes, "[a] dog sniff conducted during a concededly lawful

traffic stop that reveals no information other than the location

of a substance that no individual has [the] right to possess does

not violate the [f]ourth [a]mendment."        Caballes, 543 U.S. at

410, 160 L. Ed. 2d at 848, 125 S. Ct. at 838.       The amplification

of odors emanating from noncontraband within the car is otherwise

innocuous.

          The set-up procedure is quick and nonintrusive; thus,

it does not impermissibly lengthen the duration of the stop.          It

also ensures the canine remains outside the vehicle during the

sniff, as both the doors and windows are closed.       This is a

practical technique that balances a defendant's reasonable

expectation of privacy with the opportunity to allow law enforce-

ment to ferret out crime.    No fourth-amendment violation occurs

when an officer lawfully investigating a traffic violation orders

the occupant to roll up the windows and turn on the blowers to

facilitate a dog sniff.

                            III. CONCLUSION

          For the reasons stated, we reverse the trial court's

judgment suppressing evidence and remand for further proceedings.


                                - 15 -
          Reversed.

          STEIGMANN, J., concurs.

          COOK, J., dissents.



          JUSTICE COOK, dissenting:

          I respectfully dissent and would affirm the decision of

the circuit court.

          A police officer who has stopped a vehicle for a

traffic violation does not have unbridled authority to order and

conduct chemical tests.   The officer may not search the vehicle,

absent probable cause or consent.    The officer may not force the

driver, and certainly not the passengers, to submit to a

Breathalyzer test, although the driver's failure to do so will be

admissible in a DUI prosecution.    People v. Jones, 214 Ill. 2d

187, 201, 824 N.E.2d 239, 247 (2005).    However, the officer is

not required to ignore things in plain view.    "Plain view"

includes items that would be within the "plain smell" of a dog at

the exterior of a vehicle.   In the present case, the officer

impermissibly went beyond what was in plain view and ordered the

occupants of the vehicle to engage in testing.

          The circuit court gave a lot of thought to this case

and set out its reasoning in a carefully written order:

               "Having determined that the stop was

          proper, the issue really boils down to


                                - 16 -
whether or not the defendant's [f]ourth

[a]mendment rights were violated by the

officers instructing her to close the truck's

windows and doors and turn the blowers on

high.    This seems to be a case of first im-

pression.    There was no basis for the officers

to search the truck before Max alerted on the

truck.    There was no consent to search prior

to Max's alert, and in fact, no consent to

search the truck was ever requested by the

officers.    There was no probable cause to

search the truck before Max alerted.

        It is important to note that the length

of the stop was not unreasonably extended by

virtue of involving the canine officer in

this stop.    Officer Kent arrived with Max

within approximately three minutes of Officer

Tyler stopping the car, and Officer Tyler

was still writing the parking ticket when

Max alerted on the truck.      (See People v.

Brownlee, 186 Ill. 2d 501[, 713 N.E.2d 556]

(1999), People v. Gonzalez, 204 Ill. 2d 220[,

789 N.E.2d 260] (2003), and People v. Bunch,

207 Ill. 2d 7[, 796 N.E.2d 1024] (2003).)


                      - 17 -
     Illinois v. Caballes, 543 U.S. 405[,

160 L. Ed. 2d 842, 125 S. Ct. 834] (2005),

holds that a dog sniff for drugs does not

change the character of an already proper

stop and that such a dog sniff does not in-

fringe on a constitutionally protected right

of privacy.   Therefore, it is not a search

subject to the [f]ourth [a]mendment.   A drug

dog's sniff reveals only the presence of

contraband, and people have no legitimate

interest in possessing contraband.   Thus, no

legitimate privacy interest is compromised

by a drug dog's sniff. [Caballes, 543 U.S.

at 408[, 160 L. Ed. 2d at 897, 125 S. Ct. at

837-38].

     It seems important to note that in

Caballes and People v. Driggers, 222 Ill. 2d

65[, 853 N.E.2d 414] (2006), another drug dog

case in which the sniff was not found to im-

plicate the [f]ourth [a]mendment, the sniffs

occurred on the exterior of the vehicle.    In

the case at hand, Max alerted on the defen-

dant's truck from the outside of the truck,

but he had some help.   The drug-tainted air


                    - 18 -
from the interior was being forced out of

the truck by the turned- up blowers.     The

blowers were turned up by the defendant, but

only upon the demand of the officers.    The

State would argue that since the defendant

does not have a constitutionally protected

interest in contraband or its odor, the dis-

tinction makes no substantive difference.

The State argues that since the police had

the right to direct the defendant to get out

of her truck, then the air inside is exposed

by the opening of the door.    If Max had

alerted on the truck from the exterior of

the truck through the open door, then

Caballes and Driggers would clearly apply.

However, that is not all that happened in this

case.

        While, again, there does not appear to

be a case exactly on point, the court finds

the case of [United States] v. Hutchinson, [471]

F. Supp. 2d [497] (M.D. Pa. [2007]), to be help-

ful in addressing the issue.     Hutchinson

contains a rather thorough discussion of a

line of cases that holds that when a drug


                      - 19 -
dog enters a vehicle through an already

opened door or window of its own accord,

driven by its natural instincts, that the

dog's entry into the vehicle does invalidate

an otherwise lawful sniff.   (Among the cases

cited are two supplied in this case by the

defense: [United States] v. Stone, 866 F. 2d

359 ([10th Cir.] 1989), and [United States] v.

Winningham, 140 F.3d 1328 ([10th Cir.] 1998).)

In Winningham, the drug dog alerted after

entering the van through a door opened by

the defendant at the direction of the officer

making a lawful stop.   The court held that

the defendant had not given consent for the

dog to enter the van, and therefore the re-

sulting discovery of drugs was in violation

of the [f]ourth [a]mendment.   The court in

Hutchinson used the 'plain view' and 'plain

smell' doctrines in its analysis of the impact

of a drug dog's entry into a vehicle to deter-

mine the legality of the seizure.   '[T]he

majority of federal courts *** have concluded

that canine sniffs of the interior of a

vehicle or other container are lawful, but


                   - 20 -
suggest that such interior sniffs may become

constitutionally infirm in the event that the

interior sniff is accomplished or facilitated

by the officer-handler.' [Hutchinson, 417 F.

Supp. 2d] at [508].    'Notably, the Supreme

Court has held that where an officer who is

lawfully present at [a] particular location

moves or manipulates an object seen in plain

view, and where the officer has no probable

cause to search the item, the act of moving

or manipulating the object constitutes an

unreasonable search under the [f]ourth [a]mend-

ment that is not subject to the plain[-]view

doctrine.' [Hutchinson, 471 F. Supp. 2d] at

[509].   The court in Hutchinson goes on to

hold that 'Where an officer opens a vehicle

or other container to assist a canine in

detecting the presence of contraband, and

where the canine has not already positively

alerted or indicated that it has detected

the scent of contraband within the container,

it seems logical to conclude that the "plain

smell" doctrine should have no application,

since the positive sniff that results was


                      - 21 -
presumably aided or achieved impermissibly

by the officer's manipulation of the con-

tainer.' [Hutchinson, 471 F. Supp. 2d at 510].

Courts in at least two other states have

ruled, consistent with this reasoning, that

when an officer encourages a drug dog to

enter a vehicle when it had not first alerted

on the vehicle's exterior, that the dog's

actions constituted an unlawful search.    (See

State v. Warsaw, 125 N.M. 8, [12,] 956 P.2d 139[,

143] (1997), and State v. Freel, 29 Kan. App. 2d

852, [860,] 32 P.3d 1219 [, 1225] (2001).)

     While again not directly on point, the

Hutchinson logic seems applicable to the

case at hand.   The officers had no probable

cause to enter the vehicle before Max alerted.

By requiring the defendant, without her con-

sent, to close the doors and windows and turn

the blower on high, the officers in effect

moved and manipulated the air within the

vehicle that would not otherwise have been

subject to their plain view or smell.   Max

could not lawfully be where the officers could

not lawfully be.   The officers could not law-


                    - 22 -
          fully be in the vehicle, and therefore Max

          could not lawfully be in the vehicle.   In

          order for the 'plain view' or 'plain smell'

          doctrines to be applicable, the officer, and

          in this case Max, had to be in a place where

          they could lawfully be before they could law-

          fully view or smell.   The court recognizes

          that Max was still outside the defendant's

          truck when he alerted, but the analogy from

          Hutchinson seems applicable and logical.      In

          effect, Max was placed inside the vehicle by

          the officers.   Applying the Hutchinson logic,

          the court finds that the directing of the

          defendant to close the truck's windows and

          doors and to turn the blower on high turned

          the dog sniff into an unreasonable search

          under the [f]ourth [a]mendment.   Therefore,

          the court grants the defendant's motion to

          suppress evidence, and all evidence seized

          from the defendant's truck is hereby supp-

          ressed."

We should affirm.




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