       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                            No. 80634-3-I

                              Respondent,        DIVISION ONE

                v.
                                                 UNPUBLISHED OPINION
 STEPHEN MARK SHELLABARGER,

                                 Appellant.


       CHUN, J. — A dog sniff led to the discovery of methamphetamine in

Stephen Shellabarger’s truck. The State charged him with possession of a

controlled substance. Shellabarger moved to suppress the drugs, which motion

the trial court denied. Shellabarger then waived his right to a jury trial and

proceeded to a stipulated bench trial, reserving his right to appeal the denial of

his motion to suppress. The court convicted him as charged. Shellabarger

appeals. Because the dog sniff prolonged the traffic stop at issue without

reasonable suspicion, we reverse to suppress the evidence.

                                      I. BACKGROUND

       Trooper Michael Farkas pulled Shellabarger over after witnessing him

speeding and changing lanes without signaling. Shellabarger took several

minutes to find his license, registration, and proof of insurance. Farkas returned

to his patrol vehicle and ran a check on Shellabarger’s license, which revealed a

prior conviction for possession of a controlled substance. Farkas called Trooper


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No. 80634-3-I/2


Evan Clark for backup, stating that he would try to get Shellabarger’s consent to

search his truck, and that he planned on issuing a citation for Shellabarger’s

driving.

       Farkas returned and twice asked for consent to search Shellabarger’s

truck. Shellabarger did not consent. Farkas conducted field sobriety tests on

Shellabarger.

       Farkas returned to his patrol vehicle and asked another officer to conduct

a dog sniff, stating that while Shellabarger’s balance was bad, he did not plan to

issue a citation for driving under the influence (DUI). Farkas stated that he

wanted to see if a dog sniff would provide probable cause for a search warrant.

       Farkas then brought Shellabarger back to his patrol vehicle and used a

portable breathalyzer test on him. The test indicated a blood alcohol content of

zero. Farkas did not issue a DUI citation but did issue a citation for speeding and

explained it to Shellabarger. Just as Farkas and Shellabarger finished

discussing the specifics of the citation, Deputy Richard VanWyck arrived at the

truck with his K9 partner, Axel, and began a dog sniff. Shellabarger asked,

“What’s happening here?” Farkas responded that they were “just checking the

vehicle.” The two discussed no further details of the citation after the dog sniff

began.

       Axel gave a “weak alert” near a McDonald’s bag inside the truck. Officers

again asked for consent to search the truck, which Shellabarger granted.

Officers asked Shellabarger to remove the McDonald’s bag from the truck. He

removed it and Farkas took the bag from him. Officers opened the bag and


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found an Altoids tin inside that contained methamphetamine. The State charged

Shellabarger with possession of methamphetamine.

       Shellabarger moved to suppress the evidence found in the search.

Farkas testified at the suppression hearing. He stated that his first observation of

Shellabarger was that he had bloodshot watery eyes, fast speech, and very quick

body movements, all of which were consistent with use of stimulants. Farkas

also stated that he had called for additional backup because he saw Shellabarger

making furtive movements in his truck, he smelled marijuana, and he saw objects

such as mint tins that can be used to store drug paraphernalia.

       The trial court denied Shellabarger’s motion to suppress. It concluded that

“[t]he expansion of the stop beyond the investigation of the observed infractions

was justified given Trooper Farkas’s observations of impairment,” and that “[t]he

length of detention for the entire stop was reasonable given all that was taking

place from the time the vehicle was pulled over.” It also concluded that “[t]he K9

search was reasonable since the processing of the citation had not been

completed when the search began.” Shellabarger then waived his right to a jury

trial and proceeded to a stipulated bench trial under the agreement that he could

appeal the denial of his motion to suppress. The court convicted him as charged.

                                   II. ANALYSIS

       Shellabarger argues that the dog sniff of his truck prolonged the traffic

stop without reasonable suspicion, and thus the trial court should have

suppressed the evidence seized in the ensuing search. The State responds that

the dog sniff did not exceed the scope of the stop because it did not prolong the


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stop beyond the time reasonably required to investigate a possible DUI and issue

a traffic citation. But the State fails to show by clear and convincing evidence

that (1) the dog sniff did not prolong the traffic stop, and (2) Trooper Farkas had

reasonable suspicion for the sniff. We thus reverse to suppress the discovered

evidence.1

        We review a trial court’s denial of a motion to suppress to determine if

substantial evidence supports the challenged findings of fact and whether those

findings support the conclusions of law. State v. Campbell, 166 Wn. App. 464,

469, 272 P.3d 859 (2011). “Evidence is substantial when it is enough ‘to

persuade a fair-minded person of the truth of the stated premise.’” State v.

Z.U.E., 178 Wn. App. 769, 778, 315 P.3d 1158 (2014) (quoting State v. Garvin,

166 Wn.2d 242, 249, 207 P.3d 1266 (2009)). Unchallenged findings of fact are

verities on appeal. Campbell, 166 Wn. App. at 469. We review de novo the trial

court’s legal conclusions resulting from a suppression hearing. Id.

        “The Fourth Amendment to the United States Constitution and article I,

section 7 of the Washington Constitution generally prohibit searches and

seizures absent a warrant or a recognized exception to the warrant requirement.”

State v. Hendricks, 4 Wn. App. 2d 135, 141, 420 P.3d 726 (2018). The State

bears the burden of establishing by clear and convincing evidence that an

exception applies. Garvin, 166 Wn.2d at 250. Courts must suppress evidence

seized in an unconstitutional search. State v. Monaghan, 165 Wn. App. 782,


        1
            Because of our conclusion, we do not reach Shellabarger’s other assignments
of error.


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789, 266 P.3d 222 (2012). If a trial error is of a constitutional magnitude, we

presume prejudice and the State bears the burden of proving the error was

harmless beyond a reasonable doubt. City of Vancouver v. Kaufman, 10 Wn.

App. 2d 747, 754, 450 P.3d 196 (2019).

       A warrantless traffic stop is constitutional “only if the officer had, from the

beginning, a reasonable articulable suspicion that [an] infraction had occurred

and the stop was reasonably related in scope to the circumstances that justified

the interference in the first place.” State v. Allen, 138 Wn. App. 463, 470, 157

P.3d 893 (2007).2 Authority to conduct such a seizure “ends when tasks tied to

the traffic infraction are—or reasonably should have been—completed.”

Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 1609, 191 L. Ed. 2d

492 (2015). A dog sniff is not part of an officer’s ordinary traffic mission. Id. at

356. Thus, absent reasonable suspicion, an officer may not prolong a traffic stop

to conduct a dog sniff. Id. at 355.

       In Illinois v. Caballes, an officer conducted a dog sniff of the defendant’s

car while another officer wrote the defendant a warning ticket. 543 U.S. 405,

406, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). The United States Supreme

Court concluded that this did not violate the prohibition against unlawful searches

and seizures. Id. at 408. However, the Court cautioned that “[a] seizure that is



       2
          Analysis for whether such a stop is valid under article I, section 7 of our
constitution “generally tracks the Fourth Amendment analysis,” with the exception that
such a stop “requires a reasonable suspicion connecting a particular person to a
particular crime rather than a general suspicion that someone is up to no good.” State v.
Lee, 7 Wn. App. 2d 692, 701–02 n.27, 435 P.3d 847 (2019) (citing Z.U.E., 183 Wn.2d
610, 617, 352 P.3d 796 (2015)).


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justified solely by the interest in issuing a warning ticket to the driver can become

unlawful if it is prolonged beyond the time reasonably required to complete that

mission.” Id. at 407.

       Here, the dog sniff began just as Shellabarger and Trooper Farkas

finished discussing the details of the citation. The trial court determined that

“[t]he length of detention for the entire stop was reasonable given all that was

taking place from the time the vehicle was pulled over” and that “[t]he K9 search

was reasonable since the processing of the citation had not been completed

when the search began.” But the question, under Rodriguez, is whether the dog

search prolonged the detention, not whether the length of the entire stop was

reasonable, or whether there was some overlap in time between the traffic stop

and sniff. See 575 U.S. at 357, 135 S. Ct. 1609 (rejecting the Government’s

argument that it may incrementally prolong a stop to conduct a dog sniff if it is

reasonably diligent in pursuing the traffic-related purpose of the stop and the

overall duration of the stop remains reasonable). Trooper Farkas and

Shellabarger discussed no further details of the citation after the dog sniff

began.3 Because the dog sniff continued past the time required for the traffic

stop, the sniff prolonged the stop. The State has not carried its burden of

showing otherwise.

       Thus, we must next consider whether the troopers had reasonable

suspicion to conduct a dog sniff, a question the trial court did not squarely reach

       3
          And the fact that Trooper Farkas used a portable breath test on Shellabarger
after stating that he did not plan to issue a DUI may elicit the inference that he did so to
extend the traffic stop until the dog sniff began.


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in its suppression order.4 “A suspicion is reasonable when it is based upon the

‘substantial possibility that criminal conduct has occurred or is about to occur.’”

State v. Johnson, 8 Wn. App. 2d 728, 746, 440 P.3d 1032 (2019) (quoting State

v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986)). “A reasonable suspicion

must ‘be grounded in specific and articulable facts,’” and cannot be predicated

upon speculation or mere hunches. Johnson, 8 Wn. App. 2d at 746 (quoting

Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015)). And “[t]he available facts

must substantiate more than a mere generalized suspicion that the person

detained is ‘up to no good’; the facts must connect the particular person to the

particular crime that the officer seeks to investigate.” Z.U.E., 183 Wn.2d at 618

(quoting State v. Bliss, 153 Wn. App. 197, 204, 222 P.3d 107 (2009)).

       The State says in its brief that Trooper Farkas had reasonable suspicion

of DUI. But at oral argument, the State conceded that no reasonable suspicion

existed at the time Farkas issued Shellabarger a citation for speeding. And prior

to the dog sniff and after the field sobriety tests, Trooper Farkas said he did not

plan to arrest Shellabarger for DUI.5 Farkas testified at the suppression hearing

that after completing the field sobriety tests, he did not plan to arrest

Shellabarger for DUI.6 And while, at the suppression hearing, Farkas testified



       4
          The trial court concluded that “[t]he expansion of the stop beyond the
investigation of the observed infractions was justified given Trooper Farkas’s
observations of impairment,” but this conclusion does not comport with the requirements
of the law on reasonable suspicion as discussed below.
        5
           “His balance is bad, eyes aren’t really dilated, blood shot yeah. Not going to do
[DUI] or anything.”
        6
          “After completing the field sobriety test, I could tell there was a consumption of
foreign substance, however he wasn’t impaired enough for me to arrest him for DUI.”


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that he had reasonable suspicion at the time he asked for a dog sniff, he was

unable to articulate what crime he suspected at that moment. The State offers

no explanation for what other crimes Trooper Farkas might have reasonably

suspected. See Z.U.E., 183 Wn.2d at 618 (“[T]he facts must connect the

particular person to the particular crime that the officer seeks to investigate.”).

       The State bears the burden of demonstrating that an exception to the

prohibition against warrantless searches applies by clear and convincing

evidence, and because it cannot show reasonable suspicion for the dog sniff, it

fails to meet this burden.7 Garvin, 166 Wn.2d at 250.

       The trial court erred in denying Shellabarger’s motion to suppress. The

State does not argue that the error was harmless beyond a reasonable doubt.

Nor do we see any basis for such an argument. We reverse to suppress the

evidence found in the dog sniff.




 WE CONCUR:




       7
          Shellabarger presents numerous arguments asserting that the State lacked
reasonable suspicion for the dog sniff—namely, that his prior drug conviction, his lack of
consent, and the Altoids tin cannot serve to establish reasonable suspicion. Although
the State bears the burden of establishing an exception to the warrant requirement
applies, it largely does not address these arguments. Instead, it appears to rely on the
assertion that the dog sniff did not prolong the traffic stop.


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