               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42321

STATE OF IDAHO,                                 ) 2016 Opinion No. 3
                                                )
       Plaintiff-Respondent,                    ) Filed: January 8, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
JOHN PATRICK LINZE, JR.,                        )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Thomas J. Ryan, District Judge.

       Judgment of conviction for possession of methamphetamine, vacated.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant. Sally J. Cooley argued.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent. Russell J. Spencer argued.
                 ________________________________________________

MELANSON, Chief Judge
       John Patrick Linze, Jr. appeals from his judgment of conviction for possession of
methamphetamine. Specifically, Linze argues that the district court erred in denying his motion
to suppress. For the reasons set forth below, we vacate.
       The following facts were established at the hearing on Linze’s motion to suppress. At
approximately 10:19 a.m., an officer conducted a traffic stop. The officer contacted the driver
and explained that the reason for the stop was because the vehicle had a spiderweb-cracked front
windshield in violation of I.C. § 49-902. Linze was a passenger in the vehicle. After contacting
the occupants of the vehicle, the officer ran both the driver’s and passenger’s identifications and
checked whether either had outstanding warrants. At that time, the officer was advised that
Linze had an extensive drug history and had recently been stopped by other officers, who found



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drug items in Linze’s possession.      The officer testified that he called for a canine unit at
approximately 10:28 a.m. to conduct an exterior sweep of the vehicle. While he waited for the
canine unit to arrive, the officer continued conducting the warrant checks for the driver and
Linze and began writing the driver a citation for driving with a cracked windshield. The officer
testified that he did not purposefully delay the process to allow the canine unit to arrive. The
officer did not complete writing the citation until after the search was completed.
       The canine officer arrived at 10:38 a.m.--ten minutes after the initial officer requested the
canine unit and nineteen minutes after the vehicle was stopped. The canine officer testified that,
upon arriving, he spoke with the initial officer for a few seconds and then approached the driver
of the vehicle. The canine officer asked for consent to search the interior of the vehicle. Neither
party gave consent to search the vehicle so the canine officer walked his dog around the exterior
of the vehicle. While the canine officer walked the dog around the vehicle, the initial officer
stayed outside of his vehicle and provided “officer cover.” The initial officer explained that the
canine officer was unable to watch his surroundings while conducting the canine sweep and,
therefore, the initial officer believed it was necessary to watch and make sure nobody tried to
harm the canine officer.
       The canine officer testified that it took thirty seconds before the dog gave a positive alert
at the front of the vehicle near the engine. After the canine alert, both officers searched the
interior of the vehicle. The canine also searched the interior and gave a positive alert to the front
dashboard of the vehicle. The canine officer visually located a glass pipe with white crystal
residue, and the initial officer retrieved the pipe from the passenger door panel armrest. Upon
finding the pipe, the initial officer advised Linze and the driver of their Miranda1 rights. After
the Miranda warning, Linze admitted ownership of the pipe and admitted that he used the pipe to
consume methamphetamine.          Linze was charged with possession of methamphetamine.
I.C. § 37-2732(c)(1). Linze filed a motion to suppress, arguing that his search and seizure were
unlawful. The district court denied his motion and Linze entered a conditional plea of guilty to
possession of methamphetamine. Linze appeals.



1
       See Miranda v. Arizona, 384 U.S. 436 (1996).


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       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,
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).
       Although Linze contends that both constitutions were violated, he 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 Constitution in this case. Therefore, this Court will rely
on judicial interpretation of the Fourth Amendment in its analysis of Linze’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. Warrantless searches are presumed to be unreasonable and therefore violative of
the Fourth Amendment. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). The
state may overcome this presumption by demonstrating that a warrantless search either fell
within a well-recognized exception to the warrant requirement or was otherwise reasonable
under the circumstances. Id. The automobile exception to the warrant requirement authorizes a
warrantless search of a vehicle when there is probable cause to believe the vehicle contains
contraband or evidence of criminal activity. United States v. Ross, 456 U.S. 798, 824 (1982);
State v. Smith, 152 Idaho 115, 120, 266 P.3d 1220, 1225 (Ct. App. 2011).
       Linze argues that the district court erred in finding that the duration of the traffic stop was
not unlawfully extended.     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); State v. Atkinson, 128 Idaho 559, 561,
916 P.2d 1284, 1286 (Ct. App. 1996). 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, 953 P.2d 645, 648 (Ct. App. 1998). An


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investigative detention must be temporary and last no longer than necessary to effectuate the
purpose of the stop. State v. Roe, 140 Idaho 176, 181, 90 P.3d 926, 931 (Ct. App. 2004); State v.
Gutierrez, 137 Idaho 647, 651, 51 P.3d 461, 465 (Ct. App. 2002). There is no rigid time limit for
determining when a detention has lasted longer than necessary; rather, a court must consider the
scope of the detention and the law enforcement purposes to be served, as well as the duration of
the stop. United States v. Sharpe, 470 U.S. 675, 685-86 (1985). Where a person is detained, the
scope of detention must be carefully tailored to its underlying justification. Roe, 140 Idaho at
181, 90 P.3d at 931; State v. Parkinson, 135 Idaho 357, 361, 17 P.3d 301, 305 (Ct. App. 2000).
The scope of the intrusion permitted will vary to some extent with the particular facts and
circumstances of each case. State v. Ramirez, 145 Idaho 886, 889, 187 P.3d 1261, 1264 (Ct.
App. 2008).
       Recently, the United States Supreme Court reviewed the issue of whether a police officer
may extend an otherwise completed traffic stop to conduct a dog sniff. The Court noted that,
while an officer may conduct certain unrelated checks during an otherwise lawful traffic stop, the
officer may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual. Rodriguez v. United States, ___ U.S. ___, ___, 135
S. Ct. 1609, 1615 (2015). The Court noted that a dog sniff, which is aimed at detecting evidence
of criminal wrongdoing, is not an ordinary element of a traffic stop and cannot be fairly
characterized as part of the officer’s mission. Id. Because addressing the infraction is the
purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Id. at ___,
135 S. Ct. at 1614. Authority for the seizure thus ends when tasks tied to the traffic infraction
are, or reasonably should have been, completed. Id. Thus, in the context of a dog sniff, the
Court determined that the critical question is not whether the dog sniff occurs before or after the
officer issues a ticket, but whether conducting the sniff prolongs or adds time to the stop. Id. at
___, 135 S. Ct. at 1616.
       Linze argues that the officer intentionally delayed completing the purpose of the stop to
allow time for the drug dog to arrive. In addition, Linze asserts that, once the drug dog arrived,
the initial officer assisted in the dog search, which unlawfully prolonged the stop. We address
each allegation below.




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       The first question is whether the officer prolonged the stop by delaying writing the
citation in order for the canine unit to arrive. In this case, the officer took over nineteen minutes
to check the driver’s and Linze’s identifications and write a citation--nine minutes before the
canine unit was requested and an additional ten minutes after the canine unit was requested until
it arrived. It is unclear what, specifically, the officer was doing during the ten-minute period
before the canine officer arrived. However, when asked why it took nineteen minutes, the officer
testified that, “I was thorough. On my warrant checks I ran both through the computer. And my
handwriting is very sloppy, so I take my time when I write my tickets.” The district court found
that “there was no evidence that [the initial officer] unlawfully delayed [Linze] or extended the
duration of the stop any longer than was reasonable.” There was no finding by the district court
indicating what amount of time is reasonable to conduct a stop and issue a citation for a cracked
windshield. Accordingly, there is room to question the district court’s conclusion regarding
whether nineteen minutes was a reasonable amount of time in this case.              However, even
assuming the nineteen minutes was reasonable and the officer did not unreasonably prolong
writing the citation to allow time for a canine unit to arrive, it is uncontested that the officer
provided cover for the canine officer in order to protect the canine officer’s safety during the
canine sweep.
       The second question is whether the officer prolonged the stop by assisting in the canine
sweep of the vehicle. When the canine officer arrived, the initial officer stepped out of his patrol
car and explained the reason the vehicle was stopped and the reason the initial officer called for a
canine unit. The canine officer then spoke with the driver and Linze before initiating the canine
sweep. The initial officer testified that, while the canine officer conducted the canine sweep, the
initial officer stayed outside of his vehicle and provided “officer cover.” The initial officer
explained that the canine officer was unable to watch his surroundings while conducting the
canine sweep and, therefore, the initial officer believed it was necessary to watch and make sure
nobody tried to harm the canine officer. Approximately thirty seconds after the sweep began, the
canine alerted on the vehicle, indicating the presence of drugs in the vehicle. It is undisputed
that over two minutes elapsed from the time the canine officer arrived and when the canine
alerted on the vehicle.




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       The district court did not address when the citation for a cracked windshield should have
reasonably been issued or whether the initial officer’s providing officer cover unconstitutionally
prolonged the stop. The district court is not at fault for failing to make these findings because it
did not have the benefit of Rodriguez. Although the district court did not make specific findings,
it is clear from the record that the initial officer was not moving forward with the purpose of the
stop--issuing a citation for a cracked windshield--for approximately two and a half minutes.
Instead, he was assisting with a canine sweep. The Supreme Court in Rodriguez held that the
central question regarding canine sweeps is whether the sniff prolongs or adds time to the stop.
In light of Rodriguez, we hold that the initial officer’s participation in the canine sweep added
approximately two and a half minutes to the stop, resulting in an unlawful extension of Linze’s
detention.   Further, there was not reasonable suspicion to conduct an investigation for
drug-related offenses, justifying the extension of Linze’s detention. Thus, the district court erred
in denying Linze’s motion to suppress evidence obtained through the unlawful canine sweep.
       Linze also argues that the district court erred in finding that the drug dog’s alert gave the
officers probable cause to search the interior of the vehicle without a search warrant. It is well
settled that, when a reliable drug dog indicates that a lawfully stopped automobile contains the
odor of controlled substances, the officer has probable cause to believe that there are drugs in the
automobile and may search it without a warrant. State v. Tucker, 132 Idaho 841, 843, 979 P.2d
1199, 1201 (1999); State v. Gibson, 141 Idaho 277, 281, 108 P.3d 424, 428 (Ct. App. 2005).
However, Linze asserts that, in his case, the drug dog’s alert did not provide probable cause
because that particular drug dog was unreliable.          Because the canine sweep itself was
unconstitutional, we need not address whether the canine’s alert provided reasonable suspicion.
       In light of Rodriguez, the district court erred in denying Linze’s motion to suppress
because the canine sweep violated Linze’s Fourth Amendment right to be free from unreasonable
searches and seizures. Because the sweep was unconstitutional, we need not address whether the
canine’s alert provided reasonable suspicion to search the vehicle. Therefore, the district court
erred in denying Linze’s motion to suppress, and we vacate Linze’s judgment of conviction for
possession of methamphetamine.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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