                     IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1840
                               Filed November 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEVEN MICHAEL BECKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, J. David Coil,

Judge.



      Steven Michael Becker appeals the district court’s denial of his motion to

suppress     following   his   conviction   and   sentence   for   possession     of

methamphetamine. AFFIRMED.



      Chad D. Primmer of Chad Douglas Primmer, P.C., Council Bluffs, for

appellant.

      Thomas J. Miller, Attorney General, and Aaron J. Rogers, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, Senior Judge.

      Steven Michael Becker appeals the district court’s denial of his motion to

suppress,    following   his   conviction       and   sentence   for   possession    of

methamphetamine. We affirm.

      I.      Background Facts and Proceedings

      In December 2014 in the early morning, Officer Albert Bovy of the

Waterloo Police Department was on patrol with his trained narcotics dog in an

area that had recently been subject to multiple burglaries. Officer Bovy observed

a woman with a backpack run toward and enter a running vehicle parked in the

parking lot of a closed business. Becker was in the driver’s seat of the vehicle.

Officer Bovy approached the car and made contact with its occupants.                The

occupants gave inconsistent stories about where they were from—Becker saying

he lived in Dysart and the female occupant saying they lived together in Cedar

Falls. The female occupant stated she was visiting a friend who lived across the

street, but she was unable to identify in which house the friend lived. Officer

Bovy obtained the occupants’ identification and ran them through the police

records system; this search disclosed that both parties had prior arrests for

narcotics.

      Officer Bovy asked to search the vehicle; Becker consented. Officer Bovy

had Becker exit the car, and Becker went to a deputy who had since arrived.

Officer Bovy went around to the passenger seat and asked the female occupant

if he could search her backpack. She denied Officer Bovy’s request.

      Because of the conflict between her refusal and Becker’s consent, Officer

Bovy decided to take his trained dog around the car instead of manually
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searching the vehicle. The dash cam video from Officer Bovy’s car recorded

Officer Bovy asking Becker, “Sir, she doesn’t want me to check her bag, so I’m

just going to run the dog around the vehicle. Okay?” Becker did not revoke

consent. While walking around the car, the dog alerted on the passenger’s side

of the vehicle. The dog alerted again when searching the interior of the car after

sniffing the console, gear shift, and radio controls. Officer Bovy then searched

the vehicle by hand and found no narcotics. Officer Bovy then performed a more

thorough search of Becker’s person and found two small plastic bags of

methamphetamine.

       In March 2015, Becker filed a motion to suppress. Following a hearing,

the district court denied the motion. On September 11, 2015, a bench trial was

held, after which Becker was found guilty. Becker appeals.

       II.     Standard and Scope of Review

       “We review the district court’s denial of a motion to suppress based on the

deprivation of a constitutional right de novo.” In re Pardee, 872 N.W.2d 384, 390

(Iowa 2015).     We “make ‘an independent evaluation of the totality of the

circumstances as shown by the entire record.’” Id. (citation omitted). “We give

deference to the district court’s fact findings due to its opportunity to assess the

credibility of witnesses, but we are not bound by those findings.” Id. (citation

omitted).

       III.    Analysis

       On appeal, Becker argues “there was no reason to conduct the dog sniff”

and “once the dog sniff was concluded, the intrusion into Becker’s person was

unwarranted.”
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       Becker’s claims are unpersuasive. First, the parties do not dispute that a

dog sniff is not a search. See State v. Bergmann, 633 N.W.2d 328, 334 (Iowa

2001) (“[A] dog sniff that occurs outside a vehicle is not a search under the

meaning of the Fourth Amendment.”). Second, Becker consented to the search

of his vehicle.1 See id. at 338 (holding “a warrantless search can be justified”

where the officer received “consent to search”).          When Officer Bovy sought

permission to use the trained dog because of the female occupant’s refusal to

have her bag searched, Becker did not revoke consent.2                And there is no

indication here that the use of the dog impermissibly prolonged the encounter.

See id. at 335 (“[A]ll that we have required in Iowa is that the dog sniff be

conducted within a reasonable amount of time from the initial, lawful stop and

that the stop is not unduly prolonged without a sufficient basis.”). Instead, rather

than search by hand, Officer Bovy had his trained dog—which was already in his

patrol car—sniff the exterior of the vehicle.3       Only when the dog alerted did

Officer Bovy have the dog sniff the interior of the car. When the dog alerted


1
  Becker does not challenge Officer Bovy’s right to request a search or allege that his
consent was coerced or otherwise invalid.
2
  Becker relies upon Rodriguez v. United States, 135 S. Ct. 1609, 1613 (2015), which is
inapposite, as the individual in Rodriguez refused consent to search the vehicle with a
dog, which was requested after the officer had resolved his reason for instituting the
stop. Becker also relies upon In re Pardee, 872 N.W.2d 384 (Iowa 2015), which also
does not support his claims on appeal. In Pardee, the Iowa Supreme Court found the
officer’s “detention of the vehicle occupants for approximately twenty-five minutes
preceding the dog sniff was improper.” 872 N.W.2d at 391. Here, there is no indication
an impermissible amount of time passed between Officer Bovy approaching the already-
stopped car, receiving consent to search the car, and then using his trained dog to sniff
the vehicle. Also, in Pardee, the detained individual did not consent to a search. Id. at
388.
3
  The State argues Becker failed to preserve error on this claim, asserting “Nowhere
below d[id] Becker argue that the dog sniff unreasonably extended the duration of the
investigation without additional reasonable suspicion.” We assume, without deciding,
error was preserved.
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again, Officer Bovy then perform a manual search of the car—a search Officer

Bovy still had consent to execute.4

       Further, we are not persuaded by Becker’s contention that there was “no

reason to conduct the dog sniff.” See id. at 335-38 (applying a “reasonable

suspicion” of wrongdoing standard in determining whether the police can prolong

their detention of a person to perform a drug sniff or for any other reason that

was not the purpose of the stop).       Officer Bovy observed the woman with a

backpack run to and enter a running vehicle parked in the parking lot of a closed

business in the early hours of the morning in an area recently plagued by

burglaries. The occupants of the car then gave inconsistent stories and were

unable to provide simple information supporting their stories. When Officer Bovy

ran their information, both individuals had narcotics-related arrests.           The

occupants became increasingly nervous as the encounter continued.              Officer

Bovy received consent to search the car and only used the trained dog to

perform a dog sniff when the woman refused consent to have her items

searched.

       Finally, Becker claims the search of his person following the dog sniff of

the vehicle was unwarranted. Relying on Bergmann, the district court disagreed,

reasoning:

       In this case Officer Bovy, after having his canine conduct a “dog
       sniff” of the vehicle, conducted a thorough hand search of the
       vehicle and did not find any controlled substances. It would be
       logical to presume under the facts in this case that there were
       controlled substances contained within the vehicle at one time and,
       if not found in the vehicle, that they were located on one of the two

4
  Becker’s consent contrasts even the facts in Bergmann, where the detained individual
refused to allow the officers to search his vehicle. 633 N.W.2d at 330.
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       occupants in the vehicle that just a short time earlier had gotten out
       of the vehicle.

       The district court concluded Officer Bovy had probable cause to search

Becker’s person and that exigent circumstances existed. See id. at 338 (holding

“a warrantless search can be justified” by “the presence of probable cause and

exigent circumstances”).      We agree.      See id. (“Because the drug dog alert

established probable cause, the police legally searched the car without a warrant

under the probable cause plus exigent circumstances exception to the warrant

requirement.”); see also State v. Merrill, 538 N.W.2d 300, 301-02 (Iowa 1995)

(per curiam) (extending the previous holding “that the smell of burning marijuana

from a car may give a police officer probable cause to search a vehicle” to also

allow for the search of a person in a vehicle where the smell was coupled with

defendant’s “furtive attempts to hide something”).5

       AFFIRMED.




5
  Becker does not specifically challenge the exigent-circumstances element. See
generally State v. Kern, 831 N.W.2d 149, 174 (Iowa 2013) (“The exigent-circumstances
exception includes a situation in which there is a ‘probability that, unless immediately
seized, evidence will be concealed or destroyed.’ The exigent-circumstances exception
is important to narcotics investigations because drugs are ‘easily destroyed.’” (citations
omitted)).
