               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41220

STATE OF IDAHO,                                  )      2014 Unpublished Opinion No. 482
                                                 )
       Plaintiff-Appellant,                      )      Filed: April 29, 2014
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
JOHN (2013-16) DOE,                              )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Respondent.                     )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael R. McLaughlin, District Judge; Hon. David D. Manweiler,
       Magistrate.

       District court’s decision affirming magistrate court’s order suppressing
       evidence, reversed and case remanded.

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

       Alan E. Trimming, Ada County Public Defender; Alan D. Malone, Deputy Public
       Defender, Boise, for respondent. Alan D. Malone argued.
                  ________________________________________________
LANSING, Judge
       The State appeals from the district court’s memorandum decision and order affirming the
magistrate’s order suppressing evidence. At issue is whether an alert by a reliable drug dog at
the driver’s door seam of an automobile provides, under the Fourth Amendment, probable cause
to search the entire vehicle, including the trunk, under the automobile exception to the warrant
requirement. We hold that it does, and we reverse.
                                                I.
                                        BACKGROUND
       In August of 2011, the principal of Meridian Academy in Meridian, Idaho asked Officer
Sunada, a Meridian police officer acting as the school’s resource officer, to arrange for a drug
dog to sniff the exterior of students’ vehicles in the school parking lot for illegal drugs. Sunada



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called fellow Meridian police officer Vogt who arrived with his drug canine, Max. Max alerted
on the lower seam of the driver’s side door on a car belonging to seventeen-year-old defendant
John Doe. The dog did not alert on the trunk area, however. Sunada physically searched the
passenger compartment of the vehicle, but no illegal drugs were found. Sunada then searched
the trunk and found a marijuana pipe.
       Doe was charged in juvenile court with possession of drug paraphernalia, Idaho Code
§ 37-2734A. Doe filed a motion to suppress the paraphernalia evidence and statements he made
to Sunada. Following a hearing, the magistrate granted Doe’s motion. The magistrate court held
that while the canine alert at the driver’s door established probable cause to search the passenger
compartment of the vehicle without a warrant, it did not establish probable cause to search the
trunk. Accordingly, the magistrate suppressed the drug evidence and further suppressed Doe’s
statements as fruit of the unlawful search. The State appealed to the district court, which
affirmed. The State now further appeals.
                                                 II.
                                  STANDARDS OF REVIEW
       When a decision on a motion to suppress evidence is challenged on appeal, 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. Purdum, 147 Idaho 206,
207, 207 P.3d 182, 183 (2009); 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).
       When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is as expressed by the Idaho Supreme Court:
       The Supreme Court reviews the trial court (magistrate) record to determine
       whether there is substantial and competent evidence to support the magistrate’s
       findings of fact and whether the magistrate’s conclusions of law follow from
       those findings. If those findings are so supported and the conclusions follow
       therefrom and if the district court affirmed the magistrate’s decision, we affirm
       the district court’s decision as a matter of procedure.




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Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the
decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
                                               III.

                                           ANALYSIS
       This case is decided solely under the Fourth Amendment to the United States
Constitution, as Doe did not assert below any violation of his rights under Article I, § 17, of the
Idaho Constitution.   The Fourth Amendment prohibits unreasonable searches and seizures.
Warrantless searches, conducted outside the judicial process without prior approval by judge or
magistrate, are per se unreasonable, subject only to a few well-delineated exceptions. Arizona v.
Gant, 556 U.S. 332, 338 (2009); Katz v. United States, 389 U.S. 347, 357 (1967). One of those,
the “automobile exception,” allows police to search a vehicle without a warrant when there is
probable cause to believe the vehicle contains contraband or evidence of a crime. Carroll v.
United States, 267 U.S. 132, 155-56 (1925). The permissible scope of a warrantless automobile
search “is defined by the object of the search and the places in which there is probable cause to
believe it will be found.” United States v. Ross, 456 U.S. 798, 824 (1982).
       The test for probable cause is not reducible to “precise definition or quantification.”
Maryland v. Pringle, 540 U.S. 366, 371 (2003). “Finely-tuned standards such as proof beyond a
reasonable doubt or by a preponderance of the evidence . . . have no place in the [probable-
cause] decision.” Illinois v. Gates, 462 U.S. 213, 235 (1983). A police officer has probable
cause to conduct a search when the facts available to him would warrant a person of reasonable
caution in the belief that contraband or evidence of a crime is present. Texas v. Brown, 460 U.S.
730, 742 (1983) (plurality opinion). In evaluating whether the State has met this standard, the
totality of the circumstances is considered. Pringle, 540 U.S. at 371; Gates, 462 U.S. at 232;
Brinegar v. United States, 338 U.S. 160, 176 (1949).
A.     The Standard Applicable to School Searches
       We address initially the State’s assertion that a lesser standard than probable cause is
sufficient to justify the search because it took place on school grounds. In New Jersey v. T.L.O.,
469 U.S. 325, 340 (1985), the United States Supreme Court concluded that the school setting


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“requires some modification of the level of suspicion of illicit activity needed to justify a
search.”     The Court said that for searches by school officials, “a careful balancing of
governmental and private interests suggests that the public interest is best served by a Fourth
Amendment standard of reasonableness that stops short of probable cause.” Id. at 340-41. The
Court held, “Under ordinary circumstances, a search of a student by a teacher or other school
official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that
the search will turn up evidence that the student has violated or is violating either the law or the
rules of the school.” Id. at 341-42. See also Safford Unified Sch. Dist. No. 1 v. Redding, 557
U.S. 364, 370 (2009) (citing T.L.O. as adopting “a standard of reasonable suspicion”).
       Here, the State notes that the magistrate applied the T.L.O. standard and asserts that the
search of the vehicle should be analyzed not under the probable cause standard ordinarily applied
under the automobile exception, but rather under the lesser “reasonable suspicion” standard
applied to school searches. We need not resolve whether the T.L.O. standard would apply in the
circumstances presented here because, as explained below, even applying the more stringent
probable cause standard, the search was lawful.
B.     This Court’s Decision in State v. Schmadeka Was Misapplied
           An alert by a properly-trained drug dog generally provides probable cause to search a
vehicle. Florida v. Harris, ___ U.S. ___, 133 S. Ct. 1050, 1057 (2013); State v. Anderson, 154
Idaho 703, 706, 302 P.3d 328, 331 (2012). The U.S. Supreme Court has held that probable cause
to believe a vehicle contains evidence of criminal activity “authorizes a search of any area of the
vehicle in which the evidence might be found.” Gant, 556 U.S. at 347 (citing Ross, 456 U.S. at
820-21).
       Here, probable cause to search was based solely on the drug dog’s alert on the seam of
the driver’s side door of Doe’s vehicle; there were no other “totality of the circumstances” to
consider. The magistrate found that while this alert provided probable cause to search the
passenger compartment, it did not provide probable cause to search the trunk, where the
contraband at issue was found. The magistrate based this determination upon this Court’s
decision in State v. Schmadeka, 136 Idaho 595, 38 P.3d 633 (Ct. App. 2001), and the district
court, also relying on Schmadeka, affirmed the magistrate’s decision.
       The search in Schmadeka was not predicated upon a drug dog’s alert. Rather, a police
officer detected the odor of burning marijuana coming from the passenger compartment of a


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vehicle during a traffic stop.     The officer then searched the entire vehicle.       He found no
marijuana, but in the trunk he found precursors of methamphetamine production. After the
driver was charged with a drug offense, he filed a suppression motion, contending that probable
cause to search the trunk was lacking. The trial court denied the motion. The question addressed
in Schmadeka was the scope of the allowable search under the automobile exception when
probable cause is based upon an odor of burnt marijuana coming from the passenger
compartment. We noted that, “The permissible scope of a warrantless automobile search ‘is
defined by the object of the search and the places in which there is probable cause to believe it
will be found,’” Id. at 598, 38 P.3d at 636 (quoting Ross, 456 U.S. at 824), and that “[t]he
existence of probable cause to search the interior of a car is not necessarily sufficient to justify a
search of the car’s trunk.” Schmadeka, 136 Idaho at 599, 38 P.3d at 637. We joined the courts
of a number of other jurisdictions which had held that an officer’s detection of an odor of burnt
marijuana coming from the passenger compartment of a car provided probable cause to search
the passenger compartment but did not provide probable cause to search the car’s trunk. Id. at
599-600, 38 P.3d at 637-38. Our decision was predicated upon the commonsense distinction
between the odor of burnt marijuana in the passenger compartment, which alone is not indicative
of marijuana in the trunk, and an officer’s detection of the odor of raw marijuana, which may
justify a search of the entire vehicle:
                [The distinction] is premised on the common sense proposition that the
        smell of burnt marijuana is indicative of drug usage, rather than drug trafficking,
        and because it is unreasonable to believe people smoke marijuana in the trunks of
        cars, the mere smell of burnt marijuana does not create the fair probability that the
        trunk contains marijuana.

Id. at 600, 38 P.3d at 638 (quoting United States v. Wald, 216 F.3d 1222, 1226 (10th Cir. 2000)).
        The State argues that the lower courts in this case erred by applying to a drug dog alert on
a vehicle the Schmadeka limitation on the scope of probable cause created by the odor of burnt
marijuana. We agree. The result in Schmadeka stemmed from the fact that the officer discerned
that the marijuana he smelled had been burned. The Schmadeka rationale was that marijuana is
not likely to be smoked in a vehicle trunk, nor is burnt marijuana likely to be transported in a
vehicle trunk. The same commonsense reasoning does not hold true for a drug-dog alert, which
communicates no distinction between burnt marijuana and raw marijuana or other drugs to which
the dog has been trained to alert. According to Officer Vogt’s testimony, Max was trained to


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alert to the odor of cocaine, heroin, methamphetamine, and marijuana.                With respect to
marijuana, Vogt said that Max will alert on the odor of the drug regardless of whether it is from
marijuana smoke or raw marijuana and that when Max alerted in this case, Vogt had no idea
which of the several drugs Max was detecting. In addition, Vogt testified that in his experience
Max would sometimes alert at a door seam of a vehicle when the drugs were eventually found
only in the trunk, attributing this to an odor carried by air flow within the structure of the vehicle.
Thus, unlike the officer’s odor recognition in Schmadeka, Max’s alert on the door seam did not
logically limit probable cause to the passenger compartment.
       Although no prior case has directly addressed this issue, Idaho case law has not imposed
limits on the area of a vehicle that is searchable based upon a drug-dog alert. Anderson, 154
Idaho at 706, 302 P.3d at 331 (“A reliable drug dog’s alert on the exterior of a vehicle is
sufficient, in and of itself, to establish probable cause for a warrantless search of the interior.”);
State v. Tucker, 132 Idaho 841, 843, 979 P.2d 1199, 1201 (1999) (“This Court previously has
acknowledged that an officer’s investigation at the scene of a stopped automobile can ripen into
probable cause as soon as a drug detection dog alerts on the exterior of the vehicle, justifying a
search of the vehicle without the necessity of obtaining a warrant.”); State v. Gallegos, 120 Idaho
894, 898, 821 P.2d 949, 953 (1991) (“In this case, the officer’s reasonable and articulable
suspicion to stop appellant’s vehicle ripened into probable cause as soon as the drug-detection
dog alerted on the rear exterior of the vehicle. Once the officers had probable cause, it was
proper for them to search the automobile without a warrant.”); State v. Buck, 155 Idaho 828, 829,
317 P.3d 725, 726 (Ct. App. 2014) (“When a reliable drug dog indicates that a lawfully stopped
automobile contains the odor of a controlled substance, the officer has probable cause to believe
that there are drugs in the automobile and may search it without a warrant.”); State v. Gibson,
141 Idaho 277, 281, 108 P.3d 424, 428 (Ct. App. 2005) (“When a reliable drug-detection 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.”). As Doe has cited us to no authority from any jurisdiction holding that a
drug dog’s alert provides probable cause to search only the localized area of the car where the
dog indicated, we decline to impose such a limitation in this case.




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C.     Possibility That Drug Dog Alerted to a Residual Odor
       Doe argues that the district court’s suppression decision should be upheld on an
alternative basis that he raised before the trial court but which that court did not reach in its
disposition. He asserts that Max’s alert did not create probable cause to believe drugs were
present in the car because evidence at the suppression hearing showed that the dog could not
distinguish between the odor of drugs that are present and residual odors left by drugs that were
formerly there, or even transferred odors from hands. According to Vogt’s testimony, if a person
with marijuana residue on a hand touches a door handle, the odor of marijuana may be present at
that location for an unknown period, and Max may alert even though no marijuana was ever in
the car. Similarly, Vogt said, if a person with illegal drugs in a back pocket sits in the car, the
odor of the drugs may remain on the seat. Consequently, Doe argues, a dog not trained to ignore
residual odors fails to provide even a “reasonable probability” that drugs are presently contained
in the vehicle.
       There may be some logic in Doe’s contention that a drug dog whose detection skills fail
to differentiate between the actual presence of illegal drugs and residual odors 1 provides sparse
reason to believe that drugs are currently present. Nevertheless, Doe’s position runs counter to a
recent decision by the final authority on interpretation of the Fourth Amendment, the United
States Supreme Court. In Harris, the Court addressed whether extensive records of a drug dog’s
field performance were required to establish the dog’s reliability. The Court rejected such an
approach as inflexible and stated that evidence of a dog’s satisfactory performance in a bona fide
certification or training program can provide sufficient reason to trust a dog’s alert and allow a
court to find that the dog’s alert provides probable cause. Id. at ___, 133 S. Ct. at 1057.2 Along
the way, the Supreme Court specifically rejected the proposition that the possibility of the dog
alerting to a residual odor detracts from probable cause. The Court said:

1
        In State v. Gibson, 141 Idaho 277, 283 n.3, 108 P.3d 424, 430 n.3 (Ct. App. 2005), this
Court cited Matheson v. State, 870 So. 2d 8, 13-14 (Fla. Dist. Ct. App. 2003), which noted that
United States Customs Service dogs receive a rigorous twelve-week training course that includes
instruction in disregarding distractions such as food, harmless drugs, and residual scents. Thus,
it appears, dogs can be trained not to alert on residual scents, but that this requires more training
and an amenable dog.
2
         The defendant must, of course, have the opportunity to challenge this evidence of a dog’s
reliability through cross-examination or expert witnesses, such as by asserting that a training
program or method is inadequate. Harris, ___ U.S. at ___, 133 S. Ct. at 1057.

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       The Florida Supreme Court treated a dog’s response to residual odor as an error,
       referring to the “inability to distinguish between [such] odors and actual drugs” as
       a “facto[r] that call[s] into question Aldo’s reliability.” [Harris v. State, 71 So. 3d
       756, 773-774 (Fla. 2011)]; see supra, at 1055. But that statement reflects a
       misunderstanding. A detection dog recognizes an odor, not a drug, and should
       alert whenever the scent is present, even if the substance is gone (just as a police
       officer’s much inferior nose detects the odor of marijuana for some time after a
       joint has been smoked). In the usual case, the mere chance that the substance
       might no longer be at the location does not matter; a well-trained dog’s alert
       establishes a fair probability--all that is required for probable cause--that either
       drugs or evidence of a drug crime (like the precursor chemicals in Harris’s truck)
       will be found.

Harris, ___ U.S. at ___ n.2, 133 S. Ct. at 1056 n.2.
       Before the Supreme Court’s decision in Harris, this Court had already held that “[a]n
alert by an otherwise reliable, certified drug detection dog is sufficient to demonstrate probable
cause to believe contraband is present even if there exists a possibility that the dog has alerted to
residual odors.” State v. Yeoumans, 144 Idaho 871, 875, 172 P.3d 1146, 1150 (Ct. App. 2007).
Harris gives final resolution to the issue contrary to Doe’s position in this appeal.
       Harris also resolves to Doe’s detriment another argument that he advances. Doe asserts
that Max’s field performance on the day in question shows that the dog was not reliable because
it alerted on a number of other vehicles in the school parking lot, and the resulting searches of
those vehicles yielded no illegal drugs. The Harris Court also rejected this reasoning, stating:
               Making matters worse, the decision below treats records of a dog’s field
       performance as the gold standard in evidence, when in most cases they have
       relatively limited import. Errors may abound in such records. If a dog on patrol
       fails to alert to a car containing drugs, the mistake usually will go undetected
       because the officer will not initiate a search. Field data thus may not capture a
       dog’s false negatives. Conversely (and more relevant here), if the dog alerts to a
       car in which the officer finds no narcotics, the dog may not have made a mistake
       at all. The dog may have detected substances that were too well hidden or present
       in quantities too small for the officer to locate. Or the dog may have smelled the
       residual odor of drugs previously in the vehicle or on the driver’s person. Field
       data thus may markedly overstate a dog’s real false positives. By contrast, those
       inaccuracies--in either direction--do not taint records of a dog’s performance in
       standard training and certification settings. There, the designers of an assessment
       know where drugs are hidden and where they are not--and so where a dog should
       alert and where he should not. The better measure of a dog’s reliability thus
       comes away from the field, in controlled testing environments.




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Harris, ___ U.S. at ___-___, 133 S. Ct. at 1056-57 (footnotes omitted). The Court concluded
that the State’s evidence that the dog was a reliable detector of drugs was not effectively rebutted
by the fact that the officer’s search did not yield any of the drugs the dog had been trained to
detect. Id. at ___, 133 S. Ct. at 1058-59.
       In light of the Harris decision, neither Max’s capacity to alert on residual odors nor his
alerting on cars in which no drugs were found precluded a finding that his alert on Doe’s vehicle
supplied probable cause for a search.
D.     The Automobile Exception Applies Even if the Vehicle Is Not Currently “Readily
       Movable”
       Lastly, Doe argues, as another alternate basis to uphold suppression, that the automobile
exception to the warrant requirement should not apply here because his vehicle was unoccupied
and parked and thus not readily mobile when the search occurred. It is true that the automobile
exception was, at least originally, founded in part upon the rationale that “the opportunity to
search is fleeting since a car is readily movable.” Chambers v. Maroney, 399 U.S. 42, 51 (1970).
However, the Supreme Court has subsequently soundly rebuffed the notion that the exception is
inapplicable if the element of mobility, and the risk of loss of evidence, is removed in a
particular circumstance. Both Michigan v. Thomas, 458 U.S. 259 (1982) and Florida v. Meyers,
466 U.S. 380 (1984) hold that the automobile exception applies even after the automobile has
been impounded and is in police custody. “[T]he justification to conduct such a warrantless
search does not vanish once the car has been immobilized.” Thomas, 458 U.S. at 261. Doe’s
argument on this point has no merit.
                                                IV.
                                         CONCLUSION
       For the reasons stated, the district court’s decision on appeal affirming the magistrate’s
suppression order is reversed, and the case is remanded.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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