APPEAL from a judgment of the Superior Court of Sutter County, H. Ted Hansen, Judge. (Super. Ct. No. CRF091383)
The opinion of the court was delivered by: Robie, Acting P. J.
CERTIFIED FOR PUBLICATION
This case involves several issues relating to the use of a drug sniffing dog.
During a traffic stop in downtown Marysville, officers of the Marysville Police Department used a narcotics detection dog to sniff the exterior of a pickup truck. This sniff led to the discovery of the makings of a methamphetamine lab in a backpack located in the bed of the pickup truck. Defendants Robin Conley Briggs and Darla Ann Stillwell (the driver and passenger of the pickup truck, respectively) were arrested. A search warrant was obtained and served on defendants' residence where further evidence of a methamphetamine lab was discovered. Defendants Briggs and Stillwell were charged with methamphetamine lab and drug possession offenses arising from the traffic stop and search. Subsequently, defendants were charged with various drug and weapons possession charges stemming from an incident that occurred while the case related to the traffic stop was pending.
Defendant Stillwell filed a motion to suppress the evidence discovered as a result of the traffic stop and dog sniff. Defendant Briggs joined in the motion. The trial court denied the motion. Thereafter, defendants Stillwell and Briggs pled no contest to several of the charges in both cases, and several remaining charges and enhancements were dismissed.
On appeal, defendants contend the trial court erred in denying their suppression motion because: 1) the prosecutor failed to prove the narcotics detection dog used to sniff the vehicle was reliable; 2) the alert of a narcotics detection dog standing alone did not establish probable cause for a warrantless search of the backpack in the bed of the pickup truck; and 3) the narcotics detection dog violated defendants' reasonable expectation of privacy when it sniffed inside the bed of the truck. Finding no merit in defendants' arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 14, 2009, at approximately 11:00 p.m., Officer Matthew Minton, a reserve officer for the Marysville Police Department, pulled over a small pickup truck because the license plate was obscured by the rear bumper and the license plate lamp was not functioning. Defendant Briggs was driving the truck and defendant Stillwell was seated on the passenger side. When Officer Minton spoke to Briggs, it appeared to the officer that Briggs's eyes were glassy and that he might be under the influence of a narcotic or driving while intoxicated. Officer Minton also recalled noticing that Briggs's pupils were fixed and not reacting. Officer Minton did not conduct an investigation for driving under the influence during this initial contact with Briggs.
Officer Minton returned to his patrol car with Briggs's license and radioed for assistance from Officer Christopher Miller. Officer Miller was more familiar with driving under the influence investigations and worked with a narcotics detection dog. About two minutes after the initial stop, Officer Miller arrived.
After Officer Miller arrived, Officer Minton asked Briggs to step out of the truck. Briggs was shown the problem with the truck's license plate. Officer Minton then told Briggs that he believed Briggs might be under the influence of narcotics or driving impaired and that he would be conducting an evaluation. Officer Minton asked Briggs to close his eyes for 5 to 10 seconds and then shined his flashlight at the side of Briggs's face. After doing this, Officer Minton asked Briggs to open his eyes, at which point Officer Minton evaluated Briggs's pupils.
Officer Minton asked Briggs if he was under the influence or had taken any narcotics. Briggs related that he had taken methadone earlier in the day. After learning this, Officer Minton did not feel it was necessary to conduct any further sobriety tests. Officer Minton asked Briggs if there was anything illegal in the truck and if he could take a look inside the truck. Briggs denied the officer's request. This, combined with Officer Minton's observations of Briggs, led him to suspect that Briggs might have a controlled substance or something illegal in the truck.
After Briggs rejected the request to search the truck, Officer Minton asked Officer Miller to have his dog check the exterior of the vehicle. Officer Miller and his dog Tommy had been working together since 2008. Tommy is a dual purpose dog that serves to protect his handler and to detect narcotics. Tommy is trained to detect the odors of cocaine base, cocaine powder, methamphetamine, marijuana, and heroin. To obtain certification by the State Commission on Peace Officer Standards and Training (POST), a dog must be able to detect these odors. Tommy is certified annually to the POST standards. The certification process involves the hiding of different types of drugs in various weights in vehicles and buildings. To obtain certification, the dog must locate all of the required odors in both environments. Tommy has been certified every time he has been tested. At the time of the traffic stop, Tommy was up to date on his certifications. Officer Miller is trained and certified to handle Tommy and keeps a performance record for Tommy.
Officer Miller is "trained to read [Tommy], watch his behavior, how he reacts . . . ." When Tommy is sniffing the air around a vehicle, Officer Miller watches for any change in Tommy's behavior, such as a deviation from his standard high/low search pattern or the use of a "cone pattern" to work back to the source of the odor. Officer Miller's ability to read Tommy's behavior changes comes with hours of training. When Tommy locates the source of an odor, his "passive alert" is to sit and stare at the location where he found the controlled substance. This indicates to Officer Miller that Tommy smells the odor of one of the narcotics Tommy has been trained to detect.
Officer Minton requested that Officer Miller have Tommy sniff the air around the exterior of the truck; Officer Miller had Stillwell exit the vehicle. Officer Miller started the dog sniff at the front of the vehicle and moved back toward the rear of the truck. Tommy followed Officer Miller and was not on a leash. At the rear tire on the driver's side, Officer Miller noticed a change in Tommy's behavior. First, Tommy "snapp[ed]" back from circling around the truck and redirected his search by doubling back. Officer Miller kept walking around the truck, because he did not want to influence Tommy's decision to redirect the search. Tommy next used a "scent cone" search pattern, working right to left in an attempt to find the odor. Tommy then stood up on his hind legs with his front paws on the side of the truck and sniffed over the bed of the pickup. After sniffing the air in that area, Tommy immediately dropped down into his "sit/stare" alert. Tommy alerted to a black backpack in the bed of the truck. The backpack was the only item in the bed of the truck in that area and was the first thing Officer Miller saw when he went to take a look in the bed after Tommy alerted.
Based on Tommy's alert, Officer Miller opened the backpack to see what was inside. Inside the backpack, Officer Miller saw chemical bottles and a bottle with white pills. The items in the backpack were identified as a metal can of xylene, denatured alcohol, acetone, a 500 milliliter glass beaker, and a small gray bottle that contained several white pills. At the time, Officer Miller and Officer Minton believed these pills might be ephedrine. Based on his training and experience, Officer Miller identified these items as parts of a methamphetamine lab. After seeing these items, Officer Miller stopped looking through the backpack and did not "go hands on" with the evidence, pursuant to policy. Consequently, Officer Miller could not be certain if the backpack contained any of ...