Interlocutory Appeal from the District Court Mesa County
District Court Case No. 17CR2308 Honorable Gretchen B.
Larson, Judge
Attorneys for Plaintiff-Appellant: Daniel P. Rubinstein,
District Attorney, Twenty-First Judicial District Bradley E.
Smith, Deputy District Attorney Grand Junction, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public
Defender Joseph Destafney, Deputy Public Defender Grand
Junction, Colorado
OPINION
SAMOUR, JUSTICE.
¶1
The People seek interlocutory review of the trial court's
pretrial order granting defendant Edwin Bailey's motion
to suppress evidence gathered during a search of his car. The
trial court found that placing Mason, a certified
narcotics-detecting dog, in Bailey's car was a search
that was not supported by probable cause. We now reverse the
trial court's suppression order. We hold that the
totality of the circumstances, including Mason's alert to
the odor of narcotics while sniffing the exterior of
Bailey's car, provided state troopers with probable cause
to search the car. The fact that Mason's alert was not a
final indication did not render it irrelevant to the
troopers' probable cause determination.
I.
Factual and Procedural History
¶2
On December 7, 2017, as Bailey was standing next to his
Toyota Yaris at a gas pump in a gas station off Interstate 70
in Fruita, Colorado, State Patrol Trooper Leonard
Fleckenstein pulled into the gas station in his marked SUV to
refuel. Trooper Fleckenstein noticed that Bailey was not
pumping gas and that his Yaris had Iowa license
plates.[1] After running the license plate number,
the trooper learned that the car was registered to a female,
Carol Johnson. But he did not see any women or anyone else in
the car. He then watched as Bailey went into the gas
station's store, returned to his car, moved the car and
parked it near the store's front door, walked back into
the store, exited again, and then sat in his car.
¶3
Trooper Fleckenstein subsequently noticed that Bailey was
watching him frequently in his car's mirrors. The trooper
decided to move his SUV to the east side of the gas station
where he continued to keep an eye on Bailey. At that point,
Bailey got out of his car again, went into the store a third
time, and returned to his car, where he continued watching
Trooper Fleckenstein in his car's mirrors. Trooper
Fleckenstein concluded that these actions were not
"normal for a citizen going about his business." He
therefore called Trooper Kelly Pickering, explained the
situation, and requested that Trooper Pickering meet him at
the gas station.
¶4
Bailey was still sitting in his Yaris when Trooper Pickering
arrived, approximately twenty minutes after Trooper
Fleckenstein moved his SUV to the east side of the gas
station's parking lot. The troopers decided to drive
across the street to a hotel parking lot, where they would be
out of Bailey's sight. A few minutes later, Bailey backed
out of his parking space and moved his car to the east side
of the gas station's parking lot. This prompted Troopers
Fleckenstein and Pickering to return to the gas station and
contact Bailey.
¶5
As the troopers walked up to Bailey's car, Bailey rolled
down his window. An overwhelming odor of air fresheners or
cologne exuded from inside Bailey's car-a tactic Trooper
Pickering had seen some narcotic traffickers employ to mask
the odor of narcotics. Bailey could not provide proof of
insurance, but he gave Trooper Fleckenstein his Iowa
driver's license and the vehicle's registration card.
Trooper Fleckenstein ran Bailey's license and learned he
had an outstanding, nonextraditable arrest warrant out of
California for possession of a concealed weapon. Meanwhile,
Trooper Pickering called Johnson, the registered owner of the
car, who told him that Bailey had permission to drive the
Yaris. Johnson then texted Pickering the car's insurance
information.
¶6
While standing next to the Yaris, Trooper Fleckenstein
noticed that Bailey was nervous and that "his hands were
shaking badly." He asked Bailey where he had driven his
vehicle. Bailey told him that he was returning from a
clothing convention in Las Vegas, where he'd hoped to
purchase some machines. When asked if he made any contacts
there, Bailey answered in the affirmative, but he could not
show the trooper any business cards from vendors or anyone
else at the convention. As he discussed the purpose of his
trip, Bailey provided seemingly inconsistent information
about his line of work and could not show the trooper any
documentation of his accommodations in Las Vegas. Trooper
Fleckenstein then asked Bailey when he left Iowa for the
convention, and Bailey stated that he started driving three
days earlier, on December 4. That seemed like a very short
trip to the trooper because he estimated that the distance
between Iowa and Las Vegas is about 1600 miles:
[A] person leaving on the fourth from Iowa, even driving
straight through[, ] you wouldn't get there clear
'til the next day, which would be the fifth; and
that's without stopping at all, which would be an over
24-hour [period] driving straight. And to [attend] a
convention, stay overnight, and then already be back in
Colorado on-in the morning on the seventh was almost
impossible.
¶7
During his conversation with Trooper Fleckenstein, Bailey
confirmed that everything in the car was his and that he had
been in possession of the car the entire time he was in Las
Vegas. At that point, Bailey became more nervous and started
stumbling over his words. He told Trooper Fleckenstein that
he was not going to talk anymore and rolled up his window.
¶8
Bailey was free to leave, but he could not drive away because
his car's battery was dead. As the troopers were in the
process of determining how to assist Bailey, Trooper Shane
Gosnell arrived with Mason, a certified narcotics-detecting
dog.[2]
Trooper Fleckenstein had asked Trooper Gosnell earlier to
respond with Mason. Though he had a narcotics-detecting dog
himself, Trooper Fleckenstein requested Mason because, unlike
Trooper Fleckenstein's dog, Mason is not trained to alert
to the odor of marijuana, the possession of which is not
unlawful in Colorado under certain
circumstances.[3] Shortly after arriving, Trooper Gosnell
retrieved a battery pack from his vehicle, but Trooper
Fleckenstein asked him to deploy Mason before jump-starting
Bailey's car. Trooper Gosnell obliged.
¶9
When deploying Mason in relation to a vehicle, Trooper
Gosnell conducts "two passes" around the exterior
of the vehicle. During the "first pass," Mason is
moved at a "smooth" but "decent pace,"
giving him "the opportunity [to] basically smell the air
around the exterior" of the vehicle. The "second
pass" is a more detailed pass that focuses on gaps in
the vehicle "where the odor may be traveling out [to]
the exterior of the vehicle."
¶10
As Mason completed the first pass around Bailey's car,
Trooper Gosnell made the following observations:
We got to about the driver's side door and [Mason] did
what we call head turn or head snap, where he immediately
turned back and went back across the same path in which we
had just crossed. It's behavior consistent with them
coming into odor, and they're trying to go back to see at
what point they came into that odor. He went back towards the
front of the vehicle, stood up on the front bumper, and his
breathing changed. It was more rapid and smaller breaths; [he
was] taking in air quicker and at a faster rate so that [he]
can try to find exactly at what point along the vehicle [he]
. . . [came] into that odor. He then went under the vehicle,
which is also indicative of being in the presence of the odor
of narcotics. A dog . . . generally won't crawl under a
vehicle like that. And in my training and experience it's
unless they're in the odor of narcotics, specifically
Mason.
According
to Trooper Gosnell, "because of the alert or the change
in behavior" while completing the first pass, he placed
Mason in Bailey's vehicle during the second pass so that
Mason could try to locate the source of the odor of narcotics
detected. Consistent with his training, Mason searched the
vehicle; however, he did not identify the specific location
of the source of the narcotics odor. Trooper Gosnell next
popped the trunk of the car, and Mason sniffed inside the
trunk. After searching the trunk, again without identifying
the specific location of the source of the narcotics odor,
Trooper Gosnell took Mason around the passenger side of the
car, at which point Mason "gave a final indication . . .
that he was getting odor" from the passenger side front
door seam by putting his nose on and staring at that seam.
¶11
The troopers then searched Bailey's car by hand. They
found a box in the trunk that contained six separate
vacuum-sealed packages of marijuana weighing a total of 6.88
pounds. Further, they discovered a white powdery substance in
the trunk and in the passenger side of the car. Two ...