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People v. Bailey

Supreme Court of Colorado, En Banc

October 15, 2018

The People of the State of Colorado, Plaintiff-Appellant:
Edwin Liaon Bailey. Defendant-Appellee

          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


          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 ...

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