P. v. Stillwell 7/25/11 CA3

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State: California

Court: California Eastern District Court

Docket No: C065324

Case Date: 07/25/2011

Plaintiff: P.

Defendant: Stillwell 7/25/11 CA3

Preview:Filed 7/25/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter) ----

THE PEOPLE, Plaintiff and Respondent, v. DARLA ANN STILLWELL et al., Defendants and Appellants.

C065324 (Super. Ct. No. CRF091383)

APPEAL from a judgment of the Superior Court of Sutter County, H. Ted Hansen, Judge. Affirmed. Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant Robin Conley Briggs. Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant Darla Ann Stillwell. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Doris A. Calandra, Deputies Attorney General, for Plaintiff and Respondent.

This case involves several issues relating to the use of a drug sniffing dog.

1

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 motion. The trial court denied

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 2

reasonable expectation of privacy when it sniffed inside the bed of the truck. 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 When Finding no merit in defendants arguments, we

defendant Stillwell was seated on the passenger side.

Officer Minton spoke to Briggs, it appeared to the officer that Briggss eyes were glassy and that he might be under the influence of a narcotic or driving while intoxicated. Officer

Minton also recalled noticing that Briggss 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 Briggss 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. trucks license plate. Briggs was shown the problem with the

Officer Minton then told Briggs that he

believed Briggs might be under the influence of narcotics or 3

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 Briggss face. After doing this, Officer Minton asked Briggs to open his

eyes, at which point Officer Minton evaluated Briggss pupils. Officer Minton asked Briggs if he was under the influence or had taken any narcotics. methadone earlier in the day. Briggs related that he had taken 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 officers request. This, combined

with Officer Mintons 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 Tommy is a dual purpose dog

been working together since 2008.

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. 4 To obtain

certification, the dog must locate all of the required odors in both environments. been tested. Tommy has been certified every time he has

At the time of the traffic stop, Tommy was up to Officer Miller is trained and

date on his certifications.

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 Tommys 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 Millers ability to read When

Tommys behavior changes comes with hours of training.

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. leash. Tommy followed Officer Miller and was not on a

At the rear tire on the drivers side, Officer Miller First, Tommy "snapp[ed]"

noticed a change in Tommys behavior.

back from circling around the truck and redirected his search by doubling back. Officer Miller kept walking around the truck, 5

because he did not want to influence Tommys 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. in the bed of the truck. Tommy alerted to a black backpack

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 Tommys alert, Officer Miller opened the backpack to see what was inside. Inside the backpack, Officer Miller saw The items in

chemical bottles and a bottle with white pills.

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 After

identified these items as parts of a methamphetamine lab.

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 the narcotics Tommy was trained to detect, and he did not determine if the backpack did contain any of those items at a later date. At that point, Officer Miller

told Officer Minton what he had found. 6

As a result of this discovery, Officer Minton contacted the Yuba-Sutter Narcotics Enforcement Team. were detained. Briggs and Stillwell

Officer Minton placed Briggs and Stillwell under

arrest for possession of items used in a methamphetamine lab. Officer Joshua Jellsey of the Yuba-Sutter Narcotics Enforcement Team arrived at the scene soon thereafter and recognized the items found in the backpack as commonly used to produce methamphetamine. After viewing the items found in the backpack, Officer Jellsey obtained a search warrant for Briggs and Stillwells residence. Inside the house, agents found a glass jar with a

funnel on top and some red pills in the bottom of the jar; a can of carburetor cleaner; a bottle of hydrogen peroxide; a clear jar containing a bilayered solution; blister packs from pseudoephedrine pills; a small hand-held torch; coffee filters with pink stains; a hot sauce bottle with an unknown substance inside; and a plastic cup with a pink slush like substance inside. Several of the items were indicative of the

manufacturing process for methamphetamine, and forensic testing on several of the items later showed the presence of ephedrine or pseudoephedrine. Ephedrine and pseudoephedrine are the most

common starting materials used in the manufacture of methamphetamine, the only use for ephedrine or pseudoephedrine that was processed in the way indicated by the evidence found at the house would be for the manufacture of methamphetamine. A

syringe filled with heroin was also discovered during the search of the residence. Officer Jellsey then conducted a further 7

search of the pickup truck which revealed another pink-stained coffee filter in the bed of the truck and syringes concealed in the engine compartment of the truck. At the hearing, defendants argued that "the search was without probable cause." They also challenged the length of Acknowledging

their detention at the traffic stop as excessive.

that a search warrant was issued based on the evidence discovered through the warrantless search of the truck, the trial court also recognized that "whether [the] search warrant is any good or not depends on whether or not I suppress this evidence." In ruling, the trial court first found that the initial traffic stop was justified. Next, the court found that the

detention was not prolonged because it was "clear that the dog alerting on the backpack occurred within ten minutes of the initial stop." Finally, the court found that defendants rights "The Court is also

were not violated, explaining as follows:

somewhat troubled by the dog alerting on an item or items which dont fall within the four categories that the dog is trained to alert on. Because I dont have any testimony that there was any

marijuana, methamphetamine, heroin or cocaine that was found within the backpack. There were clearly items found in the

backpack that caused the officers to be concerned and believe they might be associated with a methamphetamine lab. [

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