People v. Bailey

Citation: 427 P.3d 821Docket: Supreme Court Case No. 18SA169

Court: Supreme Court of Colorado; October 15, 2018; Colorado; State Supreme Court

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Interlocutory review was sought by the People regarding the trial court's pretrial order that granted Edwin Bailey's motion to suppress evidence obtained from a search of his vehicle. The trial court determined that the deployment of Mason, a certified narcotics-detecting dog, constituted a search lacking probable cause. The court reversed this suppression order, ruling that the totality of circumstances, including Mason's alert to the odor of narcotics on the exterior of the vehicle, established probable cause for the search. The court noted that Mason's alert, despite not being a conclusive indication, was significant for the officers' probable cause assessment.

On December 7, 2017, Trooper Leonard Fleckenstein observed Bailey at a gas station in Fruita, Colorado, where Bailey was behaving unusually—remaining near his car without pumping gas and frequently watching the trooper. After checking the car's registration, which was under a female name with no occupants present, Trooper Fleckenstein called for assistance from Trooper Kelly Pickering. When the troopers moved out of Bailey's sight, Bailey repositioned his car, prompting them to approach him.

Upon interaction, an overpowering scent of air fresheners or cologne was detected, a method used to mask narcotics odors. Bailey was unable to provide proof of insurance and exhibited signs of nervousness. Although he claimed to have attended a clothing convention in Las Vegas, he could not produce business cards or documentation to substantiate his trip, leading to further suspicion regarding his activities.

Trooper Fleckenstein questioned Bailey about his travel from Iowa to Las Vegas for a convention, noting that Bailey's timeline seemed implausible given the 1,600-mile distance. Bailey claimed he left on December 4 and returned to Colorado by the morning of December 7, which Trooper Fleckenstein found difficult to believe. During the conversation, Bailey became increasingly nervous and ultimately refused to speak further, rolling up his window. Although he was free to leave, his car's dead battery prevented him from doing so. Trooper Gosnell then arrived with Mason, a narcotics-detecting dog, as requested by Fleckenstein. Unlike Fleckenstein's dog, Mason was not trained to alert to marijuana, which is legal under certain conditions in Colorado. Before attending to the dead battery, Fleckenstein instructed Gosnell to deploy Mason to search for narcotics. 

Gosnell conducted two passes around the vehicle. During the first pass, Mason exhibited a notable behavior change near the driver's side door, indicating he had detected narcotics. Mason then crawled under the vehicle, which is atypical unless he is in the presence of narcotics. For the second pass, Mason was placed inside the vehicle to locate the source of the odor but did not pinpoint its exact location. Gosnell then opened the trunk for Mason to sniff, but again, Mason did not identify a specific source. Finally, as they approached the passenger side of the car, Mason indicated he detected narcotics at the seam of the passenger front door.

Troopers searched Bailey's car, discovering 6.88 pounds of vacuum-sealed marijuana, a white powdery substance, two bottles of cologne, and air fresheners. Bailey was charged with offenses related to marijuana possession and distribution. He filed a motion to suppress evidence obtained from the search, arguing that the use of K-9 Mason in his vehicle constituted an unconstitutional search due to a lack of probable cause. During the suppression hearing, the troopers testified, and the trial court reviewed video footage of Mason's deployment. The court found that the troopers lacked probable cause, noting that they initially did not believe they had justification to search the car and that placing Mason inside it was a search of Bailey's property without probable cause. Consequently, the court suppressed the evidence from the troopers' hand search.

The People filed a motion to reconsider, which was denied. The trial court acknowledged Mason's behavior before being placed in the car but concluded it did not establish probable cause until after Mason was inside. The People then appealed the trial court's ruling under relevant statutes allowing interlocutory appeals from suppression orders. They argued the trial court erred in its legal interpretation, asserting that the totality of the circumstances, including Mason's alert, provided probable cause for the troopers to suspect narcotics in the car. The appellate court agreed, stating that Mason's alert, even if not a final indication, was relevant to the probable cause determination, and reversed the trial court's order suppressing the evidence. The appeal process involved a mixed question of law and fact, with factual findings being deferred but legal conclusions reviewed de novo.

The Fourth Amendment of the U.S. Constitution and Article II, Section 7 of the Colorado Constitution prohibit unreasonable searches and seizures, establishing that warrantless searches are generally deemed unconstitutional unless exceptions apply. The prosecution bears the burden to prove that a warrantless search is justified by probable cause and fits within a narrow exception, such as the automobile exception, which allows searches of vehicles if there is probable cause to believe they contain evidence of a crime. In this context, the central inquiry is whether law enforcement had probable cause to search Bailey's car for contraband.

Probable cause exists when the facts known to an officer would lead a reasonable person to believe that evidence of a crime is present. The assessment of probable cause must consider the totality of the circumstances, allowing officers to rely on their experience and training, rather than strict legal rules or mathematical certainties. This approach emphasizes practical, common-sense judgments and recognizes that probable cause is a fluid concept shaped by the specific factual context, rather than a rigid standard.

The totality of the circumstances standard requires that all relevant factors be considered collectively rather than in isolation, as established in Harris and Grassi case law. Individual facts may not suffice for probable cause, but their combination can. Even lawful circumstances can collectively suggest criminal activity. Innocent behavior may contribute to probable cause, as imposing a stricter definition would undermine citizens' security. 

In reviewing the challenged search involving Bailey, the focus is on whether probable cause existed for troopers to believe contraband or evidence would be found in his vehicle. Bailey does not contest the legality of a dog sniff around his car, but he does argue that placing the dog, Mason, inside was an unconstitutional search lacking probable cause. Trooper Gosnell testified that Mason indicated the presence of narcotics by altering his behavior during the sniff—demonstrating a head turn, increased breathing, and movement under the car. The trial court did not find the troopers’ testimony unreliable and did not dispute the dog's alert. However, it dismissed the initial alert as not being a 'final' indication of narcotics, a position not supported by legal authority. The Tenth Circuit's ruling in United States v. Moore is cited to illustrate that a dog's alert, even without a final indication, is sufficient for probable cause. Mason's behavior during the sniff was analogous to that of the dog in Moore, reinforcing the argument for probable cause based on his initial alert.

Bailey's argument that the case of Moore is not applicable is based on a misunderstanding of the trial court's findings. The trial court did not conclude that Mason failed to alert before being placed in Bailey's car. Instead, it determined that Mason's initial alert was not relevant to the probable cause assessment because it was not his final indication. Regardless, the analysis of probable cause is not solely reliant on Moore. The court concluded that Mason's initial alert, combined with other circumstances, provided the troopers with probable cause to suspect narcotics in Bailey's car. 

Key circumstances included Bailey's location at a gas station known for drug trafficking, his out-of-state license plates, erratic behavior (including multiple trips to the store and excessive monitoring of the troopers), and the strong smell of air fresheners or cologne in his car—common tactics used to conceal narcotics odors. Bailey exhibited nervousness, shaking hands, and inconsistencies in his statements about his trip and accommodations. Trooper Fleckenstein noted the implausibility of Bailey's travel timeline and observed Mason alerting to the presence of narcotics during his first pass around the vehicle.

While some circumstances on their own may not establish probable cause, their combination did suggest potential criminal activity. The trial court failed to consider all relevant circumstances, particularly dismissing Mason's initial alert as irrelevant. This omission constituted error, as the totality of the circumstances indicated reasonable grounds for believing that Bailey’s car contained narcotics, justifying the search when Mason was placed inside.

The trial court's determination that the troopers violated Bailey's constitutional rights regarding unreasonable searches and seizures is reversed. The troopers had probable cause to believe narcotics were present in Bailey's car when they placed Mason in the vehicle. Consequently, the evidence obtained during the troopers' hand search of the car is admissible. Trooper Fleckenstein, involved in drug interdiction, has received training related to narcotics detection and testified about Interstate 70 being a route commonly used for drug trafficking. Mason, a certified narcotics-detecting dog, is trained to detect several controlled substances. The court acknowledged that subjective beliefs of the troopers regarding probable cause are irrelevant. The court did not address the People's alternative argument regarding the "fruit of the poisonous tree" doctrine, as the ruling is reversed based on a factual finding that lacks support in the record. The trial court's failure to find any inconsistencies in the troopers' testimony further indicates that a conclusion that Mason did not alert before being placed in the car would be an abuse of discretion.