The opinion
1
2025 CO 4
The People of the State of Colorado, Plaintiff-Appellant
v.
Tien Dinh Pham, Defendant-Appellee
No. 24SA225
Supreme Court of Colorado, En Banc
February 3, 2025
Jefferson County District Court Case No. 23CR1739 Honorable
Tamara S. Russell, Judge
Attorneys for Plaintiff-Appellant: Alexis King, District
Attorney, First Judicial District Rebecca A. Adams, Senior
Appellate Deputy District Attorney Golden, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public
Defender Alex Taufer, Deputy Public Defender Golden, Colorado
2
JUSTICE HOOD, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE
BERKENKOTTER joined. JUSTICE BOATRIGHT, joined by CHIEF
JUSTICE MARQUEZ, dissented.
OPINION
GABRIEL, JUSTICE
3
¶1
In this interlocutory appeal, the People ask us to reverse
the trial court's order suppressing the results of a
police dog sniff search of the interior of Tien Dinh
Pham's vehicle.
¶2
We conclude that although the trial court erred in finding
that removing Pham from his vehicle during a lawful traffic
stop was a search, the court correctly determined that the
dog's entry into Pham's vehicle, which was
facilitated by the police, was a search under the Fourth
Amendment and that this search was conducted without the
requisite probable cause.
¶3
Accordingly, we affirm the trial court's suppression
order.
I.
Facts and Procedural Background
¶4
After watching Pham's vehicle drive away from a house in
an allegedly high-crime area, Lakewood police agents began
following him, observed a lane change violation, and
initiated a traffic stop. Pham pulled into a parking lot,
where the agents ordered him out of the vehicle. Although it
appears that Pham initially opened the door from inside the
car, the agent at the door immediately put his hand on the
top of the car door. Pham then got out of the car, and the
agent conducted a brief pat down and quickly directed Pham to
a different location in the parking lot, leaving the car door
open.
4
¶5
Agent Kyle Winters then deployed a drug-detection dog and
directed the dog to conduct a free air sniff of Pham's
vehicle. When the dog got to the open driver's side door,
Agent Winters partially closed the door to allow him and the
dog to maneuver around it. Agent Winters then reopened the
door sufficiently to allow the dog to place his head and
front paws inside the vehicle, at which point the dog alerted
to the presence of drugs. After the dog did so, Agent Winters
walked the dog around the rest of the car, and the dog did
not alert again until he returned to the open door. The
agents on scene thereafter searched the vehicle and found,
among other things, suspected methamphetamine, cocaine,
heroin, drug paraphernalia, and two handguns. Officers then
arrested Pham.
¶6
The Jefferson County District Attorney charged Pham with nine
counts, including possession with intent to manufacture or
distribute a controlled substance, possession of a weapon by
a previous offender, and possession of drug paraphernalia.
Pham moved to suppress the evidence seized as a result of the
traffic stop, arguing, among other things, that the law
enforcement officers had no basis to remove him from his
vehicle and that the dog sniff of his vehicle was an
unconstitutional search because it was conducted without
probable cause.
¶7
The trial court subsequently held a suppression hearing and
concluded that the search was unconstitutional because the
officers (1) had no reason to remove Pham from his vehicle
and (2) acted improperly when they intentionally left the
5
vehicle door open so that the dog could sniff inside the
vehicle. Specifically, the court found and concluded:
[T]he issue here is that officers aren't looking in the
car for evidence of an unsafe lane change. That happened, and
the officer has a right to pull him over for that. Does he
have the right then to ask Mr. Pham to get out of the car so
he can do an open air search around the car?
I haven't been given any law that says that's
okay....
[I]n this case, he said they took him out-unless I
misheard-they said they took him out so they could search the
car-or so they could do the open air sniff and they
didn't want the dog to bite Mr. Pham. Also, then, we get
to the point in the video it's pretty clear that the
officer is the one holding the door open.
They tell Mr. Pham to get out and come over here, and I
don't know what the reason is, other than he's going
to get a ticket, and then they don't shut the door. And
it's a little bit disingenuous for Officer Winters to
say, yeah, I asked him questions about the car and is it the
same way as we left it, yeah, but who opened the door. And I
don't know, in that video it's pretty clear that the
officer-somebody opens the door. The officer puts his hand on
the door and escorts Mr. Pham away and leaves the door open.
I don't think that's okay....
The-for me, the stop is fine. The ticket is fine. For me
even-sure, even pulling him out of the car, if there's a
reason-and I haven't heard one, so that's the first
reason that I don't think this is a valid search. They
don't have any reason to take him out .... ....
And the second part is that they left the door open and the
dog sniffed there.... [I]s it a valid open air sniff if he
leaves the car door open on purpose, which it looks like they
did. I don't know. I didn't hear anymore [sic] about
that.
6
So I'm going to find, in fact, that I will suppress the
search of the car because I don't find that they had a
valid reason. The dog sniff would have been a good reason. It
would have been probable cause to search the car, but, again,
I don't have anything to support that they can take him
out, take him out of the car to do a dog sniff, or if they
can on purpose leave the door open so that they can sort of
sniff what's inside.
And the reason I'm making this ruling is because these
people have-the police officers knew what they were doing....
. . . I think the search is not authorized because they
didn't have probable cause, even with the dog sniff, and
that was because they left the door open.
¶8
The People then filed this interlocutory appeal.
II.
Analysis
¶9
We begin by addressing our jurisdiction over this matter.
Next, we set forth the applicable standard of review. We then
discuss the applicable law and apply that law to the facts
before us.
A.
Jurisdiction
¶10
Section 16-12-102(2), C.R.S. (2024), and C.A.R. 4.1(a)
authorize the prosecution to file an interlocutory appeal in
this court from a trial court's order granting a
defendant's pretrial motion to suppress evidence if the
prosecution certifies to both the judge who granted the
motion and this court that the appeal is not taken for
purposes of delay and the evidence at issue is a substantial
part of the proof of the charge pending against the
defendant. People v. Thompson , 2021 CO 15, ¶
13 , 500 P.3d 1075, 1078 . The prosecution has so certified
here, and Pham
7
has not challenged that certification. Accordingly, we have
jurisdiction over the People's appeal in this case.
B.
Standard of Review
¶11
A trial court's suppression order presents a mixed
question of fact and law. Id. at ¶ 15, 500 P.3d
at 1078 . "We accept the trial court's findings of
historic fact if those findings are supported by competent
evidence, but we assess the legal significance of the facts
de novo." Id. (quoting People v. Coke ,
2020 CO 28, ¶ 10 , 461 P.3d 508, 512 ). Accordingly,
"[w]e will not substitute our own judgment for that of
the trial court unless the trial court's findings are
clearly erroneous or not supported by the record."
People v. Glick , 250 P.3d 578, 582 (Colo. 2011). We
will, however, correct on review a trial court's
application of an erroneous legal standard or the court's
ultimate legal conclusion if that conclusion is inconsistent
with or unsupported by evidentiary findings. People v.
Kaiser , 32 P.3d 480, 483 (Colo. 2001).
¶12
"In reviewing a trial court's ruling on a motion to
suppress, we look solely to the record created at the
suppression hearing." Thompson , ¶ 16, 500
P.3d at 1078 .
C.
Searches and Probable Cause
¶13
The Fourth Amendment protects individuals against
unreasonable searches and seizures. U.S. Const. amend. IV.
The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be
8
violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
¶14
"It is beyond dispute that a vehicle is an
'effect' as that term is used in the Amendment."
United States v. Jones , 565 U.S. 400, 404 (2012).
¶15
In addition, a search occurs within the meaning of the Fourth
Amendment when the government physically occupies private
property, including a vehicle, in order to obtain
information. Id. at 404-05 .
¶16
"In enforcing the Fourth Amendment's prohibition
against unreasonable searches and seizures, the [Supreme]
Court has insisted upon probable cause as a minimum
requirement for a reasonable search permitted by the
Constitution." Chambers v. Maroney , 399 U.S.
42, 51 (1970). A law enforcement officer has probable cause
to conduct a search when "the facts available to [him]
would 'warrant a [person] of reasonable caution in the
belief'" that contraband or evidence of a crime is
present. Florida v. Harris , 568 U.S. 237, 243 (2013)
(alterations in original) (quoting Texas v. Brown ,
460 U.S. 730, 742 (1983) (plurality opinion)).
¶17
In determining whether probable cause exists, courts consider
the totality of the circumstances. Id. at 243-44.
Moreover, the Supreme Court has viewed probable cause as
"a fluid concept-turning on the assessment of
probabilities in particular factual contexts-not readily, or
even usefully, reduced to a neat set of legal rules."
Id. at 244 (quoting Illinois v. Gates , 462
U.S. 213, 232 (1983)).
9
¶18
Turning to the specific issues now before us, we note that
the Supreme Court has made clear that, out of concern for
police officer safety, officers may, "consistent with
the Fourth Amendment, exercise their discretion to require a
driver who commits a traffic violation to exit the vehicle
even though they lack any particularized reason for believing
the driver possesses a weapon." New York v.
Class , 475 U.S. 106, 115 (1986). In this regard, the
Court has observed that requiring a driver to exit a vehicle
is a " de minimis " additional intrusion
and, at most, a "mere inconvenience" when balanced
against legitimate concerns for officer safety.
Pennsylvania v. Mimms , 434 U.S. 106, 111 (1977).
¶19
With respect to dog sniffs, the search of the interior of a
home and its curtilage are indisputably subject to Fourth
Amendment protection. See Florida v. Jardines , 569
U.S. 1, 6 (2013). Accordingly, the Supreme Court has
concluded that the government's use of a trained police
dog to investigate a home and its immediate surroundings is a
"search" under the Fourth Amendment. Id.
at 11-12 . ¶20 The search of a vehicle's interior is
likewise subject to Fourth Amendment protection, and such a
search must be supported by probable cause. Class ,
475 U.S. at 114-17 . This case requires us to determine when a
dog sniff of a vehicle's interior rises to the level of a
search warranting Fourth Amendment protection.
¶21
Both the Supreme Court and our court have concluded that a
dog sniff around the exterior of a vehicle while a person is
lawfully seized for a traffic
10
violation does not rise to the level of an infringement of
the person's constitutional rights and thus does not
implicate Fourth Amendment protections. Illinois v.
Caballes , 543 U.S. 405, 409 (2005); People v.
Mason , 2013 CO 32, ¶ 10 , 310 P.3d 1003, 1005 . The
Tenth Circuit has concluded, however, that when, prior to
establishing probable cause, law enforcement officers
facilitate a dog's entry into a vehicle during a dog
sniff, this implicates the Fourth Amendment. Felders v.
Malcom , 755 F.3d 870, 879 (10th Cir. 2014).
¶22
Specifically, in Felders , video footage showed that
a state trooper had opened the passenger doors of a vehicle
during an investigatory stop, removed the passengers, and
intentionally left a door open, even physically preventing
one of the passengers from closing that door. Id. at
877 . A K-9 unit officer then led a drug-sniffing dog around
the vehicle, and the dog jumped into the vehicle through the
open passenger door. Id. The sniff ultimately
yielded no drugs, and Felders and her passengers brought a
civil action, alleging that the law enforcement officers had
searched Felders's car in violation of the Fourth
Amendment. Id. at 875, 877 .
¶23
The Felders court ultimately determined that the
officers did not have probable cause to conduct the dog sniff
at issue. Id. at 879 . Although the court observed
that a dog sniff outside a car during a lawful traffic stop
is not a search, the court noted that "officers cannot
rely on a dog's alert to establish probable
11
cause if the officers open part of the vehicle so the dog may
enter the vehicle or otherwise facilitate its entry."
Id. at 880 . The court thus concluded:
[A] trained dog's alert from areas where the motorist has
no legitimate expectation of privacy-the exterior of the car
or the interior of the car that the motorist has voluntarily
exposed to the dog-provides sufficient probable cause to
search the interior. But where there is evidence that it is
not the driver but the officers who have "create[d] the
opportunity for a drug dog to go where the officer himself
cannot go," the Fourth Amendment protects the
driver's right to privacy to the interior compartment
until the dog alerts from the exterior of the car.
Id. (second alteration in original) (quoting
United States v. Lyons , 486 F.3d 367, 373 (8th Cir.
2007)).
D.
Application
¶24
Applying the foregoing principles to the facts before us, we
initially conclude that the trial court erred in finding that
it was improper for the agents to remove Pham from his
vehicle after properly initiating a traffic stop.
¶25
As noted above, in Mimms , 434 U.S. at 111 , the
Supreme Court concluded that legitimate concerns for officer
safety outweigh the de minimis intrusion into a
driver's personal liberty occasioned by an officer's
request that a lawfully stopped driver get out of the car.
There, officers had pulled Mimms over for driving with an
expired license plate, and one of the officers asked Mimms to
exit the vehicle, apparently as a standard practice.
Id. at 107, 109-10 . Although the State conceded that
the officer had no reason to suspect Mimms of foul play at
that point in the
12
interaction, the Court nonetheless concluded that when a
vehicle has been lawfully detained for a traffic violation,
police officers may order the driver to exit the vehicle
without violating the Fourth Amendment. Id. at 109 ,
111 n.6.
¶26
In our view, the same principle applies here. The agents had
lawfully stopped Pham for a suspected lane change violation.
Accordingly, under Mimms , the agents acted
appropriately when they ordered Pham out of his vehicle, even
though they had no particularized concern for their safety
when they did so. See id. As a result, we conclude
that the trial court erred in determining that the agents had
acted unlawfully in ordering Pham out of his vehicle.
¶27
The question thus becomes whether the agents conducted a
search of Pham's vehicle when the drug-detection dog
entered the vehicle to conduct a sniff. On the facts of this
case, we conclude that they did, and because the search was
not supported by probable cause, we further conclude that the
search was unconstitutional.
¶28
As discussed above, in Felders , 755 F.3d at 877 , the
Tenth Circuit concluded that when a police officer, without
probable cause, facilitates a drug-detection dog's entry
into a vehicle during a dog sniff, this constitutes an
unconstitutional search. Indeed, the cases on which the
People rely are in accord.
¶29
Specifically, as the People contend, some federal courts have
perceived no Fourth Amendment violation when a drug-detection
dog acted "instinctively" and
13
without facilitation by its handler in entering a
vehicle. See, e.g. , United States v. Sharp ,
689 F.3d 616, 620 (6th Cir. 2012); United States v.
Pierce , 622 F.3d 209, 214-15 (3d Cir. 2010).
Accordingly, even the case law on which the People rely
supports the conclusion that when a police officer, without
probable cause, facilitates a drug-detection dog's entry
into a vehicle during a dog sniff, it constitutes a search.
See Sharp , 689 F.3d at 620 ; Pierce , 622
F.3d at 214-15 .
¶30
Here, we need not confront the difficult question of whether
and when a dog acts instinctively because the trial court
found, with ample record support, that the police agents in
this case facilitated the dog's entry into Pham's
vehicle. Specifically, the record, including footage from
Agent Winters's body-worn camera, shows that an agent
ordered Pham out of the vehicle, putting his hand on the top
of the door when Pham exited so that he could not have closed
the door had he tried. The agents then immediately conducted
a pat down of Pham and directed him away from the vehicle,
leaving the door open. Once Pham was away from the vehicle,
Agent Winters deployed the drug-detection dog, and when the
dog got to the open driver's side door, Agent Winters
partially closed the door to allow him and the dog to
maneuver around it. Agent Winters then reopened the door
sufficiently to allow the dog to place his head and front
paws inside the vehicle, at which point the dog alerted to
the presence of drugs.
14
¶31
On these facts, and in light of the above-described case law,
we conclude that the law enforcement officers in this case
conducted a search within the meaning of the Fourth Amendment
when they facilitated the dog's entry into Pham's
vehicle. This was not a scenario in which the officers merely
left a door open so that the dog could get a better sniff of
the ambient air. Rather, the record reflects, and the trial
court properly found, that, through their own actions, the
officers facilitated the dog's entry into
Pham's vehicle so that the dog could sniff inside.
(Notably, the dog did not alert when sniffing around the
vehicle's closed doors; he alerted only after entering
the vehicle.)
¶32
The question remains whether this search was supported by
probable cause. We conclude that it was not.
¶33
As noted above, probable cause exists when the facts
available to a police officer would warrant a person of
reasonable caution to believe that contraband or evidence of
a crime is present. Harris , 568 U.S. at 243 . The
record does not establish such a reasonable belief here.
¶34
Law enforcement officers stopped Pham for a suspected lane
change violation after he left an allegedly high-crime area.
The officers had no indication that Pham had been involved in
any criminal activity in that area. Nor does the record show
that the officers were aware of any facts suggesting that
there was contraband in Pham's vehicle (a lane change
violation, in and of itself, does not
15
establish such a fact). And the dog did not alert until it
entered Pham's vehicle (thus, any facts establishing
probable cause arose after the search began).
¶35
Accordingly, we conclude that the officers conducted the
search at issue without the requisite probable cause.
III.
Conclusion
¶36
For these reasons, we conclude that although the Lakewood
police agents acted properly in removing Pham from his
vehicle in the course of a lawful traffic stop, they
conducted a search of that vehicle under the Fourth Amendment
when they facilitated the drug-detection dog's sniff of
the vehicle's interior. We further conclude that the
agents conducted this search without probable cause, thereby
violating Pham's Fourth Amendment rights.
¶37
Accordingly, we affirm the trial court's order granting
Pham's motion to suppress evidence discovered as a result
of the unconstitutional search, and we remand this case to
the trial court for further proceedings consistent with this
opinion.
JUSTICE BOATRIGHT, joined by CHIEF JUSTICE MARQUEZ,
dissented.
16
JUSTICE BOATRIGHT, joined by CHIEF JUSTICE MARQUEZ,
dissenting.
¶38
In this case, the district court suppressed evidence because
"the police officers knew what they were doing" by
"on purpose leav[ing] the door open so that they can
sort of sniff what's inside." I agree; the agents
did know what they were doing. They were familiar with, and
knowingly adhered to, the prevailing standards governing how
to properly conduct a K-9 drug sniff when a vehicle's
occupant leaves its doors or windows open, as Tien Dinh Pham
did here.
¶39
Today the majority concludes that evidence must be
suppressed, not because of any specific unlawful police
conduct, but rather, what the police did not do. The majority
concludes that the police facilitated K-9 Duke's illegal
entry into Pham's vehicle, largely because they failed to
affirmatively close the door that Pham, himself, had left
open. Maj. op. ¶¶ 30-31. Apparently, not closing
the defendant's door amounts to unlawful conduct, as the
"'prime purpose' of the exclusionary rule
'is to deter future unlawful police conduct.'"
Illinois v. Krull , 480 U.S. 340, 347 (1987) (quoting
United States v. Calandra , 414 U.S. 338, 347
(1974)).
¶40
In this case, however, I do not perceive that any unlawful
police conduct occurred. It is undisputed that the agents
properly stopped Pham, and I agree with the majority that
ordering him out of the vehicle was justified. However, there
is no constitutional right requiring the police to close a
vehicle's door after it has been left open by its
occupant. Further, although I agree with the majority's
17
"facilitation" test, I disagree with its
application and conclusion. Because Pham left his car door
open, the agents' leaving it open did not
"facilitate" Duke's entry and was lawful.
Hence, I respectfully dissent.
I.
Pham Left the Door Open
¶41
As the majority notes, "In reviewing a trial court's
ruling on a motion to suppress, we look solely to the record
created at the suppression hearing." Maj. op. ¶ 12
(quoting People v. Thompson , 2021 CO 15, ¶ 16 ,
500 P.3d 1075, 1078 ). However, body-worn camera footage is
part of the record, and "we may independently review
recordings including police bodycam footage." People
v. Bohler , 2024 CO 18 , ¶ 17, 545 P.3d 509 , 514;
see also People v. Platt , 81 P.3d 1060, 1067 (Colo.
2004) ("When considering recorded statements . . . trial
and appellate courts are in a similar review position."
(citing People v. Al-Yousif , 49 P.3d 1165, 1171
(Colo. 2002))). Accordingly, to elucidate the reasons for my
dissent, I begin by reviewing the relevant facts from Agent
Winters's body-worn camera footage and testimony,
starting after the police lawfully stopped Pham's
vehicle.
¶42
When an agent ordered Pham out of the vehicle, Pham opened
his door and exited. The agent stood nearby, briefly resting
one hand on the doorframe. When Pham was outside, the same
agent moved him to the side of the vehicle and performed a
pat-down as another agent approached. Once the pat-down was
complete, the agents directed Pham to wait nearby. At no
point did Pham attempt
18
to close his door; nor did the agents do anything to prevent
Pham from closing it. Instead, Pham walked away while looking
at his phone.
(Image
Omitted)
¶43
True, the police knew that an open car door would allow Duke
to have a better whiff of the contents of Pham's car.
They also knew that their opening the door could be
problematic. Indeed, Agent Winters, who was Duke's
handler, testified that based on his knowledge of the
applicable legal standards, he closes doors or windows opened
by the police before beginning a K-9 sniff.
[M]y standard practice is to ask my officers how the vehicle
. . . came to be in the position it was in. And if they
inform me that [an officer] took some action to open a door,
open a window, or anything like that, I will return it to a
closed position. Essentially, I don't seek any unfair
advantage in these sniffs.
Body-worn
camera footage confirms that the police followed this
protocol here: an agent told Agent Winters that Pham left the
door open. Agent Winters replied, "He did. Perfect,
thank you," before proceeding.
19
¶44
Agent Winters then approached the vehicle with Duke. The pair
started the open-air sniff on the passenger side, then
proceeded around the front of the vehicle. As they neared the
driver's side, Pham's open door was blocking their
path, penned in by a cart in the adjoining parking space.
Agent Winters closed the door partway; just enough for him
and Duke to pass between the vehicle and the cart, then left
the door in that partially closed position. The footage never
shows Agent Winters shutting the door so completely that Duke
could not have entered the vehicle. Nor does the footage show
Agent Winters reopening the door to any significant degree,
if at all.
(Image
Omitted)
¶45
As Duke rounded the partially closed door, he apparently
caught a scent emanating from the car, because he immediately
went to the vehicle's open doorway. Agent Winters did not
direct Duke to enter the vehicle. Nonetheless,
20
Duke placed his head and paws inside the car and sniffed, for
a total of approximately three seconds, before alerting to
the presence of contraband.
(Image
Omitted)
The
extent of Duke's entry. The door is partially closed, as
Agent Winters left it. [1]
¶46
Duke later alerted a second time, outside the driver's
doorway and without entering the vehicle. Based on Duke's
alerts, the agents determined that they had probable cause to
search Pham's vehicle. That search revealed significant
quantities of illegal narcotics, along with distribution
paraphernalia and two handguns.
II.
The Agents' Conduct Was Lawful
¶47
As noted above, the purpose of the exclusionary rule is to
deter future unlawful police conduct . Krull , 480
U.S. at 347 . If there is no unlawful police
21
conduct, however, the exclusionary rule does not apply. In
this case, the majority finds that the police facilitated
Duke's entry when an agent briefly put his hand on
Pham's door, then directed Pham away from the vehicle
while leaving the door open. Maj. op. ¶¶ 30-31.
Further, according to the majority, Agent Winters
"reopened the door sufficiently to allow the dog to
place his head and front paws inside the vehicle."
Id. at ¶ 30. In doing so, the majority
apparently leans into the district court's findings that
"the police officers knew what they were doing";
they "were after a little more than" an open-air
sniff; and "the search [was] not authorized . . .
because they left the door open." Id. at
¶¶ 7, 30-31.
¶48
The majority and the district court seem to imply that the
agents purposely took these actions, including leaving the
door open, to make it easier for Duke to enter the
vehicle . Id. at ¶¶ 30-31. Yet neither
the district court nor the majority cite any evidence to
support this position. In my view, the more accurate
conclusion is that the agents knew they were not required to
close the door and that leaving it open would give Duke a
better chance of detecting any contraband in the vehicle.
Leaving the door open, even if it was to give the dog a
better sniff, does not violate the Constitution. Ample case
law supports this position, as I describe below.
22
A.
There Is No Constitutional Right to Closing a Car
Door
¶49
No constitutional right requires an agent to close a
vehicle's door after it has been left open by its
occupant. See United States v. Pulido-Ayala , 892
F.3d 315, 319-20 (8th Cir. 2018) ("[T]he officers had no
responsibility to close the door; they simply took the
situation as they found it."); United States v.
Lyons , 486 F.3d 367, 373 (8th Cir. 2007)
("Appellants do not cite to any authority that holds
that the officers had the affirmative duty to close the
windows in preparation for the dog sniff, and we find
none."); compare United States v. Guidry , 817
F.3d 997, 1006 (7th Cir. 2016) (affirming the denial of the
defendant's motion to suppress and noting that the
officers had no duty to close a vehicle's door when the
defendant had left it open), with United States v.
Winningham , 140 F.3d 1328, 1330-31 (10th Cir. 1998)
(affirming suppression where "the officers themselves
opened the door" then unleashed the drug dog, allowing
it to enter the vehicle).
¶50
Logic dictates that when a vehicle's doors or windows are
left open, interior air can more easily escape. And a
"dog sniff conducted during a concededly lawful traffic
stop that reveals no information other than the location of a
substance that no individual has any right to possess does
not violate the Fourth Amendment." Illinois v.
Caballes , 543 U.S. 405, 410 (2005). Accordingly, when a
vehicle's occupant leaves its doors or windows open, I
perceive no constitutional barrier to agents allowing them to
remain open because they recognize it may help
23
a K-9 to better sniff any contraband inside. See
Pulido-Ayala , 892 F.3d at 320 ("Insofar as the
dog's ability to perceive the odor of drugs from outside
the car was enhanced by the open door, the situation was
created voluntarily by the passenger, and there was no
unlawful search in leaving the door open."); see
also Lyons , 486 F.3d at 373 ; Guidry , 817 F.3d
at 1006 ; cf. Winningham, 140 F.3d at 1330-31 .
¶51 In this case, the district court did not find that
the agents prevented Pham from closing his door, only that
they left it open. I am aware of no authority stating that
because Agent Winters partially closed the door to get around
the cart, he must then proceed to shut the door fully.
Indeed, a comparison of the photos included above confirms
Agent Winters's testimony that Pham left the door open,
but that it was partially closed, by Agent Winters, at the
time of Duke's entry.
¶52
Because no constitutional right required the agents to
affirmatively close Pham's door, leaving it open was
permissible.
B.
The Agents Did Not Facilitate Duke's Entry;
Felders Is Distinguishable
¶53
Because the agents' choice to leave the door open did
not, in itself, violate the Constitution, I now evaluate
whether their actions improperly "facilitated"
Duke's entry into Pham's vehicle. Felders v.
Malcom , 755 F.3d 870, 880 (10th Cir. 2014). "[A]
dog's instinctive jump into a car does not violate the
Fourth Amendment ...." United States v. Sharp ,
689 F.3d 616, 619 (6th Cir. 2012).
"'[I]nstinctive' implies the dog enters the car
without assistance, facilitation, or
24
other intentional action by its handler." United
States v. Pierce , 622 F.3d 209, 214 (3d Cir. 2010).
¶54
The majority notes these standards, and reasons that,
"[W]e need not confront the difficult question of
whether and when a dog acts instinctively because the trial
court found, with ample record support, that the police
agents in this case facilitated the dog's entry into
Pham's vehicle." Maj. op. ¶¶ 28-31.
However, the district court did not find that the agents
"facilitated" Duke's entry. In fact, the
district court did not use the word "facilitate" at
all. Instead, it found that the agents "didn't tell
the dog to sniff there," and that "the behavior
taken by the dog was on its own instinct." In other
words, the district court found that Duke entered Pham's
vehicle instinctively. Despite this finding, the majority
concludes that the agents facilitated Duke's entry
because an agent briefly placed his hand on Pham's door,
agents left the door open, and Agent Winters partially
closed, then supposedly reopened the door. Id. at
¶¶ 30-31. This conduct is clearly distinguishable
from the case that the majority relies on: Felders .
¶55
As the majority notes, "in Felders , video
footage showed that a state trooper had opened the
passenger doors of a vehicle . . . and intentionally
left a door open, even physically preventing one of
the passengers from closing that door." Id. at
¶ 22 (emphases added); see also Felders , 755
F.3d at 877 . Thus, in Felders , the potential
"facilitation" was not merely police leaving the
door open but opening the door in
25
the first place, then physically preventing the occupants
from closing it. [2] Consequently, the test applied in
Felders requires purposeful state action, not
inaction.
¶56
Moreover, the swath of cases cited in Felders lead
to the same conclusion. For example, the Tenth Circuit
compared Winningham, 140 F.3d at 1330-31 , in which
the court found a "desire to facilitate a dog
sniff of the van's interior" where officers opened
the van door and unleashed their K-9 prior to its entry, with
United States v. Stone , 866 F.2d 359, 363-64 (10th
Cir. 1989), where the court found no facilitation when a
car's owner voluntarily opened the vehicle's rear
hatch and there was no evidence that the police
"encouraged the dog to jump in the car."
Felders , 755 F.3d at 885 . In Felders , the
Tenth Circuit also referenced Sharp to further
explain that the police must act during a K-9 sniff
to constitute a Fourth Amendment violation:
"It is a Fourth Amendment violation for a narcotics
detection dog to jump into a car because of something the
police did , like training the dog to jump into cars as
part of the search or facilitating or encouraging the
jump" but no violation occurs "as long as the
canine enters the vehicle on its own initiative and is
neither encouraged nor placed into the vehicle by law
enforcement."
26
755 F.3d at 880 (emphasis added) (first quoting
Sharp, 689 F.3d at 619-20 ; then citing
Pierce , 622 F.3d at 213-15 ; and then citing
Lyons , 486 F.3d at 373-74 ).
¶57
In this case, the agents did not open the door. Nor did Pham
attempt to close the door, and thus the agents did not
physically prevent him from closing it. The agents neither
unleashed Duke near the car door nor lifted him inside. They
did not gesture, direct, or in any way encourage Duke to
enter the vehicle. Further, Agent Winters testified that he
has "never trained [Duke] to search the inside of
vehicles." Because the agents had no duty to
affirmatively close Pham's door, the fact that Agent
Winters partially closed it to get around the cart is
irrelevant. And although, after watching the body-worn camera
footage, I disagree with the majority that Agent Winters
reopened the door, the fact remains that even if he did, it
did not facilitate Duke's entry because the door was
never sufficiently closed to prevent Duke from entering in
the first place.
¶58
When viewed in the context of the cases cited above, these
facts show that the agents did not do anything to
facilitate Duke's entry. Further, the majority does not
analogize to any cases in support of its conclusion that the
agents' action in this case amounted to facilitation.
Accordingly, I conclude that Felders , and the weight
of authority, dictate that in this case the agents'
conduct did not violate the Fourth Amendment.
27
III.
Conclusion
¶59
Today the majority finds that it was unlawful for agents to
leave Pham's car door partially open. Or, in other words,
it was unlawful for the agents to not close Pham's door.
The result of the majority's decision appears to require
police to affirmatively close a vehicle's doors or
windows after they are left open by occupants before
conducting a K-9 sniff; otherwise, they risk a finding that
they facilitated the dog's entry. This standard is unlike
any other I am aware of in the country. Furthermore, it
raises significant questions about when other forms of police
inaction may violate the Constitution.
¶60
Because I perceive no unlawful police conduct in this case, I
would not suppress the evidence found here. Hence, I
respectfully dissent.
---------
Notes:
[1] The included photos show that the door
was fully open when Pham exited, whereas it was partially
shut when Duke entered. This supports Agent Winters's
testimony that, "I had to shut the door slightly to
allow Duke and myself to move past. Once we did, though, Duke
began to examine the open driver's area
...."
[2] In Felders , the Tenth Circuit
did not conclude that there was facilitation because the case
arose in the context of a motion for summary judgment. 755
F.3d at 886 . The Tenth Circuit affirmed the district
court's denial of the motion because issues of material
fact existed as to whether the officer's conduct violated
the defendant's constitutional rights.
Id.
---------