Petition for Writ of Certiorari — Idaho, Petitioner v. Kirby Anthony Dorff

i

APPENDIX TABLE OF CONTENTS

Page

Supreme Court of Idaho Opinion filed March 20,

2023 .................................................................. App. 1

District Court Reporter’s Transcript of Motion

to suppress filed January 16, 2020 ................ App. 35

App. 1

IN THE SUPREME COURT

OF THE STATE OF IDAHO

Docket No. 48119

STATE OF IDAHO,

) Boise,

Plaintiff-Respondent, ) November 2022 Term

) Opinion filed:

v.

) March 20, 2023

KIRBY ANTHONY DORFF, )

) Melanie Gagnepain,

Defendant-Appellant. ) Clerk

Appeal from the District Court of the Fourth

Judicial District of the State of Idaho, Elmore

County. James S. Cawthon, District Judge.

The judgment of conviction is vacated, the district court’s denial of the motion to suppress

is reversed, and this case is remanded.

Eric Don Fredericksen, State Appellate Public

Defender, Boise, for Appellant. Sally Cooley

argued.

Raul R. Labrador, Idaho Attorney General,

Boise, for Respondent. John C. McKinney argued.

--------------------------------------------------------------------------------------------------------------------

BRODY, Justice.

Kirby Dorff appeals from the denial of his motion

to suppress evidence obtained after a police drugsniffing dog jumped onto the exterior surface of his vehicle. Dorff argues that the dog’s contact with his

App. 2

vehicle was a trespass, and therefore, an unlawful

“search” under the common law trespassory test as

articulated in United States v. Jones, 565 U.S. 400

(2012)—and applied by this Court in State v. Howard,

169 Idaho 379, 496 P.3d 865 (2021) and State v. Randall, 169 Idaho 358, 496 P.3d 844 (2021), where we held

that a drug dog’s entry into a vehicle is a “search” under the Fourth Amendment. For the reasons discussed

below, a “search” occurs when a drug dog trespasses

against the exterior of a vehicle during a “free air” sniff

if its physical contact with the vehicle amounts to “intermeddling” at common law. In this case, a drug dog

intermeddled with Dorff’s vehicle when it jumped onto

the driver side door and window, planted two of its

paws, and sniffed the vehicle’s upper seams. Accordingly, law enforcement conducted a warrantless and

unlawful “search” of Dorff’s vehicle by way of its drug

dog. The denial of Dorff ’s motion to suppress is reversed, his conviction is vacated, and this case is remanded to the district court for further proceedings

consistent with this opinion.

I. FACTUAL AND

PROCEDURAL BACKGROUND

On a night in August 2019, a patrol officer from

the Mountain Home Police Department initiated a

traffic stop on a vehicle. The patrol officer reported witnessing the driver “make an improper turn,” “cross

three lanes of traffic and then fail to use [his] turn signal.” Two men were in the vehicle: Kirby Dorff, the

driver, and Mitchell Hall, a passenger. After the patrol

App. 3

officer stopped the vehicle in a grocery store parking

lot, Dorff told the officer that he did not have a valid

driver’s license or proof of insurance in the vehicle.

During the time the patrol officer was speaking with

Dorff and Hall, a K-9 officer arrived on scene with his

drug dog, Nero.

The K-9 officer circled Dorff ’s vehicle twice with

Nero. Nero never entered the interior compartment of

the vehicle. However, as Nero circled the vehicle, Nero

directed his nose close to the vehicle’s seams (nearly

touching the vehicle in many instances); entered the

wheel well areas with his snout; and reached for the

vehicle’s undercarriage with the same. On Nero’s second pass, body-camera footage from the on-scene officers shows Nero made two potential contacts, and one

explicit contact, with the vehicle’s exterior surface:

first, on the rear passenger side of the vehicle (briefly

as he jumped up); second, on the front passenger side

of the vehicle (again, briefly as he jumped up); and

third, on the front driver side of the vehicle—this time

planting his front paws to stand up on the door and

window as he sniffed the vehicle’s upper seams. During

this time, the K9 officer made upward gestures, purportedly “[p]resenting areas for [Nero] to sniff” The

K-9 officer later testified that Nero alerted during his

explicit contact with Dorff ’s vehicle, i.e., after Nero

stood up and put his front paws on the front driver side

door and window.

Following Nero’s alert, on-scene police officers

searched Dorff’s vehicle. In it, they found a pill bottle,

folded papers, and a baggie—all containing white

App. 4

residue that later tested positive for methamphetamine. The officers also found “[a] purple container

filled with a green leafy residue” in the trunk. The officers then arrested both Dorff and Hall for felony possession of a controlled substance. While searching

Dorff incident to his arrest, the officers found a motel

room key in his pocket. Hall then told the officers that

Dorff “had shown him a bag containing an ounce of

methamphetamine” in their shared room at that same

motel. The officers later obtained and executed a

search warrant on the motel room, where they discovered a bag containing nineteen grams of methamphetamine, and an assortment of drug paraphernalia.

From this, the State brought three charges against

Dorff: possession of methamphetamine with intent to

deliver, possession of methamphetamine, and possession of drug paraphernalia.

Dorff moved to suppress the evidence discovered

in his vehicle, and the shared motel room as the fruit

of an unlawful search under the Fourth Amendment.

Dorff offered two arguments for why suppression was

appropriate: (1) Nero’s “trespass” onto Dorff ’s vehicle

constituted a warrantless “search” without probable

cause under the Fourth Amendment; and (2) Nero’s

sniff was improperly conducted, thus, it never established probable cause to search the vehicle. The State

filed a memorandum in opposition to Dorff ’s motion

and a hearing was held.

At the hearing, the district court dealt with Dorff ’s

two arguments separately. The district court first addressed Dorff ’s “trespass” argument, and admitted two

App. 5

videos from the on-scene officers’ body cameras that

provided two different angles of Nero’s sniff. The district court reviewed the videos numerous times. Afterwards, the district court heard arguments from both

parties over whether Nero “trespassed” against the vehicle for the purpose of obtaining information, i.e.,

whether a Fourth Amendment “search” occurred under

the property-based test articulated in United States v.

Jones, 565 U.S. 400 (2013). The district court ruled

from the bench, and found—based on the two videos

alone—that Nero “place[d]” his “paws” on Dorff’s vehicle “three” times (across the rear passenger side, the

front passenger side, and the driver side) for a “very,

very brief period of time[.]” The district court then applied its findings to conclude that, among other things,

Nero’s contacts with the vehicle did not amount to “intermeddling”—i.e., did not amount to trespass to chattel at common law. Thus, there was no “search” because

Nero did not “trespass” against Dorff ’s vehicle.

After this ruling, the district court next addressed

Dorff ’s “invalid alert” argument. The district court

heard competing testimony from the K-9 officer (Nero’s

handler), and Dorff ’s expert witness on drug dogs, Andre Falco Jimenez, on whether the manner and technique of Nero’s sniff was reliable enough to provide a

valid alert to the presence of narcotics. Notwithstanding the expert’s testimony that Nero never exhibited a

reliable alert, the district court ultimately rejected

Dorff ’s challenge to Nero’s sniff as invalid—a ruling

that Dorff does not challenge on appeal to this Court.

After reaching these conclusions, the district court

App. 6

denied Dorff ’s motion to suppress the evidence discovered in his vehicle and the shared motel room.

Dorff entered a conditional guilty plea to possession of a controlled substance with intent to deliver,

while preserving his right to appeal the denial of his

motion to suppress. The district court sentenced Dorff

to a term of not less than two years but not to exceed

seven years, suspended the sentence, and placed Dorff

on probation for five years. Dorff timely appealed to

this Court.

II.

STANDARD OF REVIEW

We apply a bifurcated standard of review when reviewing a denied motion to suppress. State v. Howard,

169 Idaho 379, 381, 496 P.3d 865, 867 (2021). This

Court accepts “the trial court’s findings of fact unless

they are clearly erroneous” but freely reviews “the trial

court’s application of constitutional principles to the

facts found.” Id. (quoting State v. Danney, 153 Idaho

405, 408, 283 P.3d 722, 725 (2012)).

However, we will not apply the clearly erroneous

standard to factual findings in “the unusual situation

where this Court has exactly the same evidence before

it as was considered by the district court[.]” State v. Andersen, 164 Idaho 309, 312, 429 P.3d 850, 853 (2018)

(alteration added). In such instance, we do not extend

the usual deference to the district court’s findings. Id.

Instead, we “freely review the evidence and weigh the

evidence in the same manner as the trial court would

App. 7

do.” State v. Lankford, 162 Idaho 477, 492, 399 P.3d

804, 819 (2017).

Here, we have exactly the same evidence as the

district court did when it ruled on Dorff ’s argument

that Nero “trespassed” against his vehicle for the purpose of obtaining information. At the suppression hearing, the district court’s findings and ruling on this issue

were based solely on the two body-cam videos—the

same videos before this Court on appeal. Moreover, all

testimony offered at the hearing was received after the

district court’s findings and ruling on this issue—and

related only to Dorff ’s “invalid alert” argument. Thus,

in this unusual and limited circumstance, we freely

review and weigh the video evidence in addressing

Dorff’s appeal.

III.

ANALYSIS

Dorff argues that Nero’s physical intrusions

against the exterior surface of Dorff’s vehicle constituted a common law “trespass” for the purpose of obtaining information. In other words, Dorff contends

that law enforcement, through Nero as its agent, conducted a warrantless “search” of his vehicle under the

property-based Fourth Amendment test as recognized

in United States v. Jones, 565 U.S. 400, 404–05 (2012)—

and our recent decisions in State v. Randall, 169 Idaho

358, 370, 496 P.3d 844, 856 (2021) and State v. Howard,

169 Idaho 379, 382, 496 P.3d 865, 868 (2021) where we

held that intrusions by drug dogs, to any degree, into

the interior space of a vehicle during a drug sniff,

App. 8

without consent, is a “search” under the Fourth Amendment. Thus, Dorff’s appeal—which centers on a drug

dog’s “trespass” against the exterior of a vehicle during

its “free air” sniff—presents a question of first impression.

To answer this question, we begin with the text of

the Fourth Amendment, which provides in relevant

part, “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

U.S. CONST. amend. IV (emphasis added). This text

“reflects [the Fourth Amendment’s] close connection to

property,” and consistent with this understanding,

Fourth Amendment jurisprudence was traditionally

“tied to common-law trespass[.]” Jones, 565 U.S. at 405

(alteration added). Indeed, “for most of our history

the Fourth Amendment was understood to embody a

particular concern for government trespass upon the

areas (`persons, houses, papers, and effects’) it enumerates.” Id. It was not until the second half of the 20th

century that the United States Supreme Court “added

to”—without replacing—the “common-law trespassory

test[,]” with the “reasonable expectation of privacy”

test in Katz v. United States, 389 U.S. 347, 351 (1967).

Jones, 565 U.S. at 409 (emphasis in original).

Although neither test is exclusive or necessary to

determining whether a “search” occurred within the

meaning of the Fourth Amendment, Jones, 565 U.S. at

411, the traditional property-based test endures as a

“baseline” of protection against governmental searches

as it existed when the Fourth Amendment was

App. 9

adopted. Florida v. Jardines, 569 U.S. 1, 11 (2013);

Jones, 565 U.S. at 406 n.3 (“Whatever new methods of

investigation may be devised, our task, at a minimum,

is to decide whether the action in question would have

constituted a ‘search’ within the original meaning of

the Fourth Amendment.” (emphasis in original)).

Like our decisions in Randall, 169 Idaho at 368,

496 P.3d at 854, and Howard, 169 Idaho at 382, 496

P.3d at 868, this case is only concerned with the property-based test—not the “reasonable expectation of

privacy” test under Katz. Under the property-based

test, “it is beyond dispute that a vehicle is an ‘effect’ as

that term is used in the [Fourth] Amendment.” Jones,

565 U.S. at 404 (alteration added). Importantly, when

the property-based test is applied, there is no room to

carve out portions of an “effect” (e.g., the exterior surface of a vehicle versus its interior space) as unworthy

of protection by superimposing the “reasonable expectation of privacy” nomenclature from Katz. A drug

dog’s sniff of the free air—surrounding a vehicle, Illinois v. Caballes, 543 U.S. 405, 409 (2005), or surrounding luggage, United States v. Place, 462 U.S. 696, 707

(1983)—may have a “special status” as not a “search”

within the “flexible boundaries of Katz’s reasonable expectation of privacy test, but the trespassory test of

Jones affords dog sniffs no special treatment[,]” Randall, 169 Idaho at 368, 496 P.3d at 854. Thus, as our

starting point, the entire vehicle or “effect” is a “constitutionally protected area”—to the extent a defendant

has interests or rights in it. See Jones, 565 U.S. at 404

n.2 (noting that although the vehicle was registered to

App. 10

the defendant’s wife, it was undisputed that the defendant was the exclusive driver, thus, if “he was not

the owner he had at least the property rights of a

bailee”).

Relatedly, to have standing to claim the protection

of the Fourth Amendment, a defendant must have either “a privacy interest[,]” Howard, 169 Idaho at 385,

496 P.3d at 871 (citing State v. Mann, 162 Idaho 36, 41,

394 P.3d 79, 84 (2017))—or a “proprietary interest”

(i.e., property interest), State v. Ryan, 117 Idaho 504,

506, 788 P.2d 1327, 1329 (1990) (quoting State v. Haworth, 106 Idaho 405, 407 n.2, 679 P.2d 1123, 1125 n.2

(1984))—in the place searched, Howard, 169 Idaho at

385, 496 P.3d at 871. If the State does not challenge a

defendant’s Fourth Amendment standing before the

trial court, the issue is waived. Howard, 169 Idaho at

385, 496 P.3d at 871. Here, the State never challenged

Dorff ’s standing as it relates to the vehicle, and “[p]ossession of personal property is prima facie evidence of

ownership[,]” Hare v. Young, 26 Idaho 691, 702, 146 P.

107, 109 (1915) (citations omitted and alterations

added). Accordingly, we assume Dorff ’s property interests in the vehicle, as its driver and possessor, are coextensive with that of an owner.

With our inquiry now properly focused, whether a

Fourth Amendment “search” occurred during Nero’s

“free air” sniff of Dorff’s vehicle will depend on whether

Nero (1) “trespass[ed]” against Dorff’s vehicle (2) for

“the purpose of obtaining information” about, or related to, the vehicle. Jones, 565 U.S. at 404 (alterations added). A “[t]respass alone does not qualify” as a

App. 11

“search”—”there must be conjoined with that . . . an

attempt to find something or to obtain information.”

Id. at 408 n.5. It is “self-evident[ ]” that when the State

deploys a drug dog to conduct a free air sniff of a vehicle, that activity is “conducted for the purpose of obtaining information[.]” Howard, 169 Idaho at 382, 496

P.3d at 868. Thus, in this case, there is no dispute that

if Nero trespassed against Dorff ’s vehicle—he did so in

an attempt to find something or to obtain information

(e.g., substances he was purportedly trained to locate:

methamphetamine, heroin, cocaine, and marijuana).

Accordingly, whether a Fourth Amendment “search”

occurred here turns on whether Nero “trespassed”

against Dorff ’s vehicle under common law trespass to

chattel, i.e., trespass to personal property. For the reasons below, we conclude that Nero trespassed.

As noted above, the traditional property-based

trespass test applies “an 18th-century guarantee against

unreasonable searches, which . . . must provide at a

minimum the degree of protection it afforded when

[the Fourth Amendment] was adopted.” Jones, 565 U.S.

at 411 (emphasis in original and alteration added); Cf.

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142

S. Ct. 2111, 2132 (2022) (“Although [the Second Amendment’s] meaning is fixed according to the understandings of those who ratified it, the Constitution can, and

must, apply to circumstances beyond those the Founders specifically anticipated.” (alteration added)). However, “[p]roperty interests, of course, are not created

by the [United States] Constitution.” Bd. of Regents

of State Colleges v. Roth, 408 U.S. 564, 577 (1972)

App. 12

(alteration added). And “[t]here is no federal general

common law[,]” Erie R. Co. v. Tompkins, 304 U.S. 64, 78

(1938), of “trespass” that can answer what “degree” of

protection is afforded to “effects” under the Fourth

Amendment.

Instead, state law has traditionally created, and

defined, property interests. See Maresh v. State, Dep’t

of Health & Welfare ex rel. Caballero, 132 Idaho 221,

226, 970 P.2d 14, 19 (1998); see, e.g., Garrett v. Soucie,

46 Idaho 289, 292–93, 267 P. 1078, 1078 (1928) (illustrating that state law governed the foreclosure of a

“chattel mortgage” covering property interests in certain “crops of hay and grain”); State v. Dunlap, 28

Idaho 784, 801, 156 P. 1141, 1145 (1916) (explaining

that shares of corporate stock are “personal property”

which “descend” and are “transferred” according to

state law). Indeed, we have already explained in applying the Jones test that “[s]tate law . . . determines

which sticks are in a person’s bundle, and therefore defining property itself is a state-law exercise.” (alteration added and citation omitted)). State v. Rebo, 168

Idaho 234, 240–41, 428 P.3d 569, 575–76 (2021). Thus,

whether governmental conduct amounts to a “trespass” against an “effect” at common law necessarily intersects with state law surrounding the Fourth

Amendment’s adoption.

From Idaho’s founding as a territory in 1863, to

its achievement of statehood in 1890, and through to

today, the common law of England—along with its traditional principles of property law—have been the general common law of Idaho. See 1863 Idaho Terr. Laws

App. 13

527 (“The common law of England so far as the same

is not inconsistent with the provisions of the constitution and the laws of the United States, the organic act

and laws of this territory, be the law of this land in this

territory.”); Idaho Rev. Stat. § 18 (1887) (“The common

law of England, so far as it is not repugnant to, or inconsistent with the constitution or laws of the United

States, in all cases not provided for in these Revised

Statutes, is the rule of decision in all the courts of this

territory.”); IDAHO CONST. Art. XXI, § 2 (“All laws now

in force in the territory of Idaho which are not repugnant to this Constitution shall remain in force until

they expire by their own limitation or be altered or repealed by the legislature.”); Idaho Rev. Code § 18

(1909); I.C. § 73-116 (2023).

Obviously, Idaho—and its general common law—

did not exist when the Fourth Amendment was adopted

in 1791. But “[s]trictly speaking,” Idaho is “bound to

respect” the Fourth Amendment because of the Fourteenth Amendment—not the Fourth. Cf. Bruen, 142

S. Ct. at 2137 (noting the same for New York and the

Second Amendment). With this in mind, England’s

common law surrounding 1791 certainly commences

our inquiry—but the overlay of state-focused common

law “trespass” into the property-based Fourth Amendment test forces our analysis closer to the common law

surrounding 1868, when the Fourteenth Amendment

was adopted—and Idaho in fact existed. Importantly,

“courts must be careful when assessing evidence concerning English common law rights[,]” because “[t]he

common law, of course, developed over time.” Bruen,

App. 14

142 S. Ct. at 2136. Thus, “English common-law practices and understandings at any given time in history

cannot be indiscriminately attributed to the Framers

of our own Constitution.” Id. This holds true for the

common law of trespass to chattel in Idaho.

To begin, William Blackstone, a justice of the

Court of Common Pleas, explained in his treatise on

the laws of England that “ancient” attitudes, prevailing in the feudal ages, held a “very low and contemptuous opinion of all personal estate[.]” 2 W. Blackstone,

COMMENTARIES ON THE LAWS OF ENGLAND *384–85

(1766). During that time, personal property was regarded as a “transient commodity” of little concern—

unlike “things that are in their nature more permanent and immovable, [such] as lands, and houses, and

the profits issuing thereout.” Id. (emphasis in original)

(alteration added). Accordingly, Blackstone noted that

England’s “ancient law-books, which are founded upon

the feudal provisions, do not therefore often condescend to regulate this species of property.” Id. Blackstone attributed this attitude, in part, to the fact that

the “amount” of personal property, as compared to real

property, was “very trifling[.]” Id. at *384.

However, Blackstone explained that by the second

half of the 18th century, different ideas of personal

property had taken hold due to the significant expansion of trade and commerce. Id. at *384–85. Thus, unlike the feudal ages, in Blackstone’s time, courts of

England regarded “a man’s personalty [(i.e., personal

property)] in a light nearly, if not quite, equal to his

realty [(i.e., real property)].” Id. at *385 (alterations

App. 15

added). As to “chattels personal”—of the inanimate variety (e.g., movable goods)—its owner had the right to

enjoy the chattel, and have the enjoyment of it, “solely

and exclusively” and with “occupation” of it. Id. at *387,

*389; see also Rebo, 168 Idaho at 240–41, 482 P.3d at

575–76 (explaining that property rights are conceived

as a “bundle of sticks”). During Blackstone’s time, two

“species” of injury to rights in personal property were

actionable: (1) the “amotion” (removal) or “deprivation”

of possession of the chattel; and (2) the “abuse” of, or

“damage” to, the chattel. 3 W. Blackstone, COMMENTARIES *146 (1768).

However, later in his treatise, Blackstone explained that a “trespass” stands for many types of

wrongs: A “trespass” in its “largest and most extensive

sense, signifies any transgression or offense against

the law of nature, of society, or of the country in which

we live; whether it relate[s] to a man’s person, or his

property.” Id. at *209 (emphasis and alteration added).

For example, Blackstone explained that “beating another” is a trespass (for which actions of “assault and

battery” may lie) and “taking or detaining a man’s

goods” are also trespasses (for which actions of “trover

and conversion” may lie). Id. Consistent with this, the

“earliest cases” of trespass to chattel involved “asportation, or carrying off ’ another’s chattel. W. Keeton, D.

Dobbs, R. Keeton, & D. Owen, PROSSER & KEETON ON

THE LAW OF TORTS 85 (5th ed. 1984). But during Blackstone’s time, “the action was extended to include cases

where the goods were damaged but not taken[,]”—

and in the time following Blackstone—courts further

App. 16

“extended the tort to include any direct and immediate

intentional interference with a chattel in the possession of another.” Id.

Notably, there is a “division of opinion” among

scholars, and “a surprising dearth of authority” (including in Idaho) on whether a trespass to chattel was

actionable when “the defendant merely interferes”

with a chattel “without doing any harm—as where, for

example, he merely lays hands upon the plaintiff ’s

horse, or sits in his car[.]” Id. at 87. Nevertheless,

whether a “trespass” was actionable in the absence of

damages at common law is beside the point for purposes of determining legal relations under the Fourth

Amendment. See RESTATEMENT (FIRST) OF TORTS § 217

cmt. a (1934) (explaining that a “trespass” to chattel,

“though not actionable . . . may nevertheless be important in the determination of the legal relations of

the parties.”). The property-based test is only concerned with when a trespass occurs—not whether that

particular trespass was actionable, i.e., whether that

trespass could be remedied through a cause of action

at common law. See Jones, 565 U.S. at 405.

The answer to this question is plain: At common

law, a “trespass” to chattel occurs when an actor violates “the dignitary interest in the inviolability of chattels,” PROSSER & KEETON, at 87, i.e., those “interests”

that comprise the “bundle of sticks” (e.g., the right to

use, possess, and exclude). See Rebo, 168 Idaho at 240–

41, 482 P.3d at 575–76. An actor violates such interests

“either by intentionally using or otherwise intermeddling with a chattel in the possession of another or by

App. 17

continuing to use or intermeddle therewith after a

privilege to do so has been terminated.” RESTATEMENT

(FIRST) OF TORTS § 217 (1934) (emphasis added); see

also RESTATEMENT (SECOND) OF TORTS § 217 (1965) (“A

trespass to chattel may be committed by intentionally

. . . intermeddling with a chattel in the possession of

another.”). That the trespass is committed by a drug

dog—and not its handler—is of no import. See 3 W.

Blackstone, COMMENTARIES *211 (1768) (“A man is answerable for not only his own trespass, but that of his

cattle also[.]” (capitalization deleted)); Randall, 169

Idaho at 369, 496 P.3d at 855.

This requirement of “intermeddling” is rooted in

the development of common law trespass to chattel

starting with “abuse” of chattel, 3 W. Blackstone, COMMENTARIES *146 (1768), the broad notion of a “trespass”

as any “transgression” against a person’s “property,” id.

at 208—and moving towards a trespass as any “interference” with another’s chattel by “intermeddlers[,]”

PROSSER & KEETON, at 85. The Restatement defines “intermeddling” as “intentionally bringing about a physical contact with the chattel . . . . as when [an actor]

beats another’s horse or dog, or by intentionally directing an object or missile against it[.]” RESTATEMENT

(SECOND) OF TORTS § 217 cmt. e (1965) (alterations

added). But a trespassory physical contact can also occur indirectly, as when an actor “deliberately” drives or

frightens a “herd of sheep . . . down a declivity.” Id.

In accord with this heightened form of contact, historically, “intermeddling” meant “[i]nterposing officiously”

or “intruding[,]” Intermeddling, WEBSTER’S DICTIONARY

App. 18

(1828), https://webstersdictionary1828.com/Dictionary/

intenneddling (last visited Feb. 23, 2023); its root term—

“meddle”—meant “[t]o have to do; to touch; to handle[,]

Meddle, WEBSTER’S DICTIONARY (1828), https://webstersdictionary1828.com/Dictionary/meddle (last visited Feb. 23, 2023); and the overall term can also be

traced to the word “medletum” in old English law,

which meant “[a]n offense suddenly committed in an

affray. . . . An intermeddling, without violence, in any

matter of business.” Medletum, BLACK’S LAW DICTIONARY (1st ed. 1891).

What heightened contact with another’s chattel

amounts to “intermeddling”—thereby violating the dignitary or property interests in the inviolability of

that chattel—is often relatively straightforward. See

Jardines, 569 U.S. at 11 (“One virtue of the Fourth

Amendment’s property-rights baseline is that it keeps

easy cases easy.”). For example, it has been held that

“when a horse is hitched where he has a right to be, it

is a trespass upon the part of another to unhitch and

remove him against the will of the owner to another

position, however near.” Guttner v. Pacific Steam Whaling Co., 96 F. 617, 620 (N.D. Cal. 1899). This form of

“intermeddling” contact with another’s chattel, even

without violence or injury, is a “trespass” because it is

plainly a directed interference with another’s right to

possess and exclude, done without privilege or consent.

Likewise, it is a (continuing) “trespass” to, without

privilege or consent, make “persistent contact[,]” RESTATEMENT (FIRST) OF TORTS § 217 cmt. c (1934), with

another’s chattel and interfere with another’s “sole[ ]

App. 19

and exclusive[ ]” right to “occupation” of it, 2 W. Blackstone, COMMENTARIES *387, *389 (1766). See, e.g., Jones,

565 U.S. at 404–05 (holding that the government’s “installation of a GPS device” to occupy the undercarriage

of a “target’s” vehicle was a “trespass” even though “no

damage [is done] at all” (alteration added) (quoting Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765));

Taylor v. City of Saginaw, 922 F.3d 328, 333 (2019)

(holding that chalk lines occupying the tires of a

parked vehicle was a “trespass” to chattel).

By analogy to real property, it is also a trespass to,

without privilege or consent, enter into a chattel, and

breach what amounts to its “close” no different than it

is a trespass to, without privilege or consent, breach

the “close” that surrounds private parcels of land:

“Every unwarrantable entry on another’s soil the law

entitles a trespass by breaking his close. . . . For every

man’s land is in the eye of the law enclosed and set

apart from his neighbors” either by a “visible and material fence”—or by “an ideal invisible boundary, existing only in the contemplation of the law[.]” 3 Blackstone,

COMMENTARIES *210 (1768) (emphasis in original and

alterations added); see Jones, 565 U.S. at 405 (citing

Entick, 95 Eng. Rep. at 817 for a similar principle); see,

e.g., Randall, 169 Idaho at 368–69, 496 P.3d at 854–55

(applying this principle to hold a drug dog’s intrusion

into the interior of a vehicle is a common law trespass);

Howard, 169 Idaho at 382, 496 P.3d at 868 (applying

the same).

This brings us to an important point: The physical

contact with the chattel must amount to “intermeddling”

App. 20

for a “trespass” to occur, and although some contact to

the exterior surface of a chattel in every-day type commotions will be insufficient, entering into another’s

chattel—and thereby intruding against the inviolability of the chattel’s “close”—is a form of “intermeddling”

that suffers no de minimus exception. See Howard, 169

Idaho at 382, 496 P.3d at 868; cf. 3 W. Blackstone, COMMENTARIES *210 (1768). Intermeddling is the difference

between someone who brushes up against your purse

while walking by—and someone who, without privilege

or consent, rests their hand on your purse or puts their

fingers into your purse before your eyes or behind your

back. It is also the difference between a dog’s tail that

brushes against the bumper of your vehicle as it walks

by—and a dog who, without privilege or consent, approaches your vehicle to jump on its roof, sit on its

hood, stand on its window or door—or enter into your

vehicle, see, e.g., Randall, 169 Idaho at 368–69, 496

P.3d at 854–55; Howard, 169 Idaho at 382, 496 P.3d at

868.

In other words, although personal property interests protected by the Fourth Amendment, such as the

right to possess and exclude, are not implicated by

forms of contact that are less than “intermeddling”—

the Amendment is certainly implicated in situations

like those above, where no one would dispute the dignitary interest in maintaining the inviolability of one’s

chattel. If someone directs their hand on or into your

purse, or their dog jumps on or into your vehicle, without privilege or consent, no one (including commonsense) could doubt your right to protest and exclaim:

App. 21

“Hey! Hands-off my purse!” or “Hey! Get your dog off

my car!” See RESTATEMENT (FIRST) OF TORTS § 217 cmt.

a (explaining that while a “trespass to another’s chattel” might not be actionable at common law without

damage it can, in certain circumstances, afford “the

possessor a privilege to use force to defend his interest

in its exclusive possession”); cf. Jardines, 569 U.S. at 13

(Kagan, J., concurring) (noting that property and privacy concepts can “align” as the “law of property naturally enough influences our shared social expectations

of what places should be free from governmental incursions” (cleaned up)).

Notably, when a drug dog simply sniffs the air surrounding a vehicle, it is not a “search” under the Fourth

Amendment’s “reasonable expectation of privacy” test

because there is no “privacy” interest in the free-air

that surrounds a vehicle. See Caballes, 543 U.S. at 409–

10. Likewise, a sniff of the free-air surrounding a vehicle is not a “search” under the property-based test

because chattels do not have a protected area of “curtilage”—unlike their textual counterpart in real property: homes. See Jardines, 569 U.S. at 7 (“Just as the

distinction between the home and the open fields is ‘as

old as the common law,’ so too is the identity of the

home and what Blackstone called the ‘curtilage or

homestall,’ for the ‘house protects and privileges all its

branches and appurtenants.’ ” (citation omitted) (quoting in part 4 W. Blackstone, COMMENTARIES *223, *225

(1769)). However, under the property-based test, a

Fourth Amendment “search” will occur when the government trespasses against private property for the

App. 22

purpose of obtaining information. Jones, 565 U.S. at

404.

In sum, a drug dog sniff is an “activity that is selfevidently conducted for the purpose of obtaining information[,]” Howard, 169 Idaho at 382, 496 P.3d at 868,

and a drug dog trespasses against a vehicle by “intermeddling” with its exterior—or its interior (i.e.,

breaching its “close”)—without privilege or consent.

See Randall, 169 Idaho at 370, 496 P.3d at 856. Both

forms of “intermeddling” violate the dignitary interest

in the inviolability of a chattel. More specifically, and

depending on the circumstances, such “intermeddling”

violates the rights to possess, use, or exclude, or some

combination of these rights. See Rebo, 168 Idaho at

240–41, 482 P.3d at 57576. Like most Fourth Amendment questions, whether the government’s conduct

amounts to “intermeddling” is an objective, but often

fact-intensive inquiry. See Jardines, 569 U.S. at 10;

Randall, 169 Idaho at 369, 496 P.3d at 855 (explaining

that the property-based test is objective such that the

drug dog’s “motivation, instinctual or otherwise, is irrelevant.”).

Applying these principles to the instant case, a

Fourth Amendment “search” occurred here because the

State’s drug dog, Nero, intermeddled with (and thereby

trespassed against) Dorff ’s vehicle for the purpose of

obtaining information. As a preliminary matter, it cannot be overemphasized that a “search” occurred here

because Nero trespassed against Dorff’s vehicle for the

purpose of obtaining information about, or related to,

the vehicle. See Jones, 565 U.S. at 404 (“We hold that

App. 23

the Government’s installation of a GPS device on a target’s vehicle, and its use of that devise to monitor the

vehicle’s movements, constitutes a “search.”) (emphasis

added)). This is plainly distinguishable from a case

where, for example, a police officer leans up against a

driver’s vehicle as he gathers information from the

driver about, or related to, a lawful traffic stop (e.g., the

driver’s license, registration, and insurance). In that

case, there is no “search” of the vehicle.

However, whether an officer conducts a “search” as

he leans against the vehicle, gathers information from

the driver—and contorts his head to claim he saw contraband within the vehicle in “open view”—is a question we must leave for another day. Cf. State v.

Albertson, 165 Idaho 126, 131, 443 P.3d 140, 145 (2019)

(applying the “open view doctrine” in the context of

curtilage and the “implied licensed” doctrine from

Jardines, 569 U.S. at 10, while recognizing that an

Idaho trespass statute—written in the 21st century—

cannot inform common law trespass principles for purposes of the property-based Fourth Amendment test).

Returning to Nero’s sniff, the district court

found—based solely on two body-cam videos from the

on-scene officers—that Nero made two passes around

Dorff ’s vehicle, and that Nero placed his “paws” on the

vehicle “three” times, for a “very, very brief period of

time.” A review of the same footage on appeal, which

we freely review in these circumstances, Andersen, 164

Idaho at 312, 429 P.3d at 853, shows that during his

second pass, Nero jumped towards the vehicle on the

passenger side two times. However, from the footage

App. 24

alone, it cannot be discerned whether Nero actually

stood on the vehicle’s doors or windows during these

instances with his paws.

Nevertheless, when Nero approached the driver’s

side on his second pass, he clearly trespassed against

Dorff ’s vehicle. The footage reflects that when Nero

reached the front driver side door, he jumped up onto

the door, and planted his two front paws on the door

(and then the window) as he sniffed the upper seams

of the vehicle. Although the length of time Nero had his

paws on the vehicle is not dispositive of whether Nero’s

doing so amounted to intermeddling, the seconds that

do pass while Nero stood on, and occupied, Dorff ’s vehicle—without privilege or Dorff ’s consent—is enough

to objectively constitute a wrongful trespass against,

and intermeddling with, Dorff ’s vehicle, and his right

to exclude. And as we have said before, “there is no asterisk to the Fourth Amendment excusing the unconstitutional acts of law enforcement when they are

accomplished by means of a trained dog.” Howard, 169

Idaho at 382, 496 P.3d at 868. Thus, although it was

accomplished by Nero, it was law enforcement who violated Dorff ’s dignitary interest in maintaining the inviolability of his chattel.

In sum, a warrantless Fourth Amendment “search”

occurred when Nero trespassed against Dorff ’s vehicle

for the purpose of obtaining information about, or related to, the vehicle. The State has not argued that an

exception to the warrant requirement applies. Accordingly, the district court erred when it determined that

Dorff’s Fourth Amendment rights were not violated.

App. 25

IV.

CONCLUSION

For the foregoing reasons, Dorff ’s judgment of conviction is vacated, the district court’s order denying his

motion to suppress is reversed, and this case is remanded.

Justices STEGNER and ZAHN, concur.

MOELLER, J., dissenting.

I write separately to register my dissent with the

majority’s opinion and its deviation from the brightline standards we recently announced in State v. Randall, 169 Idaho 358, 496 P.3d 844 (2021), and State v.

Howard, 169 Idaho 379, 496 P.3d 865 (2021). In both

cases we clarified our dog sniff jurisprudence to craft a

clear rule: that any entry by a drug dog into a vehicle,

even if only its nose, transforms a lawful drug sniff into

an unconstitutional search under the Fourth Amendment. Unfortunately, the majority’s decision will return us to the murky and uncertain legal waters from

which we just extricated ourselves.

I agree with the majority that at its core, the

Fourth Amendment is “an 18th-century guarantee

against unreasonable searches.” United States v. Jones,

565 U.S. 400, 411 (2012). Our duty is to “assur[e]

preservation of that degree of privacy against government that existed when the Fourth Amendment was

adopted.” Id. at 406 (quoting Kyllo v. United States,

533 U.S. 27, 34 (2001)). However, it is the concept of

App. 26

reasonableness, implicit in all Fourth Amendment

cases, that leads me to a different conclusion in this

case. Unlike Pico’s (Howardi and Bingo’s (Randall)

physical intrusions into the defendants’ vehicles, or

the intrusion onto Jardines’ curtilage in Florida v.

Jardines, 569 U.S. 1, 10–11 (2013), I cannot agree that

an unreasonable search or a physical intrusion occurred just because Nero’s paws briefly touched the exterior of Dorff ’s vehicle. It cannot be said that Nero,

acting as a tool of law enforcement, “physically occupied private property for the purpose of obtaining information.” Jones, 565 U.S. at 404. The two-part test in

Jones—(1) a physical intrusion combined with (2) a

purpose of obtaining information—has not been met.

Jones, 565 U.S. at 404; Randall, 169 Idaho at 369, 496

P.3d at 855.

First and foremost, Nero’s brief contact with the

car windows indisputably occurred on the exterior of

the vehicle. Bearing in mind that adherence to property baselines in Fourth Amendment cases “keeps easy

cases easy,” Jardines, 569 U.S. at 11, I note that the

exterior of a vehicle has been long held to be an area

that does not implicate legitimate privacy interests in

dog sniff jurisprudence. See, e.g., Illinois v. Caballes,

543 U.S. 405, 409 (2005) (noting that the dog sniff occurred outside the vehicle and holding that “the use of

a well-trained narcotics-detection dog . . . during a lawful traffic stop, generally does not implicate legitimate

privacy interests.”); State v. Howard, 169 Idaho 379,

382, 496 P.3d 865, 868 (2021) (“neither a warrant nor

warrant exception is required for an exterior sniff of a

App. 27

car by a reliable drug dog.”); United States v. OliveraMendez, 484 F.3d 505, 511 (8th Cir. 2007) (“A dog

sniff of the exterior of a vehicle does not constitute a

search.”). Indeed, our decisions in Randall and Howard clearly relied on the property baseline between the

exterior and interior of the car: “though an exterior

sniff of a car is not a search under Caballes, it becomes

a search under Jones when a drug dog trespasses into

the car’s interior.” Randall, 169 Idaho at 370, 496 P.3d

at 856 (emphasis added).

I disagree with the majority’s conclusion that the

placement of Nero’s front paws on a side window of the

car—while conducting a permissible exterior sniff of

the vehicle for contraband amounts to a physical intrusion that compromised Dorff ’s privacy interests. As

courts have repeatedly held, dog searches are “sui generis” in our Fourth Amendment jurisprudence. Id. at

366, 496 P.3d at 852. When a dog is circling the vehicle’s exterior to detect the presence of narcotics, any

minimal or incidental contact with the outside of the

vehicle—whether instinctive or directed by the handler1—does not inherently implicate the Fourth Amendment. As established in Caballes,

1

Drug dogs are investigatory tools of law enforcement. “[W]e

will not regard drug dogs as highly trained tools of law enforcement when their behavior is consistent with the limitations of the

Fourth Amendment, and then regard them as mere dogs when

their behavior runs afoul of it. At bottom, law enforcement is

wholly responsible for the training and deployment of drug dogs;

it is likewise wholly responsible when, as a result of their training

and deployment, dogs enter vehicles during exterior sniffs.” Randall, 169 Idaho at 369, 496 P.3d at 855.

App. 28

Official conduct that does not compromise

any legitimate interest in privacy is not a

search subject to the Fourth Amendment. We

have held that any interest in possessing contraband cannot be deemed “legitimate,” and

thus, governmental conduct that only reveals

the possession of contraband “compromises no

legitimate privacy interest.” . . . [A] canine

sniff by a well-trained narcotics-detection dog

[is] “sui generis” because it discloses only the

presence or absence of narcotics, a contraband

item. . . .

Accordingly, the use of a well-trained narcotics-detection dog—one that does not expose

noncontraband items that otherwise would

remain hidden from public view—during a

lawful traffic stop, generally does not implicate legitimate privacy interests.

Id. (quoting Caballes, 543 U.S. at 408–09).

I find our sister jurisdictions’ consideration of this

specific issue instructive. Before Jones, Fourth Amendment cases rarely contemplated a drug dog’s physical

contact with a vehicle’s exterior during an investigative sniff. U.S. v. Olivera-Mendez is a rare example

from the Eighth Circuit. 484 F.3d 505, 511–12 (8th Cir.

2007). In that case, the dog “jumped and placed his

front paws on the body of the car in several places during a walk-around sniff that took less than one minute.” Id. The Eighth Circuit concluded that this was

a “minimal and incidental contact with the exterior of

the car,” and “did not rise to the level of a constitutionally cognizable infringement.” Id. (internal quotation

App. 29

marks omitted). While Olivera-Mendez preceded Jones,

other courts have recently applied Olivera-Mendez to

conclude that brief touches with a vehicle do not constitute searches under the Fourth Amendment. United

States v. Owens, 2015 WL 6445320, at *9 (D. Me. 2015),

aff ’d, 917 F.3d 26 (1st Cir. 2019) (officer placing hand

over vehicle’s hood to determine whether it had been

recently driven was “momentary contact” and not an

“intrusion” under Jones and Jardines); United States v.

Zabokrtsky, 2020 WL 1082583, at *6 (D. Kan. Mar. 6,

2020) (applying Olivera-Mendez instead of Jones to determine the dog’s paws against the body the vehicle

was only “minimal and incidental contact” during the

sniff ). I would conclude that Nero’s contact with the

vehicle’s exterior here was likewise a minimal and incidental contact to generally sniff the exterior area

around the vehicle.

The inquiry here should turn on whether there

was an unreasonable governmental intrusion into the

privacy and property interests protected by the Fourth

Amendment, and the court’s duty to “assur[e] preservation of that degree of privacy against government

that existed when the Fourth Amendment was adopted.”

Jones, 565 U.S. at 406. This is in line with longstanding

Fourth Amendment cases where the Court has “uniformly [ ] held that the application of the Fourth

Amendment depends on whether the person invoking

its protection can claim a ‘justifiable,’ a ‘reasonable,’ or

a ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442

U.S. 735, 740 (1979) (emphasis added). Here, I do not

App. 30

find that Nero’s brief contact with the exterior of the

vehicle constituted such an intrusion.

The majority’s analysis suggests that any contact

with a defendant’s vehicle—however brief, minimal, or

incidental to the dog sniff—would create an unreasonable search. This could include the dog’s nose brushing

against a car bumper as it sniffed for contraband. It

may even include the swipe of a dog’s tail along the

vehicle as it followed its handler in circling the car.

While a dog’s paws convey no olfactory information,

they allow the dog to sniff higher. Likewise, just as

pressing their nose against a door crack allows a drug

dog to detect faint smells, wagging their tails against

the car may stir the scent emanating from the car

around them. In sum, drug dogs are highly trained animals that use their entire bodies when attempting to

pick up a scent. This minimal contact outside the vehicle is not police misconduct; it’s just a dog behaving like

a dog. In Howard and Randall we concluded such instinctive behavior does not justify an intrusion into the

interior of a car. To be clear, I reiterate our holdings

there that police are responsible for training and controlling drug dogs as tools of law enforcement, and that

their use must respect the confines of the Fourth

Amendment. Randall, 169 Idaho at 369, 496 P.3d at

855. But here, Nero’s paw placement was a brief, minimal touch with the car for the dog to do exactly what

it was trained for—to sniff the air outside the vehicle.

Under the majority’s ruling, these minimal exterior contacts are now viewed as a “physical occupation” or “trespass.” We previously eschewed such an

App. 31

approach in State v. Albertson, where we held: “there is

no constitutional nexus between criminal or civil trespass laws and Fourth Amendment jurisprudence.” 165

Idaho 126, 130–31, 443 P.3d 140, 144–45 (2019). We

further explained why such an approach to the Fourth

Amendment is untenable: “trespass laws are not

rooted in the same constitutional soil from whence the

reasonable expectation of privacy standard has grown.

Therefore, Idaho’s trespass laws are not controlling in

this case, which concerns the application of the Fourth

Amendment to [a search related to] a controlled substance charge.” Id. (citing Kyllo, 533 U.S. at 34). Ultimately, as in all Fourth Amendment challenges, this

case should be analyzed using a reasonable expectation of privacy analysis, not as a trespass.

The majority’s analysis will lead to other absurd

and troubling possibilities. If a dog placing its paws

against a car is now tantamount to a trespass, what

happens when an officer leans against a car door as he

speaks with the driver? If the officer’s leaning facilitates a better view of the car’s interior, how is this any

different from Nero’s actions? Will this now be deemed

an unreasonable search simply because he touched the

car while asking questions to obtain information during the course of a traffic stop? The majority’s ruling

essentially warns law enforcement to keep their

hands—or in Nero’s case, his paws—off a suspect’s vehicle or risk committing a trespass.

A more reasonable interpretation of the holding in

Jones shows that it was meant to bar invasive conduct

by the State that infiltrates constitutionally protected

App. 32

areas; it should not be read in ways that force courts to

police un-intrusive contact.

The [Fourth] Amendment establishes a simple baseline, one that for much of our history

formed the exclusive basis for its protections:

When “the Government obtains information

by physically intruding” on persons, houses,

papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has

“undoubtedly occurred.”

Jardines, 569 U.S. at 5 (quoting Jones, 565 U.S. at 407

n.3 (Sotomayor, J., concurring)). See also Kyllo, 533 U.S.

at 40 (a search occurs where “the Government uses a

device that is not in general public use, to explore

details of the home that would previously have been

unknowable without physical intrusion.”) (emphasis

added); U.S. v. Knotts, 460 U.S. 276, 286 (1983) (“when

the government does engage in physical intrusion of a

constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the

Fourth Amendment.”).

Ultimately, as in Caballes and many similar cases,

the drug dog here only executed a sniff around the exterior of a defendant’s vehicle during an ongoing lawful

traffic stop. I do not agree that Nero’s simple placement of his paws on the car window or door somehow

transformed this sniff into an impermissible search or

seizure of the vehicle under the Fourth Amendment.

Thus, I would hold that suppression was not warranted

under these circumstances and I would affirm the

App. 33

district court’s order denying Dorff ’s motion to suppress the evidence. Accordingly, I must respectfully

dissent.

BEVAN, Chief Justice, dissenting:

I join with Justice Moeller’s dissent, but I write

separately to reiterate my view that a dog’s instinctual

acts do not violate the Fourth Amendment. Indeed, as

I have explained, “I do not believe that a drug-detection dog’s instinctive action instantaneously transmutes a warrantless, exterior sniff into an

unconstitutional search.” State v. Howard, 169 Idaho

379, 386, 496 P.3d 865, 872 (2021) (Bevan, C.J., dissenting). It remains my view that a dog’s instinct to jump

cannot be imputed to its officer-handler when the dog

acts without instruction. See State v. Randall, 169

Idaho 358, 374, 496 P.3d 844, 860 (2021) (“a dog is a

dog and takes certain actions instinctively.”). For the

majority to equate a drug dog instinctually jumping

onto the exterior of a car to a government agent intentionally affixing a GPS tracking device to the undercarriage of a vehicle and monitoring its location for

four weeks, as occurred in United States v. Jones, 565

U.S. 400 (2012), stretches logic beyond the breaking

point of reasonableness, which, after all, is “the ultimate touchstone of the Fourth Amendment. . . .” State

v. Blancas, 170 Idaho 631, 515 P.3d 718, 721 (2022). See

also Brigham City, Utah v. Stuart, 547 U.S. 398, 403

(2006).

App. 34

Reasonableness thus requires us to consider the

degree of the government intrusion, not to simply suppress all evidence where any intrusion occurred. My

warning from Randall remains apropos. See 169 Idaho

at 378, 496 P.3d at 864 (“[T]he Fourth Amendment addresses “misuse of power,” not the accidental effects of

otherwise lawful government conduct.” Brower v. Cnty.

of Inyo, 489 U.S. 593, 596 (1989) (quoting Byars v.

United States, 273 U.S. 28, 33 (1927)). The majority’s

decision today effectively converts Idaho’s analysis of

the Fourth Amendment into a strict liability system,

where the officer-handler’s intent and the extent of the

intrusion are irrelevant. Such a response is unsupportable under the goals of the exclusionary rule. See Randall, 169 Idaho at 373, 496 P.3d at 859. I would affirm

the district court’s order denying Dorff ’s motion to suppress. Accordingly, I dissent.

App. 35

District Court of the Fourth Judicial District

in and for the County of Elmore

STATE OF IDAHO,

Plaintiff,

vs.

KIRBY ANTHONY DORFF,

Defendant.

)

)

)

)

)

)

)

)

Case No –

CR20-19-2341

REPORTER’S TRANSCRIPT OF

MOTION TO SUPPRESS

9:01 a.m., Elmore County Courthouse,

150 South 4th East, on January 16, 2020,

before Honorable James Cawthon,

District Court Judge.

APPEARANCES

For the State

ELMORE COUNTY PROSECUTOR’S OFFICE

by PHILIP MILLER

190 South 4th East

Mountain Home, Idaho 83647

For Defendant

RATLIFF LAW OFFICES

by BRITNEY D. OCAMPO

290 South 2nd East

Mountain Home, Idaho 83647

App. 36

Reported by

Misti L. Latham

No. 1137

*

*

[19] THE COURT:

*

Thank you very much.

Well, as to this issue of intrusion and trespass, I

would just say, personally, I’ve enjoyed this issue, and

it will be interesting as this particular issue has been

raised in some cases that are currently pending, I

know, before Supreme Court, maybe Court of Appeals

as well. It will be interesting to see how this issue is

decided in Idaho, if those courts feel necessary to reach

that issue in those decisions. And, obviously, from the

rather spirited concurrences and dissent in the

Jardines case, its a lively issue if you’re interested in

these things.

From the Court’s perspective in ruling [20] on this

particular issue, I would start by noting that the

Fourth Amendment does provide the right of citizens,

of the people, to be secure in their persons, houses, papers, and effects. As Ms. Ocampo has correctly noted,

certainly a vehicle, Mr. Dorff ’s vehicle, does qualify as

an effect under the Fourth Amendment and, as such, is

protected against unreasonable searches and seizures.

Stated a different way, the issue here today is that

when the government obtains information by physically intruding on a person’s house, papers, effects, a

search within the original meaning of the Fourth

Amendment has occurred. And so from the Court’s perspective, the first prong of inquiry is to determine

App. 37

whether the government has trespassed in this particular case on a constitutionally protected area before

moving to the next step to determine whether this encroachment is coupled with a desire to collect information before moving on to the reasonableness of the

search.

In this particular case, from watching these videos

– I would just note that there is no contention in the

briefing nor presented here today as to the validity of

the stop of the [21] vehicle driven by Mr. Dorff. There

is no allegation nor does the video ever show any instance of the K-9 entering into the interior of the vehicle, no issue relating to the prolongation of this

particular stop. What the video does show is the dog

making a couple of passes around this vehicle. There

are moments in the video where the officer, by use of

his hand, is motioning in the direction of the vehicle as

the dog is being moved around the vehicle and then

also gesturing up in the air. The dog does, I would say,

if my recollection is correct from watching these videos,

on three occasions for what I would describe as a very,

very brief period of time, place its paws onto the vehicle

on the area of both the passenger side and the driver’s

side of this vehicle. The dog appears to the Court to be

sniffing at the seams of the doors and the windows during the course of this video.

These dogs are highly trained tools of law enforcement. They are trained to detect scents and convey this

information to officers.

App. 38

From looking at this from a typical trespass standpoint, I do not find that there has been a trespass occurring here from the standpoint, as [22] I’ve stated,

this movement in passing of the dog around the car always occurs from the exterior of the car. The paws do

go up onto the car, but in terms of what the dog is doing

and following in terms of sniffing and following a – perhaps a scent, the paws themselves are not collecting

information, and the dog appears to be sniffing around

the car. I say that in part because in reaching these

decisions in Jones and Jardines and, frankly, in the

Saginaw case out of the Sixth Circuit, all of these

courts go back in time to when the Constitution was

founded for the common law of property. They discuss

the restatements of the law kind of going to the independent pin citing of what trespass constitutes.

In this particular instance, we have this dog in a

lawful traffic stop sniffing the exterior of the car, not

invading into what would be considered the interior of

the car. And from that perspective, I do not think that

that violates common law property rights issues as

they pertain to trespass or even nuisance.

I know that the restatements of the law have been

referenced in these opinions interpreting this, but I

would just note that while in Saginaw [23] it’s referenced that just physical contact with chattel can

trigger a trespass, it doesn’t stop there. Those restatements in discussing physical contact with chattel are

referencing something known in that particular area

of law as intermeddling. Intermeddling with property

means intentionally bringing about contact with the

App. 39

chattel, and in that regard what is being discussed are

instances when an individual may beat a person’s

horse or other animal, when a person may throw a rock

at a vehicle or drive their vehicle into another vehicle.

And I would note that even in the common law, an animal wandering onto another’s property would not be

considered actionable.

And under the common law as it pertains to trespass, I don’t think the contact, this dog onto this vehicle, in any way constitutes an intrusion or any type of

trespass that it would affect anyone’s individual capacity to exceed the license of what may be in existence

here or in any way constitute any type of unconstitutional intrusion onto the property. The idea behind it is

whether this was conducted properly, but the issue behind – and certainly what the K-9 is doing in [24] these

videos is detecting or sniffing the scent of those odors

surrounding and/or emanating from the vehicle. And

so I do not find this to be any type of trespass of constitutional significance for the Fourth Amendment.

I would note from the Court’s perspective that I do

agree with the distinction that the State has made

here today in that in both Jardines and the Saginaw

case, or I should say Jones and the Saginaw case, what

is being done in both of those instances is the placing

of something onto the vehicle, which that thing which

is placed will provide information to the officers. The

placing of the paws on the vehicle does not transmit or

give any information. It is the open air sniffing that is

what the dog is trained to do. And based on that scent

App. 40

that’s detected, the dog would transmit that information.

And so from that perspective, the State would

deny the motion as to that point.

Any questions about that?

MR. MILLER:

No, Your Honor.

MS. OCAMPO:

None, Your Honor.

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[125] THE COURT: Thank you. The Court is

going to have a ruling on the motion at this time.

In terms of a standard of review the Court exercises in this motion, it is the presumption under Idaho

law that warrantless searches are unreasonable and

therefore violate the Fourth Amendment. However,

this presumption can be overcome by demonstrating

that a warrantless search fell within a well-recognized

exception to the warrant requirement or was otherwise

reasonable under the circumstances.

Under the automobile exception, a warrantless

search of a vehicle is authorized when there is probable

cause to believe that the vehicle contains contraband

or evidence of criminal activity. When a reliable drug

dog indicates that a lawfully stopped vehicle contains

the odor of controlled substances, the officer has probable cause to believe that there are drugs inside the

automobile and may search it without a warrant. It

has been held that a reliable drug dog’s indication on

the exterior of a vehicle is [126] not a search for

App. 41

purposes of the Fourth Amendment. As I had previously noted, although I may not get in the exact words,

I stated earlier drug dogs are highly trained tools of

law enforcement, and it is their work to respond in distinctive ways to specific scents so as to convey clear and

reliable information to law enforcement.

In this particular case, the sole point of contention

is that this particular instance of the deployment of

Nero by Officer Dudley was not done properly, that we

don’t have probable cause because Nero did not perform as a properly trained dog should, and that Officer

Dudley did not properly use Nero. More to the point,

more specifically, the evidence the defense has offered

is that Nero – it’s apparent, on the second pass, to the

defense is not locating any odors, that Nero’s actions

are based on Officer Dudley’s actions in that there is

no indicator, final indicator alert to the presence of narcotics and that the actions observed by Officer Dudley

were not indicators but the detection of odors maybe

associated, such as what we talked about a lot today,

bracketing, closed-mouth sniffing, things like that.

There has been discussion from the [127] defense as to

the industry standard being that every dog will always

sit as an alert to the presence of controlled substance.

The Court considered the arguments of counsel

and the briefing in this case. I considered Exhibits A

and B, which I have watched a number of times today

and did so before final argument once again and watching Exhibit B twice at that time. I considered the testimony of Officer Dudley as well as that of Mr. Jimenez.

App. 42

For the record, I would note, having listened to the

testimony of both witnesses and observed them here in

the courtroom – and for the record, if the appellate

courts have not been to the Elmore County courthouse,

we are in the basement, and I am rather close to the

witnesses. We have been eyeball to eyeball at many

times during the day. I’d say that to say this: I find both

of them credible. I appreciate the job that counsel have

done in presenting this information. Perhaps only subject to my no limit Texas Hold’em gambling case, this

is my favorite suppression hearing.

Of significance to the Court is this, there is no national standard. I don’t know how you [128] have an

industry standard when you don’t have a national

standard, and the testimony has been clear today from

Mr. Jimenez whom I think is experienced and I think

knows this information. And I believe that different

agencies have different rules, different standards, different things of that nature. Of significance to the

Court in that regard is this: There is nothing presented

by the defense today to suggest that the training that

Officer Dudley and Nero went through in this school in

Utah, that any part of that training was improper or

unacceptable. Also, there is nothing to suggest that

Officer Dudley and Nero did not perform in a fashion

consistent with those standards and protocols in the

state of Idaho as required for certification by the Idaho

Police Officer – or Peace Officer Standards and Training.

Officer Dudley is a certified peace officer here in

the state of Idaho. He is trained and commissioned by

App. 43

the Mountain Home Police Department to serve as a

K-9 officer. Nero is a canine that is a drug detection

K-9 certified in Idaho, and all of those certifications are

current. And more to the point, Officer Dudley [129]

has testified that what he did in question in this !

search and the deployment of Nero was done in I accordance with those standards and in accordance with

his training. Of significance too to the Court is the –

what has been testified to is what I consider rather rigorous performance standards related to these K-9s,

relating to their proficiency. And I know from Mr.

Jimenez, in his I testimony, has reviewed the training

records and I there has been nothing to dispute any of

that.

I say that to say this: The record is clear that Officer Dudley and Nero are properly trained and certified. There has been nothing in the record to suggest

that they are not properly trained and certified under

Idaho law from the Peace Officer Standards and Training. I don’t think even Mr. Jimenez would contest that

as he was not familiar with the Utah school and he

was) not familiar with the certification requirements)

for the standards and guidelines here in the state I of

Idaho. I don’t think that is what his testimony went to

or certainly did not cover in 3 any respect.

Specifically to the Court’s findings factually in this

case, as I said, the only issue [130] is the use of the

K-9 itself in this case. And also not in dispute in this

case when we break it down is the first pass of Nero

around the car. Mr. Jimenez felt like even from his review of it, the first pass was a good first pass. His

App. 44

problem is the second pass where it has been described

that Nero is being led around the car, that Nero is

simply responding to the direction of his handler, and

that in the final instance he is posing for Officer Dudley and staring at the officer. The dog is even described

in one instance as not locating odor and its actions are

based on the handler.

First, I do not find it persuasive that one could

watch this video and make a determination that Nero

is no longer sniffing, no longer detecting odor. Who can

get into the mind of a dog? But who could tell from this

video whether or not the dog is even sniffing, let alone

detecting odor?

What is plausible to the Court from the testimony

both of Mr. Jimenez and Officer Dudley and having

watched the video is that what is happening as the dog

makes this second pass in front of the car is that the

dog has made one [131] pass, the dog is clearly on the

driver’s side door pass, the dog is clearly on the driver's

side door reacting to odor that it is picking up from this

driver’s side door, and the dog is moving rather quickly

around the front of this vehicle towards the driver’s

side door where it originally began evidencing significant manner of locating an odor, the scents it was picking up on the first pass. In watching the description of

what happened at the door with the dog’s paws up on

the vehicle, I simply don’t believe or don’t know how

you could come to a conclusion that the dog is posing.

The dog, from the Court’s perspective, on the video is

clearly sniffing at the door. The dog is – does go up onto

the car as the officer raises his arms, but I will notice

App. 45

in the instances when Officer Dudley is presenting areas for the dog to sniff in that fashion and the dog responds, he seemingly moves or steps back from the

area that the dog is at. It does not appear to me that

the dog is staring at the officer as it has been described.

In fact, it looks to me in this instance as if the dog is

continuing to sniff. And I think, after one year, it is

Officer Dudley that the Court finds more credible as to

making judgment and observations about what Nero’s

reactions are to [132] what he is sniffing and what

those reactions mean as has been testified here. Breeds

of dogs differ in the way they respond in these instances, and individual dogs are different in the way

they respond individually. I dare say Mr. Jimenez, in

his time as a law enforcement officer with the K-9, nobody knew his dog and his reactions better than he

would have known his dog’s reactions in those times.

And so from the Court’s perspective, I do find that

this was an instance where we have a lawful traffic

stop. We have the dog deployed. That dog was used in

a manner in accordance with the animal and the officer’s training, and in accordance with their training

and certification and the standard here in Idaho pursuant to the Idaho POST rules. And as such, we have a

drug dog’s alert to the odor of controlled substances detected on the exterior of the vehicle which established

probable cause for the search, and the Court will deny

the Motion to Suppress.

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