Petition for Writ of Certiorari — Ashlee Marie Mumford, Petitioner v. Iowa
Supreme Court briefApr 17, 2025
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No. 24-
In the Supreme Court of the United States
ASHLEE MARIE MUMFORD,
PETITIONER
v.
STATE OF IOWA,
RESPONDENT
ON PETITION FOR A WRIT OF CERTIORARI
TO THE IOWA SUPREME COURT
PETITION FOR A WRIT OF CERTIORARI
COLIN C. MURPHY
GRL LAW PLC
440 Fairway Drive
Suite 210
W. Des Moines, IA 50266
XIAO WANG
Counsel of Record
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW SUPREME
COURT LITIGATION CLINIC
580 Massie Road
Charlottesville, VA 22903
ROBERT A. LONG
COVINGTON & BURLING LLP (434) 924-8956
One CityCenter
x.wang@law.virginia.edu
850 Tenth Street, NW
Washington, D.C. 20001
Counsel for Petitioner
i
QUESTION PRESENTED
Whether a dog sniff of the interior of a lawfully
stopped vehicle violates the Fourth Amendment absent
consent to the sniff or probable cause to believe that the
vehicle contains illegal drugs.
ii
RELATED PROCEEDINGS
Iowa District Court
State of Iowa v. Mumford, No. SRCR109847,
SMAC005298. Judgment entered June 9, 2023.
Iowa Supreme Court
State of Iowa v. Mumford, No. 23-1075, 14 N.W.3d
346 (2024). Judgment entered Dec. 6, 2024.
iii
TABLE OF CONTENTS
Question presented ............................................................... i
Related proceedings ............................................................ ii
Table of authorities .............................................................. v
Opinions below ...................................................................... 1
Jurisdiction ........................................................................... 1
Constitutional provision involved ....................................... 1
Introduction .......................................................................... 2
Statement of the case........................................................... 4
A. Factual background ................................................. 4
B. Proceedings below.................................................... 5
Reasons for granting the petition ...................................... 9
I. Courts are split on whether a property-based
analysis applies to a dog sniff into a vehicle’s
interior. ............................................................................ 9
A. In the Idaho Supreme Court, the Ninth
Circuit, and the Fifth Circuit, the propertybased
and
reasonable-expectation-ofprivacy analysis complement one another........... 10
B. The Iowa Supreme Court and four federal
courts of appeals do not consider a
property-based analysis. ....................................... 14
II. The Iowa Supreme Court’s decision is
incorrect. ....................................................................... 20
A. The decision below conflicts with history
and tradition............................................................ 20
B. The decision below contravenes precedent. ........ 22
C. The decision below is unworkable. ....................... 23
iv
III.
This case presents an appropriate
opportunity to address an important, recurring
constitutional question. ................................................ 26
Conclusion ........................................................................... 29
v
TABLE OF AUTHORITIES
Page(s)
CASES
Brower v. County of Inyo,
489 U.S. 593 (1989).................................................... 20
Entick v. Carrington,
95 Eng. Rep. 807 (C.P. 1765) ................................... 20
Felders ex rel. Smedley v. Malcom,
755 F.3d 870 (10th Cir. 2014) .......................... 3, 15, 16
Florida v. Jardines,
569 U.S. 1 (2013) .. 2, 3, 9, 12, 16, 18, 23, 24, 26, 28, 29
Herring v. United States,
555 U.S. 135 (2009)...................................................... 7
Illinois v. Caballes,
543 U.S. 405 (2005)................... 2, 6, 7, 9, 15, 17, 18, 19
James v. Illinois,
493 U.S. 307 (1990).................................................... 27
Katz v. United States,
389 U.S. 347 (1967)...................................................2, 9
Lazarus v. Phelps,
152 U.S. 81 (1894)...................................................... 21
vi
Murray v. United States,
487 U.S. 533 (1988).................................................... 28
New York v. Class,
475 U.S. 106 (1986)......................................... 11, 12, 23
Nix v. Williams,
467 U.S. 431 (1984).................................................... 28
State v. Bauler,
8 N.W.3d 892 (Iowa 2024) ...................................15, 26
State v. Dorff,
526 P.3d 988 (Idaho 2023) ........................................ 10
State v. Howard,
496 P.3d 865 (Idaho 2021) ............................. 10, 11, 27
State v. Randall,
496 P.3d 844 (Idaho 2021) ..................... 2, 3, 10, 11, 24
State v. Wright,
961 N.W. 2d 396 (Iowa 2021) ..................................... 8
United States v. Chadwick,
433 U.S. 1 (1977) ....................................................... 22
United States v. Guidry,
817 F.3d 997 (7th Cir. 2016) .......................... 18, 19, 24
United States v. Humphries,
504 F. Supp. 3d 464 (W.D. Pa. 2020) ....................... 19
vii
United States v. Johnson,
2024 WL 1956209 (6th Cir. May 3, 2024) ...........16, 17
United States v. Jones,
565 U.S. 400 (2012)........... 2, 3, 9, 10, 12, 20, 22, 28, 29
United States v. Keller,
123 F.4th 264 (5th Cir. 2024) ..............................13, 14
United States v. Kelvin Lyons,
486 F.3d 367 (8th Cir. 2007) ..................................... 17
United States v. Michael Lyons,
957 F.2d 615 (8th Cir. 1992) ..................................... 17
United States v. Moore,
795 F.3d 1224 (10th Cir. 2015) ................................. 16
United States v. Moore,
2023 WL 6937414 (9th Cir. Oct. 20, 2023) ... 11, 12, 13
United States v. Munoz,
2025 WL 1109418 (8th Cir. Apr. 15, 2025) ...........3, 18
United States v. Ngumezi,
980 F.3d 1285 (9th Cir. 2020) .. 3, 11, 12, 25, 26, 27, 28
United States v. Pierce,
622 F.3d 209 (3d Cir. 2010) ...................................... 19
United States v. Plancarte,
105 F.4th 996 (7th Cir. 2024) ................................... 18
viii
United States v. Powell,
732 F.3d 361 (5th Cir. 2013) ..................................... 14
United States v. Pulido-Ayala,
892 F.3d 315 (8th Cir. 2018) ..................................... 17
United States v. Richmond,
915 F.3d 352 (5th Cir. 2019) ................................13, 27
United States v. Ryles,
988 F.2d 13 (5th Cir. 1993) ....................................... 13
United States v. Seybels,
526 F. App’x 857 (10th Cir. 2013) ............................ 16
United States v. Sharp,
689 F.3d 616 (6th Cir. 2012) ................................16, 17
United States v. Shen,
749 F. App’x 256 (5th Cir. 2018) .............................. 14
United States v. Stone,
866 F.2d 359 (10th Cir. 1989) ..............................15, 24
United States v. Wilson,
2024 WL 3634199 (6th Cir. Aug. 2, 2024) ............... 14
United States v. Winters,
782 F.3d 289 (6th Cir. 2015) ..................................... 16
Wong Sun v. United States,
371 U.S. 471 (1963)...............................................27, 28
ix
CONSTITUTIONAL PROVISIONS
U.S. CONST.
amend. IV ...........................................................1, 2, 22
OTHER AUTHORITIES
Restatement (Second) of Torts § 217 (1965) .............. 21
Shyamkrishna Balganesh, Property Along the Tort
Spectrum: Trespass to Chattels and the AngloAmerican Doctrinal Divergence, 35 COMMON L.
WORLD REV. 135 (2006) ........................................... 21
ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES
(William Young Birch & Abraham Small eds. 1803)
.................................................................................... 21
W. PAGE KEETON ET AL., PROSSER & KEETON ON THE
LAW OF TORTS § 76 (5th ed. 1984) ........................... 21
1
PETITION FOR WRIT OF CERTIORARI
Ashlee Mumford respectfully petitions for a writ of
certiorari to review the judgment of the Iowa Supreme
Court in this case.
OPINIONS BELOW
The opinion of the Iowa Supreme Court is published
at 14 N.W.3d 346 and is reproduced in the appendix at
App. 13a–42a.
JURISDICTION
The Iowa Supreme Court issued its judgment on
December 6, 2024. This Court has jurisdiction under 28
U.S.C. § 1257. On February 27 and April 3, 2025, Justice
Kavanaugh granted Petitioner’s applications for
extension of time to file a petition for writ of certiorari,
from March 6 to April 17, 2025.
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the United States
Constitution provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath
2
or affirmation, and particularly describing
the place to be searched, and the persons or
things to be seized.
INTRODUCTION
This is a case about Katz and dogs. More specifically,
it’s about whether courts should exclusively apply the
“reasonable expectation of privacy” analysis set forth in
Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring), to dog sniffs inside a car, or whether they
should also analyze the physical intrusion under the
“property-based understanding” summarized in Florida
v. Jardines, 569 U.S. 1, 11 (2013), and United States v.
Jones, 565 U.S. 400, 406–07 & n.3 (2012). As both the
majority and the dissent in the decision below
acknowledged, the answer to that question has divided
lower courts, with judges “com[ing] to different
conclusions under a variety of rationales.” App. 21a; App.
32a–33a (Oxley, J., dissenting).
Some courts, like the Idaho Supreme Court, the Fifth
Circuit, and the Ninth Circuit, consider both the
reasonable-expectation-of-privacy and property-based
approaches in determining whether an interior sniff
constitutes a search. These courts have generally held,
consistent with Illinois v. Caballes, 543 U.S. 405 (2005),
that when a police dog sniffs around the exterior of a car,
there is no reasonable expectation of privacy. But when a
police officer or an instrumentality thereof breaches a
vehicle’s interior, that is a trespass and, by extension, a
Fourth Amendment search. See, e.g., State v. Randall,
3
496 P.3d 844, 852–53 (Idaho 2021); United States v.
Ngumezi, 980 F.3d 1285, 1289 (9th Cir. 2020).
Other courts, including the Third, Sixth, Seventh,
Eighth, and Tenth Circuits, and now the Iowa Supreme
Court, reject the property-based test’s application to
interior sniffs. Instead, these courts treat Katz or
Caballes as “the controlling case” and sole barometer for
determining whether the drug dog’s entry constitutes a
search. App. 22a; see also, e.g., Felders ex rel. Smedley v.
Malcom, 755 F.3d 870, 877 (10th Cir. 2014); United States
v. Munoz, ___ F.4th ___, 2025 WL 1109418, at *2 (8th Cir.
Apr. 15, 2025).
This latter approach can’t be right. After all, Katz “did
not narrow,” “repudiate,” or “erode the” traditional
property-based approach to the Fourth Amendment.
Jones, 565 U.S. at 407–08. Neither did Caballes, which did
not involve a trespass and has since been described by this
Court as merely an application of Katz. See Jardines, 569
U.S. at 10. All Katz and Caballes did was “add to” the
Fourth Amendment’s property-rights baseline. Id. at 5.
But that baseline, as Jones and Jardines make clear,
remains firmly in place. And under this baseline, “[w]hen
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 (citing
Jones, 565 U.S. at 406–07 n.3) (internal quotation marks
omitted).
That’s exactly what happened here. As the Iowa
Supreme Court concedes, the drug dog in this case did not
uncover anything from a walk around “the exterior of”
Ashlee Mumford’s car—i.e., the sort of exterior scan in
4
Caballes. App. 19a. It “alert[ed] to the presence of
controlled substances” only after it “stood on its hind
legs,” “placed its front paws on the passenger door,” and
“entered the cabin of the vehicle” by sticking its “snout”
across the “plane of the passenger window.” App. 20a. In
other words, the intrusion inside Mumford’s vehicle was
the sine qua non for obtaining the information necessary
for her arrest and conviction. Id. No physical intrusion,
no information.
The Iowa Supreme Court’s decision is not only wrong.
It also deepens an increasingly intractable and untenable
split of authority. Had Ashlee Mumford been pulled over
in Idaho rather than Iowa, her suppression motion would
have been decided differently. So too if she had been
stopped in the Ninth Circuit instead of the Eighth or
Tenth Circuits next door. That result flouts the nature of
a federal constitutional right. This case offers an excellent
opportunity to tackle this important and recurring legal
question. The Court should grant review and reverse.
STATEMENT OF THE CASE
A. Factual background
On March 5, 2022, officer Logan Camp stopped Ashlee
Mumford’s vehicle because two numbers on the car’s
license plate were obscured by dirt, which is a traffic
violation under state law. App. 13a. After pulling
Mumford over, Camp called the police department’s
canine handler, Christian Dekker, to the scene for
assistance. App. 19a. Dekker arrived a few minutes later,
and Camp and Dekker “asked Mumford and her
5
passenger to exit the vehicle.” Id. Dekker proceeded “to
conduct a dog sniff around the exterior of the vehicle.” Id.
Dekker started “on the driver’s side of the vehicle,
proceeded to the rear of the vehicle, and then proceeded
to the front passenger door.” App. 20a. While in front of
the passenger door, “[t]he dog stood on its hind legs and
placed its front paws on the passenger door.” Id. The
dog’s nose then “crossed the plane of the passenger
window and entered the cabin of the vehicle,”
subsequently alerting to the presence of narcotics. Id.
Based on that alert, Camp and Dekker searched the car
and Mumford’s purse. Id. They found methamphetamine
in the glove compartment, and marijuana and a
methamphetamine pipe in Mumford’s purse.
Id.
Mumford was “arrest[ed] and charged with possession of
methamphetamine, marijuana, and drug paraphernalia.”
App. 14a.
B. Proceedings below
On May 3, 2022, Mumford filed a motion to suppress.
At a hearing on this motion, both Camp and Dekker
testified that neither officer could smell marijuana or any
other contraband at the scene. App. 52a, 60a. But a dog’s
sense of smell, according to Dekker, is “well above and
beyond” a human’s. App. 60a. Moreover, the dog here
had been specially trained and working for Dekker for
over a year before Mumford’s arrest. App. 54a. Dekker
further acknowledged that he was “always in control of”
the dog, App. 59a; could have directed the dog to not touch
or intrude on Mumford’s vehicle, id.; and did not do so
here because the dog “was doing what he was trained to
do,” App. 62a. Dekker also confirmed, on both direct and
6
cross-examination, that the dog’s nose entered the
interior of Mumford’s vehicle. App. 54a–55a, 60a–61a.
The district court denied Mumford’s motion to
suppress.
Following a bench trial, Mumford was
acquitted on the methamphetamine possession charge but
convicted on the marijuana and drug paraphernalia
charges. App. 14a.
A divided Iowa Supreme Court affirmed. After
finding that the officers conducted a lawful traffic stop,
App. 16a, the court addressed “[t]he more contentious
issue” in the case: whether the dog’s extending its nose
inside the passenger cabin of the vehicle transformed a
constitutional police tactic into an unconstitutional search.
App. 19a. With respect to the facts, the court accepted
that the dog’s nose had gone “inside the vehicle,” App.
20a. But it also emphasized Dekker’s description of the
dog’s behavior as “instinctual,” with the officers having
done “nothing to encourage it,” and that the intrusion was
“brief.” Id. On the law, the court acknowledged that
“[o]ther courts have addressed the issue of whether a K-9
unit’s entry into the cabin of a vehicle constitute[s] an
unconstitutional search” and “have come to different
conclusions under a variety of rationales.” App. 21a
(citing cases).
Ultimately, the Iowa Supreme Court determined that
Caballes was “the controlling case.” App. 22a. In its view,
“[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”—regardless of
whether the sniff is of the vehicle’s exterior (as in
Caballes) or interior (as here). App. 22a (quoting Caballes
7
v. Illinois, 543 U.S. 405, 410 (2005)). The court further
held that, even if the sniff here were unlawful, the
exclusionary rule would not suppress the evidence. “To
trigger the exclusionary rule, police conduct must
be . . . sufficiently culpable that such deterrence is worth
the price paid by the justice system.” App. 22a (quoting
Herring v. United States, 555 U.S. 135, 144 (2009)). Here,
the majority concluded, the police officers did not engage
in “deliberate, reckless, or grossly negligent conduct,”
and so “[t]he drug dog’s fleeting touch of the passenger
door and de minimis intrusion into the vehicle cabin
through a window left open by a passenger does not
justify the exclusion of evidence.” App. 22a.
Justice Oxley, joined by Justice McDermott,
1
dissented. App. 30a. As to the facts, the dissenters noted
that, “to the extent th[e] distinction” between instinctual
and officer-facilitated action matters, the drug dog’s
actions in this case could not properly be considered
“instinctual.”
App. 35a.
Although the dissent
acknowledged that Officer Dekker did at first try to
characterize the dog’s actions as instinctual, he later
clarified on the stand that he gave the dog a command to
conduct a “scan search,” which is a general instruction to
search everywhere on a vehicle. Id. This command gave
the dog “full range to search Mumford’s vehicle,” without
limitation, “including by jumping up on both sides of the
vehicle and sticking its head into the open window as it
was trained to do in performing a scan search.” Id.
Consistent with the dog’s general training and the specific
1
Justice McDermott also wrote a separate dissenting opinion
concluding that the dog sniff violated the Iowa Constitution. App.
36a.
8
instruction that Dekker gave, the dog entered the vehicle
and used its nose to find contraband.
As to the law, the dissent stated that “[r]ather than
tackle th[e] question [presented], the majority here
continues to hide behind Caballes even where federal
courts do not.” App. 32a–33a (citing cases). Caballes, the
dissent noted, involved an exterior sniff of a lawfully
stopped automobile, and did not address whether a dog
sniff into that vehicle’s interior is a Fourth Amendment
search. App. 30a. Furthermore, Caballes itself is based
on Katz’s “reasonable expectations of privacy” test. Id.
That analysis, the dissenters noted, “is irrelevant to a
property-based Fourth Amendment challenge.” Id.
(cleaned up). Such challenges are instead governed by the
trespass analysis outlined in Jones and Jardines. Id.
Under this analysis, there is no de minimis exception. “A
constitutional search occurs whenever the government
commits a physical trespass against property, even where
de minimis, conjoined with an attempt to find something
or to obtain information.” App. 33a (quoting State v.
Wright, 961 N.W. 2d 396, 413–14 (Iowa 2021)). Nor,
according to the dissent, did the majority get it right “by
suggesting [that] we are bound by” some carveout to the
“exclusionary rule.” App. 36a. Instead, “exclusion is
proper” so long as “the drug dog acted on its training.”
Id. That is what happened here, because the dog “did as
he was trained to do.” Id.
9
REASONS FOR GRANTING THE PETITION
I. COURTS ARE SPLIT ON WHETHER A
PROPERTY-BASED ANALYSIS APPLIES TO A
DOG SNIFF INTO A VEHICLE’S INTERIOR.
A Fourth Amendment search occurs if one of two
inquiries is met. United States v. Jones, 565 U.S. 400,
406–07 (2012). First, a search “undoubtedly” occurs
where the government “obtains information by physically
intruding” upon one’s constitutionally protected space.
Id. at 406–07 n.3. Second, a search takes place when police
conduct invades one’s “reasonable expectation of
privacy.” Katz v. United States, 389 U.S. 347, 360 (1967)
(Harlan, J., concurring).
This Court has, in prior cases, applied both principles
to examine whether a dog sniff is a search. It has applied
a property-based understanding to hold that a dog’s
trespass onto a home’s curtilage is a search because it
involves a physical invasion of a constitutionally protected
space. Florida v. Jardines, 569 U.S. 1, 7, 9 (2013). And it
has employed a reasonable-expectation-of-privacy
analysis to hold that an exterior sniff of a vehicle during a
traffic stop is not a search. Illinois v. Caballes, 543 U.S.
405, 408–09 (2005).
What this Court has not addressed—and where lower
courts are split—is whether the property-based analysis
applies to and complements a reasonable-expectation-ofprivacy analysis when a drug dog enters a vehicle’s
interior.
10
A. In the Idaho Supreme Court, the Ninth Circuit,
and the Fifth Circuit, the property-based and
reasonable-expectation-of-privacy analysis
complement one another.
1. The Idaho Supreme Court has held that “when a
law enforcement drug dog intrudes, to any degree, into
the interior space of a car during a drug sniff, without
express or implied consent to do so, a search has occurred
under the Fourth Amendment.” State v. Howard, 496
P.3d 865, 868–69 (Idaho 2021). Acknowledging that
“Fourth Amendment rights do not rise or fall with the
Katz formulation,” the Idaho Supreme Court has
observed that “Jones and Jardines make clear that” a
“trespass into a car during an exterior sniff converts what
would be a non-search under Caballes into a search.”
State v. Randall, 496 P.3d 844, 852–53 (Idaho 2021)
(quoting Jones, 565 U.S. at 406–07). In applying this
“bright line rule,” Howard, 496 P.3d at 868, the Idaho
Supreme Court departs from the decision below in three
notable respects.
First, unlike this case, the Idaho Supreme Court has
held that a search occurs when a dog “place[s] his paws on
[the defendant’s] vehicle,” State v. Dorff, 526 P.3d 988, 992
(Idaho 2023) (internal quotation marks omitted), and
when a dog “leap[s] through an open window” into a
vehicle, Howard, 496 P.3d at 868; see also Randall, 496
P.3d at 847.
Second, the Idaho Supreme Court has rejected a “de
minimis exception to the test articulated in Jones,” stating
that a search occurs even when the dog’s “nose enter[s]
the car and the entry [is] momentary.” Howard, 496 P.3d
at 868. That is because, under a traditional trespass
11
analysis, “the right to exclude others from one’s property
is a fundamental tenet of property law,” which makes “no
room . . . for a de minimis exception.” Id.
Third, the Idaho Supreme Court has rejected efforts
to recast a dog sniff as instinctual. As it explains, asking
whether “a drug dog’s sniff through the open window of a
vehicle [is] ‘instinctual’—as opposed to facilitated or
encouraged by the police”—is “inconsistent with” Jones.
Id. at 867. Under Jones, a non-consensual intrusion is a
search whenever the government seeks “to obtain
information.” Id. at 868. A dog sniff is “an activity that is
self-evidently conducted for the purpose of obtaining
information,” id., because drug dogs are “tools of law
enforcement” that are “trained to seek out substances
they have no natural inclination to seek, and then to
respond to their presence with specific and predictable
behaviors,” Randall, 496 P.3d at 855–56.
2. The Ninth Circuit has taken a similar approach,
holding that police conduct a search when there is “a
physical intrusion into the interior of a car,” United States
v. Ngumezi, 980 F.3d 1285, 1288 (9th Cir. 2020), or “when
[a] police dog enter[s] [the] vehicle during its drugdetection sniff,” United States v. Moore, 2023 WL
6937414, at *3 (9th Cir. Oct. 20, 2023).
In Ngumezi, for instance, the officer opened the
passenger door of a stopped vehicle and leaned into its
interior. 980 F.3d at 1288. This “physical intrusion,” the
Ninth Circuit reasoned, was “constitutionally significant.”
Id. at 1289. The court rooted that determination in New
York v. Class, 475 U.S. 106 (1986)—a case decided well
before Jones and Jardines—where this Court held that
“a car’s interior as a whole is . . . subject to Fourth
12
Amendment protection from unreasonable intrusions by
the police.” See Ngumezi, 980 F.3d at 1288 (quoting
Class, 475 U.S. at 114–15). Jones and Jardines buttress
that holding. Because the officer in Ngumezi obtained
information only after intruding upon a constitutionally
protected area, “a search within the original meaning of
the Fourth Amendment has undoubtedly occurred.” Id.
at 1289 (first citing Jardines, 569 U.S. at 5; and then citing
Jones, 565 U.S. at 406–07 n.3) (internal quotation marks
omitted).
Much like the Idaho Supreme Court, Ngumezi
rejected any suggestion of a de minimis exception. As the
Ninth Circuit noted, “the Supreme Court has never
suggested that the magnitude of a physical intrusion is
relevant to the Fourth Amendment analysis.” Id. After
all, in Jones, the police instrument was “a small, light
object that [did] not interfere in any way with the car’s
operation.” Id. (quoting 565 U.S. at 424–25 (Alito, J.,
concurring in the judgment)).
And it would be
challenging, to say the least, to “administer a test that
would require” courts “to distinguish” between officers
who “lean[] into” cars and officers who “crawl[] into the
back of a car to look under the seats.” Id. The better
approach, the Ninth Circuit concluded, is to “apply a
bright-line rule that opening a door and entering the
interior space of a vehicle constitutes a Fourth
Amendment search.” Id. (citing Class, 475 U.S. at 115).
In a subsequent case, Moore, the Ninth Circuit applied
these same principles to hold that a dog’s entry into the
interior of a car is a Fourth Amendment search. 2023 WL
6937414, at *3. But because the dog in Moore alerted to
the presence of contraband before entering the car—a
13
fact absent here—the officers had probable cause to
search before the dog’s entry into the vehicle. Id.
3. The Fifth Circuit has charted a similar, albeit less
clear, course. The court first held, on reasonableexpectation-of-privacy grounds, that an officer who
“pierce[s] the airspace inside the vehicle” by leaning
inside an open window and smelling marijuana engages in
a Fourth Amendment search. United States v. Ryles, 988
F.2d 13, 15 (5th Cir. 1993).
It reaffirmed that holding in United States v.
Richmond, 915 F.3d 352 (5th Cir. 2019), but under a
property-based framework. There, an officer noticed the
bolts on a stopped vehicle’s tires “had been stripped as [if]
they had been taken off numerous times.” Id. at 354. The
officer pushed on the tire with his hand to test if there was
anything inside the tire other than air. Id. The Fifth
Circuit, citing several of this Court’s property-based
cases, held that the officer conducted a search. Id. at 357–
58 (describing Jones “as a sea change” and stating that
“Jones thus requires us to consider the trespass test.”). It
explained that the officer’s actions were a “physical
intrusion” that was intended to collect information,
regardless of “the limited nature of the intrusion.” Id. at
358–59.
Most recently, in United States v. Keller, 123 F.4th 264
(5th Cir. 2024), the Fifth Circuit recognized and appeared
to apply a different analysis when a dog “sniff[s]” around
a “vehicle in” an immigration “inspection lane” versus
when a dog “place[s] his paws on the rear bumper of the
vehicle and sniff[s] near the back hatch.” Id. at 266, 268.
The first scenario is governed by Caballes, the second by
14
2
Jones. Id. at 268. Even so, the Fifth Circuit held that a
search did not occur under the latter scenario in Keller,
because “a common law trespass by a government agent
constitutes a Fourth Amendment search only when it is
conjoined with an attempt to find something or obtain
information.” Id. (internal quotation marks omitted).
According to the Fifth Circuit, the dog’s “incidental
contact” was not part of an intentional effort to gather
information. Id.
B. The Iowa Supreme Court and four federal
courts of appeals do not consider a propertybased analysis.
1. The Iowa Supreme Court’s reasoning in this case is
emblematic of the view of courts on the other side of the
split.
When
assessing
whether
a
dog’s
“nose . . . br[eaking] the plane of a passenger window”
was a Fourth Amendment search, App. 14a, the Iowa
Supreme Court did not mention—much less cite or
discuss—Jones or Jardines. It instead reasoned that
Caballes was “the controlling case” and, under its reading
of Caballes, “[a] dog sniff conducted during a concededly
lawful traffic stop that reveals no information other than
2
In United States v. Wilson, 2024 WL 3634199, at *2 (5th Cir. Aug.
2, 2024), the Fifth Circuit held, in a single paragraph, that a “canine
‘sniff’ of [a] vehicle was not an unlawful search.’” But Wilson relied
chiefly on a prior unpublished opinion, United States v. Shen, 749 F.
App’x 256 (5th Cir. 2018), and a panel opinion where the police had
probable cause before the dog entered the vehicle, United States v.
Powell, 732 F.3d 361, 373 (5th Cir. 2013). Given those circumstances,
along with Wilson’s non-precedential nature, the reasoning of
Richmond and Keller—published decisions issued pre- and postWilson, respectively—governs.
15
the location of a substance that no individual has any right
to possess does not violate the Fourth Amendment.” App.
22a (quoting Caballes, 543 U.S. at 353). The dog’s “breach
into the cabin of a vehicle” thus holds no constitutional
import. App. 22a.
To be sure, the decision below acknowledged that
other “courts have come to different conclusions” on this
question. App. 21a. And in an earlier case, the Iowa
Supreme Court recognized a possible “tension between
Caballes and the Supreme Court’s subsequent Fourth
Amendment jurisprudence as articulated in Jones and
Jardines.” State v. Bauler, 8 N.W.3d 892, 902 (Iowa
2024). But that tension is, according to the Iowa Supreme
Court, “for the Supreme Court to resolve.” Id.
2. The Tenth Circuit has similarly treated the
reasonable-expectation-of-privacy approach as the
exclusive means for examining dog sniffs around or inside
a car. In United States v. Stone, 866 F.2d 359 (10th Cir.
1989), a pre-Caballes case, the district court rejected the
argument that “the dog intruded upon [an] area where
[the defendant] had a legitimate expectation or
reasonable expectation of privacy.” Id. at 363. The Tenth
Circuit affirmed, “agree[ing] with the district judge that
the dog’s instinctive actions [do] not violate the Fourth
Amendment.” Id. at 364.
The Court has reiterated this understanding postCaballes, by treating it and Katz—and not Jones and
Jardines—as the relevant precedent governing an
interior dog sniff. In Felders ex rel. Smedley v. Malcom,
755 F.3d 870 (10th Cir. 2014), for instance, the Tenth
Circuit, citing Caballes, applied a privacy analysis to a
defendant’s claim that a dog’s “jump[] in [her] vehicle
16
through [an] open . . . door” constitutes a Fourth
Amendment search. Id. at 877, 880. The Felders court
did not mention Jones or Jardines or engage in a
property-based analysis. And in United States v. Seybels,
526 F. App’x 857 (10th Cir. 2013), the Tenth Circuit
explicitly rejected Jardines’s applicability to a dog sniff
during a traffic stop. Id. at 859 n.1. Because Jardines
involved a home, the panel reasoned that it “was based on
property rights not implicated in the traffic stop context
and, hence, did not undermine Caballes.” Id. at 859 n.1
(citing Jardines, 569 U.S. at 10–11). Subsequent Tenth
Circuit decisions have continued to assess interior dog
sniffs without referring to this Court’s property-based
approach. See, e.g., United States v. Moore, 795 F.3d
1224, 1231–32 (10th Cir. 2015).
3. The Sixth Circuit has also cabined Jones and
Jardines, declining to apply their reasoning to dog sniffs
reaching inside lawfully stopped vehicles. Echoing the
Tenth Circuit’s language from Stone, the Sixth Circuit has
held that it was “not a Fourth Amendment violation for a
dog to jump into a car on its own volition and instinct when
sniffing for drugs.” United States v. Sharp, 689 F.3d 616,
620 (6th Cir. 2012). And paralleling the Tenth Circuit’s
reasoning in Seybels, the Sixth Circuit has observed that
“Jardines is premised on a trespass rationale involving
the special protection accorded to the home and,
therefore . . . does not alter the analysis for traffic stops.”
United States v. Winters, 782 F.3d 289, 292 (6th Cir.
2015).
Most recently, in United States v. Johnson, 2024 WL
1956209 (6th Cir. May 3, 2024), the Sixth Circuit stressed
that a dog’s sniff of the interior of a vehicle were not a
search. Id. at *3. The court again rejected the
17
defendant’s property-based argument that “a drug
detecting K9 passing through an open door, twice, into the
interior of a vehicle constitutes a search.” Id. Instead, the
court offered up a broad rule for dog sniffs: “[A] canine
sniff is not a search” so long as the police are lawfully
present where the sniff occurs because “[a] sniff reveals
only ‘the location of a substance that no individual has any
right to possess.’” Id. (first quoting Sharp, 689 F.3d at
618; and then quoting Caballes, 543 U.S. at 410).
4. The Eighth Circuit has also followed a Katz and
Caballes approach. In two cases decided before Jones and
Jardines, it applied a reasonable-expectation-of-privacy
analysis to canine sniffs of personal property. In one,
United States v. Michael Lyons, 957 F.2d 615, 616
(8th Cir. 1992), the dog “sniffed” packages in a room,
“became agitated,” and “tore [a] package in two.” In the
other, United States v. Kelvin Lyons, 486 F.3d 367, 373
(8th Cir. 2007), the dog “stuck his head through” a car
“window.” In both cases, the Eighth Circuit concluded
that no search took place, citing the Tenth Circuit’s
holding in Stone and adding that “the instinctive actions
of a trained canine do not violate the Fourth
Amendment.” Id.; accord Michael Lyons, 957 F.2d at 617.
In United States v. Pulido-Ayala, 892 F.3d 315
(8th Cir. 2018), the Eighth Circuit appeared to somewhat
change tack, by casting “doubt” on the reasoning of the
Lyons cases and recognizing that “a drug dog is an
instrumentality of the police, and the actions of an
instrument or agent of the government normally are
governed by the Fourth Amendment.” Id. at 318–19
(internal quotation marks omitted). But because of other
intervening facts, the Eighth Circuit did not in Pulido-
18
Ayala have occasion to expressly overrule either Lyons
decision.
And just this month, the Eighth Circuit clarified that
the Lyons cases remain good law and that Katz and
Caballes—rather than Jones and Jardines—govern dog
sniffs at a lawful traffic stop. In United States v. Munoz,
___ F.4th ___, 2025 WL 1109418, *1 (8th Cir. Apr. 15,
2025), a drug-detection dog was instructed to “perform[]
an open-air sniff”; during that sniff, the dog “made brief
contact with the car’s exterior.” The Eighth Circuit
rejected the argument that “the dog’s contact with the car
was an unlawful trespass.” Id. at *2. Instead, the court
read Caballes to hold that “[t]he use of a well-trained
narcotics-detection dog during a lawful traffic stop[]
generally does not implicate legitimate privacy interests,”
regardless of whether the dog intrudes into a vehicle’s
interior. Id. (citing Caballes, 543 U.S. at 409)) (ellipses
removed). And it relied on Kelvin Lyons for the holding
that a dog’s “instinctive actions” do not give rise to a
search and thus “do not violate the Fourth Amendment.”
Id.
5. In like manner, the Seventh Circuit has observed
that “while using trained police dogs to investigate the
home is a search within the meaning of the Fourth
Amendment, dog sniffs conducted in public places are
generally not.” United States v. Plancarte, 105 F.4th 996,
1000 (7th Cir. 2024) (cleaned up) (first citing Jardines, 569
U.S. at 11–12; and then citing Caballes, 543 U.S. at 409).
Instead, the court “focus[ed] on the privacy-based
approach.” Id. at 999.
In United States v. Guidry, 817 F.3d 997 (7th Cir.
2016), it applied that privacy-based approach—and solely
19
that
approach—to
circumstances
largely
indistinguishable from the facts here. That case, as here,
involved a drug-detection dog who entered the
defendant’s car during an otherwise lawful exterior sniff.
Id. at 1001–02. Sounding in the logic of Jones and
Jardines,
the
defendant
insisted
that
“the
officers . . . violated his Fourth Amendment rights by
allowing the dog to search the interior of his car.” Id. at
1005. But the panel rejected that argument, stating that
the facts instead “resemble[d] cases where no Fourth
Amendment violation was found” because there was “no
indication that the officers intended to facilitate the dog’s
entry into the car.” Id. at 1006 (citing decisions from
Third, Eighth, and Tenth Circuits).
6. The Third Circuit has similarly declined to employ
a trespass analysis to analyze interior dog sniffs. In
United States v. Pierce, 622 F.3d 209 (3d Cir. 2010), the
court first observed that, under Katz and Caballes, “an
exterior canine sniff of a car during a lawful traffic stop
does not amount to a ‘search.’” Id. at 213 (citing Caballes,
543 U.S. at 410). Pierce then extended that reasoning to
the dog’s entry into the vehicle, holding that such actions
also do “not constitute a search” unless an officer
“facilitate[s] or encourage[s] the dog’s entry into the car.”
Id. at 214–15. Though Pierce was decided pre-Jones and
-Jardines, courts within the Third Circuit have continued
to cite and rely on Pierce—and have not applied a
property-based analysis—when assessing traffic stop
searches involving canines post-Jones and -Jardines. See,
e.g., United States v. Humphries, 504 F. Supp. 3d 464,
471–72 (W.D. Pa. 2020).
20
II. THE IOWA SUPREME COURT’S DECISION IS
INCORRECT.
The Iowa Supreme Court erred in holding that “a drug
dog’s momentary breach into the cabin of a vehicle” is not
a Fourth Amendment search. App. 21a–22a. Its
reasoning conflicts with history, cannot be squared with
precedent, and is unworkable.
A. The decision below conflicts with history and
tradition.
Under the Fourth Amendment’s property-based
approach, this Court begins by looking to “whether the
action in question would have constituted a ‘search’ within
the original meaning of the Fourth Amendment.” United
States v. Jones, 565 U.S. 400, 406–07 n.3 (2012). That
original meaning, as Jones observes, was “tru[ly] and
ultimate[ly] express[ed]” in Entick v. Carrington, 95 Eng.
Rep. 807 (C.P. 1765). Jones, 565 U.S. at 405 (quoting
Brower v. County of Inyo, 489 U.S. 593, 596 (1989)).
There, in connection with a messenger of the Crown’s
“breaking open” of the plaintiff’s “boxes, chests, [and]
drawers . . . in his house,” Lord Camden explained that
“[o]ur law holds the property of every man so sacred” that
if a government agent enters one’s property, “he is
trespasser, though he does no damage at all.” Entick, 95
Eng. Rep. at 807, 817.
These principles alone resolve this case.
The
government’s physical intrusion into Mumford’s vehicle
for the purpose of obtaining information—regardless of
whether minimal or momentary—would have been a
Fourth Amendment search at the time of the Founding.
21
The common-law tradition confirms this point. “Under
English common law, the traditional proposition [was]
that the trespass to chattels, like its real property
counterpart, [would be] actionable per se independent of
any proof of actual damage.” Shyamkrishna Balganesh,
Property Along the Tort Spectrum: Trespass to Chattels
and the Anglo-American Doctrinal Divergence, 35
COMMON L. WORLD REV. 135, 141 (2006). After all,
Founding-era authorities increasingly “regard[ed] a
man’s personalty in a light nearly, if not quite, equal to his
realty.”
3 ST. GEORGE TUCKER, BLACKSTONE’S
COMMENTARIES 385 (William Young Birch & Abraham
Small eds. 1803) (“TUCKER’S BLACKSTONE”). And even
when American courts imposed an actual-damages
requirement in trespass to chattel cases six decades postratification, Balganesh, supra, at 142, they still treated
“physical contact with [a] chattel” without privilege as a
technical trespass. See Restatement (Second) of Torts §
217 cmt. e (1965).
That the government uses a drug-detection dog to
effectuate its trespass does not change the analysis. At
common law, “[a] man [was] answerable for not only his
own trespass, but that of his cattle.” 4 TUCKER’S
BLACKSTONE 211. As this Court has acknowledged, an
owner of cattle would be strictly liable for “trespasses
committed by them upon the uninclosed lands of others.”
Lazarus v. Phelps, 152 U.S. 81, 84 (1894). Strict liability
was the rule, authorities explain, because cattle had a
propensity to “roam and do damage.” W. PAGE KEETON
ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 76,
at 539 (5th ed. 1984).
22
That logic extends here. Both the majority and the
dissent below acknowledged that drug-sniffing dogs have
a propensity to intrude into a vehicle’s interior. For the
majority, that stemmed from the dog’s “instinctual”
behavior. App. 20a. On the dissent’s telling, the dog acted
as it was “trained to do.” App. 35a–36a (Oxley, J.,
dissenting). But importantly, both roads lead to the same
destination: The police “knew of [the dog’s] . . . habit,”
meaning that under traditional common-law principles,
they “must answer for the consequences.” 4 TUCKER’S
BLACKSTONE 154.
B. The decision below contravenes precedent.
Precedent tracks history and tradition. This Court’s
decisions establish that under a property-based approach,
(1) a non-consensual physical intrusion into a
constitutionally protected area to obtain information
constitutes a search; (2) the interior of a car is a
constitutionally protected space; and (3) a drug-detection
dog’s entry into a constitutionally protected space
constitutes a trespass.
First, as Jones explains, a search “undoubtedly”
occurs whenever the government “obtains information by
physically intruding on a constitutionally protected area.”
565 U.S. at 406–07 n.3.
Second, the Fourth Amendment expressly defines
which spaces are constitutionally protected, by affording
“[t]he right of the people to be secure in their persons,
houses, papers, and effects.” U.S. CONST. amend IV. “It
is beyond dispute that a vehicle is an ‘effect’ as that term
is used in the Amendment.” Jones, 565 U.S. at 404 (citing
United States v. Chadwick, 433 U.S. 1, 12 (1977)). Indeed,
23
“[a] car’s interior as a whole is . . . subject to Fourth
Amendment protection from unreasonable intrusions by
the police . . . [and] intrusion into that space constitute[s]
a ‘search.’” Class, 475 U.S. at 114–15.
Third, a police dog is an “instrument” of the police.
Jardines, 569 U.S. at 9 n.3; id. at 12 (Kagan, J.,
concurring); id. at 23 (Alito, J., dissenting). Such dogs are
“super-sensitive,” “highly trained,” and “geared to
respond in distinctive ways to specific scents so as to
convey clear and reliable information to their human
partners.” Id. at 12–13 (Kagan, J., concurring). And when
these trained law enforcement instruments obtain
information by intruding without consent on an
individual’s property, that is a trespass, for “[i]t is not the
dog that is the problem, but the behavior that . . . involved
use of the dog.” Id. at 9 n.3.
This Court can, in short, resolve the question
presented through a straightforward application of Jones
and Jardines.
This case involves the same
constitutionally protected space at issue in Jones and the
same law enforcement instrument at issue in Jardines.
And as in both cases, the law enforcement instrument
intruded upon a constitutionally protected space to gather
information. That gave rise to a search in both Jones and
in Jardines. It does so here as well.
C. The decision below is unworkable.
“One virtue of the Fourth Amendment’s propertyrights baseline is that it keeps easy cases easy.” Jardines,
569 U.S. at 11. The converse is that the alternative
approach—evaluating whether a particular action under
a specific set of circumstances implicates a subjective and
24
objective reasonable expectation of privacy—often does
not yield a straightforward answer and provides scant
meaningful guidance to lower courts. The decision below
starkly illustrates these shortcomings.
Consider the majority’s claims (i) that “the dog’s
behavior was instinctual”; (ii) that Officer Dekker did
“nothing to encourage” the dog’s entry into Mumford’s
car; and (iii) that the dog’s entry was “almost
imperceptibl[e]” and only “momentary.” App. 20a–21a,
App. 24a. Several federal courts of appeals have similarly
asked, as part of the Katz and Caballes analysis, whether
the dog’s actions were “instinctive,” Stone, 866 F.2d at
364, and whether an officer “facilitate[d]” the dog’s entry
into a defendant’s vehicle, Guidry, 817 F.3d at 1006.
But how can a court know when a dog behaves
instinctively and when it doesn’t? Dogs, after all, aren’t
born to detect contraband. See Jardines, 569 U.S. at 12
(Kagan, J., concurring). A dog must be trained to do so.
And as the State concedes, a judge obviously “can’t ask”
the dog whether, in any particular case or situation, it was
acting instinctively or according to its training. App. 57a.
What that means in practice is that courts—like the Iowa
Supreme Court—often take the officer’s word for it, with
liability thereby turning on what the officer thinks the dog
thought. Yet that cannot possibly be a sound way to read
the Fourth Amendment. As the Idaho Supreme Court
observes, it makes little sense to “regard drug dogs as
highly trained tools of law enforcement when their
behavior is consistent with the limitations of the Fourth
Amendment”—i.e., when they only sniff around a car’s
exterior—“and then regard them as mere dogs when their
behavior runs afoul of it.” Randall, 496 P.3d at 855.
25
By the same token, examining whether an officer
encouraged certain behavior invites more questions than
it answers. Does telling a dog to scan a car thoroughly for
drugs qualify as encouragement or facilitation? Or must
an officer specifically instruct the dog to intrude into a
vehicle’s interior, contrary to Class; and to sniff in order
to obtain information, contrary to Jones and Jardines?
Or to situate it into the facts here, does an officer facilitate
and encourage when they acknowledge they (1) can stop
the dog from intruding on a vehicle, but they in fact (2) do
“nothing” when the dog “jump[s] up on the passenger side
door” and sticks “its head” into the car because “he was
doing what he was trained to do”? App. 59a, 62a.
Finally, a court would, under a reasonableexpectation-of-privacy approach, need to also address
whether the dog’s entry was “imperceptibl[e]” (or not)
and whether the dog sniff was “momentary” (or not).
App. 20a, 21a. Is a three-second sniff sufficiently
momentary, or would such a sniff infringe upon one’s
reasonable expectation of privacy? What about a sixsecond intrusion, with the dog inserting its paws for the
first four seconds and only managing to stick its nose in
for two seconds? And does the answer change if the dog
is particularly well-trained or highly experienced?
The benefit of a property-based understanding is that
it avoids such difficult line-drawing exercises. There is no
need, under such an approach, to reconstruct a dog’s mens
rea, or to delineate what constitutes facilitation, or to
determine when a dog’s intrusion goes from imperceptible
to “almost imperceptibl[e],” to actually perceptible, App.
20a; see, e.g., Ngumezi, 980 F.3d at 1289 (“Nor do we see
how courts could administer a test that would require
26
them to distinguish between [an officer] leaning into the
passenger-side area of [a] car and, say, an officer crawling
into the back of a car to look under the seats.”). Instead,
when—as this Court has instructed—the reasonableexpectation-of-privacy and property-based approaches
complement one another, the latter approach resolves
matters like this one by “keep[ing] easy cases easy.”
Jardines, 569 U.S. at 11.
III. THIS CASE PRESENTS AN APPROPRIATE
OPPORTUNITY TO ADDRESS AN IMPORTANT,
RECURRING CONSTITUTIONAL QUESTION.
This case presents an issue ripe for this Court’s
consideration. It implicates a significant split among the
federal courts of appeals and state courts of last resort on
an important constitutional question. The critical facts—
that a dog entered a vehicle’s interior and only alerted to
drugs after doing so—are undisputed. Finally, the
decision below acknowledged the split, observing that
“courts have come to different conclusions” on whether an
interior dog sniff is a search. App. 21a. What is more, in
an earlier opinion, the Iowa Supreme Court expressly
noted that “we think the Idaho Supreme Court erred in
its ultimate conclusion” as to the question presented.
State v. Bauler, 8 N.W.3d 892, 905 (Iowa 2024).
The Iowa Supreme Court’s decision to recognize and
apply an exception to the exclusionary rule does not
preclude review for two reasons.
First, its decision on exclusion was intertwined with its
analysis of whether a sniff into a car’s interior constitutes
a search. As the majority itself put it, the “dog’s fleeting
27
touch of the passenger door and de minimis intrusion into
the vehicle cabin through a window left open by a
passenger does not justify the exclusion of evidence.”
App. 22a. But as outlined above, these considerations—
whether a dog’s touch was fleeting, whether the dog acted
instinctually, and whether the dog’s intrusion was
sufficiently minimal—matter only because a court is
interrogating whether the dog’s actions satisfied the
reasonable-expectation-of-privacy framework. That is
why the courts that embrace a property-based approach
have declined to exclude evidence based on these same
factors. See, e.g., State v. Howard, 496 P.3d 865, 868
(Idaho 2021) (“[T]he right to exclude others from one’s
property is a fundamental tenet of property law, and we
see no room in the Jones test for a de minimis
exception.”); United States v. Richmond, 915 F.3d 352,
359 (5th Cir. 2019) (“[T]he limited nature of the intrusion
does not affect whether the physical examination . . . is
deemed a search.”); United States v. Ngumezi, 980 F.3d
1285, 1289 (9th Cir. 2020) (rejecting argument that no
search occurs when trespass is “minimally intrusive”).
Consequently, the Court may grant review, answer the
question presented, and remand for the Iowa Supreme
Court to resolve the exclusion issue, but without tying
their exclusionary rule analysis to a Katz/Caballes
approach.
Second, the Iowa Supreme Court misread and
misapplied this Court’s exclusionary-rule framework. As
this Court has underscored, “inadmissibility of illegally
obtained evidence must remain the rule, not the
exception.” James v. Illinois, 493 U.S. 307, 319 (1990).
Doing so “deter[s] lawless conduct by” police officers and
28
“clos[es] the doors of the federal courts to any use of
evidence unconstitutionally obtained.” Wong Sun v.
United States, 371 U.S. 471, 486 (1963). Thus, courts have
suppressed evidence from an improper search unless an
exception to exclusion applies. Murray v. United States,
487 U.S. 533, 536–37 (1988).
But courts have not recognized a de minimis proviso
to the exclusionary rule, much less an open-ended,
balancing-test-like inquiry for officer conduct that was not
“deliberate, reckless, or grossly negligent.” App. 22a; see
also Ngumezi, 980 F.3d at 1291 (“[L]ack of flagrancy is
not a freestanding basis for avoiding the application of the
exclusionary rule.”). Nor should they. When the Court
has recognized exceptions to the exclusionary rule, such
as independent source and inevitable discovery, it is
because those exceptions comport with the purposes
behind the rule. See Murray, 487 U.S. at 537; Nix v.
Williams, 467 U.S. 431, 443 (1984). There is no need, in
short, to deter when there is already an independent
source for the evidence to come in or when the evidence
would have been uncovered with or without an illegal
search.
Yet that rationale does not apply for a dog sniff into a
car’s interior. If, as the officers concede, the dog was
searching the vehicle as “I’ve told him to” and “was doing
what he was trained to do,” then there is an obvious basis
for deterrence. App. 57a, 62a. Put simply, the dog “was
trained” to “obtain[] information by physically intruding
on a constitutionally protected area.” United States v.
Jones, 565 U.S. 400, 406–07 n.3 (2012); Florida v.
Jardines, 569 U.S. 1, 11–12 (2013). Such facts gave rise to
an unconstitutional search in Jones and in Jardines. The
29
resulting evidence was suppressed in both cases. Id. at
413; 569 U.S. at 11–12. So too here.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
COLIN C. MURPHY
GRL LAW PLC
440 Fairway Drive
Suite 210
W. Des Moines, IA 50266
XIAO WANG
Counsel of Record
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW SUPREME
COURT LITIGATION CLINIC
580 Massie Road
Charlottesville, VA 22903
ROBERT A. LONG
COVINGTON & BURLING LLP (434) 924-8956
One CityCenter
x.wang@law.virginia.edu
850 Tenth Street, NW
Washington, D.C. 20001
Counsel for Petitioner
April 17, 2025
APPENDIX
APPENDIX
TABLE OF CONTENTS
Page
Appendix A — Findings of fact and conclusions of
law by district court (April 24,
2023) ................................................... 2a
Appendix B — Iowa Supreme Court opinion
(December 6, 2024)......................... 12a
Appendix C — Judgment and sentencing order
by district court (June 9, 2023) ..... 43a
Appendix D — Selected excerpts from district
court motion to suppress hearing
(June 6, 2022) .................................. 49a
2a
APPENDIX A
3a
IN THE IOWA DISTRICT COURT
FOR MADISON COUNTY
STATE OF IOWA
Plaintiff,
Vs.
ASHLEE MARIE
MUMFORD,
Defendant.
CASE NO. SRCR109847,
SMAC005298
TRIAL TO THE COURT:
FINDINGS OF FACT,
CONCLUSIONS OF LAW
AND VERDICT
This matter came before the Court as a bench trial on
March 27, 2023. The Court heard testimony from three
witnesses and received State’s Exhibits 1-9. The
defendant thereafter waived the reading of the verdict in
open court pursuant to Rule 2.17. Therefore, the Court
now makes the following findings of facts and conclusions
of law.
FINDINGS OF FACT
Officer Logan Camp of the Winterset Police
Department was on duty on March 5, 2022. He pulled over
a vehicle operated by the defendant for no registration.
The defendant was identified as the driver of the vehicle
by her driver’s license. Shane Wells was identified as the
passenger and owner of the vehicle. Camp testified the
defendant was very nervous. While he went back to his
vehicle to issue a citation, Camp called Officer Christian
Dekker, Winterset Police Department, to assist him on the
traffic stop. Dekker is a certified K9 handler and a Drug
Recognition Expert.
As they had not been immediately able to produce the
insurance for the vehicle, Camp testified that he went back
to the defendant’s vehicle to get the insurance and to ask
4a
the occupants to step out. The defendant stepped out as
requested and grabbed her purse when exiting the vehicle.
Dekker then walked the K9 around the vehicle. He
testified that the K9 alerted on the vehicle at the
passenger front door.
The officers then conducted a probable cause search of
the vehicle and the defendant’s purse as it was recently
inside the vehicle. In the passenger glove compartment,
they found two baggies containing a white crystalline
substance (Exhibit 5) which the officers believed was
methamphetamine based on their training and experience.
Officers also field tested the substance and the field test
was positive for methamphetamine (Exhibit 6). These
baggies were submitted to the DCI Laboratory for testing
(Exhibit 7), and subsequently were confirmed as
methamphetamine with a total net weight of 2.41 grams
between the two baggies (Exhibit 8). Both the defendant
and Wells denied ownership of the methamphetamine,
though the defendant stated she had just been in the glove
box earlier before they left home. Camp also searched the
defendant’s purse and Wells’s person. In the defendant’s
purse Camp found a baggie of a green, leafy substance
(Exhibit 4) and a pipe (Exhibit 3). Camp located some pills
on Wells’s person down the front of his pants. Wells
admitted to possession of the pills, according to Camp’s
testimony, stating that the defendant handed him some
marijuana to conceal and he put it in his groin. Both Camp
and Dekker testified that the occupants appeared to be
surprised by the methamphetamine discovery.
Camp testified that the pipe was consistent with a pipe
designed for methamphetamine use. He testified about the
distinguishing characteristics of meth pipe – that it is
hollow, a user puts the methamphetamine in the round
end, heats it up, and then smokes out the other end of the
5a
tube. He testified that it is a distinct design that is
different from a pipe used to smoke marijuana or other
substances.
Camp admitted that he neither field tested the
marijuana nor was it submitted for lab testing. He testified
that he did field test the pipe, and it tested positive for
methamphetamine, but he admitted that was not in his
report and he was unsure if he took a photograph of the
test results. Camp testified that the green leafy substance,
based on his training and experience, was marijuana.
Dekker also testified that the green leafy substance was
consistent with marijuana based on his training and
experience.
Wells also testified for the State. He testified that the
vehicle was his. He admitted he was arrested as a result of
this incident, and that he pled guilty to both possession of
marijuana and the pills that were on his person. He
admitted that he did not initially tell the officers the truth
about the drugs on his person. He denied that the
methamphetamine in the glove box was his and testified
that he was surprised at the contents. He testified that he
had been driving until approximately five minutes earlier
when he got tired, so he and the defendant switched
positions. He further testified that the defendant did not
drive his vehicle regularly, as she had her own vehicle, but
since he has a habit of falling asleep when he drives he
asked her to take over.
CONCLUSIONS OF LAW
The Defendant is charged by Trial Information in
SRCR109847 with 2 counts: Count 1 – Possession of a
Controlled Substance (Methamphetamine) and Count 2 –
Possession of a Controlled Substance (Marijuana). In
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SMAC005298, the Defendant is charged by complaint with
Possession of Drug Paraphernalia.
The State must prove both of the following elements of
Possession of a Controlled Substance:
1. On or about the 5th day of March, 2022, the
defendant knowingly or intentionally possessed a
controlled substance: methamphetamine (Count 1)
or marijuana (Count 2).
2. The defendant knew that the substance she
possessed was methamphetamine (Count 1) or
marijuana (Count 2).
If the State has proved both of the elements, the
defendant is guilty. If the State has failed to prove either
of the elements, the defendant is not guilty. Iowa Crim.
Jury Instruction 2300.3. The standard of proof necessary
is proof beyond a reasonable doubt. A reasonable doubt is
one that “fairly and naturally arises from the evidence or
lack of evidence produced by the State;” in order to find
the defendant guilty, the Court must be “firmly convinced”
of the defendant’s guilt. State v. Davis, 975 N.W.2d 1, 10
(Iowa 2022).
Possession may be either actual or constructive. Iowa
Criminal Jury Instruction 200.47 sets out the standard for
possession:
The law recognizes several kinds of possession. A
person may have actual possession or constructive
possession. A person may have sole or joint
possession.
A person who has direct physical control over a
thing on her person is in actual possession of it.
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A person who, although not in actual possession,
has both the power and the intention at a given time
to exercise dominion or control over a thing, either
directly or through another person or persons, is in
constructive possession of it. A person’s mere
presence at a place where a thing is found or
proximity to the thing is not enough to support a
conclusion that the person possessed the thing.
If one person alone has actual or constructive
possession of a thing, possession is sole. If two or
more persons share actual or constructive
possession of a thing, possession is joint.
Whenever the word “possession” has been used in
these instructions, it includes actual as well as
constructive possession and sole as well as joint
possession.
The Supreme Court has identified some “nonexclusive
factors” to consider in determining whether a defendant is
in constructive possession of items in a jointly occupied
structure: “(1) incriminating statements made by a person;
(2) incriminating actions of the person upon the police’s
discovery of a controlled substance among or near the
person’s personal belongings; (3) the person’s fingerprints
on the packages containing the controlled substance; and
(4) any other circumstances linking the person to the
controlled substance.” State v. Reed, 875 N.W.2d 693, 706
(Iowa 2016) (citing State v. Kern, 831 N.W.2d 149, 161
(Iowa 2013)).
As to Count 1, the evidence is clear that the defendant
was not in actual possession of the methamphetamine, as
it was located in the vehicle’s glove box. Therefore, the
State must rely on the theory of constructive possession.
The vehicle did not belong to the defendant, and she was
8a
not in exclusive possession of the vehicle at the time it was
stopped; in fact, the owner of the vehicle was in the vehicle
with her. The defendant made no incriminating
statements about the methamphetamine specifically,
although she did admit to having “been in” the glove box
earlier that day. Officers did not observe furtive
movements after initiating the traffic stop, such that an
inference could be made that the defendant was
attempting to hide the drugs. The baggies were not
fingerprinted. As to “any other circumstances” linking the
defendant to the drugs, Wells denied that the
methamphetamine was his but did plead to other
controlled substances he possessed, which could support
an inference that the methamphetamine in the glove box
was not actually his. Further, another circumstance
linking the defendant to the methamphetamine is the
presence of a pipe used to smoke methamphetamine in the
defendant’s purse. However, to a certain degree, this
circumstance also cuts against a finding of possession, as
it is inconsistent to have the marijuana and
methamphetamine
pipe
together
and
the
methamphetamine itself in a different location. Why would
the defendant move only the methamphetamine and not
the other contraband items out of her purse? Overall, the
Court cannot conclude that the State has proved beyond a
reasonable [sic] defendant was in constructive possession
of the methamphetamine based on all the factors identified
in Reed.
As to Count 2, the evidence shows that the defendant
was in actual possession of the marijuana. It was located
in her purse, which she specifically took from the vehicle
when asked to vacate the vehicle. The purse contained
other personal items of the defendant’s such as her wallet.
The evidence shows that she had dominion and control
9a
over the purse and the items inside it. Common sense
further suggests that a female has knowledge of the items
in her purse.
The defendant argued that there is no proof that the
substance was actually marijuana. However, two
experienced police officers, including one whose primary
job duties include handling the drug K9 and being a Drug
Recognition Expert, both testified that the substance was
marijuana based on their training and experience. The
Court finds that is sufficient proof beyond a reasonable
doubt that the substance was marijuana.
As to the second element, which is that the defendant
had knowledge that the substance was marijuana, the
Court finds that a reasonable inference can be drawn from
the evidence that the defendant knew the substance was
marijuana. She was in possession of other drug
paraphernalia, as will be discussed below. There is no
evidence suggesting that the substance could possibly be
identified as anything other than marijuana. The Court
concludes that the State has also proven the second
element of the charge of Possession of Marijuana.
Therefore, the State has proved beyond a reasonable
doubt that the defendant is guilty of Count 2.
For Possession of Drug Paraphernalia, the State must
prove a single element:
1. On or about the 5th day of March, 2022, the
defendant knowingly or intentionally possessed
drug paraphernalia.
Iowa Crim. Jury Instruction 2330.1. Again, the burden of
proof that the State must satisfy is beyond a reasonable
doubt. “Drug paraphernalia” is equipment or materials
that one intends to use, or knows is intended to be used,
primarily for any of the following purposes:
10a
1. To manufacture a controlled substance;
2. To inject, ingest, inhale, or otherwise introduce into
the human body a controlled substance;
3. To test the strength, effectiveness, or purity of a
controlled substance;
4. To enhance the effect of a controlled substance.
However, drug paraphernalia does not include any
equipment or material used in combination with the lawful
use of a controlled substance, or the otherwise lawful use
of that equipment or material. Iowa Crim. Jury
Instruction 2330.2. The State alleges that the pipe found in
the defendant’s purse was drug paraphernalia under this
definition.
Much as with the marijuana, the evidence shows that
the defendant was in actual possession of the pipe. It was
located in her purse, over which she had dominion and
control. Camp testified that the pipe was unique and
described its function and use as a pipe to ingest
methamphetamine, including using a torch of the same
kind that was also located in the defendant’s purse. He did
not testify that there were any lawful uses of the pipe.
Wells testified that he had seen the defendant use
methamphetamine before; that evidence helps prove her
knowledge that the pipe was drug paraphernalia, and was
not used for lawfully ingesting a controlled substance. Put
another way, that evidence shows the lack of mistake or
accident in having the pipe in her purse. The Court
concludes that the State has proven beyond a reasonable
doubt that the defendant knowingly or intentionally
possessed drug paraphernalia.
11a
VERDICT
SRCR Count 1: The Court finds the defendant not
guilty of Possession of Methamphetamine.
SRCR Count 2: The Court finds the defendant guilty
of Possession of Marijuana.
SMAC: The Court finds the defendant guilty of
Possession of Drug Paraphernalia.
IT IS THEREFORE ORDERED that sentencing in the
above-captioned matters shall be held on May 12, 2023 at
10:00 a.m. The defendant is ordered to be personally
present.
CLERK OF DISTRICT COURT
STATE OF IOWA
State of Iowa Courts
Case Number Case Title
SRCR109847 STATE OF IOWA VS MUMFORD,
ASHLEE MARIE
Type:
ORDER SETTING HEARING
So Ordered
/s/ Erica Crisp
Erica Crisp,
District Associate Judge
Fifth Judicial District of Iowa
Electronically signed on 2023-04-24 14:18:32
12a
APPENDIX B
13a
In the Iowa Supreme Court
No. 23–1075
Submitted October 10, 2024—Filed December 6, 2024
State of Iowa,
Appellee,
vs.
Ashlee Marie Mumford,
Appellant.
Appeal from the Iowa District Court for Madison
County, Kevin Parker (motion to suppress) and Erica
Crisp (bench trial), judges.
The defendant contends the district court erred in
denying her motion to suppress evidence and challenges
the sufficiency of the evidence supporting her conviction
for possession of marijuana. Affirmed.
McDonald, J., delivered the opinion of the court, in
which Christensen, C.J., and Waterman, Mansfield, and
May, JJ., joined. Oxley, J., filed a dissenting opinion, in
which McDermott, J., joined. McDermott, J., filed a
dissenting opinion.
Colin C. Murphy of Gourley, Rehkemper & Lindholm,
P.L.C., West Des Moines, for appellant.
Brenna Bird, Attorney General, and Joshua A. Duden,
Assistant Attorney General, for appellee.
McDonald, Justice.
A police officer initiated a traffic stop of motorist
Ashlee Mumford after the police officer was unable to read
two of the numbers on the vehicle’s dirt-and-grimecovered license plate. During the traffic stop, a second
14a
officer used a drug detection dog to conduct a sniff around
the exterior of the stopped vehicle. In the course of the
sniff around the exterior of the vehicle, the dog’s paws
touched the passenger door, and the dog’s nose
momentarily, almost imperceptibly, broke the plane of the
passenger window. The dog then alerted to the presence
of controlled substances. The officers searched the vehicle
and found two bags of methamphetamine in the glove
compartment, and they searched Mumford’s purse and
found marijuana and a methamphetamine pipe. Mumford
was placed under arrest and charged with possession of
methamphetamine, marijuana, and drug paraphernalia.
Following a bench trial, Mumford was acquitted of
possession of methamphetamine but convicted of
possession of marijuana and drug paraphernalia. On
appeal, Mumford contends the district court erred in
denying her motion to suppress evidence allegedly
obtained in violation of her constitutional right to be free
from unreasonable searches and seizures. She challenges
the sufficiency of the evidence supporting her conviction
for possession of marijuana. And she claims the district
court erred in denying her motion in arrest of judgment.
We affirm her convictions.
I.
In the district court, Mumford moved to suppress the
evidence of contraband obtained from the traffic stop and
subsequent search of the vehicle and her purse. She
claimed that the traffic stop and the officers’ use of the
drug detection dog during the traffic stop violated her
federal and state constitutional rights to be free from
unreasonable seizures and searches. The district court
denied the motion to suppress evidence. It concluded that
the traffic stop was supported by probable cause and that
use of the drug detection dog did not violate the Federal
15a
or State Constitution. Mumford contends the district court
erred in denying her motion to suppress evidence. Our
review is de novo. See State v. Bauler, 8 N.W.3d 892, 897
(Iowa 2024).
A.
The Fourth Amendment to the Federal Constitution
provides that “[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.” The Supreme
Court holds that the Fourth Amendment applies to the
states and state actors via the Due Process Clause of the
Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643,
655 (1961); State v. Pickett, 573 N.W.2d 245, 247 (Iowa
1997). The text of article I, section 8 of the Iowa
Constitution is materially indistinguishable from the text
of the Fourth Amendment. “This fact however does not
compel us to follow the construction placed on the
language by the United States Supreme Court.” State ex
rel. Kuble v. Bisignano, 28 N.W.2d 504, 508 (Iowa 1947).
Instead, “it is our duty to independently interpret [article
I,] section 8 based on its words and history[, and]
[d]epending on the issue, this inquiry may lead us to
conclude that section 8 provides protections that are the
same as, greater than, or less than the protections
provided by the Fourth Amendment.” State v. Burns, 988
N.W.2d 352, 365 (Iowa 2023).
B.
We first address the constitutionality of the traffic
stop. The record reflects that Winterset Police Officer
Logan Camp initially observed the vehicle parked at the
residence of a man known to be involved in drug activity.
Camp attempted to run the license plate at that time, but
he could not read the last two digits of the license plate
16a
because dirt and grime obscured them. Later that evening,
Camp observed the same vehicle on a highway and pulled
behind it. Camp still was unable to read the last two
numbers on the license plate. Camp believed this was a
violation of the law and initiated a traffic stop.
The “ ‘detention of individuals during the stop of an
automobile by the police, even if only for a brief period and
for a limited purpose, constitutes a “seizure” of “persons”
within the meaning of’ article I, section 8 and the Fourth
Amendment.” Bauler, 8 N.W.3d at 897 (plurality opinion)
(quoting State v. Warren, 955 N.W.2d 848, 859 (Iowa
2021)). A traffic stop is constitutional “when supported by
probable cause or reasonable suspicion of a crime.” State
v. McIver, 858 N.W.2d 699, 702 (Iowa 2015). “Probable
cause exists if the totality of the circumstances as viewed
by a reasonable and prudent person would lead that
person to believe that a crime has been or is being
committed” and the detained person “committed or is
committing it.” Bauler, 8 N.W.3d at 897 (plurality opinion)
(quoting State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004)).
A peace officer’s observation of a traffic violation, however
minor, provides probable cause to stop a motorist. Id.
We conclude there was probable cause to stop the
vehicle Mumford was driving. The Code provides that
“[e]very registration plate shall at all times be securely
fastened in a horizontal position to the vehicle for which it
is issued . . . in a place and position to be clearly visible and
shall be maintained free from foreign materials and in a
condition to be clearly legible.” Iowa Code § 321.38 (2022).
Dirt and grime are “foreign materials” within the meaning
of the statute, and if the dirt and grime render the
information printed on the license plate not “clearly
legible,” the motorist has violated the statute. See State v.
Harrison, 846 N.W.2d 362, 368 (Iowa 2014) (“Iowa Code
17a
sections 321.38 and 321.388 demonstrate that the
legislature intended that all information to be displayed on
a license plate must remain readable.”); State v.
McFadden, No. 16–1184, 2017 WL 4315047, at *2 (Iowa Ct.
App. Sept. 27, 2017) (“A dirty plate constitutes a traffic
violation. The violation [of section 321.38] afforded the
officers probable cause to stop the vehicle.” (citation
omitted)); State v. Klinghammer, No. 09–0577, 2010 WL
200058, at *3 (Iowa Ct. App. Jan. 22, 2010) (holding that
snow accumulation provided probable cause to stop a
vehicle for a section 321.38 violation because the license
plate was not “clearly legible”); State v. Miller, No. 02–
0965, 2003 WL 22015974, at *1 (Iowa Ct. App. Aug. 27,
2003) (“[W]e conclude the obscured license plate alone
furnished probable cause for the vehicle stop.”).
Mumford does not contest the legal conclusion, but she
does contest the facts. She contends that the videos of the
traffic stop and still photos taken from the videos show
that the entirety of the rear license plate was clearly
visible and clearly legible. We disagree. The videos and
still shots are not clear, at all. Further, the videos and still
shots taken from several feet away from the vehicle are
not particularly relevant. The videos and photos show the
vehicle “at close range at a dead stop.” State v. Griffin, 997
N.W.2d 416, 420 (Iowa 2023). The videos and photos do not
“show what the [vehicle] looked like at highway speeds” at
night. Id. at 420–21. The videos do not show what Officer
Camp “saw or could have seen when [he] made [his]
decision to stop” Mumford. Id. at 421. Camp testified that
he could not read the last two digits of the license plate
from a couple of car lengths behind the vehicle. Like the
district court, we credit his testimony and find he observed
a violation of Iowa Code section 321.38 prior to initiating
the traffic stop.
18a
Even if Camp had probable cause to stop the vehicle,
Mumford asserts that Camp’s detention of her was
nonetheless unlawful because Camp admittedly could read
the last two digits of the license plate when he walked up
to her vehicle and shined his flashlight on the license plate.
According to Mumford, once Camp was able to read the
last two digits on the license plate, Camp was obligated to
walk away and let Mumford go without any further
interaction. We recently rejected the same argument in
State v. Griffin. See id. In that case, a peace officer
initiated a traffic stop after observing a vehicle with a
license plate cover that did not permit full view of the
letters and numerals printed on the plate, in violation of
Iowa Code section 321.37. Id. at 419. After initiating the
stop, the officers were able to observe the letters and
numerals printed on the plate. Id. at 421. The defendant
contended the officers were then obligated to drive away
without any further interaction. Id. We rejected the
argument. Id. “The violation occurred” when the peace
officers observed the violation from the road and “was
complete well before Griffin’s vehicle stopped.” Id. At that
point, the peace officers could have ticketed the motorist
or issued a warning. Id. In either case, the peace officers
“were fully justified in approaching the driver’s-side door
and talking with” the motorist. Id. The same holds true
here. See also State v. Peden, No. 08–1039, 2009 WL
606236, at *1 (Iowa Ct. App. Mar. 11, 2009) (“A license
plate that is legible only from certain angles does not
comply with [section 321.38] requirements.”).
Mumford suggests that the traffic stop nonetheless
should be deemed unconstitutional because the traffic stop
was merely a pretext for drug interdiction. She argues
Officer Camp observed the vehicle parked at a known drug
house and was merely looking for a reason to pull the
19a
vehicle over and search for drugs. Even if this were
Camp’s true motivation, the true “motivation of the officer
stopping the vehicle is not controlling in determining
whether” probable cause existed. State v. Brown, 930
N.W.2d 840, 847 (Iowa 2019) (quoting State v. Kreps, 650
N.W.2d 636, 641 (Iowa 2002)). Instead, “[t]he existence of
probable cause for a traffic stop is evaluated ‘from the
standpoint of an objectively reasonable police officer.’ ” Id.
at 855 (quoting State v. Tyler, 830 N.W.2d 288, 293–94
(Iowa 2013)). An officer’s “[s]ubjective intentions play no
role in ordinary, probable-cause Fourth Amendment
analysis” or article I, section 8 analysis. Id. at 845
(alteration in original) (quoting Whren v. United States,
517 U.S. 806, 813 (1996)).
C.
The more contentious issue in this case is whether use
of the drug dog to conduct an exterior sniff of a lawfully
stopped vehicle was an unlawful search in violation of the
Fourth Amendment or article I, section 8 of the Iowa
Constitution. The record shows that around the same time
Camp initiated the traffic stop, he contacted Winterset
Police Officer Christian Dekker to assist. Dekker was the
K-9 handler for the Winterset Police Department. Dekker
arrived at the scene only shortly after Camp initiated the
traffic stop. Camp and Dekker intended to conduct a dog
sniff around the exterior of the vehicle, and they asked
Mumford and her passenger to exit the vehicle for their
own safety. Mumford and her passenger complied,
although not without some objection. Mumford exited the
vehicle with her purse in her possession. Mumford’s
passenger left the passenger window down when he exited
the vehicle. Dekker walked the drug dog around the
exterior of the vehicle. The entire examination lasted
approximately fifteen to twenty seconds. Dekker started
20a
on the driver’s side of the vehicle, proceeded to the rear of
the vehicle, and then proceeded to the front passenger
door. The dog stood on its hind legs and placed its front
paws on the passenger door. The dog’s snout briefly,
almost imperceptibly, crossed the plane of the passenger
window and entered the cabin of the vehicle. Dekker
admitted this at the hearing on the motion to suppress. He
testified, “I believe his nose went inside the vehicle, yes,
through an open window that the passenger had left open.”
Dekker maintained the dog’s behavior was instinctual and
that Dekker did nothing to encourage it. After the dog’s
nose entered the vehicle, the dog alerted to the presence
of controlled substances. A subsequent search of the
vehicle revealed two bags of methamphetamine in the
glove compartment, and a search of Mumford’s purse,
which she had taken with her from the vehicle, revealed
marijuana and a methamphetamine pipe. Mumford claims
that the drug dog’s brief touch of the passenger door and
brief cross of the plane of the passenger window
constituted a trespass and rendered the search
unconstitutional.
State v. Bauler, 8 N.W.3d 892, largely controls our
resolution of Mumford’s claims. In that case, the majority
of this court held that a drug dog’s quick, incidental touch
of the exterior of a vehicle in a public place during a lawful
traffic stop did not violate the Fourth Amendment or
article I, section 8. See id. at 902 (plurality opinion) (“We
find the dog sniff of Bauler’s vehicle did not violate the
Fourth Amendment, notwithstanding the brief touching of
the exterior of the vehicle.”), id. at 907 (stating that “the
dog sniff of Bauler’s vehicle did not violate article I, section
8”); id. at 913 (McDonald, J., concurring specially) (stating
that “momentary touching of Bauler’s vehicle in a public
place during a lawful traffic stop was not unlawful,
21a
tortious, or otherwise prohibited under Iowa law” and that
there was thus “no obligation to obtain a search warrant
prior to conducting the search” under the Iowa
Constitution and rejecting Fourth Amendment claim).
The same rationales apply here with respect to the drug
dog’s placement of its paws on the passenger door.
The question not presented or answered in Bauler was
whether it would make a difference if the drug dog’s nose
crossed the plane of an open window and entered the cabin
of the vehicle. See id. at 907 n.8 (plurality opinion) (“We do
not decide whether a dog sniff wherein a dog has been
previously trained to put its head inside the car and in fact
does so has violate[d] the Fourth Amendment or article I,
section 8.”).
Other courts have addressed the issue of whether a K9 unit’s entry into the cabin of a vehicle constituted an
unconstitutional search. Those courts have come to
different conclusions under a variety of rationales. See,
e.g., United States v. Wilson, No. 22–20100, 2024 WL
3634199, at *2 & n.1 (5th Cir. Aug. 2, 2024) (per curiam)
(holding that there was no search where dog instinctively
entered cabin without direction and collecting cases);
United States v. Pulido-Ayala, 892 F.3d 315, 318–19 (8th
Cir. 2018) (concluding that officers had probable cause to
search the vehicle prior to K-9’s entry into vehicle cabin);
United States v. Pierce, 622 F.3d 209, 214–15 (3rd Cir.
2010) (finding no Fourth Amendment violation); United
States v. Handley, No. 23–CR–57–CJW–MAR, 2024 WL
1536750, at *6–7 (N.D. Iowa Apr. 9, 2024) (discussing
caselaw); United States v. Corbett, 718 F. Supp. 3d 537, 561
(S.D.W. Va. 2024) (same); United States v. Buescher, 691
F. Supp. 3d 924, 936–37 (N.D. Iowa 2023) (same).
After reviewing these cases and other relevant
authorities, we conclude that a drug dog’s momentary
22a
breach into the cabin of a vehicle through an open window
of a legally stopped vehicle does not require the
suppression of evidence under either the Fourth
Amendment or article I, section 8. With respect to the
Fourth Amendment, Illinois v. Caballes, 543 U.S. 405
(2005), remains the controlling case. See Bauler, 8 N.W.3d
at 902 (plurality opinion) (explaining that Caballes is
controlling on the Fourth Amendment question). In
Caballes, the Supreme Court held that “[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.” 543 U.S. at 410. We
are bound to follow Caballes.
We are also bound to follow the Supreme Court’s
jurisprudence regarding the federal exclusionary rule. “To
trigger the exclusionary rule, police conduct must be . . .
sufficiently culpable that such deterrence is worth the
price paid by the justice system.” Herring v. United
States, 555 U.S. 135, 144 (2009). The exclusionary rule was
intended to deter “deliberate, reckless, or grossly
negligent conduct.” Id. This case does not involve
deliberate, reckless, or grossly negligent conduct. Here,
the officers used a drug dog to conduct an exterior sniff of
the vehicle, a practice which the Supreme Court explicitly
approved in Caballes. See 543 U.S. at 410. The drug dog’s
fleeting touch of the passenger door and de minimis
intrusion into the vehicle cabin through a window left open
by a passenger does not justify the exclusion of evidence
under the Supreme Court’s Fourth Amendment
jurisprudence. See, e.g., United States v. Lyons, 486 F.3d
367, 373–74 (8th Cir. 2007) (affirming denial of motion to
suppress where K-9 unit breached cabin of vehicle through
open window and there was no evidence that peace officers
23a
opened the window or directed the window to be opened);
Handley, 2024 WL 1536750, at *9 (denying motion to
suppress where K-9’s head entered window and
concluding that suppression was not required because
“this conduct is not culpable enough to trigger the harsh
sanction of exclusion”).
On the state constitutional claim, the de minimis
crossing of the drug dog’s nose into the open window of the
vehicle is of no constitutional import under either of the
rationales that sustained the outcome in Bauler. See
8 N.W.3d at 906 (plurality opinion); id. at 911 (McDonald,
J., concurring specially). The law affords less protection
for intrusion into or upon vehicles on the road than
intrusions into the home. See Kyllo v. United States, 533
U.S. 27, 31 (2001) (“ ‘At the very core’ of the Fourth
Amendment ‘stands the right of a man to retreat into his
own home and there be free from unreasonable
governmental intrusion.’ ” (quoting Silverman v. United
States, 365 U.S. 505, 511 (1961))); California v. Carney,
471 U.S. 386, 393 (1985) (noting a “reduced expectation of
privacy” in vehicles); State v. Reinier, 628 N.W.2d 460, 464
(Iowa 2001) (en banc) (“It is axiomatic that the chief evil
sought to be addressed by the Fourth Amendment was the
physical entry of the home.”). The drug dog’s almost
imperceptible entry into the open window of the vehicle
cabin took place in the open air and did not go beyond the
normal scope of a dog sniff. See Bauler, 8 N.W.3d at 906
(plurality opinion). Nor did it create any further intrusion
into the motorist’s expectation of privacy in the vehicle or
any cognizable legal injury that required the legal
justification of a search warrant. See id. at 911 (McDonald,
J., concurring specially). The Iowa Constitution does not
require the exclusion of evidence obtained as a result of a
24a
fleeting entry of a drug dog’s nose into the open cabin of a
lawfully stopped vehicle.
D.
In sum, Camp had probable cause to initiate a traffic
stop of the vehicle based on his observation of a completed
violation of Iowa Code section 321.38. Upon making that
traffic stop, Camp had continued authority to interact with
Mumford; check for her license, registration, and proof of
insurance; and process a citation or issue a warning. While
Mumford was lawfully detained, Dekker used a drug dog
to conduct a free air sniff around the exterior of the vehicle
without a search warrant, which the Supreme Court and
this court have deemed permissible. Neither the Fourth
Amendment nor article I, section 8 requires the
suppression of evidence obtained as a result of a vehicle
search predicated on probable cause (established by the
drug dog’s alert to the presence of controlled substances),
even where the drug dog fleetingly touched the vehicle and
made a de minimis intrusion into the cabin of the vehicle
through an open window. The district court did not err in
denying Mumford’s motion to suppress evidence.
II.
This case was tried to the district court rather than a
jury. As noted above, the district court acquitted Mumford
of possession of methamphetamine but convicted her of
possession of marijuana and drug paraphernalia.
Mumford challenges the sufficiency of the evidence
supporting her conviction for possession of marijuana.
Mumford does not contest that she was in possession of a
green, leafy substance the officers identified as marijuana.
Instead, she challenges whether there was sufficient
evidence to show the green, leafy substance was in fact
marijuana. She insists the State must introduce evidence
25a
from a laboratory showing that the substance was in fact
marijuana. She believes such evidence is required now
because of recent changes to the law allowing the
possession of hemp.
The primary case on which Mumford relies is State v.
Brubaker, 805 N.W.2d 164 (Iowa 2011), abrogated on other
grounds by State v. Crawford, 972 N.W.2d 189, 197–98
(Iowa 2022). In Brubaker, this court reversed a judgment
for unlawful possession of a prescription drug,
Clonazepam, for want of sufficient evidence of the identity
of the drug. Id. at 174. In that case, the state did not test
the pills found in the defendant’s possession but instead
relied on an expert to compare the pills found in the
defendant’s possession to pictures of Clonazepam. Id. at
172–73. We noted several deficiencies in the state’s case.
The expert did not testify that the pills were in fact
Clonazepam but only that the pills were consistent in
appearance with Clonazepam. See id. at 173–74. However,
the pills bore no distinctive marks and were “similar in
size, shape, and consistency to aspirin and other over-thecounter drugs readily available without a prescription.” Id.
at 173. The pills were found in a generic bottle with “no
label or other indication of the identity of its contents.” Id.
We concluded that “[t]he fact that the pills appear to be
Clonazepam and that the officers found them under the
back seat is insufficient to establish they were, in fact,
Clonazepam.” Id.
Brubaker provides little support for Mumford’s
challenge to the sufficiency of the evidence here. Contra to
Mumford’s contention, Brubaker does not stand for the
proposition that lab testing is always required to establish
the identity of a controlled substance. It merely stands for
the proposition that the state must present sufficient
evidence to establish the identity of a controlled substance,
26a
whether direct or circumstantial. See id. As we explained
in Brubaker, “[w]e have always recognized that, for a
person to be convicted of a drug offense, the State is not
required to test the purported drug.” Id. at 172 (citing In
re C.T., 521 N.W.2d 754, 757 (Iowa 1994)). “The identity of
a substance as an illegal drug may be proved by
circumstantial evidence.” In re C.T., 521 N.W.2d at 757.
“The reason for this rule is that circumstantial evidence is
not inferior to direct evidence.” Brubaker, 805 N.W.2d at
172. In Brubaker, we then identified a variety of
circumstances that would support a finding that a
substance was an illegal drug in the absence of testing,
including “the physical appearance of the substance
involved in the transaction,” “evidence that the substance
was called by the name of the illegal narcotic by the
defendant or others in [her] presence,” and “whether the
known odor of the substance identified it as an illegal
drug.” Id. at 173 (quoting United States v. Dolan, 544 F.2d
1219, 1221 (4th Cir. 1976)). However, those examples
“[were] not exclusive, and the state is not required to prove
all of these circumstances . . . to sustain a conviction.” Id.
Unlike in Brubaker, the State did present sufficient
circumstantial evidence to prove beyond a reasonable
doubt that the substance in Mumford’s possession was
marijuana. Camp testified that he was a certified drug
recognition officer. Mumford stipulated to Camp’s
credentials and qualifications. Camp testified that the
substance found in Mumford’s purse was marijuana. See
State v. Silva, No. 11–1336, 2012 WL 3195994, at *4 (Iowa
Ct. App. Aug. 8, 2012) (holding that evidence was sufficient
to support conviction where officer testified he
“recognized the green leafy substance in the baggie as raw
marijuana”); see also United States v. Durham, 464 F.3d
976, 984–85 (9th Cir. 2006) (holding that the “government
27a
need not introduce scientific evidence to prove the identity
of a substance so long as there is sufficient lay testimony
or circumstantial evidence from which a jury could find
that a substance was identified beyond a reasonable
[doubt]” and collecting cases (alteration in original)); In re
Ondrel M., 918 A.2d 543, 546 n.6 (Md. Ct. Spec. App. 2007)
(stating that “there is authority, from both federal and
state courts, that the testimony of a witness, who is
familiar with marijuana through past experience, that the
substance in question was marijuana, is admissible into
evidence to support a finding that the accused was in
possession of marijuana,” and citing cases). Camp’s
testimony was confirmed in two respects by
contemporaneous bodycam footage. First, the footage
showed, at the time of the search, Camp quickly identified
the green, leafy substance found in Mumford’s purse as
“weed,” a common slang term for marijuana. Second, the
substance itself was clearly visible and had the distinctive
look of marijuana. See Commonwealth v. Wilkins, No. 621
MDA 2013, 2014 WL 11015648, at *4 (Pa. Super. Ct. Jan.
9, 2014) (“[T]he incriminating nature of the marijuana was
immediately apparent.”).
Mumford raises one final contention. She argues that
there is insufficient evidence to support her conviction
because the State failed to disprove the green, leafy
substance found in her purse was legal hemp. We disagree.
Mumford never raised this issue at trial, and, in any case,
“the State is not required to negate any and all rational
hypotheses of the defendant’s innocence.” State v. Jones,
967 N.W.2d 336, 342 (Iowa 2021). A federal circuit court
recently rejected a similar argument:
Contrary to Rivera’s argument, the government
did not need to prove this fact. By excluding hemp from
the definition of marijuana, the Farm Bill carved out
28a
an exception to marijuana offenses: Someone with
cannabis possesses marijuana except if the cannabis
has a THC concentration of 0.3% or less. The
government need not disprove an exception to a
criminal offense unless a defendant produces evidence
to put the exception at issue. Because Rivera did not
put the hemp exception at issue, the government bore
no burden to prove that it was inapplicable. We will
therefore affirm the District Court’s judgment of
conviction.
United States v. Rivera, 74 F.4th 134, 136 (3d Cir. 2023)
(footnote omitted). We agree with the analysis in Rivera.
In a criminal case tried to the district court rather than
a jury, the district court’s “findings of fact have the effect
of a special verdict, see Iowa R. App. P. 6.907, and are
binding on us if supported by substantial evidence.” State
v. Fordyce, 940 N.W.2d 419, 425 (Iowa 2020). In
determining whether there is substantial evidence in
support of the district court’s findings and verdict, “we
view the evidence in the light most favorable to the State.”
Id. Here, when the evidence is viewed in the light most
favorable to the district court’s findings and verdict, there
is substantial evidence supporting Mumford’s conviction
for possession of marijuana.
III.
After the district court issued its findings and verdict,
Mumford filed a motion in arrest of judgment. Her motion
in arrest of judgment challenged the sufficiency of the
evidence supporting her conviction for possession of
marijuana on the same grounds discussed above. The
district court denied the motion. Mumford contends the
district court erred or abused its discretion in denying
Mumford’s motion in arrest of judgment. We disagree.
29a
“A motion in arrest of judgment may not be used to
challenge the sufficiency of evidence.” State v. Dallen, 452
N.W.2d 398, 399 (Iowa 1990); see also State v. Oldfather,
306 N.W.2d 760, 762 (Iowa 1981) (stating that a motion in
arrest of judgment cannot be used to challenge the
sufficiency of the evidence); State v. Moore, No. 18–0755,
2019 WL 1486604, at *3 n.7 (Iowa Ct. App. Apr. 3, 2019)
(“Iowa Rule of Criminal Procedure 2.24(3) does not permit
a challenge to the sufficiency of the evidence in a motion in
arrest of judgment.”); State v. Wetter, No. 17–1418, 2018
WL 5839941, at *1 n.2 (Iowa Ct. App. Nov. 7, 2018) (“A
motion in arrest of judgment may not be used to challenge
the sufficiency of evidence.” (quoting Oldfather, 306
N.W.2d at 762)); State v. Howard, No. 16–1990, 2017 WL
4049524, at *3 n.3 (Iowa Ct. App. Sept. 13, 2017) (stating
the same). Accordingly, the district court did not err in
denying the motion in arrest of judgment.
IV.
The district court did not err in denying Mumford’s
motion to suppress evidence. The evidence, when viewed
in the light most favorable to the district court’s verdict, is
sufficient to establish Mumford was in possession of
marijuana. The district court did not err in denying
Mumford’s motion in arrest of judgment challenging the
sufficiency of the evidence.
Affirmed.
Christensen, C.J., and Waterman, Mansfield, and May,
JJ., join this opinion. Oxley, J., files a dissenting opinion,
in which McDermott, J., joins. McDermott, J., files a
dissenting opinion.
30a
#23–1075, State v. Mumford
Oxley, Justice (dissenting).
The majority continues to hide behind Illinois v.
Caballes, 543 U.S. 405, 409 (2005), even though its Katzbased holding “is irrelevant to” a property-based Fourth
Amendment challenge. State v. Bauler, 8 N.W.3d 892, 913
(Iowa 2024) (Oxley, J., dissenting); see also Florida v.
Jardines, 569 U.S. 1, 11 (2013) (“The Katz reasonableexpectations test . . . is unnecessary to consider when the
government gains evidence by physically intruding on
constitutionally protected areas.”); United States v. Jones,
565 U.S. 400, 409 (2012) (“[T]he Katz reasonableexpectation-of-privacy test has been added to, not
substituted for, the common-law trespassory test.”
(alteration in original)).
Caballes has even less to say in this case where Orozco,
the drug dog, did not alert until after breaking the plane
of the passenger window and putting his nose inside the
vehicle. See State v. Randall, 496 P.3d 844, 853 (Idaho
2021) (“Though the Supreme Court has not directly
addressed the question, Jones and Jardines make clear
that a drug dog’s trespass into a car during an exterior
sniff converts what would be a non-search under Caballes
into a search.”). Caballes did not involve the interior of a
vehicle. Rather, it merely approved of a “free air sniff,”
which the Supreme Court has described as “an exterior
sniff of an automobile [that] does not require entry into the
car,” where the dog “simply walks around a car.” City of
Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (emphasis
added) (describing a free air sniff used at a checkpoint
found to be unconstitutional); see also State v. Bergmann,
633 N.W.2d 328, 334–35 (Iowa 2001) (“[W]e are persuaded
by the following long-standing viewpoint. ‘Having the
31a
trained dog sniff the perimeter of [defendant’s] vehicle . . .
did not of itself constitute a search.’ ‘[T]he airspace around
the car is not an area protected by the Fourth
Amendment.’ ” (second and third alteration in original)
(emphasis added) (first quoting United States v. Jeffus, 22
F.3d 554, 557 (4th Cir. 1994); and then quoting Casey v.
State, 542 S.E.2d 531, 535 (Ga. Ct. App. 2000))).
Even the State recognizes that this appeal “presents a
distinct ‘interior sniff’ component of . . . Fourth
Amendment jurisprudence.” Nonetheless, the majority
refuses to address the distinction between the interior and
exterior of a vehicle. I respectfully dissent from its
conclusion that Mumford’s Fourth Amendment rights
were not violated.
I.
In State v. Bauler, a majority of our court concluded
that a drug dog’s “[m]inimal contact with the exterior of a
vehicle” does not violate the Fourth Amendment.
8 N.W.3d at 900 (plurality opinion); id. at 913 (McDonald,
J., concurring specially). The plurality explicitly
conditioned its Fourth Amendment holding: “so long as
there was no entry into the private space inside the
vehicle.” Id. at 895. Faced with that exact scenario here,
the majority now dismisses the property-based challenge
by characterizing the drug dog’s actions as involving an
“almost imperceptible entry into the open window of the
vehicle.”
But that distinction is critical in Fourth Amendment
jurisprudence. “The inside of a car . . . is typically a
different story. Police ordinarily cannot search the interior
of an automobile unless they have probable cause to
believe that the vehicle contains contraband or other
evidence of a crime.” United States v. Pulido-Ayala, 892
F.3d 315, 317–19 (8th Cir. 2018) (concluding that probable
32a
cause to search the vehicle existed “before the [drug] dog
entered the interior” based on the drug dog “immediately”
pulling the canine officer toward the open passenger door
such that there was no unlawful search when the dog
jumped into the defendant’s vehicle); see also United
States v. Ngumezi, 980 F.3d 1285, 1289 (9th Cir. 2020)
(“Although the intrusion here may have been modest, the
Supreme Court has never suggested that the magnitude
of a physical intrusion is relevant to the Fourth
Amendment analysis. . . . [W]e apply a bright-line rule that
opening a door and entering the interior space of a vehicle
constitutes a Fourth Amendment search.”).
Rather than tackle that question, the majority here
continues to hide behind Caballes even where federal
courts do not. See, e.g., United States v. Newberry, No. 24–
CR–1026–LTS, 2024 WL 4590159, at *13–17 (N.D. Iowa
Oct. 28, 2024) (finding that “the Government conducted a
warrantless and unreasonable search of Defendant’s
vehicle” when a drug dog’s nose and head entered the open
driver’s window); United States v. Handley, No. 23–CR–
57–CJW–MAR, 2024 WL 1536750, at *6–7 (N.D. Iowa
Apr. 9, 2024) (concluding that the defendant’s Fourth
Amendment rights were violated when a drug dog stuck
its nose inside a vehicle—breaking the plane of the driver’s
window by four to six inches—before alerting, and noting
the “important distinction between cases where the
government has probable cause to search a vehicle before
a dog enters the interior of a vehicle, based on the dog’s
strong reactions while outside the vehicle, and cases where
the dog gives no strong reaction or final indication until
after entering the interior of the vehicle,” as discussed by
the Eighth Circuit in Pulido-Ayala); United States v.
Buescher, 691 F. Supp. 3d 924, 936 (N.D. Iowa 2023)
(“While some courts have found no Fourth Amendment
33a
violation when a drug-sniffing dog breaks the plane of an
open window, those decisions were largely prior to Jones
and Jardines.”); United States v. Joshua, 564 F. Supp. 3d
860, 877 (D. Alaska 2021) (“[The] K-9 put her paws inside
the door of the Porsche and extended the upper half of her
body into the vehicle. The K-9 then alerted to the scent of
controlled substances. The search exceeded the scope of a
Terry stop and amounted to an illegal search.”); see also
Randall, 496 P.3d at 856 (“[T]hough 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.”); State v. Organ, 697 S.W.3d 916, 919–21 (Tex.
App. 2024) (holding that a drug dog’s “interior sniff of
[defendant’s] car violated [his] Fourth Amendment rights”
under a physical-intrusion analysis after recognizing that
the “six federal appellate courts” that had “concluded that
a dog’s entry into a vehicle . . . did not implicate the Fourth
Amendment” were either “decided before or did not
discuss” Jones and Jardines); State v. Campbell, 5 N.W.3d
870, 876–79 (Wis. Ct. App. 2024) (applying Jones and
Jardines to conclude that the defendant “had a property
interest in the interior of her vehicle under the commonlaw trespassory test” and that her Fourth Amendment
rights were violated when a drug dog alerted after
entering her vehicle despite the Wisconsin Supreme
Court’s prior reliance on Caballes to conclude that an
occupant of a vehicle has no expectation of privacy in the
air space around a vehicle).
That Orozco’s entry inside the vehicle here was “almost
imperceptible” is of no moment. See State v. Wright, 961
N.W.2d 396, 413–14 (Iowa 2021) (“A constitutional search
occurs whenever the government commits a physical
trespass against property, even where de minimis,
conjoined with ‘an attempt to find something or to obtain
34a
information.’ ” (quoting Jones, 565 U.S. at 408 n.5)). Officer
Dekker testified that the drug dog’s “nose went inside the
vehicle . . . through an open window” on the passenger
side, a point the State concedes on appeal. As the majority
notes, it was not until “[a]fter the dog’s nose entered the
vehicle[ that] the dog alerted to the presence of controlled
substances.” Officer Dekker could not have stuck his own
head into the interior space of Mumford’s vehicle to smell
for drugs without violating the Fourth Amendment. See,
e.g., United States v. Montes-Ramos, 347 F. App’x 383, 388
(10th Cir. 2009) (holding that a police officer who leaned
his head approximately two inches into the defendant’s car
and sniffed for marijuana engaged in a search even if it
was minimal because “[t]he fact that the intrusion was
minimal does not affect the analysis”); United States v.
Ryles, 988 F.2d 13, 15 (5th Cir. 1993) (holding that an
officer who “pierced the airspace inside the vehicle” when
he leaned inside an open window and smelled burnt
marijuana engaged in a search for Fourth Amendment
purposes); Buescher, 691 F. Supp. 3d at 939 (“Kerr himself
would not have been constitutionally permitted to enter
the vehicle without a warrant. Similarly, K-9 Gus’ entry
into the open window was a trespass with an intent to
obtain information.” (citation omitted)); United States v.
Francisco Estrella, 2021 WL 413513, at *13 (D. Conn. Feb.
5, 2021) (“Putting [the officer’s] hand and arm inside Mr.
Francisco-Estrella’s vehicle to photograph its contents is
no different than an officer putting his head inside a
vehicle to smell its contents.”); see also State v. Petersen,
994 N.W.2d 410, 416 (N.D. 2023) (holding that the officer
engaged in an unreasonable search under the Fourth
Amendment by “opening the semi door and stepping onto
the running boards,” where, “[f]rom this unlawful
intrusion into Petersen’s vehicle, the officers were able to
obtain information they would not otherwise have been
35a
able to obtain, such as the odor of alcohol emanating from
Petersen and his bloodshot watery eyes”); cf. United
States v. Aguirre, No. 1:23–CR–00187–DCN, 2024 WL
4434281, at *7 (D. Idaho Oct. 7, 2024) (concluding that a
vehicle search was reasonable and constitutionally
permissible because the officer did not break the plane of
the car’s interior and recognizing a distinction between an
exterior search of a vehicle and “entering the interior
space of a vehicle” as discussed by the Ninth Circuit in
Ngumezi (emphasis omitted)). Orozco, as Officer Dekker’s
instrumentality, could not do what the officer could not do
himself. See Pulido-Ayala, 892 F.3d at 318 (“A drug dog is
an instrumentality of the police . . . .”).
II.
Nor is this a case where the drug dog’s actions could be
considered “instinctual,” to the extent that distinction
matters. See Randall, 496 P.3d at 853–55 (discussing cases
distinguishing between a drug dog being encouraged to
enter a vehicle and instinctually doing so and holding “that
[the drug dog’s] motivation, instinctual or otherwise, is
irrelevant[ because t]he proper inquiry is whether [the
officer] had probable cause to believe illegal drugs were in
[the defendant’s] car before [the drug dog] jumped
through the window”). Officer Dekker gave Orozco a
trained command to conduct a “scan search”—i.e., Officer
Dekker encouraged the dog to search the entire vehicle,
giving it full range to search Mumford’s vehicle, including
by jumping up on both sides of the vehicle and sticking its
head into the open window as it was trained to do in
performing a scan search. Indeed, while actively engaged
in that pursuit, Orozco exhibited a “high final” alert in this
case by “stand[ing] high and look[ing] at” Officer Dekker
immediately after sticking his nose through the window
36a
and while his feet were still on the side of the car. Orozco
did as he was trained to do.
III.
Finally, the majority ducks the hard work by
suggesting we are bound by the federal exclusionary rule
in any event. But exclusion is proper under federal law if
the drug dog acted on its training, as happened here. See
Handley, 2024 WL 1536750, at *9 (distinguishing
Buescher, which excluded evidence obtained following the
dog’s entry into the vehicle, on the basis that “the drugsniffing dog in that case was trained to enter the open
windows of vehicles”); see also Jardines, 569 U.S. at 5
(affirming the Florida Supreme Court’s exclusion of
evidence obtained by warrant determined to be invalid
because it was based on a drug dog’s alert at the
defendant’s front door, in violation of the Fourth
Amendment). It is not a basis for avoiding the Fourth
Amendment analysis.
I would hold that Mumford’s Fourth Amendment
rights were violated and that the district court erred in
denying her motion to suppress evidence obtained
following the drug dog’s alert.
McDermott, J., joins this dissent.
#23–1075, State v. Mumford
McDermott, Justice (dissenting).
Mumford argues that her search-and-seizure
protections under both the United States Constitution and
the Iowa Constitution were violated when a police dog
climbed onto the side of her vehicle and thrust its head into
the passenger compartment to sniff for drugs. On the
37a
challenge under the federal constitution, I join Justice
Oxley’s dissent and would hold that the search violated the
Fourth Amendment. On the challenge under our state
constitution, which Justice Oxley does not address, I would
hold that the search also violated article I, section 8 of the
Iowa Constitution.
We interpret the Iowa Constitution independent of the
Supreme Court’s interpretation of the United States
Constitution, even when provisions of the two
constitutions contain nearly identical language. State v.
Brown, 890 N.W.2d 315, 322 (Iowa 2017). As a result,
provisions in the Iowa Constitution may offer greater or
lesser protection than comparable provisions in the United
States Constitution. State v. Wright, 961 N.W.2d 396, 403–
04 (Iowa 2021). On questions involving the Iowa
Constitution, the supreme court in Iowa, not Washington,
has the final word on its interpretation. See McClure v.
Owen, 26 Iowa 243, 249 (1868).
Article I, section 8 of the Iowa Constitution states:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable
seizures and searches shall not be violated; and no
warrant shall issue but on probable cause, supported
by oath or affirmation, particularly describing the
place to be searched, and the persons and things to be
seized.
This language divides the analysis into four questions:
(1) Is the subject of the alleged intrusion a person, house,
paper, or effect? (2) If so, was it searched or seized? (3) If
so, was it the defendant’s (“their”) person, house, paper, or
effect? (4) If so, was the search or seizure unreasonable?
See Orin S. Kerr, Katz as Originalism, 71 Duke L.J. 1047,
1052 (2022).
38a
In State v. Wright, we examined whether the police
officer’s conduct in accessing the defendant’s trash bin
violated positive law—meaning some existing enacted law
or legal doctrine recognized by courts—to determine
whether the officer infringed the defendant’s rights under
article I, section 8. 961 N.W.2d at 416–17. A municipal
ordinance made it a crime for anyone other than a licensed
trash collector to access a trash bin set out for collection.
Id. at 417. In our analysis of the reasonableness of the
search, we considered whether the existence of the
ordinance meant that the officer had committed a trespass
when he accessed the trash bin on the defendant’s
property without a warrant. Id. at 416. People may
reasonably expect that an officer will not engage in
conduct that is “unlawful, tortious, or otherwise
prohibited” regarding their “persons, houses, papers and
effects.” Id.; Iowa Const. art. I, § 8. We thus held that the
officer violated the defendant’s reasonable expectation of
privacy when the officer committed a trespass to access
the trash bin. Wright, 961 N.W.2d at 419.
The appeal in this case comes on the heels of another
case in which we analyzed whether a vehicle search
involving a police dog violated the Iowa Constitution. In
State v. Bauler, a split majority of our court found no
violation of article I, section 8 despite the officer enabling
the police dog to climb with its front two paws onto the
vehicle’s side paneling to sniff for drugs. 8 N.W.3d 892,
902–07 (Iowa 2024) (plurality opinion). A three-justice
plurality contended that our holding in Wright did not
apply to “dog sniff” cases at all, which the plurality deemed
“sui generis” because a drug dog detects only contraband.
Id. at 906. Three other justices, in a special concurrence,
accused the plurality of trying “to walk back this court’s
analysis in Wright.” Id. at 909 (McDonald, J., concurring
39a
specially). These specially concurring justices applied
Wright’s analysis but concluded that the police dog’s climb
onto the side of the vehicle was nonetheless constitutional.
Id. at 912–13.
I dissented in Bauler, having concluded both that
Wright’s analysis applies to vehicle searches and that the
officer’s conduct permitting the police dog to climb onto
the side of the vehicle to sniff constituted a physical
trespass that made the search unconstitutional. Id. at 924
(McDermott, J., dissenting). Under the common law, a
person commits a “trespass to chattel” when the person
unlawfully “intermeddles” with another’s personal
property. See Restatement (Second) of Torts § 217 cmt. e,
at 417, 419 (Am. L. Inst. 1965). To “intermeddle” with
another’s personal property is to “intentionally bring[]
about a physical contact” with the property. Id. at 417.
When the officer guided the police dog to climb up onto the
side of the vehicle, the officer “intermeddled” with
Bauler’s personal property and thus committed a trespass.
See State v. Dorff, 526 P.3d 988, 997–98 (Idaho 2023).
Whether the property owner could or would sue for the
trespass is immaterial for purposes of determining the
relative rights of the parties under article I, section 8. See
id. at 996. The trespass on Bauler’s “effect” (the vehicle)
violated a reasonable expectation of privacy. See Bauler,
8 N.W.3d at 927 (McDermott, J., dissenting).
Because the officer in Bauler had no warrant, and no
recognized exception to the warrant requirement applied,
I would have held that the district court erred in failing to
exclude the fruits of the improper search under the Iowa
Constitution. Although the three-justice plurality in
Bauler disagreed about whether Wright applied, it agreed
with this trespass analysis and what it would mean in the
40a
case, concluding that “[i]f Wright is applied, the dog sniff
here does not survive.” Id. at 905–06 (plurality opinion).
The analytical groupings in Bauler are worth
highlighting. Four justices (the three-justice plurality and
me) concluded that if Wright’s property-rights-based
analysis applied to dog-sniff cases, then the police dog’s
climb onto the side of the vehicle constituted a trespass.
Id.; id. at 926–27 (McDermott, J., dissenting). Four
justices (the three specially concurring justices and me)
concluded that Wright’s analysis did in fact apply to the
case. Id. at 909 (McDonald, J., concurring specially)
(“Wright is a controlling framework for evaluating claims
arising under article I, section 8 . . . .”); id. at 926
(McDermott, J., dissenting). This means, curiously, that
numerical majorities on this court would have concluded
that Wright applied and that the State violated Bauler’s
search-and-seizure protections under Wright.
The facts in this case are materially identical to
Bauler—only more egregious. We left open the question
in Bauler about “whether a dog sniff wherein a dog has
been previously trained to put its head inside the car and
in fact does so has violate[d] the Fourth Amendment or
article I, section 8.” Id. at 907 n.8 (plurality opinion). In
this case, we now have the police dog not only climbing up
and placing its paws on the vehicle, but a step beyond, with
the dog also plunging its head through the open window
and into the passenger compartment.
The majority finds all this climbing, pawing, and
plunging by police dogs onto and into cars “of no
constitutional import.” I doubt many car owners would
agree. The sight of a dog propped up on the side of one’s
car, literally pawing its panels to gain position as it noses
the car’s crevices and crannies, presents an alarming
picture. More importantly, it constitutes an illegal
41a
trespass. That trespass expands further when a police dog
also thrusts its head into the passenger compartment.
Until today, we had only sanctioned a police dog’s sniffs of
the free air outside a vehicle. See State v. Bergmann, 633
N.W.2d 328, 334–35 (Iowa 2001). The air inside a vehicle’s
cabin is in no sense “free” air—a point made obvious when
a police dog needs to insert its head into the cabin to take
it in. Despite the majority’s repeated attempts to minimize
the intrusive conduct here, most drivers, I suspect, would
find the prospect of a police dog with its paws up on their
door panel and its snout in their passenger compartment
a significant, distressing, and embarrassing invasion.
Equally worrisome, in pondering the majority’s
approval today of this further incursion on the rights of
citizens in vehicles, I struggle to find any limiting
principle. May a police dog climb completely onto the hood
or trunk or roof on all four legs to sniff about? Or, to twist
the line in George Orwell’s Animal Farm, are two legs
good but four legs bad? On what rationale would such a
distinction rest after today? And may police now direct
their dogs to climb completely inside the passenger
compartment too? On this question, if a police dog’s actual
searching tool—its nose—presents no constitutional
problem inside a car, why would the rest of its body?
Having now approved as constitutional what four justices
of this court would agree is in fact a trespass, I fail to see
how the court in a future case draws any line to find police
dog searches involving a vehicle unconstitutional.
But unconstitutional it certainly is. The target of the
search—Mumford’s car—is an “effect.” See United States
v. Jones, 565 U.S. 400, 404 (2012) (“It is beyond dispute
that a vehicle is an ‘effect’ as that term is used” in our
search-and-seizure cases). The officer conducted a
“search” of the car when he directed the dog to sniff for
42a
drugs. See Wright, 961 N.W.2d at 413 (defining a “search”
as “an examination conducted for the ‘purpose of
discovering proof of . . . guilt in relation to some crime.’ ”
(quoting 2 John Bouvier, A Law Dictionary 498 (3d ed.
1848))). The search was unreasonable because the officer
committed a common law trespass to personal property.
As we held in Wright, citizens may reasonably expect that
an officer will not engage in conduct that is “unlawful,
tortious, or otherwise prohibited” when conducting a
warrantless investigation. 961 N.W.2d at 416.
The majority contends that even if the State violated
the Fourth Amendment in conducting the search of
Mumford’s vehicle, the evidence would still come in
because the officer acted in good faith. I join Justice
Oxley’s view on the good-faith exception’s applicability in
this case under the Fourth Amendment. But no matter
what the result under the Fourth Amendment, the goodfaith exception clearly has no bearing on Mumford’s
challenge under article I, section 8. We do not recognize
such an exception under the Iowa Constitution. State v.
Cline, 617 N.W.2d 277, 293 (Iowa 2000) (en banc)
(declining to adopt a good-faith exception to the
exclusionary rule for unconstitutional searches because
“[t]o do so would elevate the goals of law enforcement
above our citizens’ constitutional rights”), abrogated on
other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2
(Iowa 2001).
I thus respectfully dissent and would hold that the
officer’s actions violated the search-and-seizure
protections of both the Fourth Amendment to the United
States Constitution and article I, section 8 of the Iowa
Constitution, and that the district court erred in failing to
suppress the fruits of the unlawful search accordingly.
43a
APPENDIX C
44a
IN THE IOWA DISTRICT COURT
FOR MADISON COUNTY
STATE OF IOWA
Plaintiff,
vs.
ASHLEE MARIE
MUMFORD
Defendant.
CRIMINAL NO.
SRCR109847, SMAC005298
JUDGMENT AND
SENTENCE
COUNT II & SMAC
On this 9th day of June 2023, the parties appear for a
sentencing hearing in the above captioned matter. The
State appears by Sierra Iversen, Assistant Madison
County Attorney. The Defendant appears with her
attorney, Colin Murphy.
A bench trial was held on March 27, 2023. A Verdict
was given on April 24, 2023. The verdict was as follows:
-SRCR Count 1: The Court finds the defendant not
guilty of Possession of Methamphetamine.
-SRCR Count 2: The Court finds the defendant guilty
of Possession of Marijuana.
-SMAC: The Court finds the defendant guilty of
Possession of Drug Paraphernalia
No legal cause has been shown to prevent sentencing
on this date.
COUNT II
IT IS THE JUDGMENT AND SENTENCE OF
THIS COURT that the Defendant is Convicted
Possession of Marijuana a Schedule I Controlled
Substance, First Offense, in violation of Iowa Code
45a
124.401(5)(b),
ORDERED:
a
Serious
Misdemeanor.
It
is
so
1. Defendant shall be confined to the County Jail for
a term of 180 days. Defendant’s sentence is hereby
suspended.
2. Defendant is placed on probation for a period of one
(1) year. Defendant’s probation is to be supervised
by the 5th Judicial District Department of
Correctional Services. Defendant shall appear
before a probation supervisor within 72 hours of the
filing of this Judgment and Sentence. The
probation office can be reached at phone
number: 515-993-4632. The terms of the
Defendant’s probation shall be that the Defendant
obey all federal, state and local laws, ordinances
and regulations; Defendant shall pay a supervision
fee of $300.00; Defendant shall comply with the
terms of this order; Defendant shall maintain fulltime employment or education as approved by the
probation officer; and Defendant shall comply with
such reasonable rules and regulations as the
Department shall prescribe.
3. Defendant shall participate in a substance abuse
evaluation and follow any and all recommendation
of said evaluation.
4. If the Defendant has not already been
fingerprinted, they shall report to the Madison
County Sheriff for fingerprinting pursuant to Iowa
Code section 690.2 within 30 days.
46a
5. Defendant shall:
a. Pay full restitution in this cause. The State has
30 days from the date of this order to file a
statement of pecuniary damages.
b. Pay restitution for all costs and fees incurred
for legal assistance pursuant to Section 815.9.
c. Pay restitution for all correctional
pursuant to Iowa Code Section 256.7.
fees
d. Pay all court costs.
SMAC005298
IT IS THE JUDGMENT AND SENTENCE OF
THIS COURT that the Defendant is Convicted
Possession of Paraphernalia in violation of Iowa Code
124.414, a Simple Misdemeanor. It is so ORDERED:
1. Defendant shall pay a fine of $105.00 with a 15%
criminal surcharge.
2. Defendant shall:
a. Pay full restitution in this cause. The State has
30 days from the date of this order to file a
statement of pecuniary damages.
b. Pay restitution for all costs and fees incurred
for legal assistance pursuant to Section 815.9.
c. Pay restitution for all correctional
pursuant to Iowa Code Section 256.7.
fees
d. Pay all court costs
CATEGORY B RESTITUTION AND REASONABLE
ABILITY TO PAY ANALYSIS
Iowa law separates restitution into three categories.
Victim Pecuniary Damages includes the damages done
47a
to a victim in the course of a crime as set out in Iowa Code
§ 910.1(3). Category A Restitution includes fines,
surcharges and penalties. Defendant must pay all Victim
Pecuniary Damages and Category A Restitution and
that duty is not subject to a reasonable ability to pay
analysis.
Category B Restitution includes court costs
(including correctional fees approved pursuant to Iowa
Code §356.7(2)(i)), crime victim assistance program
reimbursement, expenses incurred by public agencies
under Iowa Code §321J.2(13)(b), medical assistance
program restitution pursuant to Iowa Code chapter 249A,
contributions to a local anti-crime organization and legal
assistance fees, (including the expense of a public
defender) pursuant to Iowa Code §815.9.
According to Iowa Code §910.2A, Defendant is
presumed to have the reasonable ability to pay all
Category B Restitution and is therefore ordered to pay
all Category B Restitution. Defendant can challenge the
obligation to pay Category B Restitution by filing a
motion within 30 days of this order stating that defendant
does not have a reasonable ability to pay Category B
Restitution. The motion must be accompanied by a
financial affidavit which must also be served on the
prosecutor. Defendant must prove that defendant does not
have a reasonable ability to pay Category B Restitution
or the court cannot legally reduce the order to pay such
fees. Failure to file a motion or a financial affidavit waives
any claim of an inability to pay Category B Restitution.
“Financial affidavit” means a signed affidavit sworn
under penalty of perjury that provides specific financial
information about Defendant to enable the sentencing
court to determine defendant’s reasonable ability to pay
Category B Restitution. The affidavit form applying for
48a
court-appointed counsel is not sufficient for purposes of
determining reasonable ability to pay.
IT IS FURTHER ORDERED:
Defendant is advised of the right to appeal this
judgment and sentence and of the right to apply for
appointment of appellate counsel and the furnishing of a
transcript if unable to pay the appeal costs. Defendant is
also advised of the necessity to comply with the statutory
requirements in filing a notice of appeal.
Defendant’s appearance bond is released, and surety is
exonerated. Defendant’s appeal bond is fixed at $1000.
Copies to:
Prosecuting Attorney
Defendant’s Attorney
Defendant
CLERK OF DISTRICT COURT
STATE OF IOWA
State of Iowa Courts
Case Number Case Title
SRCR109847 STATE OF IOWA VS MUMFORD,
ASHLEE MARIE
Type:
ORDER OF DISPOSITION
So Ordered
/s/ Erica Crisp
Erica Crisp,
District Associate Judge
Fifth Judicial District of Iowa
Electronically signed on 2023-06-09 15:30:57
49a
APPENDIX D
50a
IN THE IOWA DISTRICT COURT
FOR MADISON COUNTY
STATE OF IOWA,
Plaintiff,
vs.
ASHLEE M.
MUMFORD
and
SHANE WELLS,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case Nos.: SRCR109847
AGCR109846
TRANSCRIPT OF
PROCEEDINGS
MOTION TO SUPPRESS
The above-entitled matter came on for Motion to
Suppress hearing before the Honorable Kevin Parker
commencing at 1:52 p.m. on the 6th day of June, 2022, at
the Madison County Courthouse, Winterset, Iowa.
REPORTED BY: Tonya A. Kain, CSR
[2]
APPEARANCES
For the State:
SIERRA IVERSEN, Assistant Madison County
Attorney,
112 South John Wayne Drive, Winterset, Iowa.
For the Defendant Ashlee Mumford:
COLIN MURPHY, Attorney at Law,
440 Fairway, Suite 210, West Des Moines, Iowa.
For the Defendant Shane Wells:
MICHAEL RUSSEL, Attorney at Law,
P.O. Box 286, Winterset, Iowa.
51a
* * *
[4]
PROCEEDINGS
(Hearing commenced at 1:52 p.m. on June 6, 2022, with
the Court, Counsel, and the defendants present.)
THE COURT: For the record, this is the State of Iowa
versus Ashlee Mumford, SRCR109847; and the State of
Iowa versus Shane Wells, AGCR109846. Ms. Mumford is
present with her attorney, Colin Murphy. Present with
Mr. Wells is Mike Russell. The State is represented by
Sierra Iversen.
The Court’s understanding is that both defendants
have filed Motions to Suppress in this matter; hearings
were combined and scheduled for today.
* * *
[5]
MS. IVERSEN: Some light reading.
At this time, the State would like to proceed with
calling their first witness, Logan Camp.
THE COURT: Officer Camp, want to come forward,
please. Here’s the witness stand. It’s kind of cramped in
there, but -- and could you please face me and raise your
right hand.
WHEREUPON
LOGAN CAMP,
called as a witness on behalf of the State, being first duly
sworn by the Court, was examined and testified as
follows:
THE COURT: Go ahead and have a seat, please.
52a
DIRECT EXAMINATION
BY MS. IVERSEN:
Q.
Can you please state your name and spell it for the
record.
A.
Logan Camp. L-o-g-a-n. C-a-m-p.
Q.
And what is your occupation?
A.
I’m a police officer.
* * *
[26]
CROSS-EXAMINATION
BY MR. RUSSELL:
Q.
* * *
[44]
And you’re not claiming that you smelled any
marijuana or anything like that when you
[45]
opened the -- or when the -- Ms. Mumford opened the
door --
A.
No.
Q.
-- and you can access the air inside the cabin?
A.
I never smelled any marijuana, no.
Q.
So it was just this rapidly shaking leg that kind of
gave you pause?
A.
It’s a nervous indicator, yeah.
* * *
[56]
MS. IVERSEN: At this time, the State calls Officer
Christian Dekker.
53a
THE COURT: Would you please raise your right hand.
WHEREUPON
CHRISTIAN DEKKER,
called as a witness on behalf of the State, being first duly
sworn by the Court, was examined and testified as follows:
THE COURT: Go ahead and have a seat, please.
DIRECT EXAMINATION
BY MS. IVERSEN:
Q.
Can you please state your name and spell it for the
record.
A.
Officer Christian Dekker. Last name is D-e-k-k-e-r.
Q.
All right. And what is your occupation?
A.
I’m a patrol officer with the City of Winterset.
* * *
[58]
Q.
All right. What’s the name of your canine?
A.
His name is Orozco.
Q.
Orozco. And is Orozco a certified canine?
A.
Yes, he is.
Q.
Can you explain to the Court what the training for a
certified canine is?
A.
So Orozco originated in Holland. He came to the
master trainer around the 18-month mark, I believe.
He was trained stateside by Canine Tactical down in
Chariton, Iowa. From there he was actually the
Madison County’s canine first and then was
transferred over to me when his prior handler left for
a different department.
54a
So then for me, I went through a six-week handler
school with him, and then I’ve been paired with him
for almost 18 months at this point.
* * *
[60]
Q.
All right. So were the defendants removed from the
vehicle prior to the dog being deployed?
A.
Yes, they were.
Q.
All right. And can you explain to the Court how an
open air sniff is conducted?
A.
So typically I would remove defendants -- or excuse
me -- anybody from the vehicle -- whether they’re
defendants later on or not, remove them from the
vehicle. Due to him being a dual purpose canine, he’s
also cross-trained in apprehension of people inside of
vehicles, so for their safety we remove them from
that vehicle.
From there, I would go retrieve the canine, bring him
up, make sure that the people that have been
removed from the vehicle are a safe distance away,
and we get an open air sniff of the vehicle, which is
essentially just me bringing the dog around the
vehicle as he searches the vehicle -- the outside of the
vehicle.
Q.
All right. And did your canine alert to this vehicle?
A.
Yes, he did.
Q.
Okay. And did your canine at any time during this
open air sniff enter into the vehicle?
[61]
A.
I believe his nose went inside the vehicle, yes,
55a
through an open window that the passenger had left
open.
Q.
So you did not open the window for the dog?
A.
No, I did not.
Q.
And did you direct or tell your canine to put their
head through the window?
A.
No, I did not. It was a -- what we consider -- trying to
think of the word right now. I’m sorry.
It wasn’t a detailed search. What a detailed search
would be is I lead him along the vehicle and tell him
where to search. It was a scan search, so basically I’m
just telling him to hunt the vehicle. The command is
such. So as soon as he hears such, he hunts what is in
front of him.
Q.
Okay. And did you -- so you didn’t tell your canine to
put their head through the window at all?
A.
No, I did not.
Q.
And you didn’t encourage your canine to jump onto
the vehicle?
A.
No, I did not.
* * *
[64]
CROSS-EXAMINATION
BY MR. MURPHY:
Q.
* * *
[75]
So when you decide to deploy him, is there a pattern
that you follow with regard to where you start on the
car and where you intend to end up and whether it’s
clockwise or counterclockwise, things like that?
56a
A.
We train all ways and train from different starting
positions. However, typically on the side of the road,
I normally start at the driver’s side front just simply
because as we’re working, I still have peripheral
vision that I
[76]
can see any traffic that might be coming onto us for
safety reasons or if he tries to bell out, that I can pull
him off of the bell out so that he doesn’t run out into
traffic.
So typically I work driver’s side down, across the
rear, up the passenger side, across the front.
Q.
So you start him on the driver’s side door up near the
driver’s front of the bumper?
A.
Correct. Yeah. Towards the front quarter panel of
the vehicle.
Q.
When I watch the video of the first pass by the dog, I
can see the dog jump onto the driver’s side of the car
--
A.
Yep.
Q.
-- and make physical contact with the door. Do you
recall that?
A.
I don’t recall it on this one, but it’s something, yes, he
will commonly do. That’s how he tries to get high.
He’s not of tall stature like I am, so he has to come up
to his hind legs to reach something at a higher level.
Q.
The driver’s side window was rolled up?
A.
I believe so. I think, if I remember correctly, it was
not operational, but . . .
57a
[77]
Q.
So if you wanted him to observe the vehicle from this
higher vantage point, placing his paws on the driver's
side door, you allow that to happen?
A.
Yes. He’s on his own to search that vehicle.
Q.
He’s on his own, but you have the other end of the
leash; correct?
A.
On a deader ring, yes. A non-correctional ring.
Q.
So if I shorten that leash up -- or if you shorten that
leash up, you could prevent the dog from making
physical contact with the car?
A.
Potentially, yes. However, I’ve told him to hunt this,
so he’s freely to hunt it.
Q.
And -- so by giving him the command to hunt and not
restricting him, would you agree with me that you’re
encouraging the dog to make physical contact with
the car with its paws?
A.
Not encouraging it, no. You can -- that would be a
question for Orozco, to ask him why he does that.
Q.
Well, I can’t ask Orozco that.
A.
Correct. But I can’t answer for why he jumps on cars.
[78]
Q.
Okay. How about answering for why you allow him to
jump on the car. If Orozco is trained to check out
these higher areas and you give him enough leash to
do that and you give him the search command, the
dog’s going to jump on the car?
A.
Potentially, yes, because he’s taught to search the
entire -- the entirety of the car. Because the
58a
retrospect of it is, is that if I correct him off of it, then
I have an attorney sitting here across from me telling
me that I told him to indicate at that point in time. So
I let him freely search the entire vehicle on his own.
Q.
But when we talk about free air sniff, that’s searching
the air that’s emanating from the vehicle based on
wind or whatever; correct?
A.
It’s searching the exterior of the vehicle and as -- yes,
potentially as the wind comes through it or leaves
that vehicle.
Q.
So I’m asking my dog to sniff the air that’s
immediately around the vehicle?
A.
I’m asking him to sniff the vehicle that is there and
the air that is leaving the vehicle.
Q.
But are you -- are you allowing him to make
[79]
physical contact with the exterior of the vehicle?
A.
Yes.
Q.
And when he makes physical contact with the
exterior of the vehicle, you are not correcting him
through a command like, Don’t do that or heel or
anything like that?
A.
Again, because then I’ll have an attorney here sitting
across from me telling me that I’m trying to get him
to indicate.
MR. RUSSELL: Objection. Argumentative.
I guess it’s yours.
Withdrawn.
59a
Q.
(By Mr. Murphy) And I understand what some
attorneys may do. What I’m just trying to figure out
is: You have the ability to restrict the dog from
physically touching the car. Is that a fair way of
putting it?
A.
Not on a corrections standard, no. I don’t have him
on a correction ring.
Q.
Okay. So like -- but you could correct the dog -- you
could -- this sounds like this is a behavior that’s
trained with the ball with the little holes in it, am I
right?
A.
The ball’s not presented to the dog until
[80]
he indicates to the presence of controlled substance
or the odor of controlled substance.
Q.
This ball with the holes that you were testifying to
earlier, getting the dog to go into the ball, is that the
treat or is that a training tool?
A.
There is no ball that’s present at that point in time.
The ball isn’t presented until he indicates to that odor
that is inside of that hole.
Q.
Now, I realize that you don’t have him on a correction
leash or however you describe it, but the point I’m
just trying to see if we can agree is, if you don’t want
that dog to touch the vehicle, you’re in control of that
situation; correct?
A.
Yes. I’m always in control of him, yes.
Q.
Is it fair to say the dog is just an extension of you?
A.
No, the dog is his own person. I can’t smell. The only
thing I can smell is marijuana. That’s how our nose
60a
operates. His nose is well above and beyond ours.
That’s why we use dogs.
Q.
And just for the record, you didn’t smell any
marijuana that night?
[81]
A.
I did not, no.
Q.
And -- so going back to the dog -- and maybe I’ve
belabored this enough, but by controlling the other
end of the leash, you can direct the dog what to do
and what not to do regardless of what any attorney is
going to say later about it. Would you agree with
that?
A.
Potentially, yes.
Q.
Okay. And -- so when Orozco touches the driver’s side
door and comes off of it, there’s no correction?
A.
Correct. There’s no correction.
Q.
No verbal command to not do that or anything?
A.
Correct.
Q.
And then as the dog makes its way down the driver’s
side of the vehicle and around the rear of the car and
now approaches the passenger side door, at this point
we’ve discussed you’re aware of -- that the window is
down?
A.
Correct.
Q.
Now, the dog is seen on the video going up onto the
window frame of the vehicle on the passenger side
and sticking its head into that interior space of the
car. Would you agree?
61a
[82]
A.
I don’t know that he stuck his entire head in there,
but I would say his nose potentially, yes.
Q.
And so that’s something that’s permitted by you?
A.
Correct. He’s freely searching that vehicle on his
own.
Q.
And he receives no correction at the passenger side
door not to do that?
A.
Correct.
Q.
And then at some point, the dog – let’s go back.
Is this a high -- what did you call it -- a high final? Is
the dog doing the high final when it’s up touching the
window frame and sticking its nose in the interior of
the car?
A.
It would mean that he has -- his high final -- like I
said, if he goes high on anything, so whether it was
on an open window or a closed window, he would not
come off of it. He would stay high and turn and look
at me.
Q.
And in this case, he came off of it?
A.
As I was retrieving his ball he came off of it when -and sat down.
* * *
[89]
CROSS-EXAMINATION
BY MR. RUSSELL:
Q.
* * *
[97]
How much time elapsed from when you were notified
about this suspicious vehicle and the time when you
62a
arrived to assist Officer Camp after you pulled over
the same vehicle?
A.
I don’t recall. But it wasn’t immediate by any means.
I believe 20-ish minutes, 30 minutes potentially. I
believe Officer Camp had moved on and was doing
something else.
Q.
And you did nothing to correct Orozco when
[98]
he jumped up on the car the first time, did you?
A.
Correct. I already testified to that.
Q.
Okay. And you did nothing when he jumped up on the
passenger side door?
A.
Correct.
Q.
And stuck his head in?
A.
Correct.
Q.
No correction. Do you think that’s allowed?
A.
Yes, there’s case law that allows it.
Q.
That allows your dog to enter that vehicle?
A.
Not my dog in particular, but the dog that was in that
case, yes.
Q.
So you didn’t see any problem with your dog sticking
his nose into the air inside the vehicle?
A.
Mike, he was doing what he was trained to do, which
is search the area.
* * *
[121]
(Proceedings concluded at 3:59 p.m.)
* * *
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.