State v. Ricks ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49743
STATE OF IDAHO, )
) Filed: February 2, 2023
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
)
JOSHUA T. RICKS, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Cynthia Yee-Wallace, District Judge.
Judgment of conviction for possession of a controlled substance, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
Appellate Public Defender, Boise, for appellant. Ben P. McGreevy argued.
Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent. Kenneth K. Jorgensen argued.
________________________________________________
BRAILSFORD, Judge
Joshua T. Ricks appeals from his judgment of conviction for possession of a controlled
substance, Idaho Code § 37-2732(c). Ricks argues the district court erred in denying his motion
to suppress evidence. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2021, an officer stopped a vehicle driven by Ricks for having an expired
registration. During the stop, Ricks disclosed that his driver’s license was also expired. The officer
cited Ricks for driving without privileges and had him exit the vehicle for an explanation of the
citation. While the officer was explaining the citation, Deputy Orcutt and his drug dog arrived at
the scene and began an exterior drug-detection sniff of Ricks’ vehicle. During the sniff, the dog
jumped on the rear-passenger door, jumped on the front-passenger door, and then inserted his nose
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into the open front-passenger window. After entering the vehicle, the dog gave a final alert when
he “sat and began to stare at the window and then back at [Deputy Orcutt].” A subsequent search
of the vehicle revealed narcotics and drug paraphernalia.
The State charged Ricks with possession of a controlled substance and possession of drug
paraphernalia, and he filed a motion to suppress. Relying on two recent Idaho Supreme Court
cases, State v. Randall, 169 Idaho 358, 496 P.3d 844 (2021), and State v. Howard, 169 Idaho 379,
496 P.3d 865 (2021), cert. denied (Oct. 3, 2022) (No. 21-975), Ricks argued the drug dog’s entry
into Ricks’ vehicle was a warrantless search in violation of the Fourth Amendment. The State
opposed the motion, arguing probable cause existed before the dog stuck his nose in the window
and justified the search under the automobile exception. At an evidentiary hearing, Deputy Orcutt
testified, and the video from his body camera showing the sniff was admitted into evidence.
In addressing Ricks’ suppression motion, the district court considered whether the drug
dog’s “change in behavior that signals he is pursuing an odor he is trained to detect” is “sufficient
to find probable cause, even though no final alert” was made. The court concluded the dog’s
change in behavior was sufficient to establish probable cause. In support, the court made numerous
factual findings, including that:
[I]t was undisputed that Deputy Orcutt and Django [the dog] are certified as a
narcotics team, and that Django is certified to detect marijuana, cocaine, heroin,
and methamphetamine. It was similarly undisputed that Django detects odors
accurately. Django is trained to sniff where the Deputy points, unless [the dog]
detects the odor of narcotics, in which case he is trained to follow the odor to its
source. Deputy Orcutt looks for distinct changes in behavior when Django is
working, including: head snaps, whining, breathing, tail and excitement to signal
that Django is in odor. Deputy Orcutt testified that when Django jerked past his
hand and went to the passenger side of the car, this change in behavior signaled that
Django had detected the odor of narcotics.
The court further found that Deputy Orcutt’s testimony was credible and that his body camera
video corroborated his testimony.
Subsequently, Ricks pled guilty conditionally to possession of a controlled substance and
reserved his right to appeal the denial of his suppression motion. Ricks timely appeals.
II.
STANDARD OF REVIEW
The standard of review of a suppression motion is bifurcated. When a decision on a motion
to suppress is challenged, we accept the trial court’s findings of fact that are supported by
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substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
III.
ANALYSIS
On appeal, Ricks challenges the district court’s conclusion that probable cause justified the
search. Ricks does not challenge any particular factual finding as erroneous, however. Rather, he
argues that “the district court erroneously considered Deputy Orcutt’s subjective belief that the
drug dog had detected the odor of narcotics” before entering the vehicle and that “this case is on
all fours” with the Idaho Supreme Court’s decision in Howard, 169 Idaho at 384, 496 P.3d at 870
(concluding State failed to meet burden to show probable cause).
The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures. Warrantless searches are presumed to be unreasonable and, therefore, violative of
the Fourth Amendment. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). A reliable
drug dog’s sniff of the exterior of a vehicle is not a search under the Fourth Amendment and does
not require either a warrant or an exception to the warrant requirement. See Illinois v. Caballes,
543 U.S. 405, 409 (2005). The Idaho Supreme Court has held, however, that a dog’s trespass into
the interior of a vehicle during an exterior sniff converts a nonsearch into a warrantless search
requiring probable cause. Randall, 169 Idaho at 367, 496 P.3d at 853. Further, the Court has
concluded that no de minimis exception exists to the rule that a dog’s trespass is a search. Howard,
169 Idaho at 382, 496 P.3d at 868. Rather, a dog’s entry into a vehicle constitutes a warrantless
search regardless of “the degree of the dog’s intrusion” and even if that intrusion is only
“momentary.” Id. Accordingly, to avoid a Fourth Amendment violation, any entry by a dog into
the interior of a vehicle during a sniff requires either consent, a warrant, or probable cause.
Randall, 169 Idaho at 370, 496 P.3d at 856.
The automobile exception to the warrant requirement allows police to search a vehicle
without a warrant when there is probable cause to believe the vehicle contains contraband or
evidence of a crime. United States v. Ross, 456 U.S. 798, 823-24 (1982). “Probable cause is
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established when the totality of the circumstances known to the officer at the time of the search
would give rise--in the mind of a reasonable person--to a fair probability that contraband or
evidence of a crime will be found in a particular place.” State v. Anderson, 154 Idaho 703, 706,
302 P.3d 328, 331 (2012). “Probable cause is a flexible, common-sense standard,” requiring only
“a practical, nontechnical probability that incriminating evidence is present.” Id. In the context
of a drug dog’s entry into the interior of a vehicle, the proper inquiry is whether the officer had
probable cause to believe illegal drugs were in the vehicle before the dog’s entry. Randall, 169
Idaho at 369, 496 P.3d at 855.
In this case, the district court framed the issue for resolving Ricks’ suppression motion as:
whether a drug detection dog’s change of behavior that signals he is pursuing an
odor he is trained to detect (also referenced herein as a “general alert”) is sufficient
to find probable cause, even though no final alert (also referenced herein as
“pinpoint indication” or “final indication”) is made, prior to the search.[1]
In resolving this issue, the court relied on nonbinding case law from other jurisdictions and found
that this case is “similar” to cases “in which courts have found probable cause to exist when a drug
dog makes a general alert that the dog had detected the odor of narcotics, even where a final alert
is not made.” See United States v. Holleman, 743 F.3d 1152, 1154 (8th Cir. 2014) (relying in part
on dog’s conduct of “detailing” area twice before search to conclude probable cause existed);
United States v. Thomas, 726 F.3d 1086, 1098 (9th Cir. 2013) (ruling evidence from trained
handler about dog’s “signaling” behavior can be basis for probable cause); United States v.
Parada, 577 F.3d 1275, 1282 (10th Cir. 2009) (holding that “probable cause was satisfied by [the
dog’s] alert to the odor of an illegal substance in the vehicle and that it was not necessary for the
dog to indicate that exact source of the odor.”); see also State v. Martinez, 129 Idaho 426, 431-32,
925 P.2d 1125, 1130-31 (Ct. App. 1996) (relying in part on dog’s change in behavior indicating
presence of drugs to conclude probable cause existed).
On appeal, Ricks does not challenge the district court’s reliance on a rule that probable
cause may exist even if the drug dog has not given its final indication pinpointing the odor’s
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As the district court’s decision suggests, the case law discussing dog sniffs frequently uses
different, imprecise, or undefined nomenclature. Similar to the district court, we use the phrase
“general alert” or the term “alert” to mean a dog’s behavior signaling the dog detects the odor of
drugs he is trained to locate. We use the phrase “final indication” or the term “indication” to mean
the dog’s trained response pinpointing the strongest source of the odor. See United States v.
Parada, 577 F.3d 1275, 1282 (10th Cir. 2009) (clarifying nomenclature).
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strongest source. Indeed, Ricks notes this rule “agrees with Howard,” in which the Idaho Supreme
Court stated that it was not “suggest[ing] that the absence of a trained alert is ipso facto an absence
of probable cause.” Howard, 169 Idaho at 384, 496 P.3d at 870; see also Randall, 169 Idaho at
368, 496 P.3d at 854 (stating “no evidence supported that [the dog] entered Randall’s car because
[the dog] detected the odor of narcotics”). We agree that language in Randall and Howard
indicates the Idaho Supreme Court would adopt a rule allowing for probable cause based on a
dog’s general alert and despite the absence of a dog’s final indication. Moreover, a rule permitting
a probable cause finding where a trained drug dog provides a general alert to the presence of drugs
would be in accord with existing case law concluding probable cause exists where an officer smells
the odor of drugs. State v. Gonzales, 117 Idaho 518, 519, 789 P.2d 206, 207 (Ct. App. 1990)
(noting probable cause established when trained officer detects smell of marijuana in vehicle).
Accordingly, we consider whether substantial evidence supports the district court’s conclusion that
probable cause existed for a warrantless search before the dog’s nose entered Ricks’ vehicle, even
though the dog had not yet given its final indication identifying the odor’s strongest source.
On the issue of a drug dog’s reliability for establishing probable cause, the United States
Supreme Court decision in Florida v. Harris, 568 U.S. 237 (2013), is instructive. The Court in
Harris “consider[ed] how a court should determine if the ‘alert’ of a drug-detection dog during a
traffic stop provides probable cause to search a vehicle.” Id. at 240. In that case, the dog conducted
an exterior “free air sniff” of a lawfully stopped vehicle and “alerted at the driver’s-side door
handle--signaling, through a distinctive set of behaviors, that he smelled drugs there.” Id. The
officer concluded this “alert” provided probable cause, and he searched the vehicle. Id. Although
the officer did not discover drugs during the search, he located ingredients for making
methamphetamine. Id. at 240-41.
At the suppression hearing in Harris, the State offered evidence of the drug dog’s training
programs, certification, weekly training exercises, and the “really good” results from those weekly
trainings. Id. In opposition, Harris presented evidence that the dog’s certification had expired the
year before the search at issue and that the dog had previously “alerted” twice on vehicles “in the
field” after which no drugs were located in those vehicles. Id. at 242. The trial court denied
Harris’s suppression motion, and the Florida Supreme Court reversed, ruling the State “needed to
produce a wider array of evidence related to the dog’s reliability” to establish probable cause. Id.5
On appeal, the United States Supreme Court rejected the Florida court’s “strict evidentiary
checklist.” Id. at 244. The Court noted that:
The question--similar to every inquiry into probable cause--is whether all the facts
surrounding a dog’s alert, viewed through the lens of common sense, would make
a reasonably prudent person think that a search would reveal contraband or
evidence of a crime.
Id. at 248. In answering this question, the Court noted that “evidence of a dog’s satisfactory
performance in a certification or training program can itself provide sufficient reason to trust his
alert” and that “if a bona fide organization has certified a dog after testing his reliability in a
controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s
alert provides probable cause to search.” Id. at 246-47. The Court identified the adequacy of
certification, the performance of the dog or his handler during assessments, their performance in
the field, and the officer’s cues to the dog during the search as examples of potentially conflicting
evidence. Id. at 247. Finally, the Court ruled that “if the State has produced proof from controlled
settings that a dog performs reliably in detecting drugs, and the defendant has not contested that
showing, then the court should find probable cause.” Id. at 248. It ruled that “viewed alone, [the
dog’s] training record--with or without the prior certification--sufficed to establish [the dog’s]
reliability,” and thus probable cause existed. Id. at 249.
Absent from the Harris Court’s analysis, however, is any discussion of the distinction
between a dog’s “general alert,” meaning a dog’s behavior signaling he detects the odor of drugs
he is trained to locate, and a “final indication,” meaning a dog’s trained response pinpointing the
odor’s strongest source. See Parada, 577 F.3d at 1282 (clarifying nomenclature). Rather, the
Court only generally references an “alert” by the dog “signaling through a distinctive set of
behaviors” that he detected the odor of drugs. Harris, 568 U.S. at 240. As the district court noted,
many courts have recognized the distinction between a general alert signaling the presence of an
odor of drugs from a subsequent final indication through a trained response pinpointing the odor’s
strongest source, albeit using various different terminology. Meanwhile, other courts appear to
conflate or at least not distinguish these behaviors. Drawing the distinction, however, between a
general alert and a final indication--as the district court did in this case--is essential for analyzing
whether a drug dog’s behavior before entering the vehicle and before giving a final indication
establishes probable cause.
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The Idaho Supreme Court’s decision in Howard appears to recognize the distinction
between a drug dog’s general alert behavior and his trained final indication, referencing the latter
as a dog’s “trained alert.” Howard, 169 Idaho at 384, 496 P.3d at 870 (noting “the absence of a
trained alert is [not] ipso facto an absence of probable cause”). The Court has also noted the
testimony of the dog’s handler is important for proving a dog’s general alert before he entered into
the vehicle established probable cause. For example, in Randall the Court stated the drug dog
handler’s testimony was “necessary” to explain “why [the dog’s] behavior was an objectively
reliable indication that narcotics were present” before the dog entered the vehicle. Randall, 169
Idaho at 369, 496 P.3d at 855; see also Howard, 169 Idaho at 384, 496 P.3d at 870 (“Without
objective evidence bearing on the reliability of [the dog’s] behavior, we are left with little more
than our intuition about the significance of that behavior.”); see also Thomas, 726 F.3d at 1098(“Evidence from a trained and reliable handler about the alert behavior he recognized in his dog
can be the basis for probable cause.”).
Other courts addressing a drug dog’s behavior generally alerting (versus finally indicating)
to the presence of an odor of drugs focus on the dog’s behaviors signaling he is detecting an odor
of drugs, such as the dog’s breathing, posture, and body movements when he is sniffing a vehicle.
See, e.g., Holleman, 743 F.3d at 1154 (noting dog stopped “dead in his tracks” and began “to really
detail the area”); Thomas, 726 F.3d at 1087 (noting the “dog’s tail and ears went up, his posture
and breathing pattern changed, and he started ‘air-scenting’”); Parada, 577 F.3d at 1281 (noting
dog “alerted on the driver’s side front door by stiffening his body, breathing deeply, and attempting
to jump into the window”); Steck v. State, 197 A.3d 531, 536 (Md. Ct. Spec. App. 2018) (noting
sniffing and change in breathing, posture, and general behavior); cf. Harris, 568 U.S. at 240(referencing “signaling, through a distinctive set of behaviors”). This type of signaling behavior
is in contrast to a final indication (or “trained alert” as the Howard Court referred to it), such as a
dog sitting, lying down, or otherwise pointing to the odor’s strongest source. Like courts in other
jurisdictions, we conclude a dog’s signaling behavior of a general alert--such as the dog’s
breathing, posture, body movements, and verbal responses--can constitute probable cause.
Further, we conclude substantial evidence supports the district court’s probable cause
finding in this case. During the suppression hearing, Officer Orcutt testified that he previously
worked for six years “in the K-9 unit” in another state; is certified in Idaho “as a K-9 handler” and
“as a team” with his drug dog; has trained with the dog for about 160 hours; passed the Idaho
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POST Narcotics Detection Standards; has confidence in the accuracy of his dog, who is trained to
detect the odors of marijuana, cocaine, heroin, and methamphetamine; has not had any problems
with the dog giving “false positives”; and trains a minimum of four hours a week with his dog and
“K-9 instructors,” who monitor their actions. As the district court noted, Ricks did not challenge
this evidence proving the dog’s reliability. See Harris, 568 U.S. at 246 (“[E]vidence of a dog’s
satisfactory performance in a certification or training program can itself provide sufficient reason
to trust his alert.”).
Additionally, evidence of the drug dog’s signaling behavior generally alerting to the odor
of drugs emanating from the vehicle before he entered the vehicle supports the district court’s
probable cause finding. Deputy Orcutt testified about his dog’s “distinct change of behavior” as
an alert. According to Deputy Orcutt, this signaling behavior can include “a head snap,”
“whining,” “breathing,” tail movement, and excitement. Deputy Orcutt explained that in
conducting a dog sniff, Deputy Orcutt either starts at the front or the back of the vehicle and has
the dog sit “to reset” him and to let him know “we are gonna be doing a search.” Further, Deputy
Orcutt explained his dog is trained to sniff at the points at which Deputy Orcutt indicates, unless
the dog detects the odor of drugs, in which case he follows the odor to its source. Regarding the
dog sniff at issue, Deputy Orcutt testified that when he pointed to the rear bumper for the dog to
sniff, the dog “blew past” the cue; the dog moved to the vehicle’s passenger side as the dog’s
“whining” and “excitement” “began to increase”; and as the dog approached the open passenger
window, Deputy Orcutt “could hear [the dog’s] excitement building, his tail, the intensity.”
According to Deputy Orcutt, this behavior signaled the dog was alerting on the odor of drugs
before the dog entered the open window. Like the district court, we conclude Deputy Orcutt’s
testimony about the dog’s signaling behavior provided objective evidence of the dog’s general
alert to the presence of the odor of drugs emanating from the vehicle before the dog entered the
vehicle and supports a probable cause finding.
Contrary to Ricks’ argument, the facts in this case are distinguishable from those in
Howard in which the Idaho Supreme Court concluded the State failed to establish probable cause.
In that case, the officer equivocally testified her dog “at least sometimes” freezes and tries to “cheat
the system.” Howard, 169 Idaho at 384, 496 P.3d at 870. In contrast, Deputy Orcutt’s testimony
neither shows his dog’s conduct is sometimes inconsistent nor equivocates that his dog
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demonstrated signaling behavior in this case, showing the dog was generally alerting to the odor
he is trained to detect emanating from the vehicle before he entered the vehicle.
We also reject Ricks’ argument that “the evidence shows that the dog ignored its own
training,” suggesting the dog was not alerting to the odor of drugs. Deputy Orcutt testified that
when the dog “blew past” the cue to sniff the bumper, “[t]hat’s not the way we train.” We construe
Deputy Orcutt’s testimony, as the district court did, to mean that the dog is trained to sniff where
Deputy Orcutt points unless the dog detects the odor of drugs, in which case he is trained to follow
the scent to the point of its strongest source. The dog’s behavior in this case comported with this
training, both according to Deputy Orcutt’s testimony and a review of his body camera video.
Finally, that Deputy Orcutt testified he personally believed the dog was alerting on the odor
of drugs before entering the vehicle does not undermine the district court’s probable cause finding.
The proper inquiry is whether objective evidence supports Deputy Orcutt’s belief. The mere fact
that Deputy Orcutt expressed his subjective belief when explaining the objective evidence is not a
basis to reject that objective evidence. An officer’s subjective belief may often coincide with the
objective evidence. Nor was Deputy Orcutt required to testify, as Ricks argues, that “a reasonable
person could objectively rely on his dog’s pre-entry behavior.” Such testimony does not supplant
the court’s legal decision about whether a reasonable person would have concluded that, under the
totality of the circumstances known to the officer at the time of the search, there was a fair
probability of finding contraband or evidence of a crime in a particular place. Howard, 169 Idaho
at 383, 496 P.3d at 869 (noting existence of probable cause is legal question); Anderson, 154 Idaho
at 706, 302 P.3d at 331 (defining probable cause).
IV.
CONCLUSION
Substantial evidence supports the district court’s probable cause finding. Accordingly, we
affirm the court’s order denying Ricks’ suppression motion and his judgment of conviction.
Judge GRATTON and Judge HUSKEY CONCUR.
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