State v. Williamson

2008 NMCA 096, 188 P.3d 1273, 144 N.M. 522

• Court: New Mexico Court of Appeals
• Decided: May 28, 2008
• Docket: 27,193
• Status: Published

Opinions

OPINION

ALARID, Judge.

{1} The State appeals from the district court’s order suppressing evidence seized pursuant to two search warrants. The district court, relying on the Fourth Amendment of the United States Constitution and Article 2, Section 10 of the New Mexico Constitution, ruled that the initial warrant was not supported by probable cause and that the items seized pursuant to the second warrant were the fruits of the illegal search pursuant to the initial warrant. We affirm.

{2} We review the district court’s order under the standards set out in State v. Nyce, 2006-NMSC-026, ¶ 8, 139 N.M. 647, 137 P.3d 587. The affidavit submitted in support of the first warrant is the focus of our analysis. Id. (observing that review of a magistrate’s determination of probable cause “is limited to the contents of the affidavit”). We set out the contents of the affidavit below.

AFFIDAVIT FOR SEARCH WARRANT

PERSON and or DESCRIBE PREMISES:

cardboard box containing vacuum sealed plastic bag which contains two packages wrapped in gray in color duct tape. Currently located at the UPS store at 111 E. College[,] Roswell, Chaves County New Mexico[.]

SET FORTH NAME OF PERSON OR DESCRIBE PROPERTY:

Any controlled substance to include but not limited to marijuana, cocaine, heroin or methamphetamine. Any documents or papers showing the name of Julian [sic] aka Holt Williamson. Any items of narcotic paraphernalia used to weigh, ingest, or distribute controlled substances.

1. Affiant is Sergeant Eric Braekeen, # 132, a certified law enforcement officer with eleven (11) years of law enforcement experience. Affiant is currently assigned to the Chaves County Metro Narcotics Task Force Division of the Roswell Police Department, Roswell, Chaves County, New Mexico.

2. Unless otherwise noted, all locations mentioned in the Affidavit are in Roswell, Chaves County, New Mexico.

3. That on Tuesday October 25, 2005[,] Affiant resonded [sic] to the UPS store located at 111 E. [C]ollege in reference to a suspicious package.

4. That upon arrival, Affiant contacted store manager Jennifer Ary. That Ms. Ary stated that on today[’]s date a subject entered the store at approximately 12:49 p.m. and wanted to send a package to a Jesse Gomez in Brooklyn[,] New York. That the subject sending the package was identified as a Holt Williamson, and that when asked what was in the package to be sent, Mr. Williiamson [sic] first stated that he did not know. That he was then advised that the package would then have to be opened, and he then stated that there was a book inside the box, and that he was sending it to his son. Ms. Ary stated that Mr. Williamson has mailed packages from this store before, but that this was the first time he appeared nervous and stated he did not know what was in his package.

5. That Affiant then learned from Ms. Ary that she did not feel right about the package, and that after Mr. Willimson [sic] left she opened the box. That inside the box she found a clear plastic bag that appeared to be vacuum sealed. That inside the bag was two containers, each wrapped with gray tape. That Affiant did then look at the bag and containers, and observed a Crystal Light cylinder container wrapped with gray duet tape, and a square Ferrero candy box also wrapped on the ends with gray duct tape.

6. That Affiant did notice that the Cyrstal Light container was crunched in, apparently from the bag being vacuum sealed. That Affiant did then have K-9 handler Detective Jimmy Preston bring Police Servie [sic] Dog Coro, a narcotics detection dog, to the business, and have Coro check the bag. Coro did check the bag, but did not indicate a positive response for the presence of narcotics.

7. Affiant knows from traning [sic] and experience that often times narcotics are packaged in unusual containers, wrapped with duct tape, and vacuum sealed, to make the narcotics less detectable by narcotic detection canines. Affiant also knows from training and experience that narcotics are often mailed to other places using carriers such as UPS.

8. Affiant believes from the above information, that proable [sic] cause does exist to issue a search warrant for the above mentioned package.

{3} Based on the information contained in the affidavit, a district court judge issued a search warrant authorizing a search of the contents of the package and its contents. Pursuant to the warrant, law enforcement officers opened the inner packages and discovered a quantity of marijuana. Relying on the results of the first search, the Affiant applied for, and obtained, a second warrant authorizing the search of Defendant’s home. In the ensuing search, officers discovered additional drugs as well as drug paraphernalia. Defendant was charged by criminal information with felony possession of marijuana with intent to distribute and misdemeanor possession of drug paraphernalia. Defendant moved to suppress the evidence seized in the two searches.

{4} The district court reasoned that the circumstances existing prior to the dog sniff were sufficient to establish reasonable suspicion that the plastic bag contained drugs, and that had Coro alerted, probable cause would have been established. However, Coro did not alert. The district court relied on the common-sense proposition that if a positive response from a narcotics detection dog can establish probable cause to believe that illegal drugs are present, then a negative response can fatally undermine the case for probable cause. The court stated that “[i]t is just not tenable to allow the State to pick the times when the dogs are to be accepted and the times when they are to be rejected.” Thus, in the district court’s view, Coro’s failure to- alert “refuted and even eliminated” any reasonable suspicion otherwise established by Defendant’s suspicious behavior and by the vacuum-sealing and duet-taping of the contents of the package, leaving the Affiant with “nothing more than bare speculation based upon Defendant’s suspicious conduct and his use of common, legal materials.”

{5} Although it is well settled that an alert by a reliable narcotics detection dog is sufficient to establish probable cause that drugs are present, State v. Snyder, 1998-NMCA-166, ¶ 9, 126 N.M. 168, 967 P.2d 843 (discussing Tenth Circuit precedent); State v. De Jesus-Santibanez, 119 N.M. 578, 582, 893 P.2d 474, 478 (Ct.App.1995), to our knowledge no New Mexico appellate decision has independently and critically examined the reliability of canine narcotics sniffs. See generally Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L. J. 405, 416-18 (Winter 1996-97) (discussing canine reliability jurisprudence); Jeffrey S. Weiner & Kimberly Homan, Those Doggone Sniffs Are Often Wrong: The Fourth Amendment Has Gone to the Dogs!, 30-APR Champion 12 (2006) (examining the reliability of dog sniffs from the viewpoint of the criminal defense attorney; questioning judicial acceptance of the “entrenched myth of the infallible canine”). No reported New Mexico appellate decision has discussed what evidence, if any, regarding the experience and reliability of a particular narcotics dog-handler team must be set out in an affidavit for a warrant in which a positive alert by the dog is the primary ground for supporting probable cause, and no New Mexico appellate decision has discussed what evidence would justify a judge reviewing an application for a search warrant in disregarding or discounting an apparently reliable narcotics detection dog’s failure to alert.

{6} In Florida v. Royer, the Supreme Court made the following observations regarding canine drug sniffs:

The courts are not strangers to the use of trained dogs to detect the presence of controlled substances in luggage. There is no indication here that this means was not feasible and available. If it had been used, [the suspect] and his luggage could have been momentarily detained while this investigative procedure was carried out. Indeed, it may be that no detention at all would have been necessary. A negative result would have freed [the suspect] in short order, a positive result would have resulted in his justifiable arrest on probable cause.

460 U.S. 491, 505-06, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (emphasis added) (footnote omitted). Elsewhere in the Supreme Court’s opinion, the Court noted apparently uncontradicted testimony by the investigating officers that the suspect’s “appearance, mannerisms, luggage, and actions,” including noticeable nervousness, fit a “drug courier profile.” Id. at 493, 103 S.Ct. 1319 (internal quotation marks omitted). The Court’s remarks indicate that the Court viewed a negative response by a narcotics dog as inconsistent with the existence of reasonable suspicion of possession of narcotics, notwithstanding the suspicious circumstances observed by the investigating officers. We ourselves recently observed that “the officers’ use of a drug dog was a means of investigation that would dispel or confirm their suspicions quickly.” State v. Robbs, 2006-NMCA-061, ¶ 29, 139 N.M. 569, 136 P.3d 570 (emphasis added); see also State v. Neal, 2007-NMSC-043, ¶ 43, 142 N.M. 176, 164 P.3d 57 (Bosson, J., dissenting) (stating that if a drug dog fails to alert, a motorist detained on suspicion of narcotics offense is “free to go”). In two cases suppressing evidence seized following an investigatory stop of a vehicle, the failure of a narcotics detection dog to alert appears to have been a factor in our conclusion that the subsequent extended detention of the subjects amounted to a de facto arrest without probable cause. State v. Hernandez, 1997-NMCA-006, ¶¶ 5, 26, 122 N.M. 809, 932 P.2d 499; State v. Flores, 1996-NMCA-059, ¶¶ 3, 12-14, 122 N.M. 84, 920 P.2d 1038.

{7} Proponents of the use of a narcotics dog report success rates well above ninety percent. Bird, supra, at 425; see, e.g., United States v. Davis, 430 F.3d 345, 356 (6th Cir.2005) (citing testimony of dog’s handler that drug-sniffing dog’s success rate at detecting narcotics was “over ninety percent”); Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 515 (Minn.2007) (citing testimony of dog’s handler that in 2,100 “training sniffs” dog had an error rate in training of no more than one to two percent). If narcotics detection dogs in fact are extremely reliable in discriminating narcotics from other substances, then an unexplained failure to alert will significantly, and in marginal cases may fatally, undermine an otherwise sufficient showing in support of a warrant. “The failed drug sniff is exactly the type of evidence that tends to undermine the conclusion of the presence of drugs. It is a negating factor that has a substantial impact on the determination of probable cause, and cannot be lightly ignored.” Longshore v. State, 399 Md. 486, 924 A.2d 1129, 1156 (2007); accord United States v. Jacobs, 986 F.2d 1231, 1234-35 (8th Cir.1993) (internal quotation marks omitted) (observing the fact that a narcotics dog failed to alert to package suspected of containing drugs would have been “clearly critical” to the determination of probable cause; holding that the omission of information that a narcotics dog had failed to alert in an application for a search warrant constituted reckless disregard for the truth under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Conversely, if narcotics detection dogs are so unreliable that their failure to alert can be dismissed by a judge without engaging in a case-specific examination of why the dog failed to alert, then we question whether courts should routinely rely on alerts by narcotics detection dogs to support a finding of probable cause.

{8} We think that it was reasonable for the issuing judge to infer from the UPS clerk’s report of Defendant’s nervousness and evasiveness that Defendant did not want to disclose the contents of the package to the elerk, a circumstance that supports the further inference that Defendant believed that identifying the contents would be either embarrassing or incriminating, or would result in UPS rejecting the package. The strength of an inference that the contents were incriminating was reinforced after the package was opened by the clerk, permitting the observation of the contents packed in a manner known by the Affiant to be consistent with the practice of drug traffickers.¹ However, after Coro failed to alert, and in the absence of a satisfactory explanation of why Coro failed to alert, the inference that the package contained drugs was significantly dispelled. At that point it was still reasonable for the Affiant to suspect that the contents were incriminating (e.g., child pornography, counterfeit currency, or stolen property) or embarrassing (e.g., non-obscene sexually explicit matter), but in the absence of information making it reasonably likely that Coro’s failure to alert was a false negative rather than a valid non-alert, “[t]he failed drug sniff [was] exactly the type of evidence that tends to undermine the conclusion of the presence of drugs [ ] ... and cannot be lightly ignored.” Longshore, 924 A.2d at 1156.

{9} In the present case, the Affiant properly disclosed that Coro had failed to alert. However, the only statement in the affidavit that arguably bears on Coro’s failure to alert is the Affiant’s statement that “Affiant knows from traning [sic] and experience that often times narcotics are ... wrapped with duct tape, and vacuum sealed, to make the narcotics less detectable by narcotic detection canines.” We do not understand the Affiant’s statement that narcotics are wrapped and vacuum sealed by drug traffickers “to make the narcotics less detectable” as principally an expression of the Affiant’s opinion that duct-taping and vacuum-sealing explained Coro’s failure to alert; rather, we understand this statement principally as a description of the practice of drug traffickers who commonly believe (rightly or wrongly) that vacuum-sealing will make narcotics less detectable.² The Affiant’s reference to duct-taping and vacuum-sealing appears to us to have been intended by the Affiant to show how facially innocuous circumstances known to the Affiant combined with his knowledge and experience as a law enforcement officer to support a reasonable suspicion that the package contained illegal drugs. See, e.g., United States v. Dennis, 115 F.3d 524, 532-33 (7th Cir.1997). Furthermore, we do not view the effectiveness of vdcuum-sealing drugs in masking the scent of drugs from narcotics detection dogs as sufficiently settled such that a court can take judicial notice of the effectiveness of this method of masking. To be the subject of judicial notice, “[t]he matter must be known, that is well established and authoritatively settled [;] ... uncertainty of the matter or fact in question will operate to preclude judicial notice thereof.” Rozelle v. Barnard, 72 N.M. 182, 183, 382 P.2d 180, 181 (1963) (discussing prerequisites to judicial notice of a matter). The unsettled state of knowledge with respect to the effectiveness of vacuum-sealing is demonstrated by reported cases describing instances where narcotics detection dogs have alerted to drugs notwithstanding efforts to mask the scent of drugs by vacuum-sealing the drugs in plastic. E.g., United States v. Reyez, 183 F.App’x 755, 756-57 (10th Cir.2006) (unpublished) (citing evidence that narcotics dog alerted to methamphetamine sealed in layers of tape, oil, plastic wrap, and mustard, with inner layer vacuum sealed); United States v. Knox, 193 F.App’x 780, 781 (10th Cir.2006) (unpublished) (order & judgment) (citing evidence that a narcotics dog alerted to two suitcases containing twenty bundles of marijuana wrapped in duct tape and vacuum sealed in plastic bags). Thus, in the absence of a more definite and detailed explanation for why Coro failed to alert, the fact that the contents of the package were vacuum sealed did not of itself justify dismissing the strong negative inference arising from Coro’s failure to alert.

{10} Setting aside Coro’s failure to alert for the moment, we think that the remaining circumstances set out in the affidavit, though certainly suspicious, were insufficient under controlling precedent to demonstrate probable cause to believe that the contents of the package were illegal drugs. Our Supreme Court has stated that the probable cause inquiry should be “particularly exacting” when the conduct observed by an officer is consistent with lawful activity, and this is so “regardless of an officer’s qualifications and experience.” Nyce, 2006-NMSC-026, ¶ 14, 139 N.M. 647, 137 P.3d 587. Suspicious, but facially lawful, behavior “should be the beginning, not the end, of the investigation.” Id. ¶ 22. There was no indication that Defendant was known to the Affiant, a member of the local narcotics task force, to be involved with illegal drugs. There is no indication in the affidavit that the Affiant checked law enforcement databases to determine whether Defendant had prior arrests or convictions for drug-related offenses or that the Affiant otherwise attempted to develop information linking Defendant or the addressee to illegal drugs. The Affiant did not attempt to speak with Defendant’s neighbors, nor did he attempt a “knock and talk.” Applying Nyce and the following cases, State v. Anderson, 107 N.M. 165, 169, 754 P.2d 542, 546 (Ct.App.1988), State v. Zelinske, 108 N.M. 784, 786-88, 779 P.2d 971, 973-75 (Ct. App.1989) (holding that officer’s observation of heavily taped detergent box coupled with odor of deodorizing agent and suspect’s withdrawal of consent to further search did not supply probable cause to believe that detergent box contained illegal drugs) overruled on other grounds by State v. Bedolla, 111 N.M. 448, 806 P.2d 588 (Ct.App.1991), and Flores, 1996-NMCA-059, 122 N.M. 84, 920 P.2d 1038, we hold that the facts known to the Affiant prior to the dog sniff did not constitute probable cause to believe that the contents of the package were illegal drugs.

{11} To summarize, the facts known to the Affiant prior to the dog sniff did not rise to the level of probable cause to believe that the contents of the package were illegal drugs. This already insufficient showing was substantially undermined by Coro’s failure to alert. Accordingly, we agree with the district court that the affidavit presented to the issuing judge did not establish probable cause to search the contents of the inner vacuum-sealed package.

{12} As previously noted, the results of the search of the package were used to obtain a warrant for the search of Defendant’s home. The district court ruled that the evidence seized during the search of Defendant’s home should be suppressed as “fruit of the poisonous tree secured from the original search warrant.” The State does not separately appeal this ruling which therefore stands as the law of the case.

{13} The order of the district court suppressing evidence is affirmed.

{14} IT IS SO ORDERED.

I CONCUR: CYNTHIA A. FRY, Judge. JONATHAN B. SUTIN, Chief Judge (dissenting).

1 . did not claim in the district court, and does not argue on appeal, that his constitutional rights were violated by the opening and initial detention of the package by the privately employed clerk.

2 . We have no information as to how likely it is that the Defendant could have placed packages of marijuana inside the plastic bag prior to vacuum-sealing the bag without leaving trace amounts on the exterior of the bag sufficient to trigger an alert by a trained narcotics detection dog. Similarly, we do not know the extent to which plastics used in vacuum-sealing are permeable to the chemicals in marijuana that trigger an alert by a narcotics detection dog. During the hearing on the motion to suppress in this case, the State represented to the district court — apparently as a matter of common knowledge among law enforcement officials — that drug traffickers "believe erroneously” that wrapping drugs in duct tape and vacuum-sealing the drugs will mask their odor from narcotics detection dogs.