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United States v. Simeon

United States District Court, N.D. Iowa, Western Division

July 20, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
TERESA ANN SIMEON, Defendant

Decided Date: April 7, 2015.

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For U.S. Probation, Interested Party: uspNotify, LEAD ATTORNEY.

For Teresa Ann Simeon, Defendant: Robert Tiefenthaler, LEAD ATTORNEY, Sioux City, IA.

For USA, Plaintiff: John H Lammers, LEAD ATTORNEY, U.S. Attorney's Office, Sioux City, IA.

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MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION CONCERNING DEFENDANT'S MOTION TO SUPPRESS

MARK W. BENNETT, UNITED STATES DISTRICT COURT JUDGE.

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

B. Factual Background

II. LEGAL ANALYSIS

A. Standard Of Review

B. Objections To Report and Recommendation

1. Newly raised issues

2. Probable cause to search car before dog sniff

3. Probable cause to search car after dog sniff

a. Rico's training and certification

b. The free air sniff

c. Rico's indication

4. Combination of free air sniff and other information

establishing probable cause.

5. Subsequent searches

III. CONCLUSION

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

On October 8, 2014, a criminal complaint was filed against defendant Teresa Ann Simeon, charging her with possessing with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(A). Subsequently, on October 23, 2014, an indictment was returned charging Simeon with conspiracy to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure

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methamphetamine, having previously been convicted of a felony drug offense (Count 1), in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), 846, and 851, and possessing with the intent to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense (Count 2), in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), and 851.

Simeon subsequently filed a motion to suppress in which she seeks to suppress evidence seized from her car and all evidence derived from that search. Simeon contends that she was detained for an unreasonable amount of time before the dog sniff was conducted. Next, she argues that her car was outside the scope of her detention and arrest and that it should have been released to her husband. She also argues that the dog sniff did not establish probable cause to search her car because it was improperly conducted and the dog and handler had insufficient training to be reliable. Finally, Simeon contends that a search warrant issued subsequently was invalid because it was issued in reliance on evidence obtained during the illegal search of her car. The prosecution filed a timely resistance to Simeon's motion. Simeon's motion to suppress was referred to United States Magistrate Judge Leonard T. Strand, pursuant to 28 U.S.C. § 636(b). Judge Strand conducted an evidentiary hearing and then filed a Report and Recommendation in which he recommends that Simeon's motion to suppress be denied. In his Report and Recommendation, Judge Strand initially concluded that neither Simeon's investigatory detention nor its duration violated her constitutional rights. Judge Strand next found that probable cause existed to search Simeon's car before Deputy Sands and Rico, his drug detection dog, conducted a free air dog sniff. Alternatively, Judge Strand determined that the prosecution established that Rico was a properly trained, certified, and reliable drug detector dog at the time of the free air dog sniff at issue here, that Sands conducted the free air dog sniff properly, and that Rico alerted and then indicated at the driver's side of Simeon's car. Thus, Judge Strand concluded, alternatively, that the combination of the free air dog sniff results and other information known to Sands established probable cause to search Simeon's car. Finally, Judge Strand determined that, because the evidence the prosecution relied upon to obtain the search warrant for Simeon's cell phones was gathered lawfully, there was no legal basis to suppress the evidence gathered from the execution of that search warrant.

Simeon has filed objections to Judge Strand's Report and Recommendation. The prosecution filed a timely response to Simeon's objections. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Simeon's motion to suppress.

B. Factual Background

In his Report and Recommendation, Judge Strand made the following factual findings:

Events inside the Casino. On the morning of October 3, 2014, a housekeeper at the WinnaVegas Casino & Resort (Casino) found a small baggie containing a white crystalline substance on a pillow in hotel room 418. Believing the baggie contained drugs, she reported it to Tribal Police Officer Matthew Benson. Benson seized the baggie from the room, took it to the Casino's security office and performed a field test on the substance. The field test was positive for methamphetamine. Benson then contacted the front desk to determine who had rented room 418. Teresa Simeon was the registered renter of the room. Benson reviewed security footage from the hallway near the room and determined that no one other than Simeon, a male (who was later determined to be Simeon's husband) and the housekeeper had entered or exited room 418 during the relevant period of time.

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Benson then searched the premises for Simeon and found her on the Casino floor. He asked her to accompany him to the security office for questioning. She complied. Once in the security office, Benson advised Simeon of her rights and presented her an advisement of Rights form, which she signed at 1:32 p.m. Benson then questioned Simeon about the methamphetamine found in her room. Simeon denied having any knowledge of it. Benson told Simeon that he had done his research. He explained that he knew she resided in Wayne, Nebraska, that he had contacted law enforcement there and that they were aware of her.
Because Simeon is not a tribal member, Benson advised her that she would be detained while he contacted the Woodbury County Sheriff's Office (WCSO). At that point, Simeon requested to speak with her husband and asked if she could call her lawyer. Benson stated that she could call her lawyer but indicated that she would need to use her personal cell phone because he would be using to [sic] the security office phone to call WCSO.
Mr. Simeon was brought into the security office at 1:42 p.m. He, too, was advised of his rights and signed an Advisement of Rights form. Benson then asked him about the methamphetamine. Mr. Simeon denied any knowledge of the narcotics or how they appeared in their hotel room. Meanwhile, Simeon placed a call on her iPhone. She asked the recipient of the call to pick up her vehicle at the Casino. After the call, Simeon asked Benson what would happen to her vehicle and if she could give the keys to someone. Benson told her it would be up to the WCSO but that he would normally let her have a friend retrieve the vehicle.
In response to Benson's call, WCSO dispatch contacted Deputy Nathan Sands. He advised dispatch that he was available to respond and, indeed, was only about eight to ten miles away from the Casino. Sands was dispatched to the Casino at 1:47 p.m. According to the WCSO's records, he arrived at the Casino security office at 1:54 p.m. Benson briefed Sands about the situation in a hallway outside the security office while Simeon and her husband remained in the office.
Sands entered the security office at 1:58 p.m. and questioned Simeon about the methamphetamine found in her hotel room. He testified that both Simeon and her husband appeared to be very nervous during the discussion. When asked about prior drug use, Simeon admitted she had used methamphetamine the day before but denied that the methamphetamine in the room belonged to her. She also denied having any guests in the room. Sands then asked Simeon if her vehicle was in the parking lot. She responded by stating that it probably had been picked up by a friend and was no longer at the Casino.
Sands believed this to be a lie because Simeon resides near Sioux City and any friend driving from the Sioux City area would not have had time to arrive at the Casino and retrieve the vehicle in such a short amount of time. He asked Simeon why she would have had someone pick up her vehicle. She answered: " Because I figured I was going to be arrested." Sands then asked about prior arrests. Simeon responded that she had been arrested for drugs while her husband stated that he had been arrested for a DUI and a few other minor offenses long ago.
Sands asked Simeon if his drug dog would detect drugs if he deployed the dog around her vehicle. Simeon answered " no." Sands followed up by asking when she last had methamphetamine

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in the vehicle. Simeon initially answered that she had never had drugs in her vehicle but, when pressed, changed her answer to " it's been a real long time ago." Sands then told Simeon that he did not believe she or her husband were being honest with him and that he knew they were very nervous about something.
Sands left the security office at 2:04 p.m. and called his supervisor for directions as to how he should proceed. He described the positive field test, the fact that Simeon was the registered renter of the hotel room and her nervous behavior and evasive answers. Based on this information, the supervisor directed Sands to place Simeon under arrest for possession of a controlled substance.
Sands came back into the office at 2:11 p.m. He again asked Simeon about the location of her vehicle and she again stated that she thought someone from Sioux City had already picked it up. Sands then asked what type of vehicle she drove. Simeon looked at her husband, who shook his head, shrugged his shoulders and said something to the effect of " it's up to you." At that point, Simeon stated that she wanted to talk to an attorney. Sands placed Simeon under arrest at 2:12 p.m. and advised her that her vehicle could not leave the parking lot until he had conducted a dog sniff.
Events in the Casino Parking Lot. After Simeon was placed under arrest, another deputy arrived to transport her to the county jail. Meanwhile, Sands searched the parking lot for Simeon's vehicle. Because Simeon had declined to provide information about the vehicle, Sands started running every Nebraska license plate in the parking lot until he found one registered to Simeon. He testified that he located the vehicle about 30 minutes after his initial arrival at the Casino.
After locating the vehicle, Sands deployed his canine, Rico, for a free air sniff of the exterior of the vehicle. A Casino security video camera recorded a time-stamped video of the sniff. The video indicates that it started at approximately 2:30:35 p.m. and ended just over one minute later, at 2:31:40 p.m. Sands testified that a strong wind was blowing across the vehicle from the passenger's side towards the driver's side.
Sands and Rico began the sniff on the driver's side rear panel and proceeded to walk counterclockwise around the vehicle toward the passenger side door. They made their way to the front of the vehicle and then around to the driver's side. Sands testified that upon approaching the driver's door, Rico became more intense and his breathing changed. According to Sands, this was Rico's natural, untrained " alert" to the odor of narcotics. Rico then jumped up and placed his front paws on the driver's window. Rico also jumped onto and scratched at the driver's door seam and on the window of the back door. Sands had maintained a continuous pace around the vehicle, pointing to various areas for Rico to smell, until Rico jumped at the driver's door. At that point, Sands paused for approximately four seconds before he took a few more steps toward the rear of the vehicle. Rico continued to scratch at the driver's door and door seam. After Rico made his third jump onto the vehicle, Sands rewarded him with a toy ball and placed him back into his patrol car. Sands testified that Rico's three jumps and his scratching on the driver's side of the vehicle were his indications that he smelled narcotics and was pinpointing the source.

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Sands then returned to the Casino security office, told Mr. Simeon that the vehicle would be searched and asked him for the key. Mr. Simeon complied. Sands returned to the parking lot, opened the vehicle and had Rico sniff the interior. Sands testified that Rico alerted and indicated on a black bag inside the car. Sands opened the bag and found twenty-three individually packaged baggies of methamphetamine (totaling approximately 125 grams), a digital scale and a Nebraska driver's license issued to Simeon. An officer assisting with the search found a Samsung phone on the front seat, along with Simeon's Social Security card. Sands then contacted the Tri-State Drug Task Force and had Simeon's vehicle towed to the police department. Later, during a more thorough search of the vehicle, officers found a cooler containing twenty individually packaged baggies of methamphetamine (totaling approximately 416.8 grams) hidden inside.
Sands documented Rico's sniff in a report written two days later. Sands wrote that Rico indicated only one time -- at the passenger door on the B pillar. He did not specify which passenger door. He also stated that Rico " began sniffing heavily on the driver's door, eventually picking his nose up to the door handle area and actually lifted the door handle with his muzzle." This action does not appear on the video recording of the sniff. Sands also wrote that Rico rose up on his back legs near the passenger side of the vehicle but stated that this was not an alert or indication.
Training and Certification. In April 2013, with the help of Deputy Todd Trobaugh, Sands purchased Rico from a breeder in the Netherlands. The team went through a two-to-three week bonding period prior to beginning police dog training. They then began training both on their own and with the WCSO K-9 Unit. When the team trained on their own, they were often assisted by Trobaugh, who is certified as an instructor by the Randy Hare School for Dog Trainers.
Sands testified that the team's training began with Rico " imprinting" and becoming familiar with the four drug odors he would be deployed to detect: marijuana, methamphetamine, cocaine and heroin. Once Rico learned these odors, the team used drug boxes and scratch boxes as training tools. Various drugs are placed in the boxes for the dog to detect. As Rico gained experience at detecting the drug odors, Sergeant James Bauerly, who leads the WCSO K-9 Unit, made the puzzles and hides more difficult. The team trained indoors and outdoors, both with other K-9 teams and on their own, and with drugs hidden in vehicles, under furniture, in cabinets or in other difficult locations. The team trained almost daily until March 2014, when they underwent a certification test through the United States Police Canine Association (USPCA). Sands and Rico passed the test. On March 19, 2014, the USPCA certified the team for drug detection. Bauerly and Trobaugh testified they believed Rico was a very competent and well-trained police dog.
The USPCA certification process involved a one-day test that included an indoor and outdoor section. The indoor section consisted of three rooms, two with hidden drugs and one without drugs. The outdoor section included five vehicles, two with hidden drugs and three without drugs. Sands was not aware of the location of the drug hides when the team completed the test. Rico's certification test was judged by eight individual judges. Bauerly and Trobaugh were judges for Rico's certification

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test but the other six judges were not affiliated with the WCSO. Rico detected all four drug hides. Sands testified that Rico had no false positive indications during either round. Rico began patrolling in April 2014, about one month after his USPCA certification.
After Rico and Deputy Sands were certified, they continued with maintenance training but did not train as frequently as they had prior to certification. The team attended training sessions approximately once a week with Bauerly and the K-9 Unit. These sessions are documented in training logs and grids that Bauerly maintains for the K-9 Unit. During 2014, Sands and Rico participated in 91 practice hides during WCSO K-9 training. The records indicate that Rico had three false positive indications for the odor of drugs during those practice sessions. Bauerly testified that based on his experience, Sands and Rico trained more than enough to maintain their reliability and were in compliance with all USPCA standards and WCSO training requirements.
Expert Testimony. Sergeant Wendell Nope testified for the Government. He has been training police dogs and handlers for 30 years and serves as the K-9 Training Supervisor for the Peace Officer Standards and Training (POST) Division of the Utah Department of Public Safety. He is also a certified judge for various agencies and competitions, including the State of Utah, the Utah Peace Officer Association K-9 Trial, the Regional Police Dog Championship, the United States National Police Dog Championship and the International Law Enforcement Games K-9 Competition.
Nope testified that in his opinion, based on his review of records, Sands and Rico were well-trained, were certified by a bona fide police dog organization and were completely-functional as a narcotic detection team. He stated that in the police dog industry there is no uniform, standard number of hours required for initial or maintenance training. He also explained that the training methods taught by the Randy Hare School, which were used to train Rico, are accepted and highly respected in the industry. In Nope's opinion, Sands and Rico participated in a sufficient amount of training. He commended WCSO on the level of detail in the training records and its candor in documenting mistakes. He stated that despite three false positives during training in 2014, Rico was a highly competent and reliable canine. Nope pointed out that according to the training records, two of the false positives occurred on the same day and that remedial and corrective action was taken immediately. He also explained there are several reasons why a drug dog may falsely indicate during training, including the possibility that prior training on the same day might leave behind residual drug odors. He found it to be significant that Rico had not had another false positive since June 2014.
Based on his review of the video recording, Nope testified that the free air sniff of Simeon's vehicle was " practically textbook." He stated that from the video alone, he could tell that the team was either very gifted or had a significant amount of training. Nope explained that there was no standard practice in law enforcement for conducting a free air vehicle sniff but, rather, each team has its own system for doing so. He testified that Sands and Rico executed a perfectly-acceptable sniff around Simeon's vehicle. He observed that Rico was intense and ready to work upon exiting the patrol car and that Sands guided Rico to the target vehicle and tapped on the rear panel of the vehicle

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to indicate to Rico that he should begin his work. He testified that Sands then continuously moved around the vehicle and only pointed to areas on the vehicle Rico had skipped. Nope stated that these actions did not improperly cue Rico to indicate.
Nope further testified that he observed Rico indicate on the driver's door by jumping up on the door and scratching at the window and door seam. He also explained that Sands then properly slowed his progress to give Rico time to pinpoint the exact source of the odor. According to Nope, this pause by Sands did not improperly cue Rico to indicate because he had already indicated by jumping on the vehicle. Nope also stated that Sands did not give Rico his ball, as a reward, until after Rico had indicated. He testified that rewarding a drug dog after an indication is not inappropriate and does not cue the dog to indicate falsely. In short, Nope concluded that Sands and Rico were a well-trained and reliable drug-detecting team and that the free air sniff of Simeon's vehicle was conducted in a proper manner.
Kyle Heyen testified as an expert for the defense. He is a private consultant and the owner of Detector Dogs International, Inc. He previously worked in law enforcement for 11 years and was trained and certified in police dog detection under the Utah standards. In fact, Heyen participated in Nope's training class. Heyen's certification expired in 1996 and he has not actively participated in training a dog team since 2002.
Heyen reviewed Rico's training records and the video of the free air sniff. He testified that in his opinion, Rico was not a well-trained police dog and the sniff of Simeon's vehicle was not reliable. Heyen testified that the training logs for Sands' and Rico's training in during [sic] 2013 and 2014 were not detailed enough to establish that Rico was well-trained and reliable. He took issue with Bauerly's narrative records of the various training sessions, stating they were not specific to Sands and Rico but, instead, also included exercises and hides involving other dog teams. Heyen also noted that the training Sands and Rico did on their own, outside of the official department training, was not documented or narrated.
Heyen testified that without documentation of the training Sands and Rico conducted on their own, they could not be considered well-trained. He also testified that there is no documentation that Rico " imprinted" on the four primary drug odors when he first began his training as a police dog. Thus, according to Heyen, there is no way to determine whether Rico actually learned those odors and can reliably detect them. Finally, Heyen took issue with the lack of detail in Rico's field-deployment records. He testified that based on the minimal documentation of Rico's actual performance in the field, it is impossible to determine if Rico is reliable.
In Heyen's opinion, the free air sniff of Simeon's vehicle was flawed and unreliable. He testified that the video reflects no true indication or alert behavior from Rico. Heyen stated that Rico placed his paws on the vehicle five separate times: (1) on the back rear panel when the sniff began, (2) on the front passenger door, (3) on the driver's door, (4) a second jump on the driver's window and (5) on the door seam between the front seat and back seat. In Heyen's opinion, there were no significant differences in Rico's behavior during these events, meaning there is no way to distinguish the alleged indications from non-indications. Moreover, Heyen testified that Sands cued Rico to jump and seemingly indicate at the driver's door

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by stopping his progress. He testified that the handler should remain moving at a steady pace during a free air search and that by stopping, the handler is signaling for the dog that it is time to indicate. Heyen also testified that Deputy Sands improperly cued Rico to indicate by removing the toy ball from his pocket before Rico reached the back of the vehicle and concluded the sniff.
Heyen was also critical of the fact that Sands had Rico sniff only one vehicle in the parking lot. According to Heyen, a handler should have the dog sniff multiple vehicles, much like conducting a photo line-up. On cross-examination, however, Heyen acknowledged that there is no industry standard requiring that a team sniff multiple vehicles.

Report and Recommendation at 2-11 (footnote omitted).

II. LEGAL ANALYSIS

A. Standard Of Review

I review the magistrate judge's report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1):

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1); see Fed.R.Civ.P. 72(b) (stating identical requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge's report and recommendation). While examining these statutory standards, the United States Supreme Court explained:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.

Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Thus, a district court may review de novo any issue in a magistrate judge's report and recommendation at any time. Id. If a party files an objection to the magistrate judge's report and recommendation, however, the district court must " make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). In the absence of an objection, the district court is not required " to give any more consideration to the magistrate's report than the court considers appropriate." Thomas, 474 U.S. at 150.

De novo review, of course, is nondeferential and generally allows a reviewing court to make an " independent review" of the entire matter. Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (noting also that " [w]hen de novo review is compelled, no form of appellate deference is acceptable" ); see Doe v. Chao, 540 U.S. 614, 620-19, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004) (noting de novo review is " distinct from any form of deferential review" ). The de novo review of a magistrate judge's report and recommendation, however, only means a district court " 'give[s] fresh consideration to those issues to which specific objection has been made.'" United States v. Raddatz, 447 U.S. 667, 675, 100 S.Ct. 2406,

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65 L.Ed.2d 424 (1980) (quoting H.R. Rep. No. 94-1609, at 3, reprinted in 1976 U.S.C.C.A.N. 6162, 6163 (discussing how certain amendments affect 28 U.S.C. § 636(b))). Thus, while de novo review generally entails review of an entire matter, in the context of § 636 a district court's required de novo review is limited to " de novo determination[s]" of only " those portions" or " specified proposed findings" to which objections have been made. 28 U.S.C. § 636(b)(1); see Thomas, 474 U.S. at 154 ( " Any party that desires plenary consideration by the Article III judge of any issue need only ask." (emphasis added)). Consequently, the Eighth Circuit Court of Appeals has indicated de novo review would only be required if objections were " specific enough to trigger de novo review." Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989). Despite this " specificity" requirement to trigger de novo review, the Eighth Circuit Court of Appeals has " emphasized the necessity . . . of retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate." Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). As a result, the Eighth Circuit Court of Appeals has been willing to " liberally construe[]" otherwise general pro se objections to require a de novo review of all " alleged errors," see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and to conclude that general objections require " full de novo review" if the record is concise, Belk, 15 F.3d at 815 (" Therefore, even had petitioner's objections lacked specificity, a de novo review would still have been appropriate given such a concise record." ). Even if the reviewing court must construe objections liberally to require de novo review, it is clear to me that there is a distinction between making an objection and making no objection at all. See Coop. Fin. Assoc., Inc. v. Garst, 917 F.Supp. 1356, 1373 (N.D. Iowa 1996) (" The court finds that the distinction between a flawed effort to bring objections to the district court's attention and no effort to make such objections is appropriate." ). Therefore, I will strive to provide de novo review of all issues that might be addressed by any objection, whether general or specific, but will not feel compelled to give de novo review to matters to which no objection at all has been made.

In the absence of any objection, the Eighth Circuit Court of Appeals has indicated a district court should review a magistrate judge's report and recommendation under a clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting when no objections are filed and the time for filing objections has expired, " [the district court judge] would only have to review the findings of the magistrate judge for clear error" ); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting the advisory committee's note to Fed.R.Civ.P. 72(b) indicates " when no timely objection is filed the court need only satisfy itself that there is no clear error on the face of the record" ); Branch, 886 F.2d at 1046 (contrasting de novo review with " clearly erroneous standard" of review, and recognizing de novo review was required because objections were filed). I am unaware of any case that has described the clearly erroneous standard of review in the context of a district court's review of a magistrate judge's report and recommendation to which no objection has been filed. In other contexts, however, the Supreme Court has stated the " foremost" principle under this standard of review " is that '[a] finding is " clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)

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(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Thus, the clearly erroneous standard of review is deferential, see Dixon v. Crete Med. Clinic, P.C., 498 F.3d 837, 847 (8th Cir. 2007) (noting a finding is not clearly erroneous even if another view is supported by the evidence), but a district court may still reject the magistrate judge's report and recommendation when the district court is " left with a definite and firm conviction that a mistake has been committed," U.S. Gypsum Co., 333 U.S. at 395.

Even though some " lesser review" than de novo is not " positively require[d]" by statute, Thomas, 474 U.S. at 150, Eighth Circuit precedent leads me to believe that a clearly erroneous standard of review should generally be used as the baseline standard to review all findings in a magistrate judge's report and recommendation that are not objected to or when the parties fail to file any timely objections, see Grinder, 73 F.3d at 795; Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also Fed.R.Civ.P. 72(b) advisory committee's note (" When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." ). In the context of the review of a magistrate judge's report and recommendation, I believe one further caveat is necessary: a district court always remains free to render its own decision under de novo review, regardless of whether it feels a mistake has been committed. See Thomas, 474 U.S. at 153-54. Thus, while a clearly erroneous standard of review is deferential and the minimum standard appropriate in this context, it is not mandatory, and I may choose to apply a less deferential standard.[1]

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As noted above, Simeon has filed objections to Judge Strand's Report and Recommendation. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Simeon's motion to suppress.

B. Objections To Report and

Recommendation

1. Newly raised issues

Simeon raises the following two new issues in her objections to Judge Strand's Report and Recommendation: (1) that the search of her hotel room was improper, and (2) she invoked her right to an attorney. Simeon contends that she is justified in her late raising of these issues because she claims that she was not provided a usable copy of her interview until after the evidentiary hearing. The prosecution responds that Simeon was provided a copy of the disk containing her interview one and one-half months prior to the evidentiary hearing. The prosecution also notes that at no point prior to the evidentiary hearing did Simeon complain of not being able to open the recording and that it was only at the time of oral arguments that Simeon first complained about being unable to open the disk. The prosecution further points out that one and one-half months prior to the evidentiary hearing, Simeon was provided a report in which law enforcement noted that Simeon had asked Officer Benson if she could call an attorney. The prosecution argues that this demonstrates that Simeon knew, or should have known of the issue, one and one-half months before the evidentiary hearing. Simeon has not contested the prosecution's representations. The prosecution argues that I should deny this issue as untimely.

Simeon also seeks to challenge the legality of the search of the hotel room. This, again, was not an issue raised before Judge Strand. Moreover, at no point did Simeon seek to amend her motion to suppress, or brief the issue. Simeon does not offer any explanation for her delay in raising this issue. The prosecution asserts that, as a result, it has not had an opportunity to present testimony on the issue, or to brief it, and argues that I should also deny this issue as untimely.

Simeon did not raise these two issues in her motion to suppress. Rather, they were first raised in her objections to Judge Strand's Report and Recommendation. Thus, Judge Strand never had the opportunity to consider either issue. Federal courts have repeatedly held that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, absent compelling reasons, it does not allow parties to raise new arguments or issues before the district court that were not presented to the magistrate. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (holding that " issues raised for the first time in objections to [a] magistrate judge's report and recommendation are deemed waived." ); United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998) ( " issues raised for the first time in objections to magistrate judge's report and recommendation are deemed waived" ) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996)); Borden v. Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) ( " Appellant was entitled to a de novo review by the district court of the recommendations to which he objected, however he was not entitled to a de novo review of an argument never raised. 'The purpose of the Federal Magistrate's Act is to relieve courts of unnecessary work.' It would defeat this purpose if the district

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court was required to hear matters anew on issues never presented to the magistrate. Parties must take before the magistrate, 'not only their 'best shot' but all of their shots.' This concept is premised on the same basis as the rule that an appellate court will not consider arguments not raised below except in the most compelling circumstances. Thus, here the district court judge properly refused to consider an argument which could have been, but inexplicably was not, presented to the magistrate in the first instance" (citations omitted)); see also Becker v. Clermont Cntv. Prosecutor, 450 Fed. App'x 438, 439 (6th Cir. 2011); Glidden v. Kinsella, 386 Fed. App'x 535, 544 n.2 (6th Cir. 2010); Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994); Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); Mitchell v. Cnty. of Washtenaw, No. 06-13160, 2009 WL 909581, at *4 (E.D. Mich. Mar.31, 2009); Anna Ready Mix, Inc. v. N.E. Pierson Constr. Co., Inc., 747 F.Supp. 1299, 1302-03 (S.D. Ill. 1990). Accordingly, Simeon has waived these two claims by failing to raise them before Judge Strand.

Alternatively, assuming for the sake of argument that Benson was required to have a search warrant to search the hotel room if Simeon had not yet checked out, I find that Simeon has not carried her burden of establishing that she had not yet checked out of the hotel room at the time Benson searched it and seized the baggie.[2] Accordingly, Simeon has not established that she still had a constitutionally protected privacy interest in the hotel room at the time of the search. See Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Simeon's objections are denied.[3]

2. Probable cause to search car before dog sniff

Simeon objects to Judge Strand's conclusion that probable cause existed to search Simeon's car before Sands and Rico conducted the free air dog sniff. Simeon

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does not contest Judge Strand's recitation of the law concerning the automobile exception, but disagrees with his view that the facts support a finding of probable cause.

" [S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted)). " The so-called 'automobile exception' permits police to conduct a warrantless search of an automobile if, at the time of the search, they have probable cause to believe that the vehicle contains contraband or other evidence of a crime." [4] United States v. Kennedy, 427 F.3d 1136, 1140-41 (8th Cir. 2005); see United States v. Vore, 743 F.3d 1175, 1179 (8th Cir. 2014); United States v. Brown, 634 F.3d 435, 438 (8th Cir. 2011). " 'Probable cause sufficient to justify a search exists where, in the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Vore, 743 F.3d at 1179 (quoting Kennedy, 427 F.3d at 1141); see United States v. Martinez, 78 F.3d 399, 401 (8th Cir. 1996). Probable cause " is a fluid concept that focuses on 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" United States Colbert, 605 F.3d 573, 577 (8th Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1984)). In making the probable-cause determination, I " 'apply a common sense approach and consider all relevant circumstances.'" Vore, 743 F.3d at 1179 (quoting Kennedy, 427 F.3d at 1141).

Judge Strand concluded that probable cause existed to search Simeon's car before Sands and Rico conducted the free air dog sniff. Judge Strand based his finding on the following facts: first, methamphetamine was found in a hotel room registered to Simeon; second, the evidence indicated that no one other than Simeon, her husband, and the housekeeper had entered the hotel room; third, after being detained, Simeon made a telephone call in which she sought to have her car removed from the parking lot and then falsely told Sands that her car had already been removed; fourth, Simeon admitted using methamphetamine the previous day and that she had a prior drug-related arrest; and finally, Simeon and her husband were very nervous while being interviewed.[5] Simeon

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disagrees with Judge Strand's determination of probable cause based on these facts and seeks to have me analyze the circumstances in isolation.

Even if Simeon's individual actions might be innocently explained, as Simeon argues, her behavior " must be considered as a whole and in the light of the officers' 'experience and specialized training.'" United States v. Ameling, 328 F.3d 443, 448 (8th Cir. 2003) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). In Arvizu, the United States Supreme Court reversed a suppression order, criticizing the court of appeals for evaluating seven factors " in isolation from each other" and giving them " no weight" because each " was by itself readily susceptible to an innocent explanation." Id. at 274. In considering the totality of the circumstances, I agree with Judge Strand and conclude that there were " sufficient facts to lead a prudent person to believe that there [was] a 'fair probability that contraband or evidence of a crime'" would be found in Simeon's car before the dog sniff occurred. United States v. Grant, 490 F.3d 627, 631 (8th Cir. 2007) (quoting United States v. Warford, 439 F.3d 836, 841 (8th Cir. 2006)). Accordingly, I find that Judge Strand correctly concluded that the search of Simeon's car was justified under the automobile exception to the warrant requirement and Simeon's objection is denied.

3. Probable cause to search car after dog sniff

Finally, Simeon objects to Judge Strand's conclusion that probable cause to search Simeon's car was provided by Rico's free air dog sniff because Rico was properly certified and trained, the free air sniff was properly done, and Rico indicated and was not cued. Simeon contends that Rico was not properly trained or certified and, therefore, was not reliable. She also argues that Sands improperly cued Rico to indicate and, therefore, Rico did not legitimately alert or indicate to the odor of drugs. Simeon contends that, because of these flaws, Rico's free air sniff did not establish probable cause to search her vehicle.

A dog sniff of the exterior of a vehicle does not violate the Fourth Amendment. United States v. Rivera, 570 F.3d 1009, 1012 (8th Cir. 2009) (citing Illinois v. Caballes, 543 U.S. 405, 409-10, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)). " [A]n alert or indication by a properly trained and reliable drug dog provides probable cause for the arrest and search of a person or for the search of a vehicle." United States v. Winters, 600 F.3d 963, 967 (8th Cir. 2010), see United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999); see also United States v. Perez, 440 F.3d 363, 374 (6th Cir. 2006). A drug dog is considered reliable when it has been " trained and certified to detect drugs and a detailed account of the dog's track record or education is unnecessary." United States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007). The relevant question 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." Florida v. Harris, 133 S.Ct. 1050, 1058, 185 L.Ed.2d 61 (2013).

In Harris, the United States Supreme Court outlined the framework courts should use in determining whether a drug dog sniff is reliable enough to give law enforcement officers probable cause to

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conduct a search. See United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir. 2015). The Court instructed that the appropriate inquiry 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. A sniff is up to snuff when it meets that test." Harris, 133 S.Ct. at 1058. The Court noted that more emphasis should be placed on a dog's performance in controlled settings than its performance " in the field." Id. at 1056. The Court observed that:

[T]he decision below treats records of a dog's field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search.... Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or. the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver's person.

Id. The Supreme Court further noted that " evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert." Id. at 1057. The Court concluded that " a court can presume (subject to any conflicting evidence offered) that [a] dog's alert provides probable cause to search" if " a bona fide organization has certified a dog after testing his reliability in a controlled setting . . . [or] if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs." Id. at 1057. " This presumption may be overcome if a defendant can show, either through cross-examination or introducing his own fact or expert witness, the inadequacy of a certification or training program or that the circumstances surrounding a canine alert undermined the case for probable cause." Gonzalez, 781 F.3d at 429 (citing Harris, 133 S.Ct. at 1057-58.

a. Rico's training and certification

Here, the record shows that Sands and Rico trained nearly every day in 2013, on their own time and with the K-9 Unit, preparing Rico to be a drug detection dog and to pass the certification test. This training often included working with Trobaugh, a certified dog trainer, instructor, and judge for the USPCA certification tests. Their training sessions included imprinting Rico on the major drug odors, using scratch boxes to hide narcotics, using reward-style training techniques and other training techniques in the Randy Hare method. In March 2014, Rico and Sands passed the USPCA certification test and Rico was certified as a drug detection dog. In passing the certification test, Rico found all four drug hides and had no false positive indications. Following Rico's certification, test, Rico and Sands continued maintenance training. They also began active duty and deployments as a drug detection dog team. Rico's training was documented by Bauerly in his official training logs for the WCSO K-9 Unit. These training logs detail each training session, including the types of training involved, the narcotics that were hidden, the locations and heights of the hides, each dog's performance, any mishandling or mistakes by the team, and the type, if any, of remedial training that occurred. These training logs indicate that Rico had three false positive indications out of 91 training exercises in 2014. Rico continued to be a

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certified drug detection dog when he was deployed to sniff Simeon's car.

Simeon objects to Judge Strand's finding that Rico was properly certified and trained, arguing that the WCSO's K-9 Unit training logs are insufficient to establish Rico's reliability and training because the logs lack sufficient information about Sands and Rico's individual training. Simeon bases her argument on Heyen's testimony that the training records should have more detail about some of the training tools used, what remedial training was used on Rico, and his response to those training techniques. Heyen's testimony was contradictory to Nope's. I note that Heyen has not actively participated in training a dog team since 2002, and has not been certified in police drug detection training since 1996. Nope, on the other hand, has 30 years of experience training police dogs and handlers and serves as the K-9 Training Supervisor for the Peace Officer Standards and Training Division of the Utah Department of Public Safety. Nope testified that the WCSO's K-9 Unit training logs were sufficiently detailed and adequately explained the training exercises, tools used, and the remedial measures taken. He commended WCSO's K-9 Unit's level of detail in the training records and its candor in documenting mistakes. Nope testified that in his opinion, based on his review of records, Sands and Rico were well-trained, were certified by a bona fide police dog organization, and were completely-functional as a narcotic detection team. He stated that despite three false positives during training in 2014, Rico was a highly competent and reliable drug detection dog.

I agree with Judge Strand's conclusion that Rico is properly trained and certified by a bona fide organization after satisfactorily performing in a certification or training program which tested his reliability in a controlled setting. Although Simeon's expert testified that he was unsatisfied with aspects of Rico's training and qualifications, Rico has maintained his certification and undergone continuous training, and, as the Supreme Court observed in Harris, " law enforcement units have . . . [a] strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources." Id. at 1057. Simeon's objection is denied.

b. The free air sniff

Simeon also objects to Judge Strand's finding that Sands deployed Rico correctly. Simeon again relies on Heyen's testimony. Heyen was critical of Sands's failure to initiate a free air sniff around other vehicles in the parking lot and alleged cueing behavior by Sands, including coming to a stop while on the driver's side and reaching into his pocket for Rico's toy ball. Concerning his criticism about not having Rico conduct sniffs of surrounding vehicles, Heyen acknowledged that this is simply his personal standard. He further admitted, and Nope agreed, that there is no standardized deployment practice for drug detector dogs and that each team has its own methods for completing a free air sniff.

Sands and Rico deployed in their usual manner and Nope testified he had no concerns with the team's standard deployment practice and that he considered the free air sniff of Simeon's vehicle to be " textbook." Accordingly, I agree with Judge Strand that Simeon has failed to show that the sniff was unreliable due to Sands's failure to have Rico sniff other vehicles in the parking lot.

Concerning Heyen's criticism that Sands cued Rico to indicate, Nope, Trobaugh, Bauerly, and Sands each testified to the contrary. Based on their review of the

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video, Nope, Trobaugh, and Bauerly testified that Sands properly stopped his progress only after Rico had already indicated to the odor of drugs by jumping on the driver's door. That is, Sands paused to allow Rico to " work" by pinpointing the precise source of the odor. Heyen acknowledged that this technique of allowing a drug dog to " work" is an appropriate reason to change the dog's pace around the vehicle and is not a cue. His interpretation of the video, however, is that Sands stopped before Rico's behavior changed, thus cueing the behavior. From my viewing of the recording, I agree with Judge Strand's finding that Rico's behavior changed noticeably once he came to the front corner of Simeon's car and began sniffing downwind on the driver's side. He became markedly more intense, jumped on the car, and began scratching. Sands, Nope, Trobaugh, and Bauerly agreed that this was Rico's indication to the odor of drugs. Similarly, from my viewing of the recording, I agree with Judge Strand that Rico had already jumped and scratched on the driver's side of Simeon's car before Sands reached into his pocket. Thus, Simeon's objection regarding how Rico was deployed is denied.

c. Rico's indication

Finally, Simeon objects to Judge Strand's finding that Rico did alert to Simeon's car. Simeon's objection is, again, based on Heyen's testimony that the recording does not show any significant change in Rico's behavior that could be characterized as either an alert or an indication. Nope, Bauerly, and Trobaugh each testified that the dog's handler is in the best position to know when the dog's natural behavior changes because that handler has trained with the dog and can notice small changes in the dog's general demeanor. Sands, Rico's handler, testified that immediately before jumping on the driver's door of Simeon's car, Rico's behavior, intensity, body language, and breathing changed. Sands testified that Rico was in alert status. Sands's testimony was corroborated by the other witness testimony and from my own viewing of the recording of Rico's sniff. Rico's behavior changed markedly before he jumped and scratched on the driver's door. Thus, I find, based on Sands's testimony and my own review of the recording, that Rico entered alert status and then indicated at the driver's side of Simeon's car. Accordingly, Simeon's objection is denied.

4. Combination of free air sniff and other information establishing probable cause

Based on her previous objections, Simeon also objects to Judge Strand's finding that the information already known to Sands, when combined with the outcome of Rico's free air sniff, established probable cause to search Simeon's care. For the reasons discussed above, I have rejected all of Simeon's prior objections. Considering the totality of the circumstances, the facts are easily sufficient for a reasonably prudent person to believe Simeon had illegal drugs in her car. Methamphetamine had been found in a hotel room registered to Simeon earlier that day. No one other than Simeon and her husband had entered or exited their hotel room before the housekeeper. She had admitted to having a prior drug arrest and had used methamphetamine the day before. Simeon made an effort to have someone retrieve her vehicle from the Casino lot and then falsely represented to Sands that it had already been removed. Simeon and her husband were overly nervous in their behavior. Finally, Rico, trained and certified in drug detection, had indicated to the odor of narcotics in Simeon's car. Therefore, Simeon's objection is denied.

5. Subsequent searches

Finally, Simeon objects to Judge Strand's conclusion that there was no basis

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to suppress evidence found as a result of the execution of a search warrant obtained by the prosecution after Simeon's car was searched. Simeon argues that if the search of her car was illegal, then any evidence found during the subsequent searches of her phones must also be suppressed as fruits of the poisonous tree. For the reasons discussed above, the search of Simeon's car was supported by probable cause. Because the evidence the prosecution relied upon to obtain that search warrant was gathered lawfully, there is no basis to suppress the evidence gathered from the warrant's execution. Accordingly, Simeon's objection is denied.

III. CONCLUSION

Therefore, for the reasons discussed above, I, upon a de novo review of the record, accept Judge Strand's well-crafted and well-reasoned Report and Recommendation and deny defendant Simeon's motion to suppress.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

Defendant Teresa Ann Simeon is charged by indictment (Doc. No. 2) with (a) conspiracy to distribute a controlled substance and (b) possession with intent to distribute a controlled substance. She has filed a motion (Doc. No. 23) to suppress certain evidence. Plaintiff (the " Government" ) has resisted the motion (Doc. No. 28). The Trial Management Order (Doc. No. 10) assigns motions to suppress to me to conduct any necessary evidentiary hearings and to prepare reports on, and recommended dispositions of, those motions.

I held an evidentiary hearing on March 12, 2015. Assistant United States Attorney Jack Lammers appeared on behalf of the Government. Simeon appeared personally and with her attorney, Robert Tiefenthaler. The Government offered the testimony of Matthew Benson, Nathan Sands, Todd Trobaugh, James Bauerly and Wendell Nope. Simeon offered the testimony of Kyle Heyen. The following exhibits were admitted into evidence:

Government Exhibit 1 : USPCA Certification - Detector Dog

Government Exhibit 2 : USPCA Certification - Patrol Dog

Government Exhibit 3 : K9 Monthly Training Reports

Government Exhibit 4 : CAD Dispatch Report

Government Exhibit 5 : Video of Dog Sniff- Full Length

Government Exhibit 5a : Video of Dog Sniff- Edited Length

Government Exhibit 6 : Advisement of Rights Form- Teresa Simeon

Government Exhibit 7 : Affidavit in Support of Search Warrant Application

Government Exhibit 8 : Wendell Nope Expert Report

Government Exhibit 9 : Video and Audio Recording of Security Office Interview

Defense Exhibit A : Curriculum Vitae of Kyle Heyen

Defense Exhibit B : Kyle Heyen Expert Report

The hearing reconvened on March 18, 2015, for the presentation of oral arguments. The motion is now fully submitted and ready for decision.

II. SUMMARY OF THE EVIDENCE

Events inside the Casino.

On the morning of October 3, 2014, a housekeeper at the WinnaVegas Casino & Resort (Casino)

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found a small baggie containing a white crystalline substance on a pillow in hotel room 418. Believing the baggie contained drugs, she reported it to Tribal Police Officer Matthew Benson. Benson seized the baggie from the room, took it to the Casino's security office and performed a field test on the substance. The field test was positive for methamphetamine. Benson then contacted the front desk to determine who had rented room 418. Teresa Simeon was the registered renter of the room. Benson reviewed security footage from the hallway near the room and determined that no one other than Simeon, a male (who was later determined to be Simeon's husband) and the housekeeper had entered or exited room 418 during the relevant period of time.

Benson then searched the premises for Simeon and found her on the Casino floor. He asked her to accompany him to the security office for questioning. She complied. Once in the security office, Benson advised Simeon of her rights and presented her an Advisement of Rights form, which she signed at 1:32 p.m. Benson then questioned Simeon about the methamphetamine found in her room. Simeon denied having any knowledge of it. Benson told Simeon that he had done his research. He explained that he knew she resided in Wayne, Nebraska, that he had contacted law enforcement there and that they were aware of her.

Because Simeon is not a tribal member, Benson advised her that she would be detained while he contacted the Woodbury County Sheriff's Office (WCSO). At that point, Simeon requested to speak with her husband and asked if she could call her lawyer. Benson stated that she could call her lawyer but indicated that she would need to use her personal cell phone because he would be using to the security office phone to call WCSO.

Mr. Simeon was brought into the security office at 1:42 p.m. He, too, was advised of his rights and signed an Advisement of Rights form. Benson then asked him about the methamphetamine. Mr. Simeon denied any knowledge of the narcotics or how they appeared in their hotel room. Meanwhile, Simeon placed a call on her iPhone. She asked the recipient of the call to pick up her vehicle at the Casino. After the call, Simeon asked Benson what would happen to her vehicle and if she could give the keys to someone. Benson told her it would be up to the WCSO but that he would normally let her have a friend retrieve the vehicle.

In response to Benson's call, WCSO dispatch contacted Deputy Nathan Sands. He advised dispatch that he was available to respond and, indeed, was only about eight to ten miles away from the Casino. Sands was dispatched to the Casino at 1:47 p.m. According to the WCSO's records, he arrived at the Casino security office at 1:54 p.m. Benson briefed Sands about the situation in a hallway outside the security office while Simeon and her husband remained in the office.

Sands entered the security office at 1:58 p.m. and questioned Simeon about the methamphetamine found in her hotel room. He testified that both Simeon and her husband appeared to be very nervous during the discussion. When asked about prior drug use, Simeon admitted she had used methamphetamine the day before but denied that the methamphetamine in the room belonged to her. She also denied having any guests in the room. Sands then asked Simeon if her vehicle was in the parking lot. She responded by stating that it probably had been picked up by a friend and was no longer at the Casino.

Sands believed this to be a lie because Simeon resides near Sioux City and any friend driving from the Sioux City area

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would not have had time to arrive at the Casino and retrieve the vehicle in such a short amount of time. He asked Simeon why she would have had someone pick up her vehicle. She answered: " Because I figured I was going to be arrested." Sands then asked about prior arrests. Simeon responded that she had been arrested for drugs while her husband stated that he had been arrested for a DUI and a few other minor offenses long ago.

Sands asked Simeon if his drug dog would detect drugs if he deployed the dog around her vehicle. Simeon answered " no." Sands followed up by asking when she last had methamphetamine in the vehicle. Simeon initially answered that she had never had drugs in her vehicle but, when pressed, changed her answer to " it's been a real long time ago." Sands then told Simeon that he did not believe she or her husband were being honest with him and that he knew they were very nervous about something.

Sands left the security office at 2:04 p.m. and called his supervisor for directions as to how he should proceed. He described the positive field test, the fact that Simeon was the registered renter of the hotel room and her nervous behavior and evasive answers. Based on this information, the supervisor directed Sands to place Simeon under arrest for possession of a controlled substance.

Sands came back into the office at 2:11 p.m. He again asked Simeon about the location of her vehicle and she again stated that she thought someone from Sioux City had already picked it up. Sands then asked what type of vehicle she drove. Simeon looked at her husband, who shook his head, shrugged his shoulders and said something to the effect of " it's up to you." At that point, Simeon stated that she wanted to talk to an attorney. Sands placed Simeon under arrest at 2:12 p.m. and advised her that her vehicle could not leave the parking lot until he had conducted a dog sniff.

Events in the Casino Parking Lot.

After Simeon was placed under arrest, another deputy arrived to transport her to the county jail. Meanwhile, Sands searched the parking lot for Simeon's vehicle. Because Simeon had declined to provide information about the vehicle, Sands started running every Nebraska license plate in the parking lot until he found one registered to Simeon. He testified that he located the vehicle about 30 minutes after his initial arrival at the Casino.

After locating the vehicle, Sands deployed his canine, Rico, for a free air sniff of the exterior of the vehicle. A Casino security video camera recorded a time-stamped video of the sniff. The video indicates that it started at approximately 2:30:35 p.m. and ended just over one minute later, at 2:31:40 p.m. Sands testified that a strong wind was blowing across the vehicle from the passenger's side towards the driver's side.

Sands and Rico began the sniff on the driver's side rear panel and proceeded to walk counterclockwise around the vehicle toward the passenger side door. They made their way to the front of the vehicle and then around to the driver's side. Sands testified that upon approaching the driver's door, Rico became more intense and his breathing changed. According to Sands, this was Rico's natural, untrained " alert" to the odor of narcotics. Rico then jumped up and placed his front paws on the driver's window. Rico also jumped onto and scratched at the driver's door seam and on the window of the back door. Sands had maintained a continuous pace around the vehicle, pointing to various areas for Rico to smell, until Rico jumped at the driver's door. At that point, Sands paused for approximately four seconds before he took a few more steps toward the

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rear of the vehicle. Rico continued to scratch at the driver's door and door seam. After Rico made his third jump onto the vehicle, Sands rewarded him with a toy ball and placed him back into his patrol car. Sands testified that Rico's three jumps and his scratching on the driver's side of the vehicle were his indications that he smelled narcotics and was pinpointing the source.

Sands then returned to the Casino security office, told Mr. Simeon that the vehicle would be searched and asked him for the key. Mr. Simeon complied. Sands returned to the parking lot, opened the vehicle and had Rico sniff the interior. Sands testified that Rico alerted and indicated on a black bag inside the car. Sands opened the bag and found twenty-three individually packaged baggies of methamphetamine (totaling approximately 125 grams), a digital scale and a Nebraska driver's license issued to Simeon. An officer assisting with the search found a Samsung phone on the front seat, along with Simeon's Social Security card. Sands then contacted the Tri-State Drug Task Force and had Simeon's vehicle towed to the police department. Later, during a more thorough search of the vehicle, officers found a cooler containing twenty individually packaged baggies of methamphetamine (totaling approximately 416.8 grams) hidden inside.

Sands documented Rico's sniff in a report written two days later. Sands wrote that Rico indicated only one time -- at the passenger door on the B pillar. He did not specify which passenger door. He also stated that Rico " began sniffing heavily on the driver's door, eventually picking his nose up to the door handle area and actually lifted the door handle with his muzzle." This action does not appear on the video recording of the sniff. Sands also wrote that Rico rose up on his back legs near the passenger side of the vehicle but stated that this was not an alert or indication.

Training and Certification.

In April 2013, with the help of Deputy Todd Trobaugh, Sands purchased Rico from a breeder in the Netherlands. The team went through a two-to-three week bonding period prior to beginning police dog training. They then began training both on their own and with the WCSO K-9 Unit. When the team trained on their own, they were often assisted by Trobaugh, who is certified as an instructor by the Randy Hare School for Dog Trainers.

Sands testified that the team's training began with Rico " imprinting" and becoming familiar with the four drug odors he would be deployed to detect: marijuana, methamphetamine, cocaine and heroin. Once Rico learned these odors, the team used drug boxes and scratch boxes as training tools. Various drugs are placed in the boxes for the dog to detect. As Rico gained experience at detecting the drug odors, Sergeant James Bauerly, who leads the WCSO K-9 Unit, made the puzzles and hides more difficult. The team trained indoors and outdoors, both with other K-9 teams and on their own, and with drugs hidden in vehicles, under furniture, in cabinets or in other difficult locations. The team trained almost daily until March 2014, when they underwent a certification test through the United States Police Canine Association (USPCA). Sands and Rico passed the test. On March 19, 2014, the USPCA certified the team for drug detection. Bauerly and Trobaugh testified they believed Rico was a very competent and well-trained police dog.

The USPCA certification process involved a one-day test that included an indoor and outdoor section.[1] The indoor section consisted of three rooms, two

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with hidden drugs and one without drugs. The outdoor section included five vehicles, two with hidden drugs and three without drugs. Sands was not aware of the location of the drug hides when the team completed the test. Rico's certification test was judged by eight individual judges. Bauerly and Trobaugh were judges for Rico's certification test but the other six judges were not affiliated with the WCSO. Rico detected all four drug hides. Sands testified that Rico had no false positive indications during either round. Rico began patrolling in April 2014, about one month after his USPCA certification.

After Rico and Deputy Sands were certified, they continued with maintenance training but did not train as frequently as they had prior to certification. The team attended training sessions approximately once a week with Bauerly and the K-9 Unit. These sessions are documented in training logs and grids that Bauerly maintains for the K-9 Unit. During 2014, Sands and Rico participated in 91 practice hides during WCSO K-9 training. The records indicate that Rico had three false positive indications for the odor of drugs during those practice sessions. Bauerly testified that based on his experience, Sands and Rico trained more than enough to maintain their reliability and were in compliance with all USPCA standards and WCSO training requirements.

Expert Testimony.

Sergeant Wendell Nope testified for the Government. He has been training police dogs and handlers for 30 years and serves as the K-9 Training Supervisor for the Peace Officer Standards and Training (POST) Division of the Utah Department of Public Safety. He is also a certified judge for various agencies and competitions, including the State of Utah, the Utah Peace Officer Association K-9 Trial, the Regional Police Dog Championship, the United States National Police Dog Championship and the International Law Enforcement Games K-9 Competition.

Nope testified that in his opinion, based on his review of records, Sands and Rico were well-trained, were certified by a bona fide police dog organization and were completely-functional as a narcotic detection team. He stated that in the police dog industry there is no uniform, standard number of hours required for initial or maintenance training. He also explained that the training methods taught by the Randy Hare School, which were used to train Rico, are accepted and highly respected in the industry. In Nope's opinion, Sands and Rico participated in a sufficient amount of training. He commended WCSO on the level of detail in the training records and its candor in documenting mistakes. He stated that despite three false positives during training in 2014, Rico was a highly competent and reliable canine. Nope pointed out that according to the training records, two of the false positives occurred on the same day and that remedial and corrective action was taken immediately. He also explained there are several reasons why a drug dog may falsely indicate during training, including the possibility that prior training on the same day might leave behind residual drug odors. He found it to be significant that Rico had not had another false positive since June 2014.

Based on his review of the video recording, Nope testified that the free air sniff of Simeon's vehicle was " practically textbook." He stated that from the video alone, he could tell that the team was either very gifted or had a significant amount of training. Nope explained that there was no standard practice in law enforcement for conducting a free air vehicle sniff but, rather, each team has its own system for doing so. He testified that Sands and Rico executed a perfectly-acceptable

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sniff around Simeon's vehicle. He observed that Rico was intense and ready to work upon exiting the patrol car and that Sands guided Rico to the target vehicle and tapped on the rear panel of the vehicle to indicate to Rico that he should begin his work. He testified that Sands then continuously moved around the vehicle and only pointed to areas on the vehicle Rico had skipped. Nope stated that these actions did not improperly cue Rico to indicate.

Nope further testified that he observed Rico indicate on the driver's door by jumping up on the door and scratching at the window and door seam. He also explained that Sands then properly slowed his progress to give Rico time to pinpoint the exact source of the odor. According to Nope, this pause by Sands did not improperly cue Rico to indicate because he had already indicated by jumping on the vehicle. Nope also stated that Sands did not give Rico his ball, as a reward, until after Rico had indicated. He testified that rewarding a drug dog after an indication is not inappropriate and does not cue the dog to indicate falsely. In short, Nope concluded that Sands and Rico were a well-trained and reliable drug-detecting team and that the free air sniff of Simeon's vehicle was conducted in a proper manner.

Kyle Heyen testified as an expert for the defense. He is a private consultant and the owner of Detector Dogs International, Inc. He previously worked in law enforcement for 11 years and was trained and certified in police dog detection under the Utah standards. In fact, Heyen participated in Nope's training class. Heyen's certification expired in 1996 and he has not actively participated in training a dog team since 2002.

Heyen reviewed Rico's training records and the video of the free air sniff. He testified that in his opinion, Rico was not a well-trained police dog and the sniff of Simeon's vehicle was not reliable. Heyen testified that the training logs for Sands' and Rico's training in during 2013 and 2014 were not detailed enough to establish that Rico was well-trained and reliable. He took issue with Bauerly's narrative records of the various training sessions, stating they were not specific to Sands and Rico but, instead, also included exercises and hides involving other dog teams. Heyen also noted that the training Sands and Rico did on their own, outside of the official department training, was not documented or narrated.

Heyen testified that without documentation of the training Sands and Rico conducted on their own, they could not be considered well-trained. He also testified that there is no documentation that Rico " imprinted" on the four primary drug odors when he first began his training as a police dog. Thus, according to Heyen, there is no way to determine whether Rico actually learned those odors and can reliably detect them. Finally, Heyen took issue with the lack of detail in Rico's field-deployment records. He testified that based on the minimal documentation of Rico's actual performance in the field, it is impossible to determine if Rico is reliable.

In Heyen's opinion, the free air sniff of Simeon's vehicle was flawed and unreliable. He testified that the video reflects no true indication or alert behavior from Rico. Heyen stated that Rico placed his paws on the vehicle five separate times: (1) on the back rear panel when the sniff began, (2) on the front passenger door, (3) on the driver's door, (4) a second jump on the driver's window and (5) on the door seam between the front seat and back seat. In Heyen's opinion, there were no significant differences in Rico's behavior during these events, meaning there is no way to distinguish the alleged indications from non-indications. Moreover, Heyen testified

Page 1009

that Sands cued Rico to jump and seemingly indicate at the driver's door by stopping his progress. He testified that the handler should remain moving at a steady pace during a free air search and that by stopping, the handler is signaling for the dog that it is time to indicate. Heyen also testified that Deputy Sands improperly cued Rico to indicate by removing the toy ball from his pocket before Rico reached the back of the vehicle and concluded the sniff.

Heyen was also critical of the fact that Sands had Rico sniff only one vehicle in the parking lot. According to Heyen, a handler should have the dog sniff multiple vehicles, much like conducting a photo line-up. On cross-examination, however, Heyen acknowledged that there is no industry standard requiring that a team sniff multiple vehicles.

Additional facts will be discussed as necessary below.

III. DISCUSSION

Simeon challenges every aspect of her detention and the free air sniff that led to the search of her vehicle. First, she argues that she was detained for an unreasonable amount of time before the sniff was conducted. Next, she argues that the vehicle was outside the scope of her detention and arrest and that it should have been released to her husband rather than being sniffed and searched. In addition, she argues that the sniff did not establish probable cause to search the vehicle because it was not conducted properly and the dog and handler lacked sufficient training to demonstrate reliability. Finally, she argues that a subsequent search warrant was invalid because it was issued in reliance on the allegedly-illegal search of her vehicle. For all these reasons, Simeon contends that her Fourth Amendment right against unreasonable searches and seizures was violated and that all resulting evidence must be suppressed. I will discuss each of Simeon's arguments separately.

A. Unreasonable Detention and Undue Delay

1. Applicable Standards

Law enforcement officers may, in appropriate circumstances and in the appropriate manner, approach a suspect for the purposes of investigating possible criminal behavior, even though there is not probable cause to arrest the suspect. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officers must have a reasonable and articulable suspicion to make an investigatory stop and detain the suspect. United States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir. 2002); see also United States v. Bustos-Torres, 396 F.3d 935, 942 (8th Cir. 2005). Reasonable suspicion arises when an " officer is aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrants suspicion that a crime is being committed." United States v. Houston, 548 F.3d 1151, 1153 (8th Cir. 2008). The question of whether a reasonable and articulable suspicion exists to support an investigatory stop is determined in light of the totality of the circumstances as a whole, Bustos-Torres, 396 F.3d at 942, rather than as discrete and disconnected occurrences. United States v. Hightower, 716 F.3d 1117, 1121 (8th Cir. 2013).

While there is no rigid time limit on an investigatory stop, a stop may be too long if it involves " delay unnecessary to the legitimate investigation of the law enforcement officers." United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994). An investigative detention may last no longer than necessary to effectuate the purpose of the stop and the investigative methods employed should be the least intrusive

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means reasonable to verify or dispel the officer's suspicion in a short period of time. Id. at 916 (quoting United States v. Willis, 967 F.2d 1220, 1224 (8th Cir. 1992)).

2. Analysis

Simeon argues she was detained for an unlawful amount of time prior to Sands and Rico performing the dog sniff on her vehicle. She contends she was initially detained by Benson and that the detention was unreasonably lengthened in order for Sands to arrive and conduct a dog sniff on her vehicle. Simeon claims she was detained for over an hour and during that hour she was questioned by both officers and had to wait while Sands found her vehicle and conducted the free air sniff. She argues that this period of detention was unreasonable and resulted in an unconstitutional search of her vehicle.

The Government argues that under the circumstances, Simeon's detention was not unreasonably long. I agree and, indeed, find that this is not even a close call. When Benson located Simeon on the Casino floor and asked her to accompany him to the security office, he was aware of particularized, objective facts warranting a reasonable belief a crime had been committed. Specifically, a housekeeper had discovered a baggie that appeared to contain narcotics in a hotel room, the room had been registered in Simeon's name and Benson's field test of the substance indicated that it was methamphetamine. Benson's initial detention of Simeon for investigatory purposes was not unconstitutional.

Nor was the duration of the detention. Based on Benson's unrefuted testimony, Simeon was detained shortly before 1:30 p.m.[2] She was questioned briefly by Benson before he determined that the WCSO would have to handle the investigation because Simeon is not a member of the Winnebago Tribe. Sands was dispatched to the Casino at 1:47 p.m. and arrived at the security office at 1:54 p.m. After an initial discussion with Benson, Sands began questioning Simeon soon after his arrival. The interview thus began approximately 30 minutes after Simeon was first detained. There is no evidence that this short delay was intentional or resulted from anything other than the fact that it took some time for a deputy to travel to the scene.

While this case does not involve a traffic stop, traffic stop cases are instructive in analyzing Simeon's claims of prolonged detention and unreasonable delay. In United States v. Donnelly, 475 F.3d 946 (8th Cir. 2007), the Eighth Circuit Court of Appeals explained that there is no " rigid timeline limitation for an investigatory stop" and suggested that a rigid time limit would undermine the importance of allowing authorities to graduate their responses to the demands of a particular situation. Id. at 953. The court upheld a one-hour delay in deploying a drug dog for a sniff after a traffic stop based on the fact that the officer asked standard questions regarding contraband and the defendant answered irregularly. Id. The officer's reasonable suspicion was strengthened rather than alleviated by the questioning, which justified the deployment of the drug dog and the prolonged detention. Id. (citing United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993)).

The same is true here. After Sands arrived at the Casino and questioned Simeon, his suspicions of drug trafficking and possession were only heightened, rather

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than alleviated. He testified that while he was questioning Simeon and her husband, both appeared to be very nervous -- so much so that he could see Mr. Simeon's neck pulsing. Simeon admitted to using methamphetamine the day before and to having a prior arrest for a drug-related crime. She also insisted that her vehicle had already been removed from the parking lot -- a claim Sands reasonably (and accurately, as it turns out) believed to be false due to the short amount of time that had passed. Moreover, while admitting to very recent methamphetamine use, Simeon initially claimed that she had never had drugs in her vehicle before changing her answer to state that it had been a " real long time ago." All of this information, when added to the fact that methamphetamine had been found in a room registered to Simeon, justified prolonging Simeon's detention. She was ultimately placed under arrest for possession of a controlled substance at 2:12 p.m., approximately 45 minutes after being detained.

A further, but short, delay naturally ensued as Sands attempted to locate the vehicle in the parking lot -- a task made more difficult by Simeon's decision to provide no information about the vehicle.[3] Once Sands located the vehicle, the free air sniff was conducted immediately. As noted above, the sniff was completed just over one hour from the time Simeon was initially detained by Benson. A substantial portion of the delay was caused by Simeon's own evasive conduct. Simeon was not detained longer than necessary to effectuate the purpose of the detention. I find that neither the detention itself nor its duration violated Simeon's constitutional rights.

B. The Warrantless Search of the Vehicle

1. The Automobile Exception

The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. Const. amend. IV. Warrantless searches are per se unreasonable, with a few well-established exceptions. United States v. Kennedy, 427 F.3d 1136, 1140 (8th Cir. 2005). " The so-called 'automobile exception' permits police to conduct a warrantless search of an automobile if, at the time of the search, they have probable cause to believe that the vehicle contains contraband or other evidence of a crime." Id. at 1140-41. " Probable cause is determined by the totality of the circumstances, Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and exists when the facts are sufficient for a reasonable person to believe that contraband or evidence of a crime will be found in the place to be searched, United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995)." United States v. Martinez, 78 F.3d 399, 401 (8th Cir. 1996).

2. Was There Probable Cause to Search the Vehicle Before the Sniff?

The Government argues that Simeon's complaints about the validity of the free air sniff are irrelevant because Sands already had probable cause to search Simeon's vehicle without conducting that sniff. That is, the Government contends that before Sands deployed Rico, there were sufficient facts for Sands to form a reasonable belief that Simeon's vehicle contained contraband or other evidence of a crime. Simeon disagrees, arguing that her vehicle was sufficiently separate from

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the hotel room that no reasonable person would believe there would be contraband in her vehicle. Based on the evidence presented, however, I conclude that probable cause existed to search Simeon's vehicle before Sands and Rico conducted the free air dog sniff.

The Government suggests, and I agree, the circumstances in this case are similar to those in Martinez. In that case, the Eighth Circuit Court of Appeals held that there was probable cause to support the warrantless search of a vehicle owned by the defendant because: (1) the vehicle was parked near the residence, (2) evidence of drug trafficking was found during the search of the residence, (3) two sources identified the defendant as a drug trafficker and (4) a vehicle registered to the defendant's wife had been used to transport drugs in the past. Martinez, 78 F.3d at 401. Here, methamphetamine was found in a hotel room registered to Simeon. The evidence, including Simeon's own admissions, indicated that no one other than Simeon, her husband and the housekeeper had entered the hotel room. After being detained, Simeon placed a phone call in which she sought to have the vehicle removed from the parking lot. She then falsely advised Sands that the vehicle had already been removed -- a claim Sands disproved by locating the vehicle in the adjacent parking lot.

Moreover, Simeon admitted that she had used methamphetamine the previous day and that she had a prior drug-related arrest. Finally, Sands observed -- based on his training and experience -- that Simeon and her husband were very nervous while being interviewed. When considering the totality of the circumstances, the combination of these facts and observations was sufficient for a reasonable person to form a belief that contraband or evidence of a crime would be found in Simeon's vehicle. Thus, I find that the automobile exception permitted a warrantless search of that vehicle without deploying a drug dog. This means, of course, that I could recommend the denial of Simeon's motion to suppress without addressing the arguments and evidence relating to the free air sniff. Nonetheless, because this is a report and recommendation that is subject to review by Judge Bennett, I will analyze Rico's deployment.

3. Did the Free Air Sniff Establish Probable Cause?

a. Applicable Standards

A dog sniff of the exterior of a vehicle during a stop does not violate the Fourth Amendment. United States v. Rivera, 570 F.3d 1009, 1012 (8th Cir. 2009) (citing Illinois v. Caballes, 543 U.S. 405, 409-10, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)). " [A]n alert or indication by a properly trained and reliable drug dog provides probable cause for the arrest and search of a person or for the search of a vehicle." United States v. Winters, 600 F.3d 963, 967 (8th Cir. 2010), United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999). A drug dog is considered reliable when it has been " trained and certified to detect drugs and a detailed account of the dog's track record or education is unnecessary." United States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007). The standard to establish probable cause " is no more demanding where police search an automobile based on probable cause without a warrant." Id. However, the court must also consider evidence which may detract from the dog's reliability. See Winters, 600 F.3d at 967 (" Contrary evidence 'that may detract from the reliability of the dog's performance properly goes to the credibility of the dog.'" ) (quoting United States v. Diaz, 25 F.3d 392, 394 (6th Cir. 1994)). The relevant question is " whether all the facts surrounding a dog's alert, viewed through the lens of common

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sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime." Florida v. Harris, 133 S.Ct. 1050, 1058, 185 L.Ed.2d 61 (2013).

As noted above, once probable cause is established a vehicle may be searched without a warrant under the automobile exception to the warrant requirement. United States v. Bloomfield, 40 F.3d 910, 919 (8th Cir. 1994). If probable cause justifies the search of a vehicle, then it permits the search of every part of the vehicle and its contents that may conceal the object of the search. Olivera-Mendez, 484 F.3d at 512 (citing United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)).

b. Analysis

Simeon challenges the dog sniff and subsequent search of the vehicle by arguing (1) Rico was not properly trained or certified and, therefore, was not reliable, (2) Sands improperly cued Rico to indicate and (3) Rico did not legitimately alert or indicate to the odor of drugs. Simeon contends that because of these flaws, Rico's free air sniff did not establish probable cause to search her vehicle. The Government argues the sniff was reliable and -- if probable cause did not already exist -- provided Sands with probable cause to search the vehicle. The Government contends that Rico was certified by a bona fide certification organization and that there is sufficient evidence to establish that he and Sands were properly trained and reliable. The Government denies that Sands cued Rico to indicate and argues that Sands deployed Rico properly.

i. Was Rico Properly Trained, Certified and Reliable?

In Harris, the Supreme Court rejected a rigid, bright-line, evidentiary checklist based on " in the field hits or misses" in determining if a drug detection dog was reliable. Harris, 133 S.Ct. at 1056. Rather, the Court determined " the better measure of a dog's reliability thus comes away from the field, in controlled testing environments." Id. In explaining what is necessary to prove a dog's reliability the Court stated:

[E]vidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. 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. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

Id. at 1057. In Harris, the State introduced substantial evidence of the dog's training and proficiency in finding drugs. Id. at 1058. He had successfully completed two separate training programs, a 120-hour program and an additional 40-hour program. Id. He had also been certified by an independent company but by the time of the vehicle search at issue, the certification had expired. Id. There was documentation that the dog and his handler trained four hours per week with exercises designed to maintain their skills. Id. The testimony and written records confirmed that the dog always performed at the highest level during those training sessions. Id.

Here, Sands, Trobaugh and Bauerly testified that Rico had extensive training in drug detection. While Sands was a first-time dog handler, he was assisted in his training by two experienced trainers. Trobaugh is a certified dog trainer, instructor and judge for the USPCA certification tests. He has been a dog handler

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himself and has attended numerous classes in training dogs. Bauerly is a certified dog handler and judge for the USPCA. While he is not a certifier trainer or instructor, he has many years of experience handling dogs, judging dogs and training the WCSO K-9 Unit.

Sands explained that he and Rico trained nearly every day, on their own time and with the K-9 Unit, during 2013 in order to prepare Rico to be a drug detection dog and to pass the certification test. The training done on their own time often included training with Trobaugh. Their training sessions involved imprinting Rico on the major drug odors, using scratch boxes to hide narcotics, using reward-style training techniques and other training techniques in the Randy Hare method. In March 2014, Rico and Sands passed the USPCA certification test by finding all four drug hides and having no false positive indications. Rico was then certified as a drug detection dog and maintained that certification when he was deployed to sniff Simeon's vehicle.

After the certification test, Rico and Sands continued with maintenance training and also began active duty and deployments as a detector dog team. Rico's training was documented by Bauerly in his official training logs for the entire K-9 Unit. These logs included detailed narrations of each training session with information about what types of training tools were used, the narcotics that were hidden, the locations and heights of the hides, each dog's performance, any mishandling or mistakes by the team and the type, if any, of remedial training that occurred. According to the training logs, Rico had three false positive indications out of 91 training exercises in 2014.

Simeon argues that these training logs are not sufficient to prove Rico's reliability and training because (a) the logs are not adequately detailed, (b) documentation of the team's individual training is lacking and (c) there is a lack of field deployment statistics or documentation. Heyen testified he would have liked to see more detail about the certain training tools used, the remedial training implemented when necessary and Rico's response to those training techniques. He also testified that he could not determine Rico's reliability without the individual training records and field deployment records.

Despite these complaints, this case is akin to Harris in that the record contains substantial evidence detailing Rico's extensive training, reliability and success in his training exercises. In the controlled training environments, Rico had a documented success rate of approximately ninety-six percent, with only three false positives out of 91 exercises in 2014. Nope testified that the training logs were sufficient in their detail and adequately explained the training exercises, tools used and any remedial measures taken. In fact, Nope was impressed with the training logs and Bauerly's candor in detailing not only Rico's successes but also his failures.

In addition, it is undisputed that Rico passed his certification test in March 2014 and is certified as a drug detector dog by the USPCA. Nope, Trobaugh and Bauerly all testified that the USPCA is a well-respected national organization for police dogs. While Heyen testified that he is generally dissatisfied with the USPCA and believes the association's testing is too lax, I find that his complaints are insufficient to overcome the presumption of reliability that certification from a bona fide organization carries. The USPCA is a bona fide police dog organization, provides a legitimate certification and supports the presumption that Rico is a well-trained and reliable detector dog. See United States v. Gonzalez, 781 F.3d 422, 2015 WL 1283832, at *5 (8th Cir. Mar. 23, 2015). Simeon has referred me to no case holding

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otherwise. Nor have I located any such case through my independent research.

Like Heyen's complaints about the USPCA, his critique of Rico's training and the WCSO's training records are based solely on his subjective beliefs. He acknowledged that there are no recognized industry standards requiring the higher levels of training and documentation he advocates. His opinions are similar to the rigid, checklist standards the Supreme Court rejected in Harris. While I do not doubt that he sincerely believes greater levels of training and documentation are desirable, I find that his beliefs are contrary to Harris. In light of Harris, and upon consideration of all of the evidence presented, I find that the Government has established that as of October 3, 2014, Rico was a properly trained, certified and reliable drug detector dog.

ii. Did Sands Conduct the Free Air Sniff Properly?

As noted above, Heyen testified that Rico was not deployed correctly. Specifically, he took issue with (a) Sands' failure to initiate a free air sniff around other vehicles in the parking lot and (b) alleged cueing behavior by Sands, including coming to a stop while on the driver's side and reaching into his pocket for Rico's toy ball. With regard to having Rico conduct sniffs of surrounding vehicles, Heyen acknowledged that this is simply his personal " gold standard" of how to complete a sniff. He admitted, and Nope agreed, that there is no standardized deployment practice for drug detector dogs and that each team has its own methods for completing a free air sniff. Here, the evidence demonstrates that Sands and Rico deployed in their usual manner. Nope testified he had no concerns with the team's standard deployment practice and that he considered the free air sniff of Simeon's vehicle to be " textbook." Simeon has failed to show that the sniff was unreliable due to Sands' failure to have Rico sniff other vehicles in the parking lot.[4]

As for Heyen's opinion that Sands cued Rico to indicate, Nope, Trobaugh, Bauerly and Sands each testified otherwise. Based on their review of the video, they explained that Sands properly stopped his progress only after Rico had already indicated to the odor of drugs by jumping on the driver's door. That is, Sands paused to allow Rico to " work" by pinpointing the precise source of the odor. Heyen acknowledged that this technique of allowing a drug dog to " work" is an appropriate reason to change the dog's pace around the vehicle and is not a cue. His interpretation of the video, however, is that Sands stopped before Rico's behavior changed, thus cueing the behavior.

Having reviewed the video many times, I disagree. Rico's behavior changed noticeably when he rounded the front corner of the vehicle and began sniffing the downwind, driver's side. He became more intense, jumped on the vehicle and began scratching before Sands stopped moving. I reject Heyen's claim that Sands stopped first and that Rico's behavior changed only after that event occurred.

I likewise reject Heyen's opinion that Sands improperly cued Rico by reaching for his toy ball. Again, the video shows otherwise. Rico had already jumped and scratched on the driver's side of the vehicle two times before Sands reached into his pocket. Sands testified, and Nope, Trobaugh and Bauerly agreed, that this was Rico's indication to the odor of drugs.

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In short, based on the testimony and, more importantly, the video recording, I reject Simeon's allegation that Sands cued Rico to indicate.

iii. Did Rico Indicate?

Again relying on Heyen's testimony, Simeon argues that Rico did not actually alert or indicate on her vehicle. Heyen testified that the video depicts no change in Rico's behavior that could be characterized as either an alert or an indication. In his opinion, Rico's behavior of jumping on the driver's door was no different from other instances in which Rico placed his paws on the vehicle. He further testified that he did not see or hear[5] any change in Rico's breathing, body posture or intensity, causing him to conclude that Rico never entered alert status and therefore, did not truly indicate. In Heyen's opinion, Rico was not consistent in his behavior, jumped on the vehicle in three different places and did not indicate there was an odor of drugs on the vehicle.

Nope explained an alert is a natural, untrained response to the odor of drugs, such as a change in behavior, breathing, intensity or body language. He testified that this natural, untrained response precedes a true indication and reveals that the dog senses the odor of drugs in the area. The dog then indicates by engaging in trained behavior. Some dogs display aggressive indication behavior ( e.g., scratching or biting at the source of the odor) while others indicate passively ( e.g., by coming to a stop and sitting at the source). Sands testified that Rico indicates aggressively by biting and/or scratching.

Nope, Bauerly and Trobaugh each testified that the dog's handler is in the best position to know when the dog's natural behavior changes because that handler has trained with the dog and can notice small changes in the dog's general demeanor. Here, Sands testified that immediately before jumping on the driver's door, Rico's behavior, intensity, body language and breathing changed from what they had been before Rico reached that location. That is, according to Sands, Rico went into alert status.[6] I find that this testimony is credible, as it is corroborated by other witness testimony and, to some extent, the video recording. While the video does not (and cannot) reflect whether Rico's breathing changed, it does show that his behavior changed when he came around to the driver's side of the vehicle. At that point, he repeatedly jumped and scratched on the driver's door. While he had briefly placed his paws on the side of the vehicle at least one other time during the sniff, the jumping and scratching that occurred on the driver's side is, quite plainly, different and more intense. I find, based on the witness testimony and my own review of the video, that Rico entered alert status and then indicated at the driver's side of the vehicle.

An indication by a properly trained and reliable detector dog gives an officer probable cause to search a vehicle. Winters, 600 F.3d at 967. I have already concluded that Rico was properly trained, certified and reliable as of October 3, 2014. As such, and because the Government has established that Rico indicated to the presence of drugs, I find that the free air sniff established probable cause for law enforcement to conduct a warrantless search of the vehicle and its contents. The search

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did not violate Simeon's Fourth Amendment rights.

4. Alternatively, Did the Combination of the Free Air Sniff and Other Information Known to Sands Establish Probable Cause?

The Government argues that even if (a) probable cause did not exist before the free air sniff and (b) the sniff itself was not entirely reliable, all the facts and circumstances that existed at the conclusion of the sniff established probable cause to search the vehicle. While it is not necessary to reach this argument, I will address it because it presents an additional, alternative basis for denying Simeon's motion.

In Winters, the Eighth Circuit stated:

The ultimate issue was probable cause to arrest Winters and search his person and car. Even if a drug dog's " performance record raises questions about his reliability" ... the issue is whether " the totality of the circumstances present at the scene" provided probable cause to search.

Winters, 600 F.3d at 968. The court found that while there was no evidence presented to cast doubt on the dog's past reliability, if there was reason to doubt the dog's reliability, the sniff could nonetheless be included in an evaluation of the circumstances as a whole to determine whether probable cause existed. Id. Those circumstances included (a) the defendant's body tremors and dilated pupils, (b) a strong " chemical" smell, (c) furtive movements by the defendant and his mother, (d) the defendant's refusal to keep his hands in view and (e) earlier observations of actions that were consistent with drug trafficking. Id. The court held that these facts, when added to the dog's alerts, " clearly supported the district court's ruling that the officers had probable cause" to search, without a need for a hearing on the dog's training and reliability. Id.

In this case, taking all the circumstances in their totality, the facts are easily sufficient for a reasonably prudent person to believe Simeon had illegal drugs in her vehicle. As noted earlier, when Sands conducted the search he knew that methamphetamine had been found in a hotel room registered to Simeon and that no one else (other than Simeon's husband) had entered or exited the hotel room before the housekeeper. Simeon admitted to Sands that she had a prior drug arrest and had used methamphetamine the day before. Simeon made an effort to have someone else retrieve her vehicle from the Casino lot and then falsely represented to Sands that it had already been removed. Simeon and her husband displayed nervous behavior and Simeon gave inconsistent statements as to how long it had been since she last had drugs in her vehicle.

In addition to these facts, a trained and certified drug detector drug then indicated to the odor of narcotics in the vehicle. Even assuming that the outcome of the free air sniff was not sufficiently reliable, standing alone, to establish probable cause, it is nonetheless another factor to weigh in considering the totality of the circumstances. Winters, 600 F.3d at 968. I find that the information already known to Sands, when combined with the outcome of Rico's free air sniff, established probable cause to search the vehicle even if neither the information nor the sniff, standing alone, would have.

C. Subsequent Searches

After Simeon's vehicle was searched, the Government applied for and obtained a warrant to search two cell phones, one that was in Simeon's possession at the time of her detention and arrest and one that was located in her vehicle. Simeon argues that if the search of her vehicle was illegal, then any evidence

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found during the subsequent searches of her phones must also be suppressed as fruits of the poisonous tree.

I have already found that the search of Simeon's vehicle was supported by probable cause -- and thus was constitutional -- on three alternative theories: (1) probable cause existed before the free air sniff, (2) the free air sniff, by itself, established probable cause and, in any event, (3) the combination of the free air sniff and other information known to law enforcement established probable cause. As such, I find it unnecessary to address Simeon's challenge to the warrant that authorized the search of her cell phones. Because the evidence the Government relied upon to obtain that warrant was gathered lawfully, there is no basis to suppress the evidence gathered upon the execution of that warrant.[7]

IV. CONCLUSION

For the foregoing reasons, I find that evidence obtained from the search of Simeon's vehicle, and from the subsequent search warrant that followed, should not be suppressed. Therefore, I RESPECTFULLY RECOMMEND that Simeon's motion to suppress (Doc. No. 23) be denied.

IT IS SO ORDERED.


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