STATE of New Mexico, Plaintiff-Appellee, v. Roger Van CLEAVE, Defendant-Appellant, 129 N.M. 355

OPINION APODACA, Judge. {1} Defendant was convicted of possession with intent to distribute methamphetamine and possession of drug paraphernalia. He appeals from the denial of his motion to suppress evidence seized from his automobile by United States Border Patrol agents.

Defendant raised various issues on appeal, which, for purposes of our disposition, we have consolidated as three issues: (1) his consent to “inspect” the trunk of his vehicle was not voluntary; (2) even if his consent was voluntary, the use of a dog sniff to “search” the trunk exceeded the scope of consent; and (3) exigent circumstances did not exist to justify the warrantless search. We hold that, even assuming Defendant’s consent was voluntary, the consent did not extend to the use of a dog sniff to search his open trunk. We therefore reverse.

Because of our disposition, we need not address Defendant’s remaining issues. I. FACTUAL AND PROCEDURAL BACKGROUND {2} Early on the morning of December 10, 1996, Defendant approached the United States Border Patrol fixed checkpoint at Orogrande, New Mexico. Agent James Stack, working the primary checkpoint area, did not recognize Defendant as one of the regular commuters who normally pass through the checkpoint at this early hour. The agent inquired of Defendant’s citizenship. Defendant responded that he was a U.S. citizen. The agent then asked where Defendant was coming from.

Defendant replied he was going to visit his grandparents in Alamogordo and then continuing to Grants for work. Agent Stack found Defendant’s response “peculiar” since the agent had not inquired of Defendant’s destination but rather his starting point. The agent again asked Defendant where he was traveling from, and Defendant answered that he had spent two days visiting a friend in Chaparral, New Mexico. {3} Seeing no overnight bag in the car, Agent Stack asked Defendant if he was carrying any luggage. Defendant responded that he had none.

Noticing that the ignition key was on a yellow tag, which Agent Stack believed was normally used by automobile dealerships, the agent asked if the vehicle belonged to Defendant. Defendant replied that it belonged to his friend, Buck, but was uncertain about Buck’s last name. The agent then requested the registration or title documents for the vehicle.

While Defendant was searching through some papers above the visor, the agent observed Defendant “intensely” examining a piece of paper that was titled “Denver Institute of Technology-Enrollment Form.” At this time, the agent noticed that Defendant’s hands were shaking and that his chest was rising rapidly, indicating nervousness. Defendant was unable to produce any documents for the vehicle. Upon request, Defendant produced a two-month old driver’s license with a home address in Alamogordo. {4} Agent Stack next requested Defendant’s consent to “inspect” the vehicle’s trunk.

Upon receiving Defendant’s consent to inspect the trunk, the agent directed him to the secondary area, where Defendant got out and opened the trunk. At this point, Agent Joe Martinez approached the open trunk with his dog. Agent Stack directed Agent Martinez to conduct a dog sniff of the vehicle by the open trunk. The dog alerted to the open trunk, and Defendant was placed in custody. A warrantless search of the vehicle uncovered illegal drugs and drug paraphernalia. Defendant filed a motion to suppress the evidence seized, which the trial court denied. II. DISCUSSION A.

Standard of Review {5} In determining whether a trial court has erred in ruling on a motion to suppress, we examine “whether the law was correctly applied to the facts, viewing [the facts] in the manner most favorable to the prevailing party. All reasonable inferences in support of the court’s decision will be indulged in[,] and all inferences or evidence to the contrary will be disregarded.” State v. Esguerra, 113 N.M. 310, 313, 825 P.2d 243, 246 (Ct.App.1991). “[T]he denial of a motion to suppress evidence will not be overturned on appeal if the denial is supported by substantial evidence.” State v.

Hernandez, 1997-NMCA-006, ¶ 18, 122 N.M. 809, 932 P.2d 499. Additionally, “we review mixed questions of law and fact de novo, particularly when they involve constitutional rights. Searches and seizures [that] impact Fourth Amendment rights present just such a question.” Id. B. Scope of Consent {6} For purposes of our discussion, we will assume without deciding that Defendant voluntarily consented specifically to the agent’s “inspection” of the trunk.

This assumption next requires us to address the issue of whether the eventual search exceeded the consent given, thus invalidating the initial voluntariness of the consent. See State v. Garcia, 1999-NMCA-097, ¶9, 127 N.M. 695, 986 P.2d 491 (“If a search exceeds the scope of consent it is ‘not pursuant to a voluntary consent,’ and is therefore invalid.”) (quoting State v. Valencia Olaya, 105 N.M. 690, 695, 736 P.2d 495, 500 (Ct.App.1987)). {7} “The scope of [a] search is defined by and limited to the actual consent given.” State v.

Flores, 1996-NMCA-059, ¶ 22, 122 N.M. 84, 920 P.2d 1038. “The scope of an individual’s consent is measured by an objective reasonableness standard, that is, what a reasonable person would have understood by the exchange between the [agent] and the suspect.” Garcia, 1999-NMCA-097, ¶ 9.

Consent will not be considered voluntary and will thus be deemed invalid if the “search exceeds the scope of consent.” Id. {8} To determine if the scope of consent has been exceeded, we must examine the first tier of the analysis on the voluntariness of the consent, articulated in Valencia Olaya, — (whether “the consent was unequivocal and specific”). Valencia Olaya, 105 N.M. at 694, 736 P.2d at 499. We therefore must determine whether Defendant’s consent to inspect the trunk of his vehicle spedfically included a consent to use a dog to sniff the open trunk.

Put another way, we consider “whether the evidence will support an inference that [Defendant voluntarily consented to a search of the [trunk].” Id. at 695, 736 P.2d at 500. “If the evidence permits an inference that [Defendant consented to a [dog sniff] search of the [trunk], the trial court’s ruling must be sustained on the ground that the consent given was unlimited.” Id. {9} In this case, to the contrary, in contending that the dog sniff exceeded the scope of consent, Defendant relies on United States v. Winningham, 140 F.3d 1328 (10th Cir.1998) and State v. Warsaw, 1998-NMCA-044, 125 N.M. 8, 956 P.2d 139.

In Winningham, the officers opened the door of the defendant’s van, obtained his permission a dog sniff of the van, and then directed the dog to the open door. See Winningham, 140 F.3d at 1329. The court acknowledged that “[e]onsent is not to be lightly inferred or unnecessarily extended.” Id. at 1330 (emphasis added). The court determined that directing the dog to the open door established a “desire to facilitate a dog sniff of the van’s interior” and exceeded the scope of consent. Id. at 1331.

Under the facts in this appeal, Agent Stack requested Defendant to open his trunk and then directed Agent Martinez to conduct a dog sniff of the open trunk. The trial court found that the State had not met its burden of showing that Defendant’s consent included a dog sniff of the trunk. We agree with the trial court that these facts, similar to those found in Winningham, established a desire on the part of Agent Stack to facilitate a search of the open trunk that went beyond the scope of Defendant’s consent. {10} Warsaw discussed the privacy expectations protected under the Fourth Amendment.

See Warsaw, 1998-NMCA-044, ¶ 14. This Court determined there that “the Fourth Amendment governed entry into an open trunk.” Id. ¶ 16. The officers in Warsaw encouraged a dog to search the open trunk of the defendant’s vehicle. Id. ¶ 17. Agent Stack gave the same encouragement here. We held in Warsaw that such action by law enforcement officers constitutes a violation of a defendant’s constitutional right against illegal searches. Id.

We recognize that some of the facts were different in Warsaw — namely, consent was not specifically an issue in that case and the defendant was not even present when the officers searched an already-opened trunk. The trunk had been damaged and opened as a result of an accident. This factual variation, however, only highlights the real issue before us — the scope of consent. Warsaw clearly held that an individual has a reasonable expectation of privacy concerning objects found in his trunk.

Id. ¶ 16. {11} We must consider “whether the individual’s conduct demonstrated a subjective expectation of privacy.” Id. ¶ 14. In other words, could Defendant have a reasonable expectation of privacy if he consented to an “inspection” of the trunk and in fact opened it for the agent? Again, this question emphasizes the issue before us — what was the scope of Defendant’s consent?

We hold that, in first requesting consent to inspect Defendant’s trunk, then directing the dog to sniff downwind of the open trunk, Agent Stack exceeded the scope of consent, resulting in a violation of Defendant’s constitutional rights under the Fourth Amendment to the federal constitution. See Flores, 1996-NMCA-059, ¶ 22 (holding that when “a search goes beyond the scope of the consent given and there is no unequivocal and specific consent to the particular search,” the search is unconstitutional).

The two actions of the agent (obtaining consent to inspect and directing the dog sniff) are intertwined or coupled together and must be analyzed and considered as a whole. For that reason, we are not persuaded by the State’s reliance on both federal and our own eases holding that a dog sniff around a vehicle alone is not considered a search. See United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir.1990) (stating that a dog sniff of “the public airspace containing the incriminating odor” is not a violation of an individual’s constitutional rights); United States v.

Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding that the use of trained dogs did not constitute a search within the meaning of the Fourth Amendment); State v.

Villanueva, 110 N.M. 359, 362-63, 796 P.2d 252, 255-56 (Ct.App.1990) (determining that a dog sniff of luggage compartment of a bus was not considered a search within the meaning of the Fourth Amendment). {12} Based on the facts considered by the trial court, the court concluded that the State failed to meet “its burden of showing by clear and convincing evidence that what Defendant consented to in response to [Agent Stack’s] request to ‘inspect’ the trunk of his vehicle included the use of the canine.” See Garcia, 1999-NMCA-097, ¶ 8 (stating that the scope of consent “is a question of fact”) and ¶ 16 (determining that the defendant’s consent to allow officers to “look at” her vehicle did not “encompass drilling into the vehicle”).

We must give deference to the trial court’s conclusion, which we determine was supported by substantial evidence. {13} In addition to finding that the State failed to meet its burden of showing that Defendant consented to use of the canine, the trial court also concluded, and the State now argues on appeal, that the question of whether the trunk was open was irrelevant to the appropriateness of the dog sniff. We disagree.

Even though Agent Stack may have had reasonable suspicion to direct Defendant to the secondary area to conduct a dog sniff, we believe that his request that Defendant open his trunk in conjunction with the anticipated dog sniff was a violation of Defendant’s constitutional rights. See United States v.

Gay, 774 F.2d 368, 377 (10th Cir.1985) (“Any police activity that transcends the actual scope of the consent given encroaches on the Fourth Amendment rights of the suspect.”). {14} The State’s argument concerning the use of trained detection dogs is unpersuasive because the issue before us is not the use of trained dogs, but the scope of consent. We are also unpersuaded by the State’s claim that Defendant did not show that the dog would not have alerted to the contraband had the trunk been closed.

Because it was the State’s burden to show by clear and positive evidence that consent was voluntary, we believe it was the State’s burden to show that the dog would have alerted in any event with the trunk closed.

See Valencia Olaya, 105 N.M. at 694, 736 P.2d at 499 (holding that when scope of consent is at issue, it is the State’s burden to “establish by clear and convincing evidence that under the totality of the circumstances,” defendant’s rights were not violated). {15} The evidence established that Agent Stack’s request for consent to inspect the trunk, thus causing Defendant to open the trunk, together with his directing the dog to sniff the trunk, showed a clear “desire to facilitate a dog sniff” of the open trunk and consequently a denial of Defendant’s constitutional right against unreasonable searches.

Winningham, 140 F.3d at 1331; see also Gay, 774 F.2d at 377 (stating that exceeding the scope of consent is a violation of an individual’s constitutional rights). We simply cannot agree with the tidal court’s conclusion that the open trunk had no bearing on the dog’s ability to sniff out the drugs. Agent Stack’s reasonable suspicion became irrelevant when he requested consent to inspect the trunk. Cf. United States v.

Stone, 866 F.2d 359, 364 (10th Cir.1989) (determining that so long as officers do not ask a defendant to open his trunk, the officers “remain[ ] within the range of activities they may permissibly engage in when they have reasonable suspicion” of criminal activity). {16} For these reasons, we conclude that the request to inspect the trunk, combined with the direction of the dog sniff, took the agents out of “the range of activities” permissible of law enforcement officers. Id.

Because the State had the burden of showing that the consent was valid, in order for the State to prevail, it was required to show by clear and positive evidence that the activities fell within the scope of consent. The trial court concluded that the State failed to meet its burden to establish that the “dog sniff’ of the trunk was within the scope of consent, and we consider this conclusion to be supported by the evidence and determinative of this appeal.

See Esguerra, 113 N.M. at 313, 825 P.2d at 245 (“All reasonable inferences in support of the court’s decision will be indulged in and all inferences or evidence to the contrary will be disregarded.”). III. CONCLUSION {17} We conclude that, although Defendant initially consented to an inspection of the vehicle’s trunk, the agent’s direction of the dog sniff of the open trunk removed the search from the range of permissible activities of the agent. We thus hold that the trial court erred in denying Defendant’s motion to suppress the evidence seized from Defendant’s vehicle.

We reverse and remand for proceedings consistent with this opinion. {18} IT IS SO ORDERED. WECHSLER J., concurs. SUTIN, J., dissents.