State of Iowa v. Jonathon D. George

IN THE COURT OF APPEALS OF IOWA

No. 15-1736
Filed November 9, 2016

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JONATHON D. GEORGE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple (suppression hearing) and David F. Staudt (sentencing), Judges.

Jonathon George appeals the judgment and sentences imposed following

his convictions for possession of a firearm as a felon, third-offense possession of

methamphetamine, and third-offense possession of marijuana. CONVICTIONS

AFFIRMED, SENTENCES VACATED IN PART, AND REMANDED FOR

RESENTENCING.

Nina Forcier of Forcier Law Office, PLLC, Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.

Heard by Danilson, C.J., and Doyle and McDonald, JJ.
2

DOYLE, Judge.

Jonathon George was stopped for driving erratically. During a drug sniff of

the vehicle, K-9 Sali suddenly jumped through the open driver’s window and

alerted on drugs located in the rear-passenger-seat area. George was charged

with, and later found guilty of, possession of a firearm as a felon, third-offense

possession of methamphetamine, and third-offense possession of marijuana.

George appeals his convictions, contending the trial court erred in

overruling his motion to suppress evidence discovered during the search of his

vehicle. He argues the length of his detention and the search of the vehicle were

unreasonable. He also challenges his sentences, arguing the sentencing court

failed to state on the record its reasons for imposing consecutive sentences.

Because the stop and search of George’s vehicle was constitutionally

permissible, we affirm the denial of his motion to suppress. However, because

the sentencing court failed to give adequate reasons for imposing consecutive

sentences, we vacate that portion of the sentencing order and remand for

resentencing.

I. Background Facts and Proceedings.

On the night of August 28, 2014, the Evansdale Police Department

received several phone calls concerning an SUV that was traveling “all over the

roadway” on Interstate Highway 380, including a report that the SUV “went into

the ditch and drove back onto [the road].” Dispatch advised law enforcement

officers the vehicle continued west on Highway 20. Responding officers located

the vehicle in question and observed it drifting from the right shoulder of the
3

divided four-lane highway to the median shoulder, and back again. Because the

vehicle posed a safety risk, a traffic stop was initiated.

George was the driver of the SUV, and he appeared sleepy and lethargic

to the officers. He told the officers he was traveling from Oelwein to Ames and

was tired from driving alone. His pupils were very constricted and did not react to

changes in light—a sign of narcotics use. George stated he was not nervous

about the stop and denied he had consumed any alcohol. Because of his erratic

driving, his constricted pupils, and his sluggish appearance, the officers

suspected George was under the influence of alcohol or narcotics, and they

requested a K-9 officer assist with the stop. George consented to submit to field

sobriety tests. He passed two field sobriety tests but was unable to complete the

third. He then submitted to a preliminary breath test, which registered a blood

alcohol content of .000.

One of the officers requested George’s consent to search the vehicle and

observed that George became “nervous and fidgety.” George claimed he did not

have authority to consent to a search because someone else owned the vehicle,

though he claimed he was operating it with the owner’s knowledge and consent.

George provided the owner’s name but not his phone number, stating he was

concerned the owner would be upset with him if he provided it. The officers

contacted the Oelwein Police Department to locate the owner to verify George

had permission to drive the vehicle.

While waiting to learn if George had the owner’s consent to operate the

vehicle, Officer Michael Dean, the K-9 officer, arrived at the scene with Sali, a

German Shephard trained in narcotics detection. As Officer Dean was walking
4

Sali around the vehicle, Sali jumped into the SUV through the open driver’s

window and began “bracketing type behavior” to locate the source of an odor.

She stuck her snout into a suitcase and bags lying in the rear passenger area of

the vehicle, indicating the source of a narcotic odor.

After Sali indicated the presence of narcotics inside the SUV, the officers

detained George in the backseat of a patrol vehicle while they conducted a

search of the vehicle’s backseat area and the luggage stowed in it. They

discovered a firearm with ammunition and small plastic bags containing

marijuana and methamphetamine. Two plastic bags of methamphetamine were

located in a pill bottle with George’s name printed on the label, and other pill

bottles were found containing various prescription drugs. The officers also found

drug paraphernalia, men’s clothing similar in style and size to the clothing

George was wearing, an insurance card for an individual who listed the same

address as George, and an order form with George’s name and address printed

on it. Some of the items were located in the suitcase that Sali had indicated was

a source of a narcotic odor.

The State charged George with possession of a firearm as a felon,

possession of methamphetamine, possession of marijuana, and possession of a

prescription drug. The drug charges each carried an enhancement as a third

offense.

George moved to suppress the items discovered during the search of the

vehicle, alleging the search violated his right to be free from unreasonable

searches under the Federal and Iowa Constitutions. He argued the dog never

alerted the K-9 officer it detected the presence of a narcotic before entering the
5

vehicle and that the dog was not reliable or well trained. He also argued the

search exceeded the scope of the “open air sniff” when the dog entered the

vehicle. The district court denied the motion following a hearing.

George waived his right to a jury trial and requested a bench trial on the

minutes of evidence. The district court found George guilty of possession of a

firearm as a felon, possession of methamphetamine, and possession of

marijuana.1 It sentenced George to a five-year prison term on each count,

ordered the sentences to run consecutively for a total prison term of fifteen years,

and suspended the sentences. George now appeals, challenging the court’s

ruling on his motion to suppress and his sentence.

II. Search and Seizure Claims.

We review a claim the trial court erred in denying a motion to suppress on

federal and state constitutional grounds de novo. See State v. Pals, 805 N.W.2d

767, 771 (Iowa 2011). In doing so, we make “an independent evaluation of the

totality of the circumstances as shown by the entire record.” Id. (quoting State v.

Turner, 630 N.W.2d 601, 606 (Iowa 2001)). Because the district court had the

opportunity to evaluate the credibility of the witnesses, we give deference to its

fact findings but are not bound by them. See id.

George alleges both his detention and the search of the vehicle violated

his right to be free from an unreasonable search and seizure. Specifically, he

argues the officers lacked individualized suspicion of criminal activity to continue

the traffic stop beyond his initial detention. He also argues the search of his

vehicle was unreasonable because the officers lacked probable cause.

1
The State dismissed the charge of possession of a prescription drug.
6

A. George’s detention.

We first address George’s claim that his detention beyond the initial traffic

stop was unreasonable. George concedes the officers had a reasonable basis

for stopping his vehicle based on the reports of his erratic driving, which raised a

reasonable suspicion that he was driving while under the influence of alcohol or

drugs. George instead argues his continued detention was unreasonable.

After initiating a traffic stop, law enforcement officers may undertake

investigation that is “reasonably related in scope to the circumstances which

justified the interference in the first place.” State v. Bergmann, 633 N.W.2d 328,

335 (Iowa 2001) (citation omitted). That includes asking to see a driver’s license

and registration, and requesting that a driver sit in the patrol car. See id. If in the

course of undertaking that investigation, the driver’s answers or actions raise

suspicions unrelated to the traffic offense, the officer may broaden the scope of

inquiry to address those suspicions. See id. However, a traffic stop may not last

“longer than is necessary to effectuate [its] purpose.” In re Pardee, 872 N.W.2d

384, 392 (Iowa 2015) (citations omitted). Once the “tasks tied to the traffic

infraction are—or reasonably should have been—completed,” the officer’s

authority for the seizure ends. Id. (quoting Rodriguez v. United States, 135 S. Ct.

1609, 1614 (2015)). An officer may not unduly prolong an individual’s detention

without additional suspicion of wrongdoing. See Bergmann, 633 N.W.2d at 335.

George claims the purpose of the traffic stop was satisfied and he should

have been allowed to go once he passed two of the three field sobriety tests and

registered a blood alcohol content of .000 on the preliminary breath test, the

officers learned the vehicle’s owner had given George permission to drive the
7

vehicle, and the officers checked for outstanding warrants and verified the validity

of George’s driver’s license. He argues that after that point, the officers lacked

individualized reasonable suspicion of wrongdoing to continue the detention.

George argues he was detained an additional amount of time to allow

Officer Dean to arrive and conduct an investigation with Sali. The record

indicates otherwise, but in any event, the officers had reasonable suspicion to

believe George was driving under the influence of a narcotic, which justified his

continued detention. Although the field sobriety tests and preliminary breath test

result may have dispelled suspicion that George was operating the vehicle under

the influence of alcohol, the question of whether he was under the influence of

narcotics still remained in light of his erratic driving, his constricted pupils and

their failure to react to light, and his tired and lethargic appearance. The officers

had specific, articulable facts on which to continue their investigation. Therefore,

George’s detention was not unreasonable.

B. Search of the vehicle.

George next argues the search of the vehicle violated his constitutional

right to be free from unreasonable searches and seizures. Specifically, he

contends: “The dog did not alert until it entered [his] vehicle. This is not an open

air sniff and invades a person’s right to privacy by breaking the plane of the car

and entering under Article I section 8 of the Iowa Constitution.”

Searches and seizures are unconstitutional if they are
unreasonable and reasonableness depends on the facts of the
particular case. Warrantless searches are per se unreasonable if
they do not fall within one of the well-recognized exceptions to the
warrant requirement. Those exceptions include: (1) consent
search; (2) search based on probable cause and exigent
circumstances; (3) search of items in plain view; or (4) search
8

incident to a lawful arrest. The State must prove by a
preponderance of the evidence that a warrantless search falls
within one of the exceptions.

State v. Naujoks, 637 N.W.2d 101, 107-08 (Iowa 2001) (citations omitted). In

denying George’s motion to suppress, the trial court found the search was

permissible because the officers had probable cause to believe narcotics were

inside the vehicle.

The detection of an odor of a controlled substance emanating from an

automobile provides probable cause to conduct a comprehensive search of the

vehicle, regardless of whether the detection is made by an officer or a canine

trained to detect narcotics. Compare State v. Eubanks, 355 N.W.2d 57, 59 (Iowa

1984) (“The odor of that controlled substance in the automobile gave the

patrolman reasonable cause to conduct a comprehensive search of the car.”),

with Bergmann, 633 N.W.2d at 338 (“Because the drug dog alert established

probable cause, the police legally searched the car without a warrant under the

probable cause plus exigent circumstances exception to the warrant

requirement.”). Precedent clearly establishes that a “dog sniff” does not

constitute a search when it occurs outside a vehicle. See United States v. Place,

462 U.S. 696, 707 (1983); Bergmann, 633 N.W.2d at 334. George claims the

dog’s sniff cannot constitute probable cause because the dog did not alert to or

indicate the presence of the narcotic odor before jumping into the SUV.

Sali is not the first drug detection dog to have instinctively jumped into a

vehicle without direction by its handler. In 1989, the Tenth Circuit Court of

Appeals in United States v. Stone was faced with substantially the same

circumstances we face here. 866 F.2d 359, 361 (10th Cir. 1989). In that case, a
9

drug-detection dog was performing a sniff outside a vehicle when he jumped

through the open rear hatch “where he ‘keyed’ on a duffel bag.” Id. The bag was

searched and drugs were discovered. See id. Asserting the search of his car

violated his Fourth Amendment rights, Stone moved to suppress the drugs. See

id. The motion was denied. See id. On appeal, the Tenth Circuit affirmed, ruling

the dog’s instinctive actions did not violate the Fourth Amendment because there

was “no evidence . . . that police asked Stone to open the hatchback so the dog

could jump in. Nor [was] there any evidence the police handler encouraged the

dog to jump in the car.” Id. at 364.

Since Stone, other federal circuit courts of appeal have also held that

absent police misconduct, the instinctive actions of a trained canine do not

violate the Fourth Amendment. See United States v. Guidry, 817 F.3d 997, 1006

(7th Cir. 2016) (finding no Fourth Amendment violation where there was no

indication that the officers intended to facilitate the dog putting its head through

the open door); United States v. Sharp, 689 F.3d 616, 620 (6th Cir. 2012)

(holding a dog’s instinctive jump through open window without encouragement or

facilitation by the dog’s handler did not violate the Fourth Amendment), cert.

denied, 133 S. Ct. 777 (2012); United States v. Mostowicz, 471 F. App’x 887,

891 (11th Cir. 2012) (finding dog’s act of jumping instinctively into the car without

encouragement or facilitation from officers did not violate the Fourth

Amendment); United States v. Pierce, 622 F.3d 209, 214-15 (3d Cir. 2010)

(finding the defendant’s Fourth Amendment rights were not violated when the

dog instinctively jumped through the vehicle’s open door without facilitation by his

handler); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007) (holding
10

search permissible where, without direction from his handler, drug dog stuck its

head through van’s open passenger window and indicated source of drugs).

Numerous federal district courts have reached similar results. See United States

v. Johnson, ELH-15-0542, 2016 WL 4592377, at *22 (D. Md. Sept. 2, 2016)

(listing cases); accord United States v. Pulido-Ayala, No. 15-00359-01-CR-W-

DGK, 2016 WL 3828500, at *2 (W.D. Mo. July 13, 2016); United States v.

Azpeitia, No. 2:12CR00289 DS, 2013 WL 840053, at *3 (D. Utah Mar. 6, 2013);

United States v. Irvin, No. 07-20557, 2012 WL 5817903, at *6 (E.D. Mich. Sept.

20, 2012); United States v. Nance, No. 3:09-CR-163, 2010 WL 4004782, at *21

(E.D. Tenn. Sept. 17, 2010); United States v. Williams, 690 F. Supp. 2d 829, 835

(D. Minn. 2010); United States v. Pierce, No. 08-126-JJF, 2009 WL 255627, at *6

(D. Del. Feb. 2, 2009). Likewise, many state appellate courts have also followed

suit. See Omar v. State, 262 S.W.3d 195, 202 (Ark. Ct. App. 2007); People v.

Stillwell, 129 Cal. Rptr. 3d 233, 240-41 (Cal. Ct. App. 2011); State v. Naranjo,

359 P.3d 1055, 1057-58 (Idaho Ct. App. 2015); Cruz v. State, 895 A.2d 1076,

1087 (Md. Ct. Spec. App. 2006); State v. Cadavid, No. 08-08-1452, 2015 WL

2212200, at *5 (N.J. Super. Ct. App. Div. May 13, 2015); State v. Miller, 766

S.E.2d 289, 296 (N.C. 2014). Naturally there are some factual differences

between each case and the one at hand; nevertheless, we find these cases to be

persuasive.

After a comprehensive analysis of the issue, the Supreme Court of North

Carolina aptly summed up:

If a police dog is acting without assistance, facilitation, or
other intentional action by its handler (in the words of Sharp, [689
F.3d at 618-20,] acting “instinctively”), it cannot be said that a State
11

or governmental actor intends to do anything. In such a case, the
dog is simply being a dog. If, however, police misconduct is
present, or if the dog is acting at the direction or guidance of its
handler, then it can be readily inferred from the dog’s action that
there is an intent to find something or to obtain information. See
[United States v.] Winningham, 140 F.3d [1328,] 1330-31 [(10th Cir.
1998)] (invalidating a search on such grounds). In short, we hold
that a police dog’s instinctive action, unguided and undirected by
the police, that brings evidence not otherwise in plain view into
plain view is not a search within the meaning of the Fourth
Amendment . . . .

Miller, 766 S.E.2d at 296. We agree and hold that absent police misconduct, the

instinctive actions of a trained canine do not violate the Fourth Amendment or

article I, section 8 of the Iowa Constitution.

Although there is some dispute as to whether or not Sali alerted to the

presence of the odor of a drug before she jumped through the driver’s window, it

does not play an integral role in our analysis. On this point, our sister court in

Idaho concluded:

We do not believe a drug dog’s behavior before entering a
vehicle is constitutionally significant. While the dogs in many (but
not all) of the cases above exhibited some indication they had
detected an odor before entering the vehicle, none of the cases
based their holding on this fact. Rather, the cases focused on
whether the dogs’ acts were instinctual and whether police
facilitated or encouraged the acts. Sharp, 689 F.3d at 620; Pierce,
622 F.3d at 214-15; Lyons, 486 F.3d at 373-74; Stone, 866 F.2d at
364; [United States v.] Hutchinson, 471 F. Supp. 2d [497,] 510-11
[(M.D. Pa. 2007)]; cf. Winningham, 140 F.3d at 1331. Further, a
dog may follow a scent to its source without any indication it has
detected an odor before entering a vehicle. Hutchinson, 471 F.
Supp. 2d at 506 n.8 (presuming dog entered car “due to the smell
of the narcotics” because the dog indicated immediately after entry
and the canine officer testified the dog “‘followed the odor of
narcotics’ into the car,” but “offered no testimony as to how he knew
what drew [the dog] into the car”).

Naranjo, 359 P.3d at 1057-58 (footnote omitted). We agree, and for all the

above reasons, we hold that Sali’s instinctive jump into George’s SUV did not
12

violate his federal or state constitutional rights to be free from unreasonable

searches.

George also disputes the dog’s qualifications to detect narcotic odors,

arguing the dog was neither well-trained nor reliable. George notes that Sali’s

yearly certification lapsed in July 2014 and she was not recertified until

December 2014. He also argues Sali “did not perform flawlessly in certification.”

The record at the suppression hearing shows Officer Dean had been a K-

9 officer for approximately four years. When the Evansdale Police Department

first obtained Sali, Officer Dean attended a three-week training program with her.

The pair was certified and recertified a year later. They were unable to complete

their annual recertification in July 2014 due to Officer Dean’s illness. Their

recertification was delayed until December 2014, but they had no difficulties with

their recertification. Over the course of his four years working with Sali, Officer

Dean engaged in regular training with her, up to “a couple times a week.”

Although Sali did not perform “flawlessly” upon recertification, that is not the

standard we apply.

[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. After all, law enforcement units have their own
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.

Florida v. Harris, 133 S. Ct. 1050, 1057 (2013) (emphasis added).
13

Sali may not have been an honor student, and her certification was lapsed

at the time of the sniff, however, nothing in the record indicates Sali was

unreliable or not well-trained. Sali was qualified to detect narcotic odors.

Accordingly, her sniff was up to snuff. Id. at 1058.

III. Consecutive Sentences.

George also appeals his sentences, arguing the court failed to state on the

record its reasons for ordering them to run consecutively. “We review the district

court’s sentence for an abuse of discretion,” which is found when the court

exercises its discretion on clearly untenable grounds or to an extent clearly

unreasonable. State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). A ground or

reason is untenable when not supported by substantial evidence or based on an

error of law. See id.

The sentencing court must sufficiently state on the record its reasons for

selecting a particular sentence in order to allow us to review the exercise of its

discretion. See id. at 273. That includes the reasons for imposition of

consecutive sentences. See id. The court’s reasoning need not be detailed; a

terse statement may be sufficient if it does not prevent our review. See State v.

Thacker, 862 N.W.2d 402, 408 (Iowa 2015). However, the sentencing court

should explicitly state its reasons for imposing consecutive sentences. See Hill,

878 N.W.2d at 275. Although the court’s reasons for imposing consecutive

sentences may be the same as its reasons for imposing incarceration, we may

not infer the same reasons apply as part of an overall sentencing plan. See id.

(overruling State v. Hennings, 791 N.W.2d 828, 838-39 (Iowa 2010), and State v.

Johnson, 445 N.W.2d 337, 343-44 (Iowa 1989)).
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In sentencing George, the court stated:

Well, I’ve reviewed the presentence investigation report and the
facts and circumstances of the case. Although [the prosecutor]
makes a good argument that you should go to prison, I’m [not going
to send] you to prison at this time; however, . . . given your past
history and the fact that you have a lengthy substance-abuse
problem, also you’ve got two prior felonies which makes you a felon
in possession of a firearm . . . . What I’m going to do on Count I,
the Felon in Possession, and Count II and Count III, you’ll receive a
five-year prison term. That prison term will be suspended based
upon good behavior on probation. There will be a $750 fine along
with a thirty-five percent surcharge, [and] court costs. . . .
....
. . . [T]here will not be attorney fees. . . . On Counts II and III
there will be a $125 law enforcement initiative fee, $10 DARE fee,
180-day driver’s license suspension, and you’ll be ordered to obtain
a substance evaluation and comply with the recommendations. We
don’t know what those will be but you’ll need to comply with those.
What I am going to do is I’m going to run each of these consecutive
for fifteen years total. So you’re going to be on probation but you’re
going to have a fifteen-year prison term hanging over your
head. . . .
....
So you’re not going to prison, you’re going to get two-to-five
years of supervised probation; you’re going to be on the
Corrections Continuum, meaning if you violate this in certain ways,
they can put you in the residential facility, but also they can ask that
your probation be revoked. If your probation gets revoked, you’re
going to be in prison for fifteen years. So it’s time that you address
this substance abuse problem, get a little more hands-on approach,
go get an evaluation and, you know, kudos to you if you’ve actually
been sober since this occurred. Certainly that’s a good thing. But,
you know, you’re working, you’re doing the right things . . . .
You’re probably going to end up doing some NA or AA or
something, and I think you need to get some other kind of structure
involved here so that you can stay out of prison. . . .
....
. . . So whatever the reason was for driving all over the road,
you’re pretty lucky you didn’t get in an accident and potentially kill
yourself or others. Certainly before you borrow somebody’s car,
you’re going to want to find out if there’s a gun in it from now on.
Doesn’t make it any better; you’re not supposed to be around one.
So to that extent you found out the severity of that.
15

Because the court failed to give sufficient reasons for imposing

consecutive sentences to allow our review of its discretionary action, we vacate

the portion of the order imposing consecutive sentences. On remand, the trial

court should determine whether the sentences should run consecutive or

concurrent and provide reasons for its decision. See State v. Jason, 779 N.W.2d

66, 77 (Iowa Ct. App. 2009) (“Here, the trial court provided no explanation for the

imposition of consecutive sentences during the sentencing hearing or in the

sentencing order. Since the trial court gave sufficient reasons for imposing

incarceration, we vacate only that portion of the sentence imposing consecutive

sentences and remand for the purpose of determining whether the sentences

should run consecutive or concurrent.”). We affirm in all other respects.

CONVICTIONS AFFIRMED, SENTENCES VACATED IN PART, AND

REMANDED FOR RESENTENCING.