text:
    The PEOPLE of the State of Colorado, Petitioner v. Brent Richard BERDAHL, Respondent.
    Supreme Court Case No. 16SC542
    Supreme Court of Colorado.
    April 29, 2019
    Attorneys for Petitioner: Philip J. Weiser, Attorney General, L. Andrew Cooper, Deputy Attorney General, Denver, Colorado
    Attorneys for Respondent: Megan A. Ring, Public Defender, Britta Kruse, Senior Deputy Public Defender, Denver, Colorado
    En Banc
   JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case principally asks us to decide whether Brent Berdahl's federal and state constitutional rights were violated when a law enforcement officer required him to submit to a pat-down search before providing a consensual ride in the officer's police car. We now conclude that when Berdahl accepted the officer's offer of a courtesy ride in the officer's car and then submitted to a brief pat down for weapons before getting into the car, he, by his conduct, voluntarily consented to the officer's limited pat-down search, and therefore, the search was constitutional.

¶2 Accordingly, we reverse the judgment of the division below.

I. Facts and Procedural History

¶3 Early one January morning, a Weld County sheriff's deputy was dispatched to an intersection in Weld County to check on the well-being of two people whose truck had broken down. About one-half to three-quarters of a mile from the reported location of the truck, he saw a man walking alongside the roadway. The deputy activated his emergency lights and pulled over, recognizing that the man was not dressed for the freezing temperatures and that he looked "close to hypothermic." The man, Berdahl, explained that his truck had run out of gas earlier that evening and that his significant other, J.P., was still in the truck, which was up the road. The deputy asked for identification, which Berdahl provided, and offered to let Berdahl get in the back of the deputy's patrol car to warm up. Before allowing Berdahl to do so, however, the deputy conducted a brief pat-down search for weapons.

¶4 The deputy then drove to where Berdahl's truck had run out of gas and asked J.P. if she wanted to get in the backseat of his car to warm up. She said that she did. The record does not reveal whether the deputy conducted a pat down of J.P. before she entered the car.

¶5 Upon learning that the batteries in Berdahl and J.P.'s mobile phones had died, the deputy attempted to make arrangements with several service stations in the area to see if they could deliver fuel. They all refused, however, because neither Berdahl nor J.P. had any form of payment with them.

¶6 Meanwhile, a Colorado State Patrol sergeant arrived at the scene to offer his assistance. After learning that Berdahl and J.P. had been stranded for much of the evening and that no one was available to come get or offer any assistance to them, he offered to transport them to the nearest gas station. They accepted the offer and collected their personal items from the truck. The sergeant then explained that before allowing them to get into his car, he "was just going to conduct a quick pat-down frisk for any weapons," at which point Berdahl immediately went over to the trunk of the patrol car, put his hands on the trunk, and spread his legs to allow the sergeant to conduct the pat down. During this pat down, the sergeant felt a hard cylindrical object on Berdahl's left ankle and asked him to identify it. Berdahl reached down and pulled out a sock that had a methamphetamine pipe inside. The sergeant asked him if he had any other contraband, and Berdahl reached down to his other ankle, lifted his pant leg, and pulled out a little blue zipper bag, which he handed to the sergeant.

¶7 The sergeant then transported Berdahl and J.P. to the gas station. (The evidence was disputed as to whether the sergeant conducted a pat down of J.P. before she got into the car; the sergeant testified that he did, but the deputy testified to the contrary, and the trial court ultimately credited the deputy's testimony.) When they arrived at the gas station, the sergeant gave J.P. some of his own money so that she could get help, and she went into the station. The sergeant then looked inside the blue bag, where he found a small plastic baggy containing a while crystalline substance, which he believed to be methamphetamine. He then arrested Berdahl.

¶8 The prosecution subsequently charged Berdahl with possession of a controlled substance and possession of drug paraphernalia. Before trial, he moved to suppress the evidence of the pipe and drugs, arguing that the sergeant conducted the pat down at issue without a warrant and that none of the exceptions to the Fourth Amendment's warrant requirement applied.

¶9 The court then conducted a hearing on Berdahl's motion. At that hearing, the sergeant testified that he had patted down Berdahl because "[i]t's an officer-safety practice when you're putting someone in the back of your patrol car."

¶10 In a lengthy and comprehensive written order, the trial court denied Berdahl's motion to suppress. Although the court found that the pat down was not consensual because a reasonable person in Berdahl's circumstances could only have chosen to submit to the pat down in order to be transported to a safe location, the court concluded that the search was nonetheless constitutionally permissible. The court first found that due to Berdahl's physical state, the sergeant "had no real choice but to transport the defendant in his police car." The court then determined that the sergeant "had the constitutional prerogative to pat down the defendant for weapons to [e]nsure officer safety." Therefore, the court concluded that "the pat down search of the defendant was reasonable under the totality of the circumstances."

¶11 The case proceeded to trial, and the jury ultimately found Berdahl guilty as charged.

¶12 Berdahl appealed, arguing that the trial court had erred in finding that the search was constitutionally permissible. In a unanimous, published decision, a division of the court of appeals concluded that "the search was not constitutionally justified for purposes of officer safety" but remanded for further findings under the legal standard set forth in People v. Magallanes-Aragon , 948 P.2d 528 (Colo. 1997), to determine whether Berdahl had voluntarily consented to the pat down. People v. Berdahl , 2012 COA 179, ¶ 14, 310 P.3d 230, 234. The division directed that if the trial court concluded on remand that Berdahl had voluntarily consented, then the judgment would stand affirmed, and if not, then Berdahl was entitled to a new trial. Id. at ¶ 37, 310 P.3d at 238.

¶13 On remand, the trial court applied the Magallanes-Aragon standard and concluded that Berdahl had voluntarily consented to the pat-down search. In support of this determination, the court found no objective evidence of improper conduct or undue influence on the part of the officers. To the contrary, the court found that the officers had "acted properly within the scope of their duty to protect Mr. Berdahl and his companion from harm." The court explained, "While some of the subjective factors indicate that Mr. Berdahl may have felt that there was no real choice but to consent, the officers did nothing to create the predicament, did nothing to take advantage of the situation, and did nothing to coerce Mr. Berdahl into submitting to the search." Thus, the objective factors outweighed the subjective factors at issue.

¶14 Berdahl again appealed, this time arguing that the trial court did not recognize that a police officer's assertion of lawful authority constitutes objective evidence of police coercion and that the mere submission to that assertion of authority does not constitute voluntary consent. In a partially divided, unpublished opinion, a different court of appeals division agreed with Berdahl. People v. Berdahl , No. 14CA72, slip op. at 12, 2016 WL 3124679 (Colo. App. June 2, 2016). In so ruling, the majority explained that "the [trial] court applied the wrong standard under Magallanes-Aragon in considering the interrelationship between the objective evidence of the police conduct, on one hand, and Berdahl's subjective characteristics and the circumstances of the search, on the other." Id. The majority stated that the court should have "appl[ied] an objective test to the totality of the circumstances of the search." Id. Applying this standard, the majority concluded that because the sergeant's statement that he was going to conduct a pat down to check for weapons constituted a claim of lawful authority, and because Berdahl's "consent" constituted mere acquiescence to that claim, the sergeant's actions "could have appeared coercive to a reasonable person in Berdahl's position." Id. at 13. The majority was not persuaded otherwise by the fact that when the sergeant stated that he was going to conduct a pat down, Berdahl immediately put his hands on the trunk of the patrol car and spread his legs. Id. at 23. In the majority's view, Berdahl's reaction did not evince voluntary consent but rather, as noted above, constituted mere acquiescence to the sergeant's claim of lawful authority. Id. The division thus reversed and remanded for a new trial excluding the evidence found as a result of the pat down. Id. at 24.

¶15 Judge Richman specially concurred. He expressed concern that if the sergeant's statement that he "was just going to conduct a quick pat-down frisk for any weapons" constituted an assertion of lawful authority, then almost any statement by a law enforcement officer could be perceived to be such an assertion. Id. at 26 (Richman, J., specially concurring). He nonetheless agreed with the majority's ultimate conclusion because "the sergeant's statement did not contain any request for permission to search." Id. at 27.

¶16 The People petitioned this court for certiorari review, and we granted their petition.

II. Analysis

¶17 We begin by setting forth the applicable standard of review of a trial court's suppression order and the legal principles governing the consent exception to the Fourth Amendment's warrant requirement. Applying those principles here, we proceed to conclude that when Berdahl accepted the sergeant's offer of a courtesy ride and then submitted to a brief pat down for weapons before getting into the car, he, by his conduct, voluntarily consented to the pat-down search. Accordingly, the search was constitutional.

A. Standard of Review and Applicable Legal Principles

¶18 Our review of a trial court's suppression order presents a mixed question of fact and law. People v. Hyde , 2017 CO 24, ¶ 9, 393 P.3d 962, 965. We defer to the trial court's factual findings if they are supported by the record, but we assess the legal effect of those facts de novo. Id. In our de novo review, we will correct the trial court's legal conclusions if the court applied an erroneous legal standard to the facts of the case. People v. Munoz-Gutierrez , 2015 CO 9, ¶ 14, 342 P.3d 439, 443.

¶19 It has been long settled that a pat down, or a "frisk," is a search. See Terry v. Ohio , 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The United States and Colorado Constitutions protect persons against unreasonable searches and seizures. U.S. Const. amend. IV ; Colo. Const. art. II, § 7. A search is presumptively unreasonable when it is conducted without a warrant unless the search falls within one of the well-established exceptions to the warrant requirement. People v. Pate , 71 P.3d 1005, 1010 (Colo. 2003).

¶20 One such exception exists when a person voluntarily consents to a search. See Schneckloth v. Bustamonte , 412 U.S. 218, 242-43, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consent is voluntary if it is "the product of an essentially free and unconstrained choice by its maker." Munoz-Gutierrez , ¶ 16, 342 P.3d at 444 (quoting Schneckloth , 412 U.S. at 225, 93 S.Ct. 2041 ). It cannot be "the result of circumstances which overbear the consenting party's will and critically impair his or her capacity for self-determination." Magallanes-Aragon , 948 P.2d at 530.

¶21 Conversely, consent is involuntary if it is "the result of duress or coercion, express or implied, or any other form of undue influence exercised [by the police] against the defendant." Munoz-Gutierrez, ¶ 17, 342 P.3d at 444 (quoting Magallanes-Aragon , 948 P.2d at 531 ). "Undue influence includes promises, threats, and intrusive or threatening police conduct." Id.

¶22 Consent may be express, or it may be implied through words, actions, or both. See, e.g. , United States v. Rodriguez , 834 F.3d 937, 940 (8th Cir. 2016) (explaining that "[c]onsent may be inferred from the defendant's 'words, gestures, or other conduct,' and the ultimate inquiry is not whether the defendant subjectively consented, but whether 'a reasonable officer would believe consent was given' ") (quoting United States v. Pena-Ponce , 588 F.3d 579, 584 (8th Cir. 2009) ); United States v. Sabo, 724 F.3d 891, 893 (7th Cir. 2013) (explaining that "[i]mplied consent may be manifested verbally or nonverbally").

¶23 To assess whether a person's consent was voluntary, courts must apply an objective test that takes into account the totality of the circumstances and determines whether the defendant could reasonably have construed the police conduct to be coercive. Munoz-Gutierrez , ¶ 23, 342 P.3d at 445. Pertinent considerations include the defendant's age, education, and intelligence; the duration, location, and circumstances of the search; the defendant's state of mind; and any other factors that could have affected the defendant's free and unconstrained choice in consenting to the search. Id. at ¶ 20, 342 P.3d at 444. This includes whether the defendant knew that he or she had a choice, although consent can be voluntary even if the defendant did not know that he or she was free to withhold consent. Schneckloth , 412 U.S. at 227, 93 S.Ct. 2041 ; People v. Chavez-Barragan , 2016 CO 66, ¶ 38, 379 P.3d 330, 339. In this regard, we note that although Colorado statutory law provides that peace officers must explain to suspects that they have the right to refuse consent, an officer's failure to give this advisement is only one factor in determining the voluntariness of consent. § 16-3-310(1)(b)(II), (3), C.R.S. (2018); accord Chavez-Barragan , ¶ 38, 379 P.3d at 339.

¶24 The essential consideration in determining the voluntariness of a defendant's consent to search is "the impact of overbearing, coercive, or deceptive police conduct on a person with the knowledge and particular characteristics of the defendant." Magallanes-Aragon , 948 P.2d at 533 ; see also People v. Marujo , 192 P.3d 1003, 1007 (Colo. 2008) (listing factors that may demonstrate that a reasonable, innocent person would not feel free to decline a police officer's request or to terminate an encounter).

B. Application

¶25 Here, the trial court found that Berdahl had voluntarily consented to the pat down. In reaching this conclusion, the court recognized that certain factors, including the location of the search, the weather conditions, and Berdahl's perceptions, tended to indicate that Berdahl subjectively perceived that he had no choice but to submit to the search. The court further found, however, that other objective factors should have made clear to Berdahl that he was not under investigation and that the only reason he was being asked to consent to a pat-down search was for officer safety. As a result, the court perceived no objective evidence of improper conduct or undue influence and thus determined that the search was constitutional.

¶26 Considering the totality of the circumstances in light of the factors set forth above, we agree that the pat down here was constitutional. We reach this conclusion for several reasons.

¶27 First, the record contains no evidence that either of the officers did anything to overbear Berdahl's will or in any way impair his capacity for self-determination. Nor does the record contain evidence to establish that the limited search conducted in this case was the product of duress, coercion, deception, or undue influence by the officers. Although to be sure, Berdahl found himself in difficult circumstances, the officers did not create those circumstances, and to the extent that Berdahl felt that he had no choice but to agree to the pat down as a condition of accepting a courtesy ride, that perception was not caused by any conduct of the officers. Indeed, the evidence makes clear that the officers did nothing other than offer to assist Berdahl, who needed help, while at the same time taking appropriate precautions to ensure their own safety.

¶28 Second, we perceive nothing about Berdahl's age, education, intelligence, or state of mind that would suggest that he was unable to consent voluntarily. To the contrary, Berdahl's conduct evinced his voluntary submission to the pat down. He immediately and without protest placed his hands on the trunk of the police car and spread his legs when the sergeant explained that he would need to conduct a brief pat down for weapons before allowing Berdahl to get into the police car.

¶29 Third, the duration of the search was brief, and we see nothing in the location of the search to suggest that it was the product of police coercion. Nor, as noted above, do the circumstances in which Berdahl found himself render the officers' conduct coercive.

¶30 Finally, although the sergeant did not expressly advise Berdahl of his right to refuse consent, we cannot say that this alone rendered Berdahl's consent involuntary. As the trial court found, with ample record support, an objectively reasonable person in Berdahl's position would have fully understood that the only reason that he was being asked to consent to a pat-down search was for officer safety, and not in connection with a coercive investigation into any suspected criminal activity.

¶31 For these reasons, we conclude that Berdahl voluntarily consented to the brief pat-down search at issue, and therefore, that search was constitutional. In light of this determination, we need not address the second issue on which we granted certiorari.

III. Conclusion

¶32 We have frequently acknowledged that the touchstone for determining the constitutionality of a search under the Fourth Amendment is reasonableness. See, e.g. , People v. Stock , 2017 CO 80, ¶ 17, 397 P.3d 386, 391. Here, we perceive nothing about these officers' conduct that was unreasonable. To the contrary, the largely undisputed evidence in this case shows that the officers did precisely what good and conscientious law enforcement officers would do to help citizens in need, while at the same time taking appropriate precautions to ensure their own safety.

¶33 We thus conclude that when Berdahl accepted the sergeant's offer of a courtesy ride in the sergeant's car and submitted to a brief pat down for weapons before getting into the car, he, by his conduct, voluntarily consented to the sergeant's limited pat-down search. Accordingly, we hold that the search was constitutional, and we therefore reverse the judgment of the division below.

      We granted certiorari to review the following issues:
      1. Whether a police officer may offer to provide a consensual ride in a patrol car to a person needing transport, but require that the person submit to a pat-down search before entering the patrol car.
      2. Whether People v. Berdahl , 2012 COA 179, 310 P.3d 230, should be overruled, and the constitutionality of the pat-down search in this case be upheld under the principles stated in People v. Gow , 2016 COA 119M, 442 P.3d 916.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jeremiah Anthony TOMASKE, Defendant-Appellee.
    Supreme Court Case No. 18SA292
    Supreme Court of Colorado.
    May 20, 2019
    Attorneys for Plaintiff-Appellant: Dan Hotsenpiller, District Attorney, Seventh Judicial District, Robert Davis, Deputy District Attorney, Montrose, Colorado
    Attorneys for Defendant-Appellee: Megan A. Ring, Public Defender, Kori Keil Zapletal, Deputy Public Defender, Montrose, Colorado
    En Banc
   JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 Police officers entered Jeremiah Tomaske's property without a warrant and chased him into his house; Tomaske responded by resisting and allegedly assaulting a police officer. We must determine whether the evidence regarding Tomaske's actions was properly suppressed. The trial court found that the police officers' initial entry onto the Tomaske property was a Fourth Amendment violation. The court further found that Tomaske's alleged assault "occurred only as a result of the illegal action of law enforcement entering the curtilage and then the residence in violation of the Fourth Amendment." As a result, the court suppressed all evidence of the alleged assault.

¶2 Because Tomaske's decision to resist was an independent act, we conclude that the evidence of Tomaske's alleged criminal acts was sufficiently attenuated from the police misconduct. Therefore, the evidence of what transpired inside the house should not be suppressed. Accordingly, we reverse the trial court's suppression order.

I. Facts and Procedural History

¶3 Mary Tomaske called the Montrose Police to report that her car had been stolen by her son, Josh Tomaske, and that he was potentially still on the property. While three officers were en route to the Tomaske residence, they received a report that the car had been returned. As the officers arrived at the Tomaske residence, they confirmed that the car was parked in the driveway but decided to investigate further. In doing so, they entered the backyard and observed a man-Jeremiah Tomaske-coming out of the detached garage and heading toward the house. The officers asked Jeremiah if he was Josh, the Tomaske who had reportedly taken the car. Tomaske responded that he was not, and that Josh was his brother. Tomaske then told the officers that they had no right to be there, but the officers commanded Tomaske to come talk with them. Tomaske refused and continued to move toward the house. The officers pursued Tomaske through the backyard, and one officer followed him into the house and tackled him to the ground. Tomaske resisted and, in the course of the struggle, dislodged the officer's baton from his duty belt. At this point, the other officers assisted in detaining Tomaske. Ultimately, Tomaske was taken into custody.

¶4 Tomaske was charged with second-degree assault on a peace officer, disarming a peace officer, attempted disarming of a peace officer, and obstructing a peace officer. Tomaske moved to suppress any statements from the officers about what transpired inside the house, arguing that the evidence stemmed from a warrantless entry and unlawful arrest.

¶5 The trial court suppressed the evidence. As an initial matter, the trial court determined that the officers' entry into the backyard of the Tomaske home violated the Fourth Amendment. The court then reasoned that Tomaske's actions inside the house were "a continuation of the illegal conduct of the officers." Therefore, the court determined that Tomaske's conduct "was not sufficiently attenuated as to dissipate the taint of the police misconduct," and it suppressed the officers' testimony about what transpired inside the house.

¶6 In response, the People filed this interlocutory appeal as authorized by section 16-12-102(2), C.R.S. (2018), and C.A.R. 4.1.

II. Standard of Review

¶7 A lower court's ruling on a suppression motion presents a mixed question of fact and law. Casillas v. People , 2018 CO 78M, ¶ 18, 427 P.3d 804, 809. We defer to a trial court's findings of fact if they are supported by sufficient evidence in the record. Id. We review a lower court's conclusions of law de novo. Id.

III. Analysis

¶8 To determine whether the evidence here should be suppressed, we first look to the Fourth Amendment's protections. Next, we examine the purpose and bounds of the common remedy for Fourth Amendment violations: the exclusionary rule. Then, we discuss the attenuation doctrine and its application as an exception to the exclusionary rule.

Finally, applying the attenuation doctrine to the instant matter, we conclude that the evidence of Tomaske's alleged criminal acts was sufficiently attenuated from the police misconduct, meaning that the evidence of what transpired inside the house should not be suppressed.

A. Law

¶9 The Fourth Amendment to the U.S. Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." There are two primary ways that the government can violate a person's Fourth Amendment rights: intrusion on a constitutionally protected area and violation of a person's reasonable expectation of privacy. See United States v. Jones, 565 U.S. 400, 411, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (noting that there are two tests used to assess Fourth Amendment violations: the "trespass" test and the "reasonable-expectation-of-privacy" test). For purposes of the Fourth Amendment's protections, "the home is first among equals." Jardines , 569 U.S. at 6, 133 S.Ct. 1409. The area directly surrounding the home, known as the curtilage, is an extension of the home for purposes of Fourth Amendment protection. Id. And because the curtilage is a "constitutionally protected area," a physical intrusion by the police on that area absent a warrant or recognized exception constitutes a Fourth Amendment violation. See id. at 7, 11-12, 133 S.Ct. 1409.

¶10 When there is a Fourth Amendment violation, courts can apply the exclusionary rule to suppress evidence that was discovered as a result of the violation. United States v. Calandra , 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The exclusionary rule is a judicially created remedy under which the "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure." Id. at 347-48, 94 S.Ct. 613. The exclusionary rule applies to evidence obtained as the result of an illegal search and seizure, as well as "evidence later discovered and found to be derivative of an illegality," otherwise known as the "fruit of the poisonous tree." Utah v. Strieff , --- U.S. ----, 136 S. Ct. 2056, 2061, 195 L.Ed.2d 400 (2016) (quoting Segura v. United States , 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) ). The "prime purpose" of the exclusionary rule "is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment." Calandra , 414 U.S. at 347, 94 S.Ct. 613. Because the exclusionary rule is not an individual right, it "applies only where it 'results in appreciable deterrence.' " Herring v. United States , 555 U.S. 135, 141, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (quoting United States v. Leon , 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ). Therefore, the existence of a Fourth Amendment violation alone does not mandate application of the exclusionary rule and the suppression of evidence. Id. at 140, 129 S.Ct. 695.

¶11 Although we must weigh the deterrent benefits of the exclusionary rule against the "substantial social costs" of excluding evidence, we note that excluding evidence "has always been our last resort, not our first impulse." Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (quoting Leon , 468 U.S. at 907, 104 S.Ct. 3405 ). As a result, courts have carved out several exceptions to the exclusionary rule based on "the causal relationship between the unconstitutional act and the discovery of evidence." Strieff , 136 S. Ct. at 2061. One such exception is the attenuation doctrine. Id.

¶12 The attenuation doctrine applies in situations where "the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance." Id . Even if the police misconduct is directly connected to the evidence sought to be admitted, courts will still apply the attenuation doctrine if "the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained." Hudson , 547 U.S. at 593, 126 S.Ct. 2159.

¶13 When defendants have responded to Fourth Amendment violations with willful criminal acts against police officers, courts have applied the attenuation doctrine and held that evidence of the criminal act is admissible. See, e.g. , People v. Doke , 171 P.3d 237, 239 (Colo. 2007) ; State v. Aydelotte , 35 Wash.App. 125, 665 P.2d 443, 447-48 (1983) (collecting cases). "[A]n independent and willful criminal act against a law enforcement officer" is sufficient to break the causal chain between the police misconduct and the evidence of the new crime, such that the attenuation doctrine applies. Doke , 171 P.3d at 240. This is so for two reasons: (1) admission of the contested evidence does not incentivize illegal searches by the police; and (2) a contrary approach would "effectively give the victim of police misconduct carte blanche to respond with any means, however violent." Id. at 240-41.

¶14 Doke illustrates this framework. In that case, sheriff's deputies went to Doke's house to serve him with civil process. Id. at 237. The deputies approached Doke's front door and rang the doorbell, but nobody answered. Id. at 238. The deputies saw movement inside the house, so they entered the backyard and approached the back porch. Id. Looking through a window, the deputies saw Doke sitting in a chair with his eyes closed. Id. One deputy pounded on the back door and verbally identified himself, but Doke did not respond for ten minutes. Id. Apparently concerned that there was a medical problem, a deputy opened the back door. Id. At that point, Doke grabbed a shotgun, and the deputies withdrew from the doorway and ordered Doke to drop the gun. Id. Doke was eventually taken into custody by a SWAT team and charged with three counts of menacing, one count of obstructing a peace officer, and one count of failure to leave premises or property upon request of a peace officer. Id.

¶15 The trial court suppressed all evidence of what Doke said to the deputies, as well as all evidence of the deputies' visual observations and all evidence seized from the house. Id. The court concluded that the deputies had violated Doke's reasonable expectation of privacy by entering his property and that this constitutional violation required suppression. Id. at 238-39.

¶16 We reversed and held "that Doke's allegedly criminal acts [were] sufficiently attenuated from any illegal conduct of the deputies so that exclusion [was] not appropriate." Id. at 241. We reasoned that "[t]he deterrent effect of applying the exclusionary rule in cases where the accused has committed a crime against police officers in response to police misconduct would be minimal. Admitting evidence of the crime does not provide police with an incentive to conduct illegal searches." Id. at 240-41. Also, importantly, we noted that it would be "contrary to the public interest" to establish "[a] rule that would allow a person whose right to be free from unreasonable searches and seizures was allegedly violated to respond with acts of violence." Id. at 241.

B. Application

¶17 Turning to the instant matter, we must determine whether the attenuation doctrine applies to the evidence of what transpired inside the Tomaske residence. On this issue, Doke is instructive. Much like the physical intrusion and menacing response in Doke , once the officers entered Tomaske's house, he responded with physical resistance. In so doing, Tomaske allegedly assaulted and attempted to disarm a police officer. Again, as in Doke , Tomaske's decision to resist "br[oke] the causal connection between the police illegality and the evidence of the new crime," thereby implicating the attenuation doctrine. See id. at 240. To merit the exclusion of evidence, the exclusionary rule requires more than merely "but for" causation between the police's illegal acts and the discovery of evidence. Id.

¶18 However, both here and in Doke , the trial courts relied on "but for" causation to demonstrate the causal connection necessary to exclude the contested evidence. Both trial courts ruled, in effect, that "but for" the police misconduct, the police would not have gathered any evidence. But as we stated in Doke , "but for" causation does not necessarily justify the exclusion of evidence. See id. Instead, the issue is whether the evidence was "come at by exploitation of [the police's] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id. (quoting People v. Rodriguez , 945 P.2d 1351, 1363-64 (Colo. 1997) ). Here, the contested evidence suppressed by the trial court was evidence of Tomaske's new and independent criminal acts that arose from his decision to physically resist. Thus, unlike the scenario where police officers' misconduct leads to their discovery of evidence of a completed crime (e.g., finding contraband), this case involves police misconduct that led to the commission of a new crime. The exclusionary rule applies to the former situation, not the latter.

¶19 Furthermore, recognizing that courts only apply the exclusionary rule when doing so will sufficiently deter police misconduct, Herring , 555 U.S. at 141, 129 S.Ct. 695, we conclude that no such deterrence would be accomplished here. Suppressing evidence of the alleged crimes committed against the police officers here would have a minimal deterrent effect on police misconduct because it was Tomaske's decision to physically resist that caused the police officers to observe his alleged criminal conduct. Application of the exclusionary rule requires a strong causal connection between police misconduct and the discovery of evidence, and it is the strength of that connection that merits the heavy toll of excluding evidence. Because the causal connection here was broken by Tomaske's decision to resist, the exclusionary rule does not apply and the evidence of what transpired inside the Tomaske home should not be suppressed.

IV. Conclusion

¶20 In sum, the evidence of Tomaske's alleged criminal acts was sufficiently attenuated from the police misconduct such that the exclusionary rule does not apply. Therefore, we reverse the trial court's suppression order, and we remand to that court for further proceedings consistent with this opinion.

      "Curtilage" is a legal term of art that describes the area directly surrounding the home. See Florida v. Jardines , 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).

      We will refer to the defendant in this case, Jeremiah Tomaske, as "Tomaske" moving forward.

      The issue of whether the police violated the Fourth Amendment is not before us.


author: JUSTICE HOOD delivered the Opinion of the Court. CHIEF JUSTICE COATS, dissenting. JUSTICE SAMOUR, dissenting.

text:
    PEOPLE of the State of Colorado, Plaintiff-Appellant v. Amanda Eileen GADBERRY, Defendant-Appellee.
    Supreme Court Case No. 18SA208
    Supreme Court of Colorado.
    May 20, 2019
    Attorneys for Plaintiff-Appellant: Daniel P. Rubinstein, District Attorney, Twenty-First Judicial District Brian Conklin, Deputy District, Attorney Grand Junction, Colorado
    Attorneys for Defendant-Appellee: Megan Ring, Public Defender, Kristin Westerhorstmann, Deputy Public Defender, Grand Junction, Colorado
    En Banc
   JUSTICE HOOD delivered the Opinion of the Court.

¶1 Marijuana isn't meth. But drug-detection dog Talu can't tell the difference. So when Talu alerted to the driver and passenger side doors of Amanda Gadberry's truck, the officers didn't know whether Talu had found marijuana, which is legal in some circumstances in Colorado, or meth, which never is. This quandary led us in People v. McKnight , a companion case also announced today, to hold that persons twenty-one years of age or older have a reasonable expectation of privacy in the possession of one ounce or less of marijuana in Colorado, therefore requiring officers to have probable cause that an item or area contains a drug in violation of state law before they deploy a dog trained to alert to marijuana. See 2019 CO 36, ¶ 7, --- P.3d ----. We see no difference between Gadberry's situation and McKnight's. Thus, Talu's wide-ranging, though outdated, training demanded probable cause before the drug-detection dog's deployment, just as it did in McKnight .

¶2 In this interlocutory appeal, we therefore hold that the officers needed probable cause to deploy Talu. They didn't have it. Accordingly, we affirm the trial court's suppression order.

I. Facts and Procedural History

¶3 While patrolling Mesa County, Deputy Stuckenschneider observed a black Dodge pickup driving with a missing front license plate. Stuckenschneider phoned Deputy Briggs, alerting her to the situation. But this wasn't just any vehicle with a missing front plate-a few days prior, Sergeant Beagley had stopped the same car for being incorrectly registered and for displaying invalid license plates. Briggs knew all of this when she received the alert from Stuckenschneider. With knowledge of the previous stop and Stuckenschneider's observation regarding the front plate, Briggs pulled the Dodge over. In the driver's seat, she found Gadberry.

¶4 Briggs informed Gadberry that she initiated the stop because of the missing front plate. Gadberry told Briggs that the car indeed had a front plate and, upon inspection, Briggs found the missing plate shoved into the grill of the Dodge, although the car was still improperly registered. While all of this was happening, Beagley, Handler Cheryl Yaws, and dog Talu, who is trained to alert to methamphetamine, cocaine, heroin, and marijuana, arrived on the scene. During the time that it took Briggs to run Gadberry's plates, Beagley asked Gadberry if there was any marijuana in the vehicle. She said no.

¶5 Shortly thereafter, Talu sniffed around the car and alerted to the driver and passenger doors. With the benefit of that alert, the officers conducted a search of the car, finding a cellophane wrapper of methamphetamine lodged inside a wallet. Gadberry was then charged with (1) display of a fictitious license plate, (2) possession of drug paraphernalia, and (3) possession of a controlled substance.

¶6 Gadberry moved to suppress the evidence on four grounds: (1) Briggs didn't have reasonable suspicion to initiate the stop; (2) the stop was unreasonably prolonged; (3) Talu's sniff was unlawful because Talu was trained to alert on both marijuana, a legal substance, and illegal substances, such as methamphetamine; and (4) Talu's sniff was unreliable. The trial court denied claims one and two. It held that the "fellow officer rule" imputed Stuckenschneider's knowledge of the missing front plate and improper registration to Briggs, therefore justifying the stop. Additionally, it found that the stop only lasted long enough for Briggs to obtain information, view the vehicle, and run the plates. As a result, the court concluded that the officers didn't unreasonably delay Gadberry.

¶7 The trial court did, however, grant Gadberry's motion to suppress based on claim three. It followed the court of appeals' decision in People v. McKnight , 2017 COA 93, --- P.3d ----, and found that a sniff is a search when a drug-detection dog can alert to both illegal and legal substances. Here, no one presented any evidence suggesting that the vehicle had any illegal substances in it or that Gadberry was aware of all the belongings in the car, especially since multiple people had driven the car in the few days before the stop. Therefore, the trial court reasoned that, under McKnight , the officers on the scene needed reasonable suspicion that Gadberry had been involved in criminal activity to initiate Talu's sniff. Because the officers here lacked reasonable suspicion to deploy Talu, the court granted the motion to suppress and didn't reach claim four.

¶8 The People filed the interlocutory appeal at issue here, raising the following question: Did the trial court err in finding that a free air sniff of the Defendant's vehicle by a dog trained in marijuana and illegal narcotics was a search, which required a showing of reasonable suspicion?

II. Analysis

¶9 We start with the standard of review and a quick synopsis of relevant search and seizure caselaw. As we hold today in McKnight , article II, section 7 of the Colorado Constitution provides persons twenty-one years of age or older with a reasonable expectation of privacy in the lawful activity of possessing an ounce or less of marijuana, therefore necessitating probable cause that an item or area contains a drug in violation of state law before officers deploy dogs trained to alert to marijuana. See McKnight , ¶ 7. Gadberry is such an individual-regardless of her statements about the contents of the vehicle-and, therefore, the officers needed probable cause that the vehicle contained a drug in violation of state law before they conducted an exploratory sniff. Because there was no such probable cause here, the officers impermissibly deployed Talu.

A. Standard of Review

¶10 For suppression orders, we review legal conclusions de novo but defer to factual findings that have record support. See People v. Gutierrez , 222 P.3d 925, 931-32 (Colo. 2009). Thus, we review the constitutionality of the sniff de novo.

B. The Officers Needed Probable Cause to Deploy Talu

¶11 The narrow question before us is only whether Talu's sniff required probable cause. The validity of the investigatory stop is not at issue. Here, where the drug-detection dog was trained to alert to marijuana, the officers needed probable cause that the vehicle contained a drug in violation of state law before conducting the exploratory sniff. See McKnight , ¶ 7.

¶12 Both the U.S. Constitution and the Colorado Constitution protect against unreasonable searches and seizures. See U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...."); Colo. Const. art. II, § 7 ("The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures ...."). As a result, when a person has a reasonable expectation of privacy, the prohibition on unreasonable searches and seizures protects a citizen from governmental intrusion. See Kyllo v. United States , 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ; Katz v. United States , 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

¶13 The yardstick, however, is that there must be a reasonable expectation of privacy. And both the Supreme Court and this court have held that there is no reasonable expectation of privacy in contraband. See Illinois v. Caballes , 543 U.S. 405, 408-09, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) ; People v. Esparza , 2012 CO 22, ¶ 11, 272 P.3d 367, 370. Accordingly, a sniff, which typically "does not expose noncontraband items that otherwise would remain hidden from public view," during an otherwise legal stop isn't an unreasonable search prohibited by either the federal or state constitution. Caballes , 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Place , 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ); accord Esparza , ¶ 11, 272 P.3d at 370.

¶14 In the companion case, we hold that this isn't always the case. See McKnight , ¶ 7. There, a dog trained to alert to both marijuana and state-banned substances alerted to methamphetamine in a vehicle. Id. at ¶¶ 12-14. These facts bear an uncanny resemblance to our current case. The People, however, argue that there is a crucial difference: McKnight never stated that there wasn't any marijuana in the car. But we fail to see the relevance of that fact. An expectation of privacy doesn't disappear once a citizen states that certain items aren't in the car or on their person. Talu might still alert to marijuana, regardless of Gadberry's statements, and it's this potential to reveal lawful activity that renders Talu's sniff suspect.

¶15 Consider whether Gadberry uttering that there is "nothing" in the car versus there isn't any "marijuana" in the car should yield any doctrinal difference. If Gadberry states that there's nothing in the car, or says nothing, Talu still might still alert to legal activity-the possession of one ounce or less of marijuana. That's why we held in McKnight that probable cause is required. McKnight , ¶¶ 54-55. It's only once someone discloses the presence of contraband, rather than withholding disclosure, that an expectation of privacy is lost. See, e.g. , People v. Carper , 876 P.2d 582, 584-85 (Colo. 1994) (holding that the defendant didn't have a subjective expectation of privacy in the contents of his shirt pocket after disclosing the presence of cocaine in the pocket to police officers). Thus, when someone says that there is "nothing" in the car, that might assert that person's privacy interest by refusing to disclose the presence of something in which the person has a reasonable expectation of privacy.

¶16 That Gadberry stated that there wasn't any marijuana in the car, rather than "nothing," doesn't change this analysis. Gadberry still refused to disclose the presence of marijuana, thereby asserting her privacy interest in lawful activity. And regardless of any such assertion, Talu is still able to detect lawful activity, and the sniff "can no longer be said to detect 'only' contraband." McKnight , ¶ 43. Gadberry's statements do nothing to help the officers parse out whether the alert was for meth or marijuana: Talu doesn't have a mastery of the English language and still gives the same alert for all trained substances. In other words, Gadberry's declarations are gobbledygook to Talu.

¶17 There also exists a practical problem with following the People's analysis. If we were to hold that disclosing the lack of marijuana to an officer results in permission to sniff a car, we would be urging drivers to always assert that there is marijuana in the vehicle. We would thus be encouraging citizens to lie to the police so that they may maintain their constitutional rights. No source of law compels that absurdity.

¶18 Therefore, the officers needed probable cause that the vehicle contained illegal narcotics before they deployed Talu.

C. The Officers Lacked Probable Cause to Deploy Talu

¶19 The only information that any of the several officers involved in the stop had was: (1) the Dodge had been stopped a few days prior and had improper registration and (2) the vehicle was, apparently, missing a front plate. While these two facts might have been enough to initiate the stop, they certainly didn't "warrant a [person] of reasonable caution in the belief" that a drug in violation of state law was present in the vehicle. McKnight , ¶ 51 (alteration in original) (citing People v. Zuniga , 2016 CO 52, ¶ 16, 372 P.3d 1052, 1057 ). Indeed, there is nothing in the record that suggests any illegal narcotic involvement at all, previously or at the time of the stop. As a result, the officers didn't have probable cause and shouldn't have deployed Talu.

III. Conclusion

¶20 Gadberry's declaration that her Dodge contained no marijuana didn't strip her of her constitutional rights. We therefore hold that the officers needed probable cause before deploying Talu and that such cause wasn't present here. Accordingly, we affirm the trial court's suppression order.

CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT and JUSTICE SAMOUR join in the dissent.

JUSTICE SAMOUR dissents, and JUSTICE BOATRIGHT joins in the dissent.

CHIEF JUSTICE COATS, dissenting.

¶21 For the reasons articulated in my dissenting opinion in People v. McKnight , 2019 CO 36, --- P.3d ----, also reported by the court today, I would reverse the trial court's suppression order.

¶22 I therefore respectfully dissent.

I am authorized to state that JUSTICE BOATRIGHT and JUSTICE SAMOUR join in this dissent.

JUSTICE SAMOUR, dissenting.

¶23 I respectfully dissent. For the reasons articulated in my dissenting opinion in the companion case of People v. McKnight , 2019 CO 36, --- P.3d ----, including my agreement with the Chief Justice's dissenting opinion in that case, I would reverse the trial court's suppression order.

I am authorized to state that JUSTICE BOATRIGHT joins in this dissent.


author: GRATTON, Chief Judge

text:
    STATE of Idaho, Plaintiff-Appellant, v. Cora Lee BURGESS, Defendant-Respondent.
    Docket No. 45317
    Court of Appeals of Idaho.
    Filed: September 14, 2018 Review Granted: December 17, 2018 Review Improvidently Granted: May 17, 2019
    Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.
    Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy Appellate Public Defender, Boise, for respondent. Kimberly A. Coster argued.
   GRATTON, Chief Judge

The State appeals from the district court's order granting Cora Lee Burgess's motion to suppress evidence found inside her vehicle subsequent to a traffic stop. The State argues the district court erred in ruling the police abandoned the purpose of the initial traffic stop by unlawfully prolonging the stop to verify the passenger's probationary status.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly before midnight, officers stopped Burgess's vehicle for failing to stop before entering a roadway. One officer approached Burgess's side of the vehicle and after calling in the stop, another officer approached the passenger side. The officers talked with Burgess and her passenger for approximately three minutes, gathering identifications, licenses, vehicle registration, and insurance. Burgess had recently purchased the vehicle and had yet to get insurance. As the officers were gathering information, a third officer arrived. After collecting the information from Burgess and the passenger, the initiating officer asked if either was on probation and both responded in the negative. The officers then returned to their patrol car to check Burgess's information and her passenger's information using the in-car computer.

The video recording of the traffic stop shows that within a minute, the computer announced a separate "return" for each person, relating to warrant and driving status. Burgess's record check was completed. However, instead of beginning the citation process, the officers waited another "minute or two" in order for dispatch to verify the passenger's probationary status. After receiving a negative probation response as to the passenger, one officer walked to the vehicle and requested that Burgess exit the vehicle while the officer prepared a citation for failure to have insurance. As Burgess exited the vehicle, the other officer approached the vehicle and began questioning the passenger. Five minutes later, just as Burgess was being handed her citation, the passenger door was opened, the passenger stepped out, and was handcuffed. The passenger had admitted, during that time, to having drugs and paraphernalia. Burgess was then instructed to "hang back" while the situation with the passenger was resolved. Thereafter, Burgess consented to a search of the vehicle. A clutch containing contraband was found within the vehicle. Burgess was charged with possession of methamphetamine.

Burgess filed a motion to suppress all evidence, arguing that her detention was unreasonably prolonged by police in violation of the Constitutions of the United States and state of Idaho. In her motion, Burgess argued her detention was unlawfully prolonged twice. First, when the officer abandoned the initial purpose of the traffic stop and detoured to investigate the passenger. Second, when the officer restricted her from leaving the scene after issuing her ticket as the passenger's backpack was searched. The district court identified the dispositive issue as "whether delaying moving forward with a traffic stop is lawful in order to verify a passenger's probation status." The district court granted the motion to suppress, ruling that the officers abandoned the purpose of the stop when they waited for dispatch to verify the passenger's probationary status and that the detour unlawfully prolonged the traffic stop. The State timely appeals.

II.

STANDARD OF REVIEW

The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact that are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson , 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina , 127 Idaho 102, 106, 897 P.2d 993, 997 (1995) ; State v. Schevers , 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).

III.

ANALYSIS

The State argues that an inquiry into probation or parole status, like the inquiry into outstanding warrants, is related to the mission of traffic law enforcement and officer safety and is not a measure aimed at detecting evidence of ordinary criminal wrongdoing. Therefore, the State argues, the officers did not deviate from the original purpose of the traffic stop. In response, Burgess argues that because the passenger was not the driver or owner of the vehicle, conducting tasks related to him did not serve the mission of the traffic stop or serve any safety purpose. Burgess asserts that suspending issuance of a citation to verify the passenger's probationary status unlawfully extended the stop and was not a justifiable safety measure.

The Fourth Amendment to the United States Constitution provides: "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. CONST. amend. IV. A traffic stop by an officer constitutes a seizure of the vehicle's occupants and implicates the Fourth Amendment's prohibition against unreasonable searches and seizures. Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ; Atkinson , 128 Idaho at 561, 916 P.2d at 1286.

The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. State v. Roe , 140 Idaho 176, 181, 90 P.3d 926, 931 (Ct. App. 2004) ; State v. Parkinson , 135 Idaho 357, 361, 17 P.3d 301, 305 (Ct. App. 2000). A seizure for a traffic violation justifies a police investigation of that violation, which includes inquiries beyond determining whether to issue a traffic ticket. Rodriguez v. United States , --- U.S. ----, ----, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). It encompasses ordinary queries incident to the traffic stop such as checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance. Id. at ----, 135 S.Ct. at 1615. "These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly." Id.

Similarly, an officer may take certain precautions to ensure officer safety because "the government's officer safety interest stems from the mission of the stop itself." Id. at ----, 135 S.Ct. at 1616 ("Traffic stops are 'especially fraught with danger to police officers,' so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely."). These precautions include ordering all occupants of a vehicle, driver and passengers, to exit a stopped vehicle as a precautionary measure to protect the officer's safety. Maryland v. Wilson , 519 U.S. 408, 412, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

Likewise, brief inquiries not otherwise related to the initial purpose of the stop do not necessarily violate a detainee's Fourth Amendment rights. Roe , 140 Idaho at 181, 90 P.3d at 931. However, because addressing the traffic infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied to the infraction are-or reasonably should have been-completed. Rodriguez , --- U.S. ----, 135 S.Ct. at 1614 ; State v. Linze , 161 Idaho 605, 608, 389 P.3d 150, 153 (2016).

A traffic stop's purpose does not encompass "[o]n-scene investigation into other crimes." Rodriguez , --- U.S. ----, 135 S.Ct. at 1616. Such an investigation detours from the original mission of the stop. Id. Yet, not all detours are constitutionally prohibited; only those which prolong the stop for longer than is reasonably necessary to accomplish the mission of the stop. Id. Thus, if conducting an unrelated detour measurably extends the stop, the constitutional shield against unreasonable seizures is violated. Id. at ----, 135 S.Ct. at 1612. "A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation." Id. The reasonableness of the seizure is contingent on what the officers actually do. Id. at ----, 135 S.Ct. at 1616.

When an officer abandons his or her initial purpose, the officer has for all intents and purposes initiated a new seizure with a new purpose; one which requires its own reasonableness under the Fourth Amendment. This new seizure cannot piggyback on the reasonableness of the original seizure unless some new reasonable suspicion or probable cause arises to justify the seizure's new purpose. Linze , 161 Idaho at 609, 389 P.3d at 154. Thus, while an officer is justified in inquiring about the ordinary incidents to the traffic stop, without circumstances that justify a reasonable and articulable suspicion of criminal activity, the officer is restrained in extending the search and must diligently complete the task within a reasonable time. Id. However, we recently noted that law enforcement may conduct inquiries unrelated to the traffic stop so long as those inquiries do not measurably extend the duration of the stop. State v. Renteria , 163 Idaho 545, 548, 415 P.3d 954, 957 (Ct. App. 2018).

The United States Supreme Court and this Court agree that the ordinary inquiries incident to a traffic stop typically include the existence and validity of the driver's license, registration, insurance, and whether there are outstanding warrants. Rodriguez , --- U.S. ----, 135 S.Ct. at 1615 ; Renteria , 163 Idaho at 549, 415 P.3d at 958. However, neither has specifically identified whether inquiry into probation or parole status is within the scope of permissible inquiries incident to a traffic stop. In Rodriguez , the Court explained, "Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'-to address the traffic violation that warranted the stop and attend to related safety concerns." Rodriguez , --- U.S. ----, 135 S.Ct. at 1614 (citations omitted). "[A]n officer may need to take certain negligibly burdensome precautions," such as checking for outstanding warrants, "in order to complete the mission safely," however, unless new reasonable suspicion arises, the authority for the seizure ends "when tasks tied to the traffic infraction are-or reasonably should have been-completed" because the purpose of a traffic stop is to address the traffic violation only. Rodriguez , --- U.S. ----, 135 S.Ct. at 1614 (citations omitted); Illinois v. Caballes , 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

The State argues that the probation check is an ordinary incident to a traffic stop and that it addresses officer safety. The State cites to out-of-state cases that view inquiry into probation or parole status as within the permissible scope of "ordinary inquiries incident to a traffic stop." However, none of those decisions involve the prolonging of a traffic stop to conduct a probationary status check of a passenger through dispatch. The issue before this Court does not involve the constitutionality of questioning a passenger about his probation or parole status, which is how the State has framed the issue; but rather the constitutionality of delaying the issuance of a traffic citation in order to do so.

The State contends that information gathering as to probation or parole status (a) are ordinary inquiries incident to a traffic stop, (b) applies to both the driver and any passengers of the stopped vehicle, (c) does not initiate a criminal investigation unrelated to the stop, and (d) is not an abandonment of or deviation from the purpose of the stop. Implied within the State's argument is that, since these inquiries are part and parcel of a traffic stop, the time necessary to complete the inquiries does not extend the stop. This is so regardless of whether the time necessary to secure the information as to a passenger exceeds that of the driver and the writing of a citation to the driver does not commence until after securing the passenger information. We disagree.

Ordinary inquiries incident to the traffic stop are those that are undertaken for the purpose of "ensuring that vehicles on the road are operated safely and responsibly." Rodriguez , --- U.S. ----, 135 S.Ct. at 1615. The inquiries, ordinarily incident to a traffic stop, typically include the existence and validity of the driver's license, registration, insurance, and whether there are outstanding warrants against the driver. Id. Inquiries and information gathering as to passengers of a stopped vehicle are not included in those identified as ordinary inquiries incident to the traffic stop in Rodriguez , but, instead, may be permissible because officer safety interests stem from the mission of the stop itself. Id. at ----, 135 S.Ct. at 1616.

As to officer safety, we need not determine the scope and extent of passenger inquiries allowable in any given traffic stop. Assuming the officers here had every right to run the passenger's information through dispatch to determine probation status, the question is could they constitutionally do so after all information necessary to cite the driver had been obtained without beginning the citation process? The answer is no. First, as noted, we disagree with the State's primary argument that it need not justify the probation inquiry under officer safety. Second, the State has not shown, under the circumstances of this case (or as a general matter), that the probation status of the passenger was necessary for officer safety in continuing to carry out the purpose of the stop. Finally, absent such justification, the probation inquiry cannot, but did, extend the duration of the stop. In Roe , we noted the question of extending a stop relative to passenger information:

While the first officer identified the driver, the second officer identified the rear seat passengers. The identification ... occurred simultaneously and, thus, the driver and the passengers were not detained any longer than if the officer had only identified the driver. The second officer's verbal request for the identification of the rear passenger did not extend the duration of the stop beyond the time necessary to effectuate the purpose of the stop.

Roe , 140 Idaho at 182, 90 P.3d at 932.

Under the circumstances, the task of verifying the passenger's probation status through dispatch unlawfully extended the duration of the stop. Accordingly, the district court properly granted Burgess's motion to suppress.

IV.

CONCLUSION

Because suspending the issuance of the traffic citation in order to run a check on the probation status of the passenger measurably extended the traffic stop, the stop was unconstitutionally prolonged. The district court did not err in granting Burgess's motion to suppress; therefore, the order granting Burgess's motion to suppress is affirmed.

Judge GUTIERREZ and Judge LORELLO concur.

      Although Burgess contends that both Constitutions were violated, she provides no cogent reason why Article I, Section 17 of the Idaho Constitution should be applied differently than the Fourth Amendment to the United States Constitution in this case. Therefore, the Court will rely on judicial interpretation of the Fourth Amendment in its analysis of Burgess's claims. See State v. Schaffer , 133 Idaho 126, 130, 982 P.2d 961, 965 (Ct. App. 1999).

      Because the district court granted suppression on the basis that the unlawful prolonging of the stop occurred before the police issued Burgess her citation, the district court did not address whether suppression was also required on the basis that Burgess's stop was unlawfully prolonged when she was instructed to "hang back" and wait after the citation was issued.

      The State has not shown that a passenger's probation status relates at all to the safe and responsible operation of the vehicle on the road.