Court of Appeals of Arizona, First Division, Department D
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County Cause No. S0300CR201100530 The Honorable Dan R. Slayton, Judge.
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section and Alice Jones, Assistant Attorney General Attorneys for Appellee
Law Offices of Lee Phillips, P.C. By Lee Phillips Flagstaff Attorneys for Appellant
DONN KESSLER, Presiding Judge
¶1 Zaid Abdul Wakil was convicted of count 1, transportation of narcotic drugs for sale, and count 2, possession of the same. Wakil argues that the superior court erred by denying his motions to suppress because his detention and the search of his vehicle were unlawful. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 McMains is a canine unit officer with the Arizona Department of Public Safety ("DPS"). In July 2009, McMains was on patrol when Wakil drove by in a white BMW. McMains stopped him because the BMW did not have a license plate and it had an object hanging from the front windshield. McMains s patrol car was equipped with a video camera that recorded video and audio of the entire stop.
I. The stop
¶3 McMains told Wakil he was being stopped for a license plate violation and asked for Wakil's license, registration, and proof of insurance. As a part of his normal routine, McMains asked Wakil to meet him at his patrol car.
¶4 McMains confirmed that Wakil bought the car in California the previous day. McMains explained that in Arizona and other states, a new car usually comes with a temporary license plate. He also informed Wakil that in Arizona, a car cannot have anything attached to the windshield that blocks the view of the road. McMains told Wakil that he was going to issue a warning and asked Wakil to take down the radar detector attached to the windshield.
¶5 While McMains was completing the warning document he began conversing with Wakil about Wakil's North Carolina driver's license and California car registration for the new BMW. The two men discussed where Wakil bought the car in California the previous day, what he was doing in California, how he got to California, and whether it was cheaper to buy vehicles in California. The two men also discussed Wakil's occupation, whether he ever lived in California, where he currently lived, how long he stayed in California, and they joked about the BMW and how Wakil named his company. They also discussed the designations on Wakil's license. The above conversations lasted approximately seven minutes.
¶6 Officer McFarland then arrived. The three men discussed other aspects about the BMW, the purchase of the BMW, Wakil's business, and the "plate" number McMains should use to complete the warning and repair order. These conversations lasted about four more minutes. While McMains was communicating with dispatch and completing the warning Officer McFarland talked to Wakil for a few more minutes. The dispatcher warned that Wakil was believed to be armed and dangerous.
¶7 McMains then handed Wakil his documents and the warning and told Wakil it is "just a warning." He asked Wakil to sign the warning, which Wakil did, and then McMains again stated it was "just a warning, no court, no fine, nothing like that."
II. The completion of the stop and continued encounter
¶8 McMains did not say anything for approximately a second and Wakil did not move away from the patrol car when McMains said, "Let me ask you another question, " and then proceeded to make a statement that there are problems with people transporting drugs and weapons across the country using the I-40. McMains asked Wakil if he was doing anything like that. Wakil responded, "no." McMains then asked Wakil if he had marijuana, cocaine, methamphetamine, heroin, or large bills over $10, 000. Wakil told him no and that he had $3, 300 in cash. McMains then asked and Wakil agreed that McMains could search the car.
¶9 In response to further questions, Wakil told the officers that he had a backpack and boxes in the trunk and that if the officers used drug detection dogs, there was nothing in the car which would cause them to alert. Wakil also told the officers there were safes in the boxes, but he was not sure what was in the safes except that they were personal items that came in the mail to his California office. When McFarland said they would like him to show them the boxes, Wakil began to approach the vehicle but the officers then presented him with a consent to search form. The form stated that consent is given "to search my vehicle and any of its contents under my control." It also stated: "I can refuse to allow my vehicle to be searched, " "I can withdraw my consent to search at any time, " and "[a]ny evidence found during this search can be used against me in court." Wakil signed the form.
¶10 Sergeant Hutton then arrived. McFarland asked Wakil what he thought was in the boxes and Wakil responded "personal stuff." Instead of having Wakil go near the car, McFarland told Wakil that for safety, he would take the boxes out and asked Wakil if that was okay. Wakil responded, "yes."
III. The first dog sniff
¶11 McMains's drug detection dog, Pete, who began working with McMains earlier that year, was selected to sniff the car for drugs. Pete alerted at the driver's side door handle, but not to any other area of the car. McMains interpreted this as a valid alert of the presence of a drug odor that Pete is trained to detect. McMains was concerned that Pete might damage the brand new BMW, so he quickly pulled Pete off of the door and told him, "good boy, " multiple times.
¶12 McMains and Pete went around the car again counter clockwise. Pete did not show interest or alert to the trunk area. McMains concluded that Pete's valid alert to the driver's door on the first trip around the car gave him probable cause to search the entire car including the locked boxes in the trunk.
IV. The second dog sniff
¶13 McMains told McFarland that Pete alerted and that they could search the car. McFarland suggested that Pete run around the boxes in the trunk, and he removed the boxes from the trunk and set them between the BMW and McMains's patrol car, but did not let the boxes sit outside for at least twenty minutes, as they practice in training, so any odors could permeate the air around the boxes. Pete sniffed the inside of the trunk and the boxes. He did not alert. Pete was rewarded for his search with a toy and placed in the backseat of the patrol car.
¶14 McFarland examined the boxes and in response to a question, Wakil said he would not consent to opening the boxes. The officers then informed Wakil that because Pete alerted, they had probable cause to search the car. Wakil stated that he did not have a key or a way to open the safes. The officers then requested that Wakil give back the documents in his hand, and place his hands behind his back and handcuffed him.
V. The warrant
¶15 Detective Ernst, Detective Perkins, and Sergeant Livingston arrived at the scene after hearing from dispatch that McMains reported a positive canine alert. McMains told them about the stop, Wakil's nervousness, the consent to search, and Pete's alert. McMains did not tell them that there was a second deployment during which Pete failed to alert on the trunk and boxes.
¶16 Ernst, the lead detective on the case, testified that because they had probable cause to search the entire car based on Pete's alert, a search warrant was not needed. However, Ernst decided to get a warrant because of the potential danger involved in opening the boxes, and because he was being especially cautious to ensure the search was lawful. Ernst drafted the warrant affidavit and Perkins presented it to the judge. However, because Ernst and Perkins were not informed about Pete's search of the boxes and his failure to alert, those facts were not included in the affidavit.
¶17 The affidavit stated that McMains observed several indicators consistent with criminal activity, Pete alerted to the car door, he found boxes in the trunk and opened one that had a safe inside, Wakil said each box had a safe inside filled with "commodities, " Wakil refused permission to open the safes, said he did not have the keys, and requested that the boxes be placed back in the trunk.
¶18 Once the bomb squad confirmed the boxes could be safely opened and the locksmith drilled holes to open them, bags containing what was later determined to be 44 pounds of cocaine were found. One usable print was located on one of the ...