State v. Sosa

2018 UT App 97

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
LINDA IRENE SOSA,
Appellant.

Opinion
No. 20150998-CA
Filed June 1, 2018

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 131907989

Debra M. Nelson and Andrea J. Garland, Attorneys
for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

TOOMEY, Judge:

¶1 Linda Irene Sosa entered a Sery plea 1 to two counts of
possession of a controlled substance. On appeal, Sosa contends
the district court erred in denying her motion to suppress

1. A Sery plea allows a defendant to enter a guilty plea, “with the
consent of the prosecution and accepted by the trial judge,”
without forfeiting the ability to appeal the denial of a motion to
suppress and to withdraw the plea “if [the] arguments in favor
of suppression are accepted” on appeal. State v. Sery, 758 P.2d
935, 938–40 (Utah Ct. App. 1988), disagreed with on other grounds
by State v. Peña, 869 P.2d 932 (Utah 1994).
State v. Sosa

because the police violated her Fourth Amendment rights by
unreasonably extending a routine traffic stop to conduct a dog
sniff. We affirm.

¶2 A police officer (Sergeant) initiated a traffic stop after
witnessing a vehicle’s driver make an improper right turn.
Sergeant approached the vehicle and asked the driver for her
identification. While speaking with the driver, Sergeant
recognized the passenger, Sosa, from a prior arrest for a
weapons offense and asked if she had any weapons on her. She
responded that she did not. Three minutes into the traffic stop,
Sergeant took the driver’s information back to his patrol vehicle
and ran a records check. At the same time, he requested a police
dog unit to assist him.

¶3 A second officer (Officer) arrived with his police dog
within five minutes of the request—just eight minutes after
Sergeant initiated the stop. Sergeant was still running the
records check when Officer arrived, and at that point, Sergeant
asked Officer to run his dog around the vehicle to sniff for
controlled substances. The dog alerted to the presence of a
controlled substance during the exterior sniff and alerted again
on two items within the vehicle during the interior sniff. Officer
found what appeared to be controlled substances and drug
paraphernalia inside Sosa’s purse and a camera bag. During a
search incident to arrest, Sosa informed a third officer that she
had methamphetamine and “a dollar bill with powder cocaine”
on her person. The substances field-tested positive for cocaine
and methamphetamine, and eleven tablets were identified as
hydrocodone.

¶4 The State charged Sosa with three counts of possession of
a controlled substance and one count of use or possession of
paraphernalia. She filed numerous motions to suppress the
evidence obtained during the search, alleging violations of both
the Fourth Amendment to the United States Constitution and
Article I, section 14 of the Utah Constitution. After an

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State v. Sosa

evidentiary hearing, the district court denied all of Sosa’s
motions to suppress. It found that the dog sniff of the exterior of
the vehicle “lasted only approximately 30 seconds,” and it
concluded that this “did not result in any delay at all in
[Sergeant’s] preparation of the citation” and “did not extend the
scope of the traffic stop.”

¶5 Following the denial of her motions to suppress, and after
this court denied her petition for interlocutory appeal, Sosa
entered a Sery plea to two counts of third-degree felony
possession of a controlled substance, reserving her right to
appeal the denial of her motions to suppress. Sosa appeals.

¶6 “We review a denial of a motion to suppress as a mixed
question of law and fact and will disturb the district court’s
factual findings only when they are clearly erroneous, but we
afford no deference to the district court’s application of law to
the underlying factual findings.” State v. Paredez, 2017 UT App
220, ¶ 11, 409 P.3d 125 (quotation simplified).

¶7 Sosa contends the district court erred in denying her
motions to suppress because Sergeant violated her Fourth
Amendment rights when he “extended a routine traffic stop in
order to conduct a [controlled substance] dog sniff” without
reasonable suspicion. 2 Specifically, she argues that Sergeant was
distracted from completing the stop’s “mission” when he called
the police dog unit and then when he reiterated the request for a
sniff upon the unit’s arrival. We disagree.

2. Although her motions to suppress were originally based on
violations of both the United States Constitution and the Utah
Constitution, Sosa has apparently abandoned her state
constitutional arguments on appeal, as those arguments have not
been briefed.

20150998-CA 3 2018 UT App 97
State v. Sosa

¶8 The Fourth Amendment to the United States Constitution
protects citizens from “unreasonable searches and seizures.” U.S.
Const. amend. IV. “The ‘touchstone of the Fourth Amendment is
reasonableness,’ which ‘is measured in objective terms by
examining the totality of the circumstances.’” State v. Baker, 2010
UT 18, ¶ 10, 229 P.3d 650 (quoting Ohio v. Robinette, 519 U.S. 33,
39 (1996)) (quotation simplified). Though warrants are required
for most searches and seizures, there is an “automobile
exception” that allows officers to “temporarily detain a vehicle
and its occupants upon reasonable suspicion of criminal activity
for the purpose of conducting a limited investigation of the
suspicion.” Id. ¶ 11 (quotation simplified).

¶9 “[T]o determine whether a traffic stop is reasonable under
the Fourth Amendment,” we apply a two-step test: (1) was the
traffic stop lawful at its inception and (2) was the detention
following the stop “reasonably related in scope to the
circumstances that justified” the stop. Id. ¶ 12 (quotation
simplified).

¶10 Here, it is undisputed that the traffic stop was lawful at its
inception, because Sergeant observed the driver commit a traffic
violation. We therefore must address whether it was reasonable
for Sergeant to request that a police dog sniff the vehicle while
he was processing the driver’s information and completing a
traffic citation. Generally, the tolerable duration of a traffic stop
is determined by its “mission,” which is “to address the traffic
violation that warranted the stop.” Rodriguez v. United States, 135
S. Ct. 1609, 1614 (2015) (quotation simplified). An officer's
mission during a traffic stop typically includes running a records
check: that is, “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 1615. “An officer’s inquiries into matters unrelated to the
justification for the traffic stop . . . do not convert the encounter
into something other than a lawful seizure, so long as those

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State v. Sosa

inquiries do not measurably extend the duration of the stop.”
Arizona v. Johnson, 555 U.S. 323, 333 (2009); see also Baker, 2010 UT
18, ¶ 13 (explaining that “[i]f, during the scope of the traffic stop,
the officer forms new reasonable articulable suspicion of
criminal activity, the officer may also expediently investigate his
new suspicion”).

¶11 Sosa cites Rodriguez and Baker in support of her contention
that the request for the police dog unreasonably prolonged the
traffic stop. In Rodriguez, the United States Supreme Court was
asked to determine “whether police routinely may extend an
otherwise-completed traffic stop, absent reasonable suspicion, in
order to conduct a dog sniff.” 135 S. Ct. at 1614. The officer in
Rodriguez ran a records check of both the driver and passenger
and then issued a citation, which upon issuance, completed the
mission of the traffic stop. Id. at 1613. The officer then requested
to search the vehicle, and after Rodriguez refused to consent, the
officer detained Rodriguez and the passenger until the police
dog unit arrived and conducted the sniff. Id. The Court
determined that the “critical question” “is not whether the dog
sniff occurs before or after the officer issues a ticket, . . . but
whether conducting the sniff prolongs—i.e., adds time to—the
stop.” Id. at 1616 (quotation simplified). Because this detainment
prolonged the traffic stop, the Court remanded the case to the
Eighth Circuit Court of Appeals to determine whether there was
reasonable suspicion of criminal activity, independent from the
initial traffic stop, to justify prolonging the stop. Id. at 1616–17.
Similarly, in Baker, the Utah Supreme Court held that “the
officers impermissibly detained [a passenger]” to conduct a dog
sniff after the purpose of the initial traffic stop had ended,
“which was to investigate and then arrest the vehicle driver.”
2010 UT 18, ¶¶ 9, 58.

¶12 This case is distinguishable from Rodriguez and Baker,
because the request for a dog sniff and the resulting alert
occurred during the traffic stop, not after its completion. And

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State v. Sosa

based on the record before us, we cannot agree with Sosa’s
argument that “instead of processing the legitimate tasks of a
traffic stop,” Sergeant added “more time than necessary” to
complete the mission of the stop. There is no evidence to suggest
that Sergeant was ever distracted to the point that he delayed
completing the traffic stop for even a few seconds. At best,
Sergeant testified that he was not doing “two things at the same
time” when he requested the dog sniff. But without more, we do
not know whether Sergeant’s multi-tasking caused an actual
delay. For instance, Sergeant may have been waiting for police
dispatch to relay to him the results of the records check when he
made the request for the dog sniff. We wonder whether a
few-second distraction from an officer’s focus on resolving the
traffic offense would violate the Fourth Amendment even if it
could be shown to have caused a corresponding few-second
delay in the overall duration of the traffic stop, but we need not
directly answer that question here, because there is no support
for that factual conclusion in the record.

¶13 Instead, this case aligns more closely with Illinois v.
Caballes, 543 U.S. 405 (2005). In Caballes, the officer who initiated
the stop radioed police dispatch to record the initiation of the
stop, and a police dog unit arrived on the scene without a
request. Id. at 406. The United States Supreme Court determined
that the dog sniff was not a Fourth Amendment violation
because it occurred “while [Caballes] was lawfully seized for a
traffic violation.” Id. at 409. Here, Sergeant initiated the traffic
stop, and while he continued to complete the mission of the stop,
he requested the police dog unit. Officer arrived and used the
dog to conduct the sniff before Sergeant had completed the
records check. Although Sergeant requested the sniff, unlike the
officer in Caballes, Sosa and the driver were similarly “lawfully
seized for a traffic violation” at the time. See id. The sniff lasted
thirty seconds and indicated the presence of a controlled
substance. At this point, there was reasonable suspicion of
criminal activity independent of the initial traffic stop and

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further temporary detention based on the controlled substance
alert was reasonable to investigate the suspected criminal
activity. Cf. Rodriguez, 135 S. Ct. at 1616–17 (remanding to
determine whether “reasonable suspicion of criminal activity
justified detaining Rodriguez beyond completion of the traffic
infraction investigation”); see also Baker, 2010 UT 18, ¶ 13.

¶14 Without evidence of an actual distraction that resulted in
a delayed completion of the traffic stop, Sergeant’s request for
the dog sniff and renewed request upon the unit’s arrival that
occurred while he was completing the records check did not
violate the Fourth Amendment. Accordingly, we affirm.

20150998-CA 7 2018 UT App 97