dissenting.
[¶ 63.] I dissent on Issue ID because the evidence as a whole indicates that the trial court erred in determining that the drug dog “alerted” on the vehicle of Chavez.
[¶ 64.] Unfortunately, the videotape of this stop, search and subsequent arrest does not capture the initial drug sweep by Trooper Swets and his dog, Crockett. However, the evidence that the tape does *107reveal indicates that actions and comments by Trooper Swets fail to support his assertion that the dog alerted to the presence of drugs.
1. Despite the alleged “alert” by Crockett, Trooper Swets pursued his investigation regarding alien status for over twenty minutes before he commenced the search of the vehicle.
2. In discussing the possibility of searching the car, Trooper Swets stated, “[Aurelio’s] got falsified documents. That’s a crime. We got probable cause for a search. I think that’s what I’m going to go ahead with.” ■ It is significant that Trooper Swets did not suggest Crockett’s alleged alert as probable cause for a search.
3. Trooper Swets did not commence or even seem to become interested in conducting a search until after he became aware that INS' was not interested in the suspects.
4. Although he testified that the dog alerted on the trunk of the car, Trooper Swets began his search with the sunroof because he believed it was “out of alignment.”
5. After the search began, Trooper Swets said to Trooper Thomas, “[s]o we’re not sure what we got, if we got anything. Mike’s pretty sure there’s dope here” (emphasis supplied). Once again, Trooper Swets gives no indication that his dog, Crockett, alerted to the presence of drugs in the vehicle. In fact, he does not even indicate that he personally believes there are drugs in the car.
6. The United States Federal District Court viewed the tape and determined that Crockett did not alert. At the state suppression hearing, the state presented additional evidence that it contends supports the finding that the dog did alert. However, that evidence has little value because the video and audio recording of the stop directly refutes it.
[¶ 65.] Trooper Swets’ behavior after the dog allegedly alerted is inconsistent with his assertion that he performed the search based on the dog having alerted to the presence of drugs. Immediately after returning the dog to his patrol car, the trooper resumed his questioning regarding the alien status of the Defendant and his passengers. At that time, he also radioed dispatch with a request that INS be contacted.
[¶ 66.] At no time during the course of the stop did Trooper Swets inform the other officers that the dog had alerted in the initial search. Although Trooper Swets provided a possible justification for not sharing that information with the suspects, he offered no justification for' withholding such information from his fellow investigating officers. Speaking with Officer Schafer, Trooper Swets stated, “Crockett shows some interest, but ...” The tone of his voice coupled with his actions and subsequent discussions with other officers makes it clear that Trooper Swets did not believe the dog had alerted.
[¶ 67.] The majority opinion relies heavily on the testimony of Kyle Heyen, a dog trainer, that he heard Crockett alert when he viewed the videotape. The testimony is not credible for two reasons:
1) In listening to the videotape, one can clearly hear the sound of Trooper Swets breathing as the “drug sniff’ proceeds. The sound of Trooper Swets’ breathing stops whenever he speaks to the dog. Heyen admitted on cross examination that he did not hear Trooper Swets breathing. If Heyen could not hear the trooper’s audible breathing, the question be*108comes how could he have heard the dog alert?
2) Careful review of the video does not support Heyen’s testimony at trial. He testified that when Crockett alerts “he gets increased — very intense sucking in through his nose that — It’s very audible, and you can hear it.” He also testified that he heard the dog on the videotape and that “[Crockett’s] nose started inhaling, sucking in, being a Hoover vacu- ■ um.” However,-as the majority opinion notes at ¶ 24, there is no obvious sucking sound.
[¶ 68.] The evidence taken as a whole simply does not support the trial court’s finding that the dog alerted to the presence of drugs in the vehicle. This Court should hold that the trial court clearly erred in this finding and proceed to determine whether Chavez’s Miranda and other constitutional rights were violated by the questioning about his alienage in a traffic stop.
[¶ 69.] MEIERHENRY, Justice, joins this dissent.