(dissenting).
{38} I respectfully dissent. The majority opinion concedes that the original traffic stop was legitimate. Supra, ¶22. The majority does not dispute that Officer LaSalle could ask Defendant questions once having made a lawful stop. See id. ¶¶28, 30. What the majority opinion does not abide is any further detention of the vehicle to await the drug dog. Id. ¶ 22 (“The core issue with which we are then confronted is whether Officer LaSalle had individual, particularized reasonable suspicion with respect to Defendant to detain the vehicle further to await a drug dog sniff.”).
{39} Significantly, the majority does not appear to attack the specific length of the detention. Supra, ¶32. Without ever balancing “the government’s justification for the detention, the character of the intrusion on the individual, the diligence of the police in conducting the investigation, and the length of the detention,” State v. Robbs, 2006-NMCA-061, ¶ 21, 139 N.M. 569, 136 P.3d 570, the majority appears to conclude that no amount of investigatory detention for drugs, no matter how brief, could be justified based on what Officer LaSalle knew and had observed. Taken literally, I suppose that even if the officer had a drug sniffing canine in his car or if it were one block away, not even that amount of de minimis detention would be tolerable. I am compelled to this conclusion because of where the majority opinion takes its stand. It does not quibble with the reasonableness of this particular detention; it says that no amount of detention, not sixty minutes and not sixty seconds, can be justified because the officer lacked reasonable suspicion for any extra detention related to drugs. With respect, I do not agree. Under the federal constitution, as opposed to the New Mexico Constitution, such a minimal detention of a vehicle for the purpose of a drug dog sniff is justified when the officer has reasonable, articulable suspicion based on no more than what was known to Officer LaSalle here.
{40} I begin by examining the facts which do not appear to be in dispute. Officer LaSalle saw Defendant parked outside a house under investigation for drug activity. Defendant was talking with a man who came from that same house, and the two were participating in what looked like, in the officer’s experience, a drug deal. His suspicion aroused, the officer wanted to talk to them both, but Defendant drove away. Officer LaSalle then followed Defendant’s car and conducted his traffic stop, which all agree was legitimate. At that time he specifically recognized Defendant as a person with a criminal record, including drug transactions. In undertaking his customary wants and warrants computer check, the officer learned that Defendant may well be dangerous, dangerous enough that another officer was sent over to assist. Then, in the course of further questioning, the officer learned that the man seen talking to Defendant at the suspected drug house, Horton, with whom Defendant may have had a drug transaction, was, to no surprise, one of the very men specifically under investigation for drug activity. Mr. Horton also had a criminal history related to drugs. Parenthetically, Defendant was also acting nervous and agitated throughout the stop.
{41} Based on all these facts and observations, the officer was in fact suspicious of Defendant, that his car contained drugs. He believed that a drug dog, conducting a sniff of the car’s exterior, would confirm his suspicions and give him the probable cause he needed for a search warrant. Accordingly, he released Defendant, kept the car, waited ten minutes for the drug dog to arrive, and, upon the drug dog alerting, obtained the consent of the owner to conduct an interior search which produced contraband.
{42} In my mind, I cannot think that any reasonably well-trained police officer would not be suspicious under the totality of these circumstances. Remember that we are not being asked to approve a full-fledged search, or any further detention of Defendant who was free to go and did leave the scene. This makes a difference. As our Court of Appeals noted in Robbs, 2006-NMCA-061, ¶ 21, 139 N.M. 569, 136 P.3d 570, we must “balance the government’s interest in preventing the use and distribution of methamphetamine against Defendant’s right to be free from official investigation through the use of a drug dog.” The majority opinion makes no mention that under established federal law, “the government’s interest in deterring methamphetamine use ... substantially outweighs the minimal intrusion on Defendant’s liberty through the use of a drug dog.” Id. ¶ 22 (citing United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)). Moreover, the length of the detention and the degree the defendant’s freedom of movement is restricted are both important factors in determining whether the seizure complies with Fourth Amendment requirements. See State v. Werner, 117 N.M. 315, 318-19, 871 P.2d 971, 974-75 (1994) (holding that the detention violated the Fourth Amendment based on its length and because defendant’s freedom of movement was severely limited).
{43} Based, in part, on this careful balance, we repeatedly tell the police to investigate first before jumping to a search and an arrest, to proceed incrementally with caution so as to confirm or deny suspicions before proceeding to the next step. It seems to me that is exactly what Officer LaSalle did under these circumstances. We have encouraged the use of drug dogs because they do not intrude into the privacy of the interior; they detect the air outside in the public domain, just not detectable to humans. Drug dogs employed in the manner of this case are a cautious, incremental step in terms of their impact upon the Fourth Amendment. They require only a small amount of time, and if they fail to alert, the vehicle is free to go. See Robbs, 2006-NMCA-061, ¶ 29, 139 N.M. 569, 136 P.3d 570. But it may take some time to transport the dog to the scene, in this case ten minutes. That amount of time is not unreasonable, and the majority does not disagree. See id. ¶ 30 (citing state and federal cases that have upheld similar detentions while awaiting a drug dog).
{44} The Court of Appeals majority found this short detention amply supported by reasonable suspicion, citing Robbs. It is difficult to say what the district court thought, since the judge incorrectly applied a standard of probable cause instead of reasonable suspicion. Perhaps we, as an appellate court, should remand to that judge to determine, in the first instance, whether Officer LaSalle had reasonable suspicion, as opposed to probable cause, for that ten-minute detention. If all we do here is insert our view of the evidence for that of the Court of Appeals, then I doubt we have advanced the law on such an important subject as the Fourth Amendment.
{45} My disagreement with the majority, however, is not just over our collective view of the evidence. I am concerned that we are not following the law of the Fourth Amendment, as articulated by the United States Supreme Court over the past several years and then more recently by federal courts, particularly the Tenth Circuit. Here, we are not articulating the meaning of our New Mexico Constitution where we are free to diverge. This is the same Fourth Amendment for us all. I fear we risk being criticized for inserting our own view of what we think Fourth Amendment ease law ought to be, when our role is to follow and apply what the Supreme Court and others have already said about the Fourth Amendment under similar circumstances, and indeed what the Supreme Court would very likely say in this very instance.
{46} The majority opinion makes reference to United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), for the proposition that we will not engage in a “ ‘divide-and-conquer analysis,’ ” supra, ¶ 28, but then the opinion seems to go on to do just that. In Arvizu, the Supreme Court made clear that we must do more than analyze each individual component of what the officer observed to see whether each component is equally capable of a benign explanation as a suspicious one. 534 U.S. at 274, 122 S.Ct. 744 (stating that the Ninth Circuit erred by examining each factor viewed in isolation, even though each may have been “ ‘innocent in itself,’ ... taken together, they ‘warranted further investigation’”) (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We are to examine the totality of the circumstances, as seen through the eyes of a reasonable, well-trained police officer and giving due deference to how a reasonable police officer, not five private citizens or even five judges, might objectively interpret the totality of the circumstances, whether or not each individual component is capable of an innocent explanation. Id. at 277, 122 S.Ct. 744 (noting that the test is to consider “the totality of the circumstances” while giving “due weight to factual inferences drawn by the law enforcement officer”).
{47} Rather than undertaking this form of analysis, the majority addresses each factor individually, noting how each one can be seen as lawful conduct. Supra, ¶¶ 29-32. It is fine to view each factor individually to determine the weight to be given to each factor. However, in the end, the question is not whether the defendant was engaging in lawful conduct, but rather whether under the totality of the circumstances the “detaining officer has a ‘particularized’ and objective basis for suspecting legal wrongdoing.” United States v. Santos, 403 F.3d 1120, 1134 (10th Cir.2005) (quoting Arvizu, 534 U.S. at 273, 122 S.Ct. 744) (emphasis added); see also id. (holding that reasonable suspicion existed under the totality of the circumstances test even though “[t]his set of facts, taken individually, might not mean much to ordinary observers”). In doing so the court must “defer to the ‘ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.’ ” Id. at 1124 (quoted authority omitted). The court does not do so blindly, of course; such deference is always subject to a standard of objective reasonableness. But neither do we get to substitute our version of suspicion for that of the officer. See Arvizu, 534 U.S. at 276, 122 S.Ct. 744 (“To the extent that a totality of the circumstances approach may render appellate review less circumscribed by precedent than otherwise, it is the nature of the totality rule.”).
{48} Aside from its passing reference to Arvizu, the majority opinion does not discuss recent opinions from our own Tenth Circuit which factually are more on point with our own case and which uphold a drug dog detention similar to what occurred in this case. In employing Fourth Amendment analysis, the Tenth Circuit gives much greater weight than the majority opinion to officer observation. See, e.g., United States v. Bradford, 423 F.3d 1149, 1157-58 (10th Cir.2005); Santos, 403 F.3d at 1133-34. Other circuits are similar. See United States v. Davis, 430 F.3d 345, 354-55 (6th Cir.2005) (holding, based largely on police observation regarding drug investigation, the initial seizure while awaiting a drug dog was reasonable); United States v. Yang, 345 F.3d 650 (8th Cir.2003) (holding that detention while awaiting drug dog was reasonable based primarily on officer observation). The analysis in Santos is particularly helpful as there, like here, a traffic stop was made and the officer detained the defendant’s vehicle until a dog arrived to sniff the vehicle. 403 F.3d at 1122-24. The Tenth Circuit found that reasonable suspicion existed, even though it all began with a mere traffic stop, based on the officer’s observations, the answers produced by the defendant when questioned, and the fact that the defendant had a prior criminal history. Id. at 1133-34. The court’s holding was based in large part on its deference to the “ ‘ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.’ ” Id. at 1124 (quoting United States v. McRae, 81 F.3d 1528, 1534 (10th Cir.1996)). Santos is an excellent example of a court affirming a brief drug dog detention, though somewhat reluctantly, perhaps being of a mind to decide differently if they could speak their own mind, but nonetheless following applicable Fourth Amendment precedent, principally Arvizu, to uphold the detention as not unreasonable. Santos, 403 F.3d. at 1124-25 (laying out the Supreme Court’s standard of reviewing, then noting how it is that standard that must be applied in Fourth Amendment cases).
{49} Just as in Santos, the reasonable suspicion in this case arose from officer observation and a past criminal history. Officer LaSalle was not observing any two people talking on a street; he was observing two men, later determined to have drug-related criminal records, conversing outside a suspected drug house and engaging in what he thought was a drug deal. See Santos, 403 F.3d at 1132 (noting that “in conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus”). The point is not whether there might be a benign explanation for this behavior. Obviously, it is not illegal to converse on a street corner even if one has a criminal record. According to the Supreme Court, however, the principal question we are to ask is whether it would be unreasonable for any well-trained police officer merely to be suspicious and initiate a criminal investigation for drugs, taking into account all of the officer’s observations, considered cumulatively, and giving due deference to the officer’s training and experience. This opinion does not give officer training and experience its due. See Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (“This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” (quoted authority omitted)). I believe most well-trained, conscientious officers would be suspicious of drug activity under these circumstances, and appropriately so. But it is not my opinion that counts; it is what the federal constitution, as presently interpreted by the Supreme Court, appears to require.
{50} Instead of discussing federal precedent on this topic, the majority relies primarily on our own New Mexico case law interpreting the same Fourth Amendment. But I do not think it does so correctly.
{51} Robbs, of course, is closely on point as the Court of Appeals majority determined in this very case, reasoning that if a thirty-five minute detention of the vehicle while awaiting the drug dog was reasonable, so too would be a ten-minute detention for the same purpose. Robbs was preceded by a specific tip that the driver would be carrying drugs, a point which is absent from our case. But to be reliable, tips must carry such detailed corroborating evidence. See Robbs, 2006-NMCA-061, ¶¶ 13-15, 139 N.M. 569, 136 P.3d 570. Our case is based not on a mere tip, but the officer’s observations. The majority opinion does not explain why the personal observations of a trained officer would be less reliable than a tip, anonymous or otherwise.
{52} The Robbs analysis is helpful because of the federal analysis it engages in as discussed above. Supra, ¶42. However, instead of applying a similar analysis the majority draws an analogy to State v. Prince, 2004-NMCA-127, 136 N.M. 521, 101 P.3d 332, and State v. Graves, 119 N.M. 89, 888 P.2d 971 (Ct.App.1994). Supra, ¶¶ 24-27. Graves involved the detention of an individual, not a vehicle, who was present at a house that was being lawfully searched. 119 N.M. at 94, 888 P.2d at 976. The Court of Appeals held that mere presence without any other circumstances giving rise to reasonable suspicion was not enough to justify the detention under the Fourth Amendment. Id. I agree. But in the case before us Officer LaSalle articulated far more reasons than mere “presence” for wanting to investigate Defendant’s car for drugs. Additionally, I do not find Graves on point because, as noted above, in the traditional Fourth Amendment balance of the government interest versus the level of intrusion there are significant differences between this case and Graves. In Graves the individual was detained and handcuffed, while here only the vehicle was detained for a short period of time to await a canine sniff. See Robbs, 2006-NMCA-061, ¶29, 139 N.M. 569, 136 P.3d 570 (“Defendant’s freedom of movement was not severely restricted____ Defendant was told she was free to leave, and she did so.”).
{53} I also do not find much help in Prince, 2004-NMCA-127, ¶2, 136 N.M. 521, 101 P.3d 332. There, the police were acting on an anonymous tip and had not seen anything on their own, unlike Officer LaSalle in this case who based everything on his own observations. The police in Prince did not simply expand the stop by detaining the vehicle briefly to await a canine sniff. Instead, the police immediately removed the defendant from the car and performed a full search, despite his cooperation, which is a far cry from the incremental actions of Officer LaSalle here. See id. ¶ 4. The court held, appropriately, that there was no firm basis to expand the traffic stop into a drug investigation. Id. ¶ 19.
{54} These New Mexico cases are not as helpful as the majority opinion finds them to be. More importantly, the majority fails to undertake the proper federal analysis necessary when we are to determine whether the Fourth Amendment’s protections were violated.
{55} For these reasons I respectfully dissent.
I CONCUR PETRA JIMENEZ MAES, Justice.