Search & seizure; Motion to suppress drug evidence found in defendant’s car; Whether an officer’s order for defendant to exit his vehicle was used as a “pretext” for a canine search; Katz v United States; United States v Jones; Whether the evidence should have been excluded based on issues with the chain of custody; Denial of an evidentiary hearing on the chain of custody claim

The court affirmed the district court’s denial of defendant-Fellmy’s motion to suppress evidence obtained during a traffic stop. It held that he was not unlawfully seized when asked to exit his vehicle during a lawful stop, and that any contact the police dog made with his car during an open-air sniff for drugs was “incidental” and did not constitute a search under Jones. Police received an anonymous tip that Fellmy had drugs in his car. When he failed to use a blinker, an officer stopped him and made him exit the car. A drug dog alerted to the presence of drugs. He was charged with possession of meth with intent to distribute. The district court denied his motion to suppress, and a jury convicted Fellmy. He argued that the drug evidence should have been suppressed because he was seized when ordered to exit his car as a “pretext” for a canine search. But the court explained that an order to exit a vehicle is allowable during a lawful stop, and the “officers’ subjective motivation doesn’t matter.” Fellmy admitted that he committed a traffic violation; thus, the police stop was lawful. He next argued that the dog sniff constituted an unconstitutional search. But the court concluded the officers did not “perform a search under Katz. Officers don’t violate a driver’s reasonable expectation of privacy when they walk a trained drug dog around a lawfully stopped car to sniff for drugs.” The court noted that the officers didn’t instruct the dog to put her nose into the car, and the district court found that she leaned toward the already open window instinctively to sniff. She “merely made incidental contact with the car while performing the challenged sniffs.” The court also held that the dog’s “conduct in performing the free-air sniff around Fellmy’s vehicle didn’t constitute a search under Jones.” Thus, it concluded “the officers didn’t violate the Fourth Amendment by virtue of [the dog’s] brief contact with Fellmy’s car during her open-air sniff for drugs.” The court also rejected his argument that the evidence should have been excluded based on issues with the chain of custody. Differences in the weight of the drugs reflected “that the drugs’ packaging was changed at various stages while weighed in police custody and testing.” And his motion for a pretrial evidentiary hearing on the issue was properly denied where he failed to offer any evidence of tampering in his motion.