IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

ROSA ELENA BECERRA,

Appellant.

No. 2 CA-CR 2014-0295

Filed January 25, 2016

Appeal from the Superior Court in Pima County

No. CR20111519001

The Honorable Scott Rash, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Amy Pignatella Cain, Assistant Attorney General, Tucson

Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender

By Erin K. Sutherland, Assistant Public Defender, Tucson

Counsel for Appellant
STATE v. BECERRA

Opinion of the Court

2

OPINION

Judge Miller authored the opinion of the Court, in which Judge 

Espinosa concurred and Chief Judge Eckerstrom dissented.

M I L L E R, Judge:

¶1 Rosa Becerra was convicted after a jury trial of 

possession of drug paraphernalia and methamphetamine for sale

and sentenced to a combined prison term of five years. On appeal, 

she contends the trial court erred in denying her motion to suppress 

the methamphetamine when it concluded that her written and oral 

consent to search her car included inspection by a drug-detection

dog (K-9). For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 In reviewing a trial court’s ruling on a motion to 

suppress, the appellate court considers only the evidence presented 

at the suppression hearing. State v. Spears, 184 Ariz. 277, 284, 908 

P.2d 1062, 1069 (1996). In addition, we “view the facts in the light 

most favorable to sustaining the trial court’s ruling.” State v. 

Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). Only the 

officer who conducted the search testified at the suppression 

hearing.

¶3 In 2011, a Department of Public Safety officer stopped

Becerra’s car for speeding and a cracked windshield. After issuing a 

written warning for the traffic violation and a repair warning for the 

windshield, the officer asked Becerra if he could search the vehicle,

to which she said yes. The officer then gave her a consent-to-search 

form, which stated in both English and Spanish:

I, [name], give consent to search my vehicle 

and any of its contents under my control. I 

understand that:
STATE v. BECERRA

Opinion of the Court

3

(1) I can refuse to allow my vehicle to be 

searched.

(2) I can withdraw my consent to search at 

any time.

(3) Any evidence found during this search 

can be used against me in court.

(4) This consent does not include property 

of any individual adult passengers. 

Separate consent must be obtained from 

those individuals.

After confirming that Becerra could read Spanish, the officer asked 

her to read through the form and sign it if she agreed, and added 

that if she had any questions she could ask him. She signed the 

Spanish portion of the form. He asked her if she understood the 

form, and she said yes.1 Their conversation was in English.

¶4 The officer directed Becerra and her passengers to exit

the car and stand on a sidewalk about twenty feet from the car. He 

went to his patrol car, which was parked behind Becerra’s car, and 

retrieved his K-9. The officer testified that his patrol car was visible 

from the sidewalk and Becerra was able to see him take the K-9 out 

of the patrol car. Becerra was standing close enough that the officer 

“[m]ost definitely” could have heard her if she had said something 

to him, but she did not. He testified that throughout the 

investigation, he never saw or heard her do or say anything to 

indicate that she withdrew her consent to search the car.

 

1After the opening brief was filed in this appeal, the United 

States Supreme Court issued its opinion in Rodriguez v. United States, 

___ U.S. ___, ___, 135 S. Ct. 1609, 1612 (2015), holding that police 

may not prolong an otherwise-completed traffic stop to conduct a 

dog sniff absent reasonable suspicion of criminal activity. Because 

the parties disagreed as to what effect Rodriguez might have on the 

present case, we solicited supplemental briefing. We conclude the 

record does not permit us to address the issue and express no 

opinion about its application here.
STATE v. BECERRA

Opinion of the Court

4

¶5 The officer had the K-9 conduct an exterior sniff of 

Becerra’s car by walking all the way around it. The K-9 did not alert 

to the exterior of the car. The officer next directed the K-9 to sniff

the interior of the car. The K-9 alerted to a purse placed on the 

driver’s seat.2 The officer returned the K-9 to his vehicle and then 

searched the purse, finding the methamphetamine inside.

¶6 In her motion to suppress Becerra argued the seizure of 

the methamphetamine violated the Fourth Amendment because the 

use of a K-9 to sniff the interior of the car exceeded the scope of her 

consent. The trial court denied the motion, finding Becerra freely 

and intelligently consented to a search and the actual search 

remained within the bounds of her consent. A jury found her guilty 

of the charge and after she was convicted and sentenced as 

described above, she appealed. We have jurisdiction pursuant to 

A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Consent to Search Vehicle With K-9

¶7 A warrantless search of a car without the driver’s 

consent or probable cause to believe it contains contraband or other 

evidence of a crime violates the Fourth Amendment. See U.S. Const. 

amend. IV; California v. Carney, 471 U.S. 386, 390 (1985) (automobile 

exception to warrant requirement justified by lessened expectation 

of privacy in vehicle); see also Ariz. Const. art. II, § 8; State v. Reyna, 

205 Ariz. 374, 375, ¶ 5, 71 P.3d 366, 367 (App. 2003). Because the 

state did not assert the officer had probable cause to search her car, 

Becerra’s consent was the only issue addressed at the suppression 

hearing. We review the trial court’s ruling on a motion to suppress 

for an abuse of discretion. State v. Butler, 232 Ariz. 84, ¶ 8, 302 P.3d 

609, 612 (2013).

¶8 Determining the validity of a law enforcement officer’s 

search based on consent generally involves two factors: (1) whether 

the consent was voluntarily given and (2) whether the search was 

within the scope of the consent. See State v. Paredes, 167 Ariz. 609, 

 

2Becerra conceded in her motion that the purse belonged to 

her.
STATE v. BECERRA

Opinion of the Court

5

612-13, 810 P.2d 607, 610-11 (App. 1991). Becerra acknowledges that 

her oral and written consent was voluntary. Her single contention 

on appeal, as she argued below, was that the scope of her consent 

did not reasonably extend to a search of the inside of her car by the 

officer’s K-9.

¶9 A general consent to search is unqualified, absent any 

announcement of the object of the search or other express limitation,

subject only to the bounds of reasonableness. See United States v. 

McWeeney, 454 F.3d 1030, 1034-35 (9th Cir. 2006). Even after a 

person initially consents to a search, she nevertheless remains free to 

withdraw or narrow the scope of her consent at any time. Id. at

1034. “The standard for measuring the scope of a suspect’s consent 

under the Fourth Amendment is that of ‘objective’ reasonableness—

what would the typical reasonable person have understood by the 

exchange between the officer and the suspect?” Florida v. Jimeno, 500 

U.S. 248, 251 (1991). 

3

¶10 Becerra argues “no reasonable person would believe 

that a dog was going to be placed into the interior of their vehicle” 

when consenting to a search. She reasons that absent an explicit 

question by the officer, such as “whether he and his dog could 

search,” the officer should assume consent does not include the 

assistance of a K-9. She supports her reasonable person argument

with examples of why some people do not want dogs around them 

or their property: the presence of hair, claws, saliva, and 

indiscriminately wagging tails. Although it is undoubtedly true that 

 

3In its expanded statement of the issue, the Court actually asks 

whether the officer’s beliefs about the consent exchange were 

“objectively reasonable.” Jimeno, 500 U.S. at 249, 251. An officer’s 

beliefs, to be objectively reasonable, must be based on what a 

reasonable lay person in those circumstances would have believed. 

For instance, in State v. Ahumada, which relied on Jimeno, the court 

discussed circumstances from which the officer might have 

concluded the scope of consent included a search of the pockets, but 

based its holding on what “reasonable persons” would have 

understood. 225 Ariz. 544, 546, ¶¶ 7, 14, 241 P.3d 908, 910, 912 (App. 

2010).
STATE v. BECERRA

Opinion of the Court

6

some people prefer to avoid dogs for those reasons, the issue of 

objective reasonableness to determine the scope of a consent to 

search does not turn on the personal likes or dislikes of the 

defendant, or even the preferences of a group of people. See, e.g., 

United States v. Marshall, 348 F.3d 281, 287 (1st Cir. 2003) (consenting 

party’s subjective belief irrelevant). Instead, it depends on the 

rational beliefs and knowledge of a reasonable person. For instance, 

in Jimeno, the defendant argued and the Florida appellate court 

agreed that consent to search a vehicle would not reasonably include 

the closed containers within it. 500 U.S. at 250. The Supreme Court 

rejected this per se rule, however, because a “reasonable person may 

be expected to know that narcotics are generally carried in some sort 

of container.” Id. at 251 (emphasis added). Here, the issue is 

whether a person who has generally consented to a search of her 

vehicle may expect that a law enforcement officer could use a K-9 to 

assist in the search.

¶11 K-9s have assisted law enforcement officers conducting 

searches for more than a century because of their superior olfactory 

abilities. See, e.g., Hodge v. State, 13 So. 385, 385 (Ala. 1893) (search

capabilities of K-9s “common knowledge” by 1893); see also Charles 

F. Sloane, Dogs in War, Police Work and on Patrol, 46 J. Crim. L. & 

Criminology 385, 388 (1955) (noting dogs have been used to track 

criminals since at least fifteenth-century England). They have been 

used to detect drug contraband for more than forty years. See, e.g., 

United States v. Fulero, 498 F.2d 748, 749 (D.C. Cir. 1974) (per curiam) 

(marijuana-sniffing K-9 “had been working at the port of entry at 

San Luis, Arizona regularly for at least two years” by time of trial). 

In fact, K-9s are a ubiquitous part of modern law enforcement. See, 

e.g., United States v. Howard, 448 F. Supp. 2d 889, 891 (E.D. Tenn. 

2006) (noting the “great number of criminal cases” involving drug 

detection K-9s); see also Charles L.W. Helm, Note, A Huff and a Puff Is 

No Longer Enough: How the Supreme Court Built a House of Bricks With 

Its Decision In Florida v. Jardines, 9 Liberty U.L. Rev. 1, 12 (2014) 

(noting that in addition to drug investigations, K-9s are used “to 

find missing persons, sweep for explosives, find remains of murder 

victims, locate discarded pieces of evidence, or even assist fire 

investigators in determining if an accelerant might have been 

used”).
STATE v. BECERRA

Opinion of the Court

7

¶12 Knowledge about the role of K-9s in law enforcement is 

not limited to criminal justice circles. Many patrol vehicles display

prominent signs that the officer is accompanied by a K-9. See, e.g., 

People v. Bell, 51 Cal. Rptr. 2d 115, 117 (Ct. App. 1996) (noting “patrol 

car was marked ‘K-9’”), abrogated on other grounds by People v. 

Brendlin, 136 P.3d 845 (Cal. 2006), vacated, Brendlin v. California, 551 

U.S. 249 (2007). In fact, placing K-9 markings on a private car may 

be particularly important in determining whether a person is 

attempting to impersonate a police officer. See State v. Beaubrun, 36 

So. 3d 897, 900 (Fla. Dist. Ct. App. 2010).

¶13 The training and work of K-9s is recognized in widely 

viewed documentaries, such as ones produced by National 

Geographic and Animal Planet. See Alpha Dogs, National 

Geographic, http://channel.nationalgeographic.com/wild/alpha-dogs/

(last visited Jan. 8, 2016); K-9 Cops Videos, Animal Planet, 

http://www.animalplanet.com/tv-shows/other/videos/k9-cops/

(last visited Jan. 8, 2016). K-9s even have a place in popular culture 

as demonstrated by their leading roles in movies and television. See,

e.g., K-9 (Universal Pictures 1989); Rin Tin Tin: K-9 Cop (The Family 

Channel 1988-93). The reasonable person in the United States would 

not be surprised or find any novelty in a law enforcement officer’s

use of a K-9, just as he or she might use a flashlight, to search a 

vehicle for drug contraband. Therefore, we cannot accept Becerra’s 

contention that the constitution mandates a per se rule excluding

K-9s from the scope of a general consent and requiring officers to 

explicitly ask for permission to search with a K-9.

¶14 Rejection of Becerra’s proposed bright-line rule does not 

mean adoption of the opposite rule—i.e., everyone must assume a 

K-9 will be used in all searches. Instead, trial courts must look to the 

totality of the circumstances in the exchange between the officer and 

person to determine whether a consensual search remained within 

the bounds of the consent actually given, and appellate courts will 

affirm the trial court’s judgment absent clear error. State v. Swanson, 

172 Ariz. 579, 583, 838 P.2d 1340, 1344 (App. 1992). Arizona 

precedent and persuasive federal case law guide our consideration

of the suppression ruling.
STATE v. BECERRA

Opinion of the Court

8

¶15 In State v. Paredes, this court held the trial court erred in 

concluding that the use of a K-9 in a vehicle search exceeded the 

scope of a general consent. 167 Ariz. at 613, 810 P.2d at 611. In that 

case the officer had asked if he “could look through the vehicle,” 

Paredes consented, and then the officer retrieved his K-9 from the 

patrol vehicle. Id. at 610, 810 P.2d at 608. In rejecting Paredes’s

argument, we observed that when he consented, the K-9 was on the 

scene and “the defendant did not revoke his consent when the dog 

was brought to the vehicle.”4 Id. at 613, 810 P.2d at 611. Finding 

instructive the Fifth Circuit’s reasoning in United States v. GonzalezBasulto, 898 F.2d 1011 (5th Cir. 1990) (per curiam), we found the 

presence of the K-9 and the absence of an objection by the defendant 

or revocation of his consent crucial to our determination that the 

trial court had erred by granting the motion to suppress. 167 Ariz. 

at 613, 810 P.2d at 611.

¶16 In Gonzalez-Basulto, border patrol agents at an 

immigration checkpoint asked the defendant if he would “mind 

opening the trailer for an inspection,” to which he replied, “‘No 

problem.’” 898 F.2d at 1012. Unlike the officer here, the border 

patrol agents did not inform Gonzalez-Basulto of his right to refuse 

or to withdraw consent to search. Id. at 1013. Nonetheless, the court 

held that because the defendant could observe K-9s at the 

checkpoint before he gave his consent and he stood by silently as the 

K-9 entered the trailer, the district court properly concluded search 

with a K-9 did not exceed the scope of consent. Id. Becerra provides 

no authority rejecting the reasoning in Gonzalez-Basulto, and our 

own research discloses general acceptance of it. See, e.g., Bell, 51 Cal. 

Rptr. 2d at 126 (defendant who knew officer was accompanied by K9 should expect it would assist search); Castro v. State, 755 So. 2d 657, 

659 (Fla. Dist. Ct. App. 1999) (no objection when K-9 began search).

 

4Becerra contends this language is dicta because the K-9 in 

Paredes also alerted to the trunk, but we conclude the holding cannot 

be limited to an exterior search, especially in light of the court’s 

reliance on United States v. Gonzalez-Basulto, 898 F.2d 1011 (5th Cir. 

1990) (per curiam).
STATE v. BECERRA

Opinion of the Court

9

¶17 Both parties cite United States v. Woods, 445 F. Supp. 2d 

1328 (M.D. Ala. 2006), as additional persuasive authority. In that 

case a police officer stopped the defendant’s car based on reasonable 

suspicion that the defendant was involved in drug activity. Id. at 

1330. The defendant denied having contraband in the car. Id. “‘So, 

you don’t mind if I search it?’” the officer asked, and the defendant 

replied, “‘[N]o.’” Id. The officer began to search inside the vehicle. 

Id. About ten minutes into the stop, a K-9 team arrived. Id. The 

handler spoke to the defendant for a few minutes. Id. The K-9

subsequently alerted to drugs hidden in the center console. Id. at 

1330-31. In denying the defendant’s motion to suppress the drugs, 

the court reasoned that “before the canine search began, [the 

defendant] had been fully aware for some time of the dog’s presence 

and its purpose; that a canine search ensued as part of [his] consent 

came as no surprise to anyone present.” Id. at 1332. The defendant 

“‘had ample opportunity to limit the scope of the search, or request 

that it be discontinued’” after realizing a K-9 would be used, but he 

did not do so. Id., quoting United States v. Harris, 928 F.2d 1113, 1117-

18 (11th Cir. 1991). On these facts, the court concluded that the 

defendant’s general consent to a search of the car reasonably 

included the use of a drug-sniffing K-9 in the interior of the car

where narcotics might reasonably be hidden. Id. at 1332-33.

¶18 Becerra attempts to distinguish Paredes, GonzalezBasulto, and Woods on the basis that in each case “it was abundantly 

clear to the defendant that dogs were being utilized for the vehicle 

searches prior to obtaining the consent or conducting the search.” 

She essentially argues the facts in those cases are more compelling, 

but by this argument also implicitly contends the trial court 

committed clear error in finding that the search with the K-9 “was 

within the bounds of consent.” We disagree. There was sufficient 

evidence that Becerra, like the defendant in Woods, was “fully aware 

. . . of the dog’s presence and its purpose” before the K-9 entered the 

vehicle. 445 F. Supp. 2d at 1332. Moreover, as in Paredes, GonzalezBasulto, and Woods, the trial court had before it uncontested evidence 

that Becerra did not object when presented with unambiguous 

indications that the officer would use a K-9 to assist in the search. 

On this record, we cannot conclude the trial court committed clear 

error in its factual finding regarding the scope of consent.
STATE v. BECERRA

Opinion of the Court

10

¶19 Becerra also relies on Dominguez v. State, 616 So. 2d 506 

(Fla. Dist. Ct. App. 1993), to distinguish Woods. There, the defendant 

consented to a warrantless search of his apartment for narcotics. Id.

at 506. Fifteen minutes later, a K-9 was brought to the scene. Id. at 

506-07. After the K-9 alerted to a sink in the apartment, the officers 

opened the wall behind the sink to find narcotics hidden there. Id. at 

507 & n.1. The court found the use of the K-9 exceeded the 

reasonable scope of the defendant’s consent. Id. at 507. But 

Dominguez is distinguishable for two reasons. First, the court was 

careful to note that its holding rested on the absence of any 

“circumstances from which consent to the use of the drug detection 

dog could be reasonably implied.” Id. For instance, it distinguished 

Gonzalez-Basulto because the K-9s were “openly used and were visible 

to [the] defendant.” Id. (emphasis added). Likewise, the K-9 was 

visible to Becerra. Second, the court emphasized that the search in 

question was an invasive search of a private home, where one’s 

reasonable expectation of privacy under the Fourth Amendment is 

at its apex. Id. The court thus scrutinized defendant’s consent 

“‘with special care.’” Id., quoting Gonzalez v. State, 578 So. 2d 729, 734 

(Fla. Dist. Ct. App. 1991). Courts have long recognized that one has 

a lesser expectation of privacy in a vehicle than in a private home. 

See, e.g., Carney, 471 U.S. at 390-91; Carroll v. United States, 267 U.S. 

132, 153 (1925). Similarly, cases involving a K-9 brought onto the 

curtilage of a home are inapposite. See Florida v. Jardines, ___ U.S. 

___, ___, 133 S. Ct. 1409, 1415-16 (2013); State v. Foncette, 238 Ariz. 42, 

¶¶ 15-16, 356 P.3d 328, 331-32 (App. 2015) (K-9 sniff of hotel hallway 

did not invade constitutionally protected area even though in close 

proximity to one).

K-9 Exterior Vehicle Search Affecting Consent to Interior Search

¶20 The dissent seemingly would adopt Becerra’s proposed 

per se rule, or at least concludes the Fourth Amendment requires the 

state to show something more than the fact that the defendant had 

given a general consent to search and had been able to see the K-9 

with the officer as the officer approached the vehicle to conduct the 

search. We will not repeat the discussion of Becerra’s arguments our 

colleague finds persuasive, but separately consider his additional 
STATE v. BECERRA

Opinion of the Court

11

reasoning that a K-9 exterior sniff eliminates a person’s ability to 

withdraw her consent.

¶21 The dissent reasons that because law enforcement 

officers are not required to obtain consent for a K-9 sniff of the 

exterior of a car under Illinois v. Caballes, 543 U.S. 405 (2005), a 

person would never know the officer’s intentions until the moment 

the K-9 was in the car. This rationale places too much weight on 

Caballes. First, even assuming a person knows she has no basis for

objecting to an exterior sniff, it does not inhibit a reasonable person 

from asking whether the officer will direct the K-9 to enter the 

vehicle. For instance, Becerra was close by and easily could have 

made that inquiry but did not do so. Second, there was no evidence 

before the trial court establishing or even suggesting Becerra was 

surprised or concerned when the K-9 was directed to the driver’s

seat.

5 Had Becerra indicated that she only expected the K-9 to 

conduct an exterior sniff, the trial court could have considered that 

fact as part of the totality of the circumstances. See, e.g., State v. 

Ontiveros-Loya, 237 Ariz. 472, ¶ 24, 352 P.3d 941, 948 (App. 2015) 

(scope of consent is question of fact to be determined from totality of 

circumstances). Finally, the argument contradicts the reasoning in

Paredes, Gonzalez-Basulto, and Woods. The presence of the K-9 is the 

impetus for the person to make additional inquiries or to withdraw 

consent. In this respect, Paredes is directly on point because consent 

to search was given before the K-9 left the officer’s patrol car. 167 

Ariz. at 610, 613, 810 P.2d at 608, 611. Additionally, Caballes does not 

negate the reasoning in those cases because the defendant declined

to give consent; therefore, the holding and the Court’s reasoning 

does not apply here. 543 U.S. at 410 (K-9 exterior sniff during lawful 

traffic stop does not violate Fourth Amendment because it only 

reveals location of contraband person has no right to possess).

¶22 In sum, contrary to our dissenting colleague’s 

characterization, we do not “contend that only an unreasonable 

person would be uncomfortable with a strange animal entering her 

 

5It is not clear from the record that the K-9 actually entered the 

car; instead, it could have alerted to the purse as soon as the car door 

was opened. Nonetheless, we assume the K-9 entered the vehicle.
STATE v. BECERRA

Opinion of the Court

12

private space.” Rather, we conclude that when a person has 

consented to a search of her vehicle after having been unequivocally

informed the consent could be withdrawn at any time, a reasonable 

person would do so if she felt the use of a K-9 in conducting the 

search was objectionable or unacceptable for any reason. This 

conclusion is consistent with our jurisprudence and the protections 

of the Fourth Amendment.

Disposition

¶23 For the reasons stated, the trial court did not abuse its 

discretion in denying Becerra’s motion to suppress. We therefore 

affirm the convictions and the sentences imposed.

E C K E R S T R O M, Chief Judge, dissenting:

¶24 A person’s general consent to a search, during a routine 

traffic stop, neither foreseeably nor reasonably includes an 

expectation that a dog will be invited into the interior of one’s 

vehicle. Therefore, the state was obliged here to demonstrate that 

Becerra waived her Fourth Amendment right to protection from 

such an additional intrusion. Because Becerra had no legal duty to 

object to a search exceeding the scope of her consent, and because 

she could not divine the officer’s unspoken intention to ultimately 

invite the dog inside her car even if she possessed such a duty, I 

cannot agree that her mere silence sufficed to demonstrate her 

consent to that intrusion.

¶25 When an officer conducts a search pursuant to consent, 

“[t]he scope of [that] search is generally defined by its expressed 

object.” Florida v. Jimeno, 500 U.S. 248, 251 (1991). If an officer has 

not provided any express purpose for the search, the consent is 

understood as a general and unqualified consent. United States v. 

Snow, 44 F.3d 133, 135 (2d Cir. 1995). In that context, a defendant’s 

failure to object to an action that would reasonably be perceived as 

part of the general search may be taken as consent. See United States 

v. Starr, 533 F.3d 985, 996 (8th Cir. 2008); United States v. Gordon, 173 

F.3d 761, 766 (10th Cir. 1999); Guy v. State, 913 A.2d 558, 563-64 (Del. 

2006).
STATE v. BECERRA

Opinion of the Court

13

¶26 But a general consent is not without limits. A general 

consent “is constrained by the bounds of reasonableness: what a 

police officer could reasonably interpret the consent to encompass.” 

United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990). Courts 

have found that a general consent does not encompass a search that 

destroys property, see United States v. Osage, 235 F.3d 518, 521-22 

(10th Cir. 2000); Strickland, 902 F.2d at 941-42, or that is overly 

invasive of a person’s bodily privacy. See United States v. Blake, 888 

F.2d 795, 800 (11th Cir. 1989).

¶27 I would conclude that the use of a dog to search the 

interior of a car falls outside the scope of a general consent to a 

search, at least in the absence of some circumstances that would put 

a reasonable person on notice at the time consent is given that a dog 

might be so used. See State v. McLeod, 664 So. 2d 983, 984-85 & 984 

n.1 (Fla. Dist. Ct. App. 1995). As the majority has correctly noted, the 

scope of consent is defined by what a reasonable person would have 

understood the consent to mean. Jimeno, 500 U.S. at 251. The state 

contends the use of a dog was analogous to any other tool that an officer 

might use in conducting a search, such as a flashlight, and therefore 

required no separate consent. In apparent accord with this analogy, the 

majority observes that dogs are frequently and openly used as a tool by 

law enforcement in a number of contexts.

¶28 But, in addressing the Fourth Amendment issue before us, 

the pertinent question is not whether flashlights and dogs bear some 

analogy as law enforcement tools. Rather, we must address whether a 

reasonable person would expect, under the totality of the circumstances 

here, for her general consent to permit the additional intrusion of a dog 

into her car. The encounter here occurred neither at a border checkpoint 

nor at an airport, where police dogs are commonly encountered, but 

rather in a parking lot as part of a routine traffic stop. The officer 

inquired only whether he could search the car; he neither suggested the 

object of the search nor that an animal would be used as part of it. Most 

importantly, the state has presented no evidence suggesting that, at the
STATE v. BECERRA

Opinion of the Court

14

time the consent was given, Becerra had any awareness that the officer 

intended to use a dog or that a dog was even present at the scene.6

¶29 In this context, I cannot agree that a reasonable person 

would expect that a dog would be deployed to search inside her car 

during a routine traffic stop. Nor can I agree that a reasonable person 

would consider a dog search to involve no greater level of intrusion 

than a flashlight. Indeed, there are multiple reasons that a reasonable 

person might consent to the intrusion of a human officer with a 

flashlight but refuse entry to a dog. Flashlights neither shed, drool, 

nor leave scratches in upholstery. Unlike flashlights, many people 

have an allergy to, or fear of, a dog. And, even those who allow their 

own familiar pet to travel in their vehicle have reasonable grounds to 

display a more cautious attitude towards strange dogs. Such 

considerations lead reasonable people, in their ordinary lives, to 

understand that an invitation to a person does not extend to that 

person’s dog. See, e.g., Abigail Van Buren, Friend’s Dog Is Off the Guest 

List for Dinner Parties, Dear Abby (Oct. 24, 2015), 

http://www.uexpress.com/dearabby/2015/10/24/volunteering-with

-infants-may-gratify-wannabe. Although the majority contends that 

only an unreasonable person would be uncomfortable with a strange 

animal entering her private space, dogs are commonly prohibited from 

entering restaurants, private businesses, shopping malls, and the 

interior of public buildings.

¶30 Neither the state nor the majority has cited any case 

concluding that a general consent to search a vehicle includes the 

use of a dog. Pertinent jurisprudence suggests otherwise. It is 

undisputed that a general consent to search a vehicle or home does 

not include consent to damage property therein. See Osage, 235 F.3d 

at 521-22; Strickland, 902 F.2d at 941-42. Yet dogs pose an inherent 

and foreseeable risk of doing precisely that. The canine propensity 

for destruction of property is so well known that “my dog ate it” is a 

 

6The majority observes many vehicles containing dogs are 

visibly marked as “K-9” units. Nothing in the record suggests that 

the officer’s car here was so marked. We therefore cannot consider 

that possibility among the totality of the circumstances in evaluating 

the scope of consent.
STATE v. BECERRA

Opinion of the Court

15

clichéd excuse for failure to complete schoolwork. See Barbara J. 

Brunner, Before They Even Start: Hope and Incoming 1Ls, 48 Duq. L. Rev. 

473, 489 (Spring 2010); see also Steven R. Selsberg & Maelissa Brauer 

Lipman, “My Dog Ate It”: Spoliation of Evidence and the Texas Supreme 

Court’s Ortega Decision, 62 Tex. B.J. 1014, 1014 (Nov. 1999). A dog 

search inside a vehicle necessarily involves four active paws in a 

confined space, with the attendant risks of trampling important 

papers, electronic equipment, or freshly dry-cleaned clothes. And, a 

dog will predictably both explore the enticing smells of any food 

being transported and leave behind its hair and dander.

¶31 Moreover, each pertinent case cited by the majority has 

emphasized circumstances that would alert the defendant that use of 

a dog was contemplated in the requested search. This reasoning 

suggests a threshold conclusion that a dog is not otherwise included 

in a general consent to search. See United States v. Gonzalez-Basulto, 

898 F.2d 1011, 1013 (5th Cir. 1990); United States v. Woods, 445 F. 

Supp. 2d 1328, 1332-33 (M.D. Ala. 2006); State v. Paredes, 167 Ariz. 

609, 613, 810 P.2d 607, 611 (App. 1991); cf. Florida v. Jardines, ___ U.S. 

___, ___, 133 S. Ct. 1409, 1415-16 (2013) (officer accompanied by 

trained narcotics dog exceeds implied consent for officer alone to 

enter curtilage); Dominguez v. State, 616 So. 2d 506, 506-07 (Fla. Dist. 

Ct. App. 1993) (consent to search of home by officers did not include 

consent for use of dog).7 I would therefore expressly hold that a 

general consent to a vehicle search, pursuant to a routine traffic stop, 

does not include an invitation to have a dog enter the vehicle unless 

the circumstances demonstrate, at the time consent is given, that the 

search would involve such an additional intrusion.8

 

7The majority suggests Jardines and Dominguez are inapposite 

because they both involved searches of homes, a context wherein 

privacy rights are elevated. But those cases are premised on the 

assumption that dogs involve a greater level of intrusion than an 

officer alone.

8Contrary to the suggestion of the majority, this approach, 

which focuses on the circumstances at the time consent is given, 

does not erect a bright-line rule requiring an officer to expressly 

convey his intention to invite a police dog into a vehicle.
STATE v. BECERRA

Opinion of the Court

16

¶32 For this reason, Becerra’s general consent to allow the 

officer to search her car did not provide the officer license to usher a 

dog into her vehicle. We thus must consider whether any of her 

actions thereafter expanded her consent to allow it.

¶33 As a threshold matter, the state has the burden of 

showing that a search was within the scope of consent. State v. 

Ahumada, 225 Ariz. 544, ¶ 14, 241 P.3d 908, 912 (App. 2010). If a 

search exceeds the original scope of consent, or exceeds the 

boundaries of what a reasonable person would have believed they 

were consenting to, a defendant who fails to object does not thereby 

demonstrate consent to the expanded scope of the search. See United 

States v. Cotton, 722 F.3d 271, 274, 277 (5th Cir. 2013); United States v. 

Neely, 564 F.3d 346, 350-51 (4th Cir. 2009); Osage, 235 F.3d at 521-22;

United States v. Wald, 216 F.3d 1222, 1228 (10th Cir. 2000); Strickland, 

902 F.2d at 941-42. This principle, uncontested in our law, resolves 

the case before us. The state offers only Becerra’s failure to object to 

the dog’s entry into her car as grounds for demonstrating her 

consent.

¶34 As the majority correctly observes, circumstances 

present at the time consent is given may allow an inference that the 

consent includes the use of a dog. See Gonzalez-Basulto, 898 F.2d at 

1013; Paredes, 167 Ariz. at 613, 810 P.2d at 611. And, circumstances 

occurring after consent is given might arguably illustrate that the 

suspect originally consented to the use of a dog.9

 

9Although the reasoning of several cases cited by the majority 

suggests that a person’s actions subsequent to granting consent can 

be used to demonstrate the scope of consent, that approach arguably 

contradicts the objective reasonable person standard set forth in 

Jimeno, 500 U.S. at 251. As the Court has emphasized, that standard 

is objective because it “allows the police to determine in advance 

whether the conduct contemplated will implicate the Fourth 

Amendment . . . [and] ensures that the scope of Fourth Amendment 

protection does not vary with the state of mind of the particular 

individual.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988). 

However, because I conclude that Becerra’s post-consent actions 

would not at any rate demonstrate consent, and because those 
STATE v. BECERRA

Opinion of the Court

17

¶35 In Woods, 445 F. Supp. 2d at 1332-33, the court reasoned 

that because the defendant was aware that the police officers were 

looking for drugs, and the defendant spent “some time” talking with 

the dog-handler before the search began, the defendant was ”aware 

. . . of the dog’s presence and its purpose” when he provided 

consent. Here, the majority takes this principle a step further in 

concluding that a person’s mere failure to object when a dog appears 

on the scene after consent is given demonstrates that a person 

intended to consent to a dog search. But, as discussed, mere silence 

does not generally demonstrate consent as a matter of law and 

suspects have no duty to narrow or limit a search exceeding the 

original consent provided. See Osage, 235 F.3d at 521-22; Strickland, 

902 F.2d at 941-42. Rather, the state possessed the affirmative duty 

to demonstrate that the suspect has agreed to this expansion. See 

Ahumada, 225 Ariz. 544, ¶ 14, 241 P.3d at 912.

¶36 Most importantly, the majority’s conclusion—that a 

person’s mere silence during a search implicitly authorizes police to 

go beyond the boundaries of what a reasonable person would have 

expected the search to entail—overlooks the practical realities of a 

police encounter involving a search.

¶37 Here, at the time Becerra gave consent to the search, 

nothing in the record supports a finding that she was aware the dog 

was present. The dog did not exit the officer’s vehicle until after 

Becerra signed the consent form. Nor did the officer testify that his 

patrol car was marked as a “K-9” unit or that the dog would have 

necessarily been visible to Becerra. And after consent was given, the 

record shows nothing but Becerra’s silence as the search was 

conducted.

¶38 That Becerra was advised she had the right to withdraw 

or revoke her consent does not change the calculus. The advisory 

did not confer upon the officer the right to unilaterally expand upon 

the consent secured. Nor did the advisory suggest the search would 

include a dog within her vehicle or that she had any right to oversee 

 

actions are at the center of the majority’s reasoning, I assume 

arguendo that such circumstances may be considered.
STATE v. BECERRA

Opinion of the Court

18

the search once it began. To the contrary, Becerra was instructed to 

stand twenty feet away from her car as the search occurred. Put 

another way, the advisory alerted Becerra that she possessed the 

hypothetical power to revoke the search, but it failed to advise her 

that she had the affirmative obligation to revoke or limit the search if 

it exceeded her understanding of the consent she had provided. An 

advisory that a person has a right to terminate a general search does 

not inform a reasonable person what the search will encompass. See 

Jimeno, 500 U.S. at 251; Strickland, 902 F.2d at 941.

10

¶39 This controlling principle—that mere silence does not 

equate with consent—is consistent with the “practical realities” of 

law enforcement. Wyoming v. Houghton, 526 U.S. 295, 306 (1999). An 

officer conducting a search has unique knowledge of what he 

intends the search to entail and is in the best position to clarify any 

ambiguities. See United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st 

Cir. 1994). And, it imposes little burden on an officer intending to 

deploy a dog inside a vehicle to clarify that intention to the vehicle’s 

owner.

¶40 In addition, suspects are typically removed from the 

near vicinity of searches for officer safety reasons, as Becerra was 

here, and are not usually able to oversee the search sufficiently to 

object to any expansion of its scope. See Arizona v. Gant, 556 U.S. 

332, 362 (2009) (Alito, J., dissenting) (noting law enforcement 

practice of securing defendants away from vehicle during search 

incident to arrest). Reasonable people are understandably reluctant 

to interrupt an officer who is actively conducting a search. For 

Becerra, that would have required her to either violate the officer’s 

order to stand twenty feet away or to raise her voice to him.

¶41 The majority reasons Becerra was placed on notice that 

the officer intended to exceed the scope of a general consent when 

 

10Officers are not required to advise a defendant that consent 

to a search can be revoked. See United States v. Drayton, 536 U.S. 194, 

206 (2002). The majority opinion does not address whether a 

person’s mere silence expands the scope of consent when an officer 

provides no such advisory.
STATE v. BECERRA

Opinion of the Court

19

he ushered his dog around the exterior of her car. I cannot agree 

that a reasonable person would necessarily draw that conclusion. 

Police dogs are commonly used to search the exterior of vehicles and 

packages without intruding inside those effects. And the state needs 

no consent or cause to conduct a dog sniff on a vehicle’s exterior. 

See Illinois v. Caballes, 543 U.S. 405, 409-10 (2005). For this reason, an 

officer’s use of a dog around the exterior of a vehicle, an event which 

implicates no recognized privacy interest, see id., does not objectively 

demonstrate that an officer intends to invite the animal inside the 

car.11 Thus, when an officer brings a dog around the exterior of a 

vehicle, a reasonable person has no way of determining whether the 

officer intends to stop there, as police routinely do, or invite the dog 

inside the car.

¶42 The majority apparently accepts the state’s reasoning 

that Becerra could have objected during the twenty seconds between 

when the dog first began walking around her car and when it 

entered. But she was not placed on notice of the officer’s intentions 

until the moment the officer invited the dog into the car. The record 

is wholly silent as to whether the officer verbally directed the dog to 

enter or merely so signaled. It is therefore possible that Becerra had 

no notice the dog would enter her car until it had already done so.

¶43 In short, both our jurisprudence, which prohibits the 

state from claiming it has secured consent from a suspect’s mere 

silence, and the practicalities of the encounter, wherein the officer 

alone knows how he intends to deploy his dog, logically place the 

burden on the officer to clarify the scope of consent. Because the 

majority’s holding bluntly shifts that burden to the suspect, I cannot 

join in its novel reasoning. To the extent Paredes can be read to 

 

11 Because an exterior sniff invades no privacy interest, a 

person generally has no basis to object to a dog sniff of the outside of 

her vehicle. See Caballes, 543 U.S. at 409-10. I do not suggest with 

this observation that “a K-9 exterior sniff eliminates a person’s 

ability to withdraw her consent.” Supra ¶ 19. I contend only that a 

person’s lack of objection to a dog sniff of a vehicle’s exterior does 

not demonstrate acquiescence to a dog search inside of a vehicle—an 

event which, by contrast, does implicate a privacy interest.
STATE v. BECERRA

Opinion of the Court

20

impose on the suspect a duty to object or inquire, that case does not 

conform to settled jurisprudence.

¶44 In sum, no circumstances existed at the time Becerra 

gave consent that would support an inference such consent included 

permission to search the inside of her vehicle with a dog. The state 

marshalled no evidence, other than her silence, that she agreed to 

expand the scope of her general consent to include that intrusion. 

Accordingly, I would conclude the state failed to meet its burden of 

demonstrating Becerra’s consent to the dog’s entry into her vehicle.