United States v. Wilson (995 F. Supp. 2d 455, 2014)

MEMORANDUM OPINION AND ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court for resolution of the Defendants’ Motions to Suppress [Docs. 39; 42], and the Defendants’ Objections [Docs. 85; 86] to the Magistrate Judge’s Memorandum and Recommendation (“M & R”) [Doc. 82], For the reasons that follow, this Court will accept the Magistrate Judge’s recommendation that the search of Defendants’ persons was unconstitutional, but will reject the Magistrate Judge’s recommendation that the search of the Maple Ridge Apartment was constitutional, and will grant Defendants’ suppression motions in full.

PROCEDURAL BACKGROUND

On February 20, 2013, the Defendants Eudine Trenae Wilson (“Wilson”), Marie Luzinski Raymond (“Raymond”), and Kan-dace Rhean Griffin (“Griffin”) were charged in a Bill of Indictment with conspiracy to possess with intent to distribute a Schedule II controlled substance in violation of 21 U.S.C. § 841(a)(1). [Doc. 5], Defendants Wilson and Raymond were also charged with possession with intent to distribute oxycodone in violation of 21 U.S.C. § 841(a)(1). [Id.].

On April 22, 2013, Defendants Wilson and Raymond each filed a motion to suppress. [Docs. 39, 42], The Magistrate Judge heard the Defendants’ suppression motions over the course of two days in June 2013. On September 25, 2013, 2013 WL 7044581, Magistrate Judge Howell issued his M & R. [Doc. 82]. He recommended that the Court grant in part and deny in part Defendants’ suppression motions. In particular, the Magistrate Judge recommended that the Court find unconstitutional the warrantless search of the Defendants’ persons, following the stop of their car, but recommended the Court find lawful the subsequent warrant-based search of the apartment where Wilson and Raymond stayed. [Id. at 45-6]. The Magistrate Judge informed the parties they could file any objections to his M & R within fourteen days’ of service thereof. [Id. at 47]. Raymond filed her objections on October 7, 2013, [Doc. 85] and Wilson filed a document adopting Raymond’s objections the following day. [Doc. 86].

The Defendants’ Motions to Suppress and Objections to the M & R are now ripe for the Court’s consideration.

STANDARD OF REVIEW

Since the Defendants have raised various specific factual and legal objections to the Magistrate Judge’s Memorandum and Recommendation, the Court will review the Magistrate Judge’s proposed findings and conclusions de novo. 28 U.S.C. § 636(b)(1); Fed.R. Crim.P. 59(b)(3).

FACTUAL BACKGROUND

The factual background of this case is extensive. The Defendants object only to the omission of certain facts from Magistrate Judge Howell’s comprehensive factual recitation contained in his M & R. The alleged factual omissions, according to the Defendants, affect only the determination of the validity of the search warrant at issue. The Court will adopt Magistrate Judge Howell’s factual findings as reproduced below, with minor modifications from his M & R based upon the Court’s review of the suppression hearing transcript.

I. The September 18, 2012, Traffic Stop and Subsequent Investigation.

In early 2012, the Cherokee Indian Police Department (“CIPD”) was investigating Kandace Griffin and Justina Rattler for selling oxycodone on the Cherokee Indian Reservation in North Carolina. (Suppression Hr’g Tr. 142, 212; Jun. 20, 2013). In May of 2012, CIPD Detective Shawn Birehfield relayed to his colleague Detective Matthew Shiver that a black female was staying in a local hotel, paying cash for her room, and selling oxycodone pills to Justina Rattler. (Hr’g Tr. 214; Jun. 20, 2013). On September 18, 2012, Shiver received information from a person he knew that a young black female was at Griffin’s residence in Cherokee, and that this female was a source of oxycodone for Griffin. (Hr’g Tr. 216-18; Jun. 20, 2013). Detective Shiver asked CIPD Sergeant Daryl Martin to drive by the Griffin residence and get a vehicle description plus the tag number of the vehicle at the residence. (Hr’g Tr. 5-6; Jun. 12, 2013; Hr’g Tr. 216, 218; Jun. 20, 2013).

Sergeant Martin drove by the Griffin residence that same day and observed a black vehicle with a New York tag. (Hr’g Tr. 6-7; Jun. 12, 2013). Martin turned over the vehicle information to Shiver who then ran it through dispatch and discovered that the car was a black Mazda rented from Hertz. (Hr’g Tr. 218-19, Jun. 20, 2013). At some point on either September 18 or 19, 2012, DEA Task Force Officer Courtney Mumm generated an administrative subpoena which was served on Hertz. (Hr’g Tr. 143; Jun. 12, 2013). Hertz disclosed that an individual named David Delly had rented the black Mazda. (Hr’g Tr. 144; Jun. 12, 2013). Billy Stites, another DEA Task Force Officer, as well as a Bureau of Indian Affairs Special Agent, researched David Delly and discovered an open investigation by the Department of Homeland Security regarding the seizure of currency at the Asheville airport. (Hr’g Tr. 144; Jun. 12, 2013). TFO Stites learned that in February of 2012, the Transportation Security Administration discovered over $30,000.00 in cash concealed in Delly’s luggage. (Hr’g Tr. 144, 147; Jun. 12, 2013).

Also, on September 18, 2012, an individual called the CIPD headquarters shortly after Sgt. Martin drove past Griffin’s home. CIPD dispatch fielded the call, provided Martin with the caller’s phone number, and requested he return the individual’s call. (Hr’g Tr. 18; Jun. 12, 2013). When Martin called the phone number provided by dispatch, a woman who identified herself as “Justina” answered the phone. (Hr’g Tr. 8-9, 19; Jun. 12, 2013). Sergeant Martin recognized the individual’s voice as Justina Rattler. Martin knew Rattler based on his personal dealings with her in the past concerning driving violations and calls stemming from domestic issues. (Hr.’g Tr. 20-22; Jun. 12, 2013). Martin, however, had never previously dealt with Rattler regarding any drug issues. (Hr.’g Tr. 22; Jun. 12, 2013).

Ms. Rattler began the conversation by asking Martin what the police were doing at Griffin’s residence. (Hr’g Tr. 9, 19, 23; Jun. 12, 2013). She then informed Martin that a black female known as “Baby D” was the driver of the black vehicle parked at the Griffin residence. (Hr’g Tr. 9, 19; Jun. 12, 2013). Martin asked Rattler for Baby D’s true name but Rattler did not know her name. (Hr’g Tr. 19; Jun. 12, 2013). Rattler told Martin that Baby D sold “roxies” to Griffin, and that she (Rattler) had personally bought roxies from Baby D on one occasion earlier in the year. (Hr’g Tr. 10-12, 19, 23; Jun. 12, 2013). Rattler did not disclose to Martin whether she (Rattler) was selling roxies, only that she previously bought roxies from Baby D in 2012. (Hr’g Tr. 12; Jun. 12, 2013). Finally, Rattler informed Martin that Baby D was staying at a motel or cabin ten minutes from Griffin’s house and that Baby D had pills and approximately $10,000 in cash located there. (Hr’g Tr. 12, 19-20; Jun. 12, 2013). Rattler did not know the address where Baby D was staying. (Hr’g Tr. 25; Jun. 12, 2013).

Sergeant Martin then relayed to Detective Shiver the information Rattler had given him. (Hr’g Tr. 27; Jun. 12, 2013; Hr’g Tr. 219-21; Jun. 20, 2013). Shiver in turn asked his fellow officers to look out for the black Mazda with New York tags while driving about. (Hr’g Tr. 221-22; Jun. 20, 2013). The following day, various law enforcement officers made a point of looking for the car. (Hr’g Tr. 221-22; Jun. 20, 2013). Shiver was looking in the Bryson City area; Swain County Det. William Reed was checking Highway 74 coming from Sylva; Swain County Det. Roger Neadau was checking around the Reservation; and CIPD Det. Jeff Smith actually spotted the black Mazda parked at the Maple Ridge Apartments as he was driving from Swain County into Cherokee. (Hr’g Tr. 221-2, Jun. 20, 2013; Hr’g Tr. 32, 53, Jun. 12, 2013). Smith drove into the parking lot for the apartment complex and wrote down the tag number. He then passed the vehicle information on to TFO Stites. (Hr’g Tr. 33, 55-56; Jun. 12, 2013). Detective Smith and other CIPD officers then set up surveillance on the black Mazda. (Hr’g Tr. 33, 56; Jun. 12, 2013).

While he was watching the black Mazda, Smith saw a black female get into the vehicle and leave the apartment. (Hr’g Tr. 34, 59; Jun. 12, 2013). Smith contacted CIPD Patrol Officer David Velez to let him know that the suspect vehicle had left the apartment. (Hr’g Tr. 34, 58, 99-100, 169, 170; Jun. 12, 2013). Smith told Velez to try and find reasonable suspicion to pull the black Mazda over and identify the driver. (Hr’g Tr. 58-59, 100; Jun. 12, 2013).

Officer Velez, accompanied in his patrol car by Lt. Glen Welch, located the black Mazda on Highway 19 and proceeded to drive his vehicle alongside the Mazda. (Hr’g Tr. 170-71; Jun. 12, 2013). At that point, Welch told Velez that the driver of the black Mazda was not wearing her seat belt. (Hr’g Tr. 171, 212, 215; Jun. 12, 2013). Velez then dropped back behind the black Mazda and activated his blue lights. (Hr’g Tr. 171; Jun. 12, 2013). Once the Mazda pulled over, Velez approached the vehicle and informed the driver that he was pulling her over because she was not wearing her seatbelt. (Hr’g Tr. 171-2; Jun. 12, 2013). The driver, however, protested and stated that she was in fact wearing her seatbelt. (Hr’g Tr. 172; Jun. 12, 2013). Officer Velez asked the driver for her license and had dispatch run the driver’s license and license plate number. (Hr’g Tr. 172, 212; Jun. 12, 2013). Velez learned that the driver of the black Mazda was Defendant Eudine Wilson. (Hr’g Tr. 171; Jun. 12, 2013). Because Wilson had a valid license and no outstanding warrants, Velez allowed her to leave. (Hr’g Tr. 201; Jun. 12, 2013). When Velez was later asked during the Defendants’ suppression hearing whether he believed Wilson was in fact wearing her seatbelt at the time of the stop, Velez responded, “I would say yes she had her seatbelt on.” Velez did not issue her a citation. (Hr’g Tr. 213, 239; Jun. 12, 2013). The entire incident lasted approximately ten to twelve minutes. (Hr’g Tr. 172; Jun. 12, 2013).

According to Det. Shiver, on September 20, 2012, he and Smith together interviewed a confidential source about the distribution of oxycodone in Cherokee. (Hr’g Tr. 224; Jun. 20, 2013). CIPD Officer Dike Sneed introduced the CS to Shiver and Smith. (Hr’g Tr. 226, 274; Jun. 20, 2013). Although Shiver and Smith had never used this source before, Sneed related to them, without any elaboration, that this CS had been reliable and honest in the past. (Hr.’g Tr. 226, 274, 286; Jun. 20, 2013). Shiver admitted, since he had never used this CS in the past, that he had no first-hand knowledge concerning the CS’s reliability. (Hr.’g Tr. 226; Jun. 20, 2013).

During the interview, the CS informed the detectives that two black women would bring pills to Cherokee for an individual known to the CS as “Mr. Ed.” (Hr’g Tr. 224; Jun. 20, 2013). Mr. Ed also would send two black Haitian men to accompany the women for protection and the women would deliver the pills to Griffin. (Hr.’g Tr. 224; Jun. 20, 2013). One of the women was known to the CS as Baby D and she drove the black Mazda rental car located at the Maple Ridge Apartments. (Hr’g Tr. 224-25; Jun. 20, 2013). The CS told Shiver and Smith that, approximately six months prior to the interview, Griffin and her boyfriend John Cameron George, tried to rob Baby D and the other unknown black female. As a result, according to the CS, Baby D carried a pistol and that she would leave the pills in the apartment even when she was gone. (Hr.’g Tr. 225; Jun. 20, 2013).

Shiver testified that some of what the CS provided to him and Smith on September 20, 2012, was consistent with information Shiver received from another informant the week before, on September 13, 2012. (Hr.’g Tr. 225; Jun. 20, 2013). This other informant had told Shiver that he had purchased oxycodone at Griffin’s house and that the person bringing the drugs was a black female who drove an SUV with Texas license plates. This informant further related that the black female had been to Griffin’s house numerous times in the past three to four months. (Hr.’g Tr. 228; Jun. 20, 2013). The September 13 informant did not say anything to corroborate the other OS’s statements about any attempted robbery, Haitian men, or weapons.

II. The October 11, 2012, Traffic Stop and Subsequent Search Warrant Application.

On the morning October 11, 2012, Detective Smith drove by the Maple Ridge Apartments on his way to work and saw a red Mazda sitting in approximately the same parking spot the black Mazda had occupied the month before. (Hr’g Tr. 35; Jun. 12, 2013). Smith circled back to the Maple Ridge Apartments and wrote down the tag number for the red Mazda which displayed a Louisiana license plate. (Hr’g Tr. 35; Jun. 12, 2013). Smith passed the vehicle information on to TFO Stites. (Hr’g Tr. 35,148; Jun. 12, 2013).

Sometime between Velez’s traffic stop of Wilson driving the black Mazda on September 18, 2012, and Smith’s observation of the red Mazda on October 11, 2012, Shiver was able to deduce that Wilson was the person known as Baby D. During that timeframe, Shiver searched the Internet using the name Eudine Wilson and came upon Wilson’s Facebook page. (Hr’g Tr. 235; Jun. 20, 2013). Wilson’s Facebook page contained a birthday flier that referred to Wilson as “Baby Dean.”

Later on October 11, 2012, after TFO Stites received the red Mazda license plate information from Smith, Stites had issued a second subpoena to Hertz. In response to the subpoena, Hertz revealed that the red Mazda had been rented by David Delly at the Naples airport in Florida. (Hr’g Tr. 148-49, 152, 156-57; Jun. 12, 2013). Coincidentally, Shiver was present when Stites received the information from Hertz. (Hr’g Tr. 158; Jun. 12, 2013; Hr’g Tr. 231-32, 276; Jun. 20, 2013).

Agent Stites was able to confirm that the David Delly who rented the red Mazda was the same individual who was then under investigation by the Department of Homeland Security by comparing his date of birth, address, and phone number. (Hr’g Tr. 161; Jun. 12, 2013). Stites also received a copy of the rental agreement, which did not list other drivers authorized to operate the red Mazda. (Hr’g Tr. 157; Jun. 12, 2013; Gov.’s Ex. 2.) In addition to receiving a copy of the rental agreement, Stites and Shiver also spoke to a Hertz security specialist about the red Mazda rental agreement. (Hr’g Tr. 156, 166; Jun. 12, 2013). The security specialist informed Stites and Shiver that there were no written user authorization forms contained in the centralized Hertz computer system and that David Delly was, therefore, the only authorized driver of the vehicle. (Hr’g Tr. 167-68; Jun. 12, 2013). Stites communicated this information back to Smith who then set up surveillance over the red Mazda. (Hr’g Tr. 35,158; Jun. 12, 2013; Hr’g Tr. 232; Jun. 20, 2013).

As he had done the month before, Det. Smith reached out to other local law enforcement officers for assistance in the event he (or another officer conducting surveillance of the red Mazda) was able to make a traffic stop of the car. (Hr.’g Tr. 232; Jun. 20, 2013). He again contacted Swain County detectives William Reed and Roger Neadau. He notified patrol Officer Velez. Smith also contacted CIPD Sergeant Carla Neadau, telling her that she might be needed later in the day to conduct a “female search.” (Hr’g Tr. 276-77; Jun. 12, 2013; Hr’g Tr. 232; Jun. 20, 2013). Finally, he contacted Graham County detectives Matthew Cox and Kade Adams. Cox was contacted because he was a drug detection K-9 handler for the Graham County Sheriffs Office. (Hr’g Tr. 78, 119, 232; Jun. 20, 2013; Hr’g Tr. 65; Jun. 12, 2013). Smith asked Cox to bring his K-9, Beck, because Beck might be needed. (Hr’g Tr. 65; Jun. 12, 2013; Hr’g Tr. 121, 176; Jun. 20, 2013). After receiving Smith’s call, Cox loaded Beck into his vehicle and drove to the Hungry Bear gas station in Cherokee, which was the designated meeting place. (Hr’g Tr. 107; Jun. 20, 2013).

Detective Reed set up surveillance of the red Mazda at the Maple Ridge Apartments. (Hr’g Tr. 36, 125; Jun. 12, 2013). Reed was in an undercover vehicle that did not have blue lights. (Hr’g Tr. 128-29; Jun. 12, 2013). Around noon, Reed witnessed two black females exit the apartment and get into the red Mazda. (Hr’g Tr. 126-27; Jun. 12, 2013). Defendant Wilson, one of the two women, placed something in the back seat of the vehicle and either she or the other woman, later determined to be Defendant Raymond, placed a white bag in the trunk. (Hr’g Tr. 127; Jun. 12, 2013). Wilson got into the car as the driver and Raymond as the passenger. (Hr’g Tr. 128-29; Jun. 12, 2013). Reed did not observe any black males. (Hr’g Tr. 129; Jun. 12, 2013).

Detective Reed followed the red Mazda for approximately two miles until Smith fell in behind the red Mazda. (Hr’g Tr. 37, 130; Jun. 12, 2013). Smith was driving an unmarked patrol vehicle that was equipped with blue lights. (Hr’g Tr. 39; Jun. 12, 2013). While following Wilson, Smith observed the red Mazda go left of the center double yellow lines on the highway three times. (Hr’g Tr. 37-8; Jun. 12, 2013). When Smith reached a safe place in the road to pull over the red Mazda, he turned on his blue lights and initiated a traffic stop. (Hr’g Tr. 39; Jun. 12, 2013). Officer Velez, who was behind Smith, pulled his marked cruiser in front of Smith’s vehicle and directly behind the red Mazda. (Hr’g Tr. 40, 173-74; Jun. 12, 2013). Velez’s patrol car was equipped with an audio and video recording camera that was operational throughout the traffic stop. (Hr’g Tr. 176; Jun. 12, 2013). The two officers then approached the red Mazda. (Hr’g Tr. 40,173-74, Jun. 12, 2013.)

Officer Velez approached the driver’s side and Smith approached the passenger side of the red Mazda. (Hr’g Tr. 40, 174; Jun. 12, 2013). At the Mazda, Smith observed both Defendants typing on their cell phones, and he asked them to please refrain from typing, texting, or making calls on the phone. (Hr’g Tr. 40; Jun. 12, 2013). Both Defendants complied. (Hr’g Tr. 40, 78; Jun. 12, 2013). Detective Smith explained to Wilson that she was being pulled over for crossing the double yellow line on more than one occasion. (Hr’g Tr. 41, 76, 198; Jun. 12, 2013). Until Velez heard Smith tell Wilson the reason why he pulled her over, Velez did not know the basis for the stop. (Hr’g Tr. 198; Jun. 12, 2013). Officer Velez did not have his citation book with him at the time. (Hr’g Tr. 198; Jun. 12, 2013). While the officers were talking to the Defendants, Wilson kept her hands where Smith could see them, did not reach between the seat or the console, did not make any aggressive movements, and was not acting scared or nervous. (Hr’g Tr. 78-9; Jun. 12, 2013). Further, Smith had no concerns that Wilson was driving while impaired. (Hr’g Tr. 80,108; Jun. 12, 2013).

Officer Velez asked Wilson for her driver’s license and registration. (Hr’g Tr. 175, 200; Jun. 12, 2013). Defendant Wilson provided Velez with her driver’s license and a copy of the rental agreement for the vehicle. (Hr’g Tr. 175; Jun. 12, 2013). Detective Smith asked Raymond for her license and she handed it to Velez. (Hr’g Tr. 106-08, 180; Jun. 12, 2013). Officer Velez then returned to his patrol car and radioed in the license plate number and driver’s license information. (Hr’g Tr. 41, 175, 201; Jun. 12, 2013). Detective Smith remained at the passenger side door of the vehicle watching the Defendants. (Hr.’g Tr. 81; Jun. 12, 2013).

While Smith and Velez spoke with the Defendants, other officers arrived on the scene. (Hr’g Tr. 77; Jun. 12, 2013). Detective Cox arrived with his K-9 Beck shortly after Smith initiated the traffic stop. (Hr.’g Tr. 127-28; Jun. 20, 2013). After assessing the scene, Cox gave Beck the command to sniff around the exterior of the Mazda. (Hr’g Tr. 127-28; Jun. 20, 2013). None of the officers informed Defendants about Beck’s deployment prior to its occurrence. (Hr.’g Tr. 83-84; Jun. 12, 2013). At the time of the dog sniff, there were at least four armed law enforcement officers on the scene. (Hr’g Tr. 162-63; Jun. 20, 2013).

Detection dogs like Beck are animals trained to identify certain precise odors, such as drugs, explosives, or corpses. (Hr’g Tr. 298; Jun. 20, 2013). Beck is a detection dog trained to identify the odor of three specific drugs: heroin, cocaine, and marijuana. (Hr’g Tr. 87; Jun. 20, 2013). Beck is not trained to detect the odor of lawfully prescribed pharmaceuticals, and a dog trained to detect the scent of heroin will not alert to the odor of oxycodone pills. (Hr’g Tr. 175, 317, 351; Jun. 20, 2013).

A drug detection dog is trained to sniff for a stimulus odor and to follow that odor to its source if possible or otherwise to its strongest point. (Hr’g Tr. 303, 325; Jun. 20, 2013). In the process of closing in on the source of an odor, a detection dog will become excited and undergo behavioral changes. (Hr’g Tr. 306; Jun. 20, 2013). Some behavioral changes include increased tail wagging, heavy breathing, and variations in posture. (Hr’g Tr. 325; Jun. 20, 2013). These behavioral changes exemplify the dog’s balladromic process. When a handler notices these changes in behavior, the handler will ordinarily work the dog in the area where the change of behavior occurs. This assists the dog to advance toward the source of the odor and to permit the dog to give his trained indication upon pinpointing the odor’s source. (Hr’g Tr. 135-36, 165, 307-09; Jun. 20, 2013). Similarly, a detection dog which has hit upon an odor but thereafter loses it will undergo behavioral changes as well. Detection dog handlers are trained to recognize when a dog has lost the scent and it becomes the handler’s responsibility to work the dog back into the odor if possible. (Hr’g Tr. 332; Jun. 20, 2013).

When a detection dog ultimately arrives at the source of a stimulus odor, or when the dog gets as close to the stimulus odor as it possibly can, it will give its trained indication, commonly referred to as an “alert.” (Hr’g Tr. 325; Jun. 20, 2013). A dog’s trained indication can take one of two forms: an active alert, or a passive alert. (Hr’g Tr. 303; Jun. 20, 2013). An active alert is characterized by the dog digging or pawing to get to the source of the odor. A passive alert is characterized by the dog sitting and staring at the location of the source of the odor. (Hr’g Tr. 303; Jun. 20, 2013). The handler is looking for the dog’s trained indication to signify the probable presence of the source of the odor. (Hr’g Tr. 308; Jun. 20, 2013). Beck is a passive alert dog. (Hr’g Tr. 157-58, 302; Jun. 2, 2013). Thus, sitting and staring is Beck’s trained indication— his alert — that he has located the source of the odor of any of the three narcotics he has been taught to detect. (Hr’g Tr. 94-95,172-73,182, 306; Jun. 20, 2013).

Beck began sniffing the exterior of the Mazda approximately two minutes after it came to a stop. (Gov. Ex. 4a). When Beck began his sniff, Velez was back at his patrol car running the tag and license information (Gov. Ex. 4a; Hr’g Tr. 175; Jun. 12, 2013), and Smith was standing next to the Mazda, approximately three feet from the passenger door. (Hr’g Tr. 82; Jun. 12, 2013; Hr’g Tr. 128, 137; Jun. 20, 2013; Gov. Ex. 4a). Detective Cox testified that he does not want other persons standing close to a vehicle when he conducts a dog-sniff with Beck because it could hinder the sniff. (Hr’g Tr. 141-42, Jun. 20, 2013.) He did not, however, ask Smith to move away from the Mazda prior to conducting the sniff. (Hr’g Tr. 142; Jun. 20, 2013; Gov. Ex. 4a).

Beck began by sniffing the rear bumper of the car and then worked his way around to the passenger side of the Mazda. (Hr’g Tr. 132; Jun. 20, 2013). After turning the passenger-side rear corner, Beck left the side of the car and moved toward Smith, placing his head down in the area where Smith’s feet were located. (Hr’g Tr. 137, 145; Jun. 20, 2013). Beck displayed changes in his behavior when he moved to Smith. (Hr’g Tr. 148, 152; Jun. 20, 2013). Beck lowered his head, changed his gait, and appeared to sniff at Smith’s feet. (Hr’g Tr. 147-49; Jun. 20, 2013; Hr.Tr. 86; Jun. 12, 2013; Gov.’s Ex. 4a). Detective Cox gave Beck a “nay” command and then redirected him away from Smith and back to the passenger side of the Mazda. (Hr’g Tr. 137, 152; Jun. 20, 2013). Beck then completed the sniff around the exteri- or of the car. (Gov.’s Ex. 4a). Beck circled the car once and the entire sniff took less than thirty seconds. (Gov. Ex. 4a; Hr’g Tr. 167; Jun. 20, 2013; Hr’g Tr. 85, Jun. 12, 2013). It is undisputed that Beck never gave his trained indication; at no point did he sit and stare. (Hr’g Tr. 148, 173; Jun. 20, 2013).

Detective Cox, however, informed Smith that Beck alerted to the passenger side door. (Hr’g Tr. 156-57; Jun. 20, 2013; Hr’g Tr. 90, 111; Jun. 12.2013). Even though Beck did not sit and stare, Cox maintained that Beck nevertheless alerted due to behavioral changes Cox observed in Beck, particularly Beck’s change in breathing. (Hr.’g Tr. 161, 165; Jun. 20, 2013). In fact, Cox testified that the only difference in behavior that he observed between Beck sniffing Smith’s feet and Beck purportedly alerting to the passenger door was that Beck’s breathing changed. (Hr’g Tr. 161, 168, 179, 181-82; Jun. 20, 2013). Although Cox testified it would have taken him less than a minute to work Beck back around the Mazda to give Beck the opportunity to investigate the passenger side door for any detectable odor, he decided not to take Beck around the vehicle a second time. (Hr.’g Tr. 167-68; Jun. 20, 2013).

Upon seeing the dog, Smith stated Defendant Raymond appeared a little more agitated and asked why the dog was present. (Hr’g Tr. 84-85; Jun. 12, 2013). Neither he nor Cox responded. (Hr’g Tr. 84-85; Jun. 12, 2013). At some point while Beck was circling the red Mazda, Wilson reached down and picked up her phone. (Hr’g Tr. 87; Jun. 12, 2013). As Wilson was holding the flip phone open in her hand, Smith asked her to refrain from using it. (Hr’g Tr. 87; Jun. 12, 2013). In response, Wilson broke the flip phone in half at the hinge. (Hr’g Tr. 88; Jun. 12, 2013).

Prior to this point Wilson had not acted angry. (Hr’g Tr. 87; Jun. 12, 2013). Likewise, Wilson was not doing anything that raised any safety concern for Smith or Velez; she was not acting nervously, she kept her hands where Smith could see them, she was not sweating heavily, she was not using the phone in a threatening manner, and she was not acting suspicious. (Hr’g Tr. 87-90; 207 Jun. 12, 2013). Around this same time, Cox informed Smith that Beck alerted. (Hr’g Tr. 89-90; Jun. 12, 2013). Smith testified that he then asked the Defendants to step out of the car under the premise that Wilson broke her phone. (Hr’g Tr. 115-16, 134; Jun. 12, 2013). Defendants complied with Smith’s instruction and exited the vehicle. (Hr’g Tr. 90; Jun. 12, 2013). Detective Smith did not observe anything about the way the Defendants exited the vehicle that raised any safety concerns for him. (Hr’g Tr. 90; Jun. 12, 2013). Detective Smith did not suspect that the Defendants were armed. (Hr’g Tr. 113; Jun. 12, 2013).

After exiting the Mazda, Wilson was taken to the front of Velez’s patrol vehicle by Reed, and Raymond was escorted to the rear of Velez’s vehicle. (Hr’g Tr. 91, 134; Jun. 12, 2013). Neither Defendant was placed in handcuffs. (Hr’g Tr. 113; Jun. 12, 2013). Reed asked Wilson to face Velez’s vehicle and place her hands on the vehicle’s front push bar. (Hr’g Tr. 134-35; Jun. 12, 2013). Reed did not observe Wilson do anything that raised any safety concerns for him. (Hr’g Tr. 136; Jun. 12, 2013).

Approximately two minutes after Wilson exited the Mazda, dispatch informed Velez that Wilson’s license was valid and she did not have any outstanding warrants for her arrest. (Gov.’s Ex. 4a; Hr’g Tr. 201; Jun. 12, 2013). At this point, Smith began to search the Mazda. (Gov.’s Ex. 4a; Hr’g Tr. 91, Jun. 12, 2013.) Approximately one minute after dispatch relayed the information that Wilson’s license was valid, dispatch informed Velez that Raymond’s license was invalid but that she did not have any outstanding warrants for her arrest. (Gov.’s Ex. 4a; Hr’g Tr. 201-02, 229; Jun. 12, 2013). Defendants, however, were not released. Also, they were not issued any traffic citation, nor were their driver’s licenses returned. (Gov.’s Ex. 4a; Hr’g Tr. 214, 233, 239; Jun. 12, 2013). Neither Defendant was acting in a violent or aggressive .manner, nor was Velez concerned that Wilson had a firearm on her person. (Hr’g Tr. 206-07, 229-30, 236; Jun. 12, 2013). Ultimately, the search of the vehicle did not reveal any narcotics. (Hr’g Tr. 116; Jun. 12, 2013). The white bag officers had previously seen one of the women place in the trunk of the car back at the apartment turned out to be bag of household garbage. The items placed in the back seat of the car were innocuous personal belongings. (Hr.’g Tr. 116, 138-39; Jun. 12, 2013).

Sometime after the Defendants were removed from the Mazda, Shiver arrived on the scene. (Hr’g Tr. 241; Jun. 20, 2013). Once he arrived, Shiver approached Raymond, who was standing at the back of Velez’s vehicle. (Hr’g Tr. 241; Jun. 20, 2013). Shiver testified that he observed Raymond touching and rubbing her stomach and moving her dress around. (Hr’g Tr. 241; Jun. 20, 2013). He also testified that he observed something protruding from Raymond’s groin area. (Hr’g Tr. 242; Jun. 20, 2013). Shiver, however, did not see the need to pat down Raymond nor to ask anyone else to pat her down. (Hr’g Tr. 242; Jun. 20, 2013). Velez contacted Sgt. Carla Neadau and requested that she come to the scene to perform a Terry frisk of the Defendants. (Hr’g Tr. 243; Jun. 12, 2013). When she arrived on the scene, Carla Neadau went to speak with Smith who informed her that Beck had alerted to the vehicle and that he wanted her to perform a Terry frisk. (Hr’g Tr. 244-45; Jun. 12, 2013). By the time Carla Neadau arrived, there were at least seven officers on the scene and at least one other drove by during the stop. (Hr’g Tr. 104-05; Jun. 12, 2013). Four or five police vehicles were also on the scene with at least two vehicles flashing their blue lights. (Hr’g Tr. 105, 140; Jun. 12, 2013). Sgt. Neadau, like her colleagues Smith and Velez, had no reasonable suspicion that either Defendant was armed at the time. (Hr’g Tr. 280-281; Jun. 12, 2013). She nevertheless proceeded to frisk Defendants.

Sgt. Neadau first conducted a pat down of Raymond, during which she felt a soft bulge in Raymond’s front groin area. (Hr’g Tr. 246-47; Jun. 12, 2013). Neadau then attempted to conduct a pat down of Wilson. (Hr’g Tr. 253; Jun. 12, 2013). Wilson, however, refused to spread her legs and comply. Neadau was unable to successfully complete a search of Wilson at the time. (Hr’g Tr. 253; Jun. 12, 2013). Wilson was then returned to the front of Velez’s vehicle. (Gov.’s Ex. 4a.) The attempted pat down of Wilson occurred approximately fifteen to sixteen minutes after the traffic stop was initiated. (Gov.’s Ex. 4a).

Neadau informed Shiver of the bulge she detected on Raymond, so Shiver and Neadau approached Raymond in an effort to learn more. Shiver informed Raymond about the dog alert and that they were investigating the sale of oxycodone. (Hr’g Tr. 245; Jun. 20, 2013). In response, Raymond told the two officers that she had a prescription for oxycodone. (Hr’g Tr. 245; Hr’g Tr. 254; Jun. 12, 2013). Shiver then told Raymond that he believed she had pills hidden in the bulge under her clothes and for her to give Neadau the pills. Shiver told Raymond if she had a prescription to have oxycodone, then there was nothing wrong with her possessing the drug. (Hr’g Tr. 245-47; Jun. 20, 2013).

Sgt. Neadau took Raymond to a patrol car where, shielded from view, Raymond proceeded to reach under her dress and pull out a plastic bag wrapped in a sock and toilet paper. (Hr’g Tr. 255; Jun. 12, 2013). Neadau turned the bag over to Shiver. (Hr’g Tr. 247; Jun. 12, 2013). The bag contained fifty 30 milligram oxycodone tablets and fourteen or fifteen 2 milligram alprazolam tablets. (Hr’g Tr. 248; Jun. 20, 2013).

Shiver told Velez to handcuff Wilson, place her in the back of his patrol car, and transport her to the CIPD. (Hr’g Tr. 249; Jun. 20, 2013; Hr’g Tr. 183-85; Jun. 12, 2013). Shiver told Neadau to detain Raymond and take her to the CIPD. (Hr’g Tr. 255-56; Jun. 12, 2013). Sgt. Neadau and Velez then separately transported the Defendants to the Cherokee Indian Police Department. (Hr’g Tr. 185, 256; Jun. 12, 2013). At the police department, Neadau tried to search Wilson again, but Wilson again failed to comply. (Hr’g Tr. 258, 269; Jun. 12, 2013). Several hours later, officers transported the Defendants to the Swain County jail. (Hr’g Tr. 192, 209-10; Jun. 12, 2013; Hr’g Tr. 252; Jun. 20, 2013). Swain County jail personnel performed strip searches of both Defendants based on Det. Reed’s instructions. (Hr’g Tr. 5-8, 21-23, 27; Jun. 20, 2013). Jail personnel did not find anything on Raymond during the strip search but did find a plastic bag containing pills on Wilson. (Hr’g Tr. 5, 9-10; Jun. 20, 2013).

Immediately before the Defendants’ transport from the CIPD to the Swain County jail, Sergeant Patrick McCoy, a narcotics officer with the Jackson County Sheriffs department, met with Shiver, Stites, and Smith at the CIPD. (Hr’g Tr. 31, 54; Jun. 20, 2013). Stites had called McCoy earlier that day (October 11, 2012) to tell him law enforcement had conducted surveillance on the Maple Ridge Apartments based on the suspicion that persons there were trafficking in narcotic pills and that they had stopped a car leaving from those apartments. (Hr’g Tr. 30; Jun. 20, 2013). Further, since the Maple Ridge Apartments were located in Jackson County, Stites asked McCoy if he would be willing to help out. McCoy agreed. McCoy had no involvement in this matter prior to the telephone call from Stites on October 11, 2012, seeking his assistance. (Hr’g Tr. 30; Jun. 20, 2013). McCoy’s main objective was to help draft a Search Warrant Application in an effort to secure a Search Warrant for the Defendants’ apartment at Maple Ridge from a Jackson County, North Carolina, judge. (Hr’g Tr. 31; Jun. 20, 2013).

According to McCoy, the Search Warrant Application drafting was a collaborative effort. McCoy spoke with Shiver, Stites, and Smith since McCoy played no role in the investigation prior to that day. (Hr’g Tr. 31; Jun. 20, 2013). McCoy did, however, call the manager of the Maple Ridge Apartments that day to learn who rented the apartment. (Hr’g Tr. 32; Jun. 20, 2013). The manager stated to McCoy that Apartment 10 was rented by one Eddie Delly but that Raymond was the person making the monthly rental payments. (Hr’g Tr. 33; Jun. 20, 2013). Based on this information, Shiver was able to dedu.ce that “Mr. Ed” or “Eddie” was likely David Delly. (Hr’g Tr. 227, 235; Jun. 20, 2013). Other than the information McCoy personally learned from the apartment manager about Delly and Raymond, McCoy testified that the remainder of the information set forth in the Search Warrant Application was beyond his personal knowledge, relayed to him by other officers. (Hr’g Tr. 33; Jun. 20, 2013).

Once the Search Warrant Application was complete, McCoy and Smith traveled to the home of North Carolina Superior Court Judge Bradley Letts. (Hr’g Tr. 34; Jun. 20, 2013). Judge Letts placed both officers under oath and then asked Smith a few questions. (Hr’g Tr. 43; Jun. 20, 2013). McCoy could not remember what questions Judge Letts asked Smith, but McCoy did recall that Smith did not tell the Judge anything outside of what was written in the Search Warrant Application. (Hr’g Tr. 43-4; Jun. 20, 2013). Judge Letts spent about five minutes or so reading the Search Warrant Application and then signed the Search Warrant. (Hr’g Tr. 45; Jun. 20, 2013). After Judge Letts signed the Search Warrant, McCoy and Smith took the Warrant back to the other officers who then affected a forced entry at unit number ten, Maple Ridge Apartments. (Hr’g Tr. 34; Jun. 20, 2013). Upon entering the apartment, offices seized, among other things, thousands of pills, some notebooks, a computer, and drug paraphernalia. No one was present in the apartment at the time of entry. (Hr’g Tr. 36; Jun. 20, 2013).

DISCUSSION

Like the detail Magistrate Judge Howell paid to the factual recitation contained in his M & R, his analysis of the legal issues surrounding the stop of the red Mazda driven by Wilson on October 11, 2012, requires little modification from the Court. The Court adopts the majority of Magistrate Judge Howell’s reasoning below with some alterations as noted.

I. The October 11,2012, Traffic Stop.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

U.S. Const, amend. IV. Pursuant to the exclusionary rule, “evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.” United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The temporary detention of an individual by a police officer during a traffic stop constitutes a seizure within the meaning, of the Fourth Amendment. United States v. Vaughan, 700 F.3d 705, 709 (4th Cir.2012); United States v. Digiovanni, 650 F.3d 498, 506 (4th Cir.2011). The decision to initiate a stop of an automobile is reasonable if the police officer has probable cause to believe that a traffic violation has occurred. Digiovanni, 650 F.3d at 506. “Any ulterior motive a police officer may have for making the traffic stop is irrelevant.” Id.

Courts employ the standard set forth by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to determine whether police conduct during routine traffic stops comports with the requirements of the Fourth Amendment. Vaughan, 700 F.3d at 709; United States v. Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir.2011). As the Fourth Circuit explained in Guijon-Ortiz:

Under Terry’s “dual inquiry,” after asking whether the officer’s action was “justified at its inception,” [U.S. v.] Rusher, 966 F.2d [868] at 875 [ (4th Cir.1992) ], we ask whether the continued stop was “sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). With regard to scope, “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id. With regard to duration, although the reasonable duration of a traffic stop “cannot be stated with mathematical precision,” United States v. Branch, 537 F.3d 328, 336 (4th Cir.2008), a stop may become “unlawful if it is prolonged beyond the time reasonably required to complete [its] mission.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Thus, we evaluate “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). To prolong a traffic stop “beyond the scope of a routine traffic stop,” an officer “must possess a justification for doing so other than the initial traffic violation that prompted the stop in the first place.” Branch, 537 F.3d at 336. This requires “either the driver’s consent or a ‘reasonable suspicion’ that illegal activity is afoot.” Id.

Although the scope and duration components of Tenby’s second prong require highly fact-specific inquiries, the cases make possible some generalizations. When a police officer lawfully detains a vehicle, “police diligence involves requesting a driver’s license and vehicle registration, running a computer check, and issuing a ticket.” United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir.2011). The officer may also, “in the interest of personal safety,” request that the passengers in the vehicle provide identification, at least so long as the request does not prolong the seizure. United States v. Soriano-Jarquin, 492 F.3d 495, 500-01 (4th Cir.2007). Similarly, the officer may “inquir[e] into matters unrelated to the justification for the traffic stop,” Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), and may take other actions that do not constitute “searches” within the meaning of the Fourth Amendment, such as conducting a dog-sniff of the vehicle, Caballes, 543 U.S. at 409, 125 S.Ct. 834, but again only “so long as those inquiries [or other actions] do not measurably extend the duration of the stop.” Johnson, 129 S.Ct. at 788.

660 F.3d at 764-65.

Here, there is no question that the initial stop of the Mazda was reasonable because Smith had probable cause to believe that Wilson committed a traffic violation by going left of center on three occasions. Neither Wilson nor Raymond offered any evidence to the contrary. The fact that Smith may have had other motives for stopping the Mazda is irrelevant. Digiovanni, 650 F.3d at 506. Accordingly, the question for the Court is whether the actions taken by the officers after the initial stop complied with the requirements of the Fourth Amendment.

The traffic stop began when Smith and Velez pulled over the Mazda. See id. Smith and Velez requested identification from the driver and the passenger, as well as the car’s registration. Velez then promptly returned to his patrol car to run a computer check on the vehicle, check the licenses of the Defendants, and check for outstanding arrest warrants on both Defendants, as he was entitled to do as part of a traffic stop. Vaughan, 700 F.3d at 710; United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir.2007). Smith was also entitled to ask both Defendants to exit the vehicle, as he did approximately three minutes into the stop. Vaughan, 700 F.3d at 710. When Defendants exited the vehicles, however, neither Smith nor Velez noticed anything suspicious about them. Moreover, the initial dog-sniff of the vehicle, that lasted under thirty seconds and occurred approximately two minutes into the stop while Velez was having dispatch check for outstanding warrants, did not run afoul of the Fourth Amendment as it did not extend the duration of the stop. Id. However, once the Defendants had exited the vehicle and the detection dog Beck had completed the sniff of the Mazda, the analysis becomes more complicated.

Approximately five minutes into the stop, the computer check of the Defendants was complete. CIPD dispatch confirmed Defendants had no outstanding warrants, and determined Wilson, the driver of the Mazda, held a valid driver’s license. Significantly, the officers on the scene were not fearful that Defendants posed any safety risk to them and Smith did not suspect that Wilson was driving under the influence. At this point, the officers had not conducted a pat down of Defendants — they had no basis to conduct a pat down of the Defendants — and no narcotics had yet been discovered. Moreover, no officer was engaged in questioning the Defendants at the time. Ordinarily, during a routine traffic stop, the officer would, at this point, return the driver’s license to the operator of the car, write a ticket or issue a warning to the operator, and the stop would come to an end. In fact, Officer Velez testified that once he had completed a computer check of the Defendants’ information, he saw no reason to continue to detain them. (Hr’g Tr. 239; Jun. 12, 2013).

The officers in this case, however, did not return Defendants’ documents after the completion of the computer check, did not write Wilson a ticket, and did not allow the Defendants to leave the scene because Cox told Smith that Beck had alerted to the presence of narcotics at the passenger side door of the Mazda. Instead, the officers began searching the entire vehicle for narcotics. When Cox told Smith that the dog alerted and Smith thereafter began searching the Mazda for narcotics, the nature of the stop changed from one investigating the reason behind the initial stop— driving left of center- — to an investigation into drug trafficking activity. Put another way, the officers abandoned the prosecution of the traffic stop, detained Defendants, and embarked upon a different sustained course of investigation.

Once the officers detained Defendants beyond the scope of the routine traffic stop, the officers needed either the permission of Wilson or reasonable suspicion of illegal activity to prolong the stop. Digiovanni, 650 F.3d at 507; United States v. Branch, 537 F.3d 328, 336 (4th Cir.2008); United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004). The reasonable suspicion standard is not as demanding as the probable cause standard and requires a showing that is considerably less than the preponderance of the evidence standard. Foreman, 369 F.3d at 781. “However, the Terry reasonable suspicion standard does require a minimal level of objective justification for the police action.” Id. (internal quotation and citation omitted). Reasonable suspicion is an objective test, and courts look to the totality of the circumstances to determine whether the detaining officer had a “particularized and objective basis for suspecting legal wrongdoing.” Vaughan, 700 F.3d at 710 (internal citation and quotation omitted).

A reasonable suspicion is demonstrated when an officer is able to “point to ‘specific and articulable facts which, taken together with rational inferences from those facts, evince more than an inchoate and unparticularized suspicion or hunch of criminal activity.’ ” Branch, 537 F.3d at 336 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868) (internal citations omitted). When an officer has reasonable suspicion of criminal activity, he may detain the suspect so as “to permit the officer to allay the suspicion.” United States v. Mason, 628 F.3d 123, 128 (4th Cir.2010). United States v. Ortiz, 669 F.3d 439, 444 (4th Cir.2012).

Here, the officers point to the statement by Cox that Beck alerted to the presence of narcotics on the passenger side door as a basis for reasonable suspicion of illegal activity. The positive alert from a dog trained to detect narcotics provides officers with reasonable suspicion to believe that narcotics may be present and, thus, that illegal activity may be afoot. See Mason, 628 F.3d at 130; Branch, 537 F.3d at 340, n. 2. Defendants, however, challenge the validity of the purported positive alert in this case. Whether a dog alerts is a question of fact for this Court to resolve. Mason, 628 F.3d at 130.

Defendants do not challenge Beck’s general reliability, only the determination of whether he alerted. Based on the evidence submitted to the Court during the evidentiary hearing detailing Beck’s numerous past alerts signaled by sitting and staring, and after considering the standard set forth by the Supreme Court in Florida v. Harris, — U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013), there is no reason for the Court to doubt that Beck is generally reliable, and that ordinarily an alert from Beck, explicitly expressed by his trained indication of sitting and staring, would provide probable cause to search a vehicle or reasonable suspicion to detain the drivers to alleviate concern regarding illegal activity. It is undisputed, however, that Beck did not give his trained indication in this case; Beck did not sit and stare. Instead, Cox testified that he was able to discern that Beck alerted based on Beck’s change in behavior at the passenger side door.

At this point, the Court must address some of the terminology that is often used with regard to the behavior and training of detection dogs. An “alert” would ordinarily refer to the specific behavior a dog is trained to do when he encounters the source of the odor he is trained to detect. In the case of Beck, the Court finds that Beck was trained to sit and stare when he found the source of odors emanating from three specific drugs: heroin, cocaine, and marijuana. (Hr’g Tr. 87; Jun. 20, 2013). The record evidence is uncontroverted (and in the video evidence it is obvious) that Beck did not alert in this matter. A detection dog will, in some instances, perform something less than an alert when encountering certain stimuli. This is sometimes referred to as “casting.” For instance, in United States v. Rivas, 157 F.3d 364 (5th Cir.1998), Customs officials at the Brownsville, Texas, Port of Entry-led a drug detection dog around the perimeter of what appeared to be an empty auto transport trailer Rivas was hauling with his Kenworth truck. In reality, the trailer held 40 one kilogram bricks of cocaine secreted in its steel frame. According to the Customs officials, the detection dog deployed around Rivas’ trailer was trained to indicate actively; the dog would alert by aggressively scratching or attempting to bite at the source of the odor. Id. at 368. The dog, however, did not alert but instead “cast,” according to the Customs official. When the official was asked what was meant by the term “cast,” he replied, “ ‘casting’ is in a sense the dog maybe feels not a strong alert, but something that temporarily stops him and deters his attention at that point.” Id. Casting in Rivas might be somewhat akin to what Cox said he detected as Beck’s change in behavior. The Rivas court concluded that a dog’s “casting” was too distantly related to an alert to create reasonable suspicion on its own as a matter of law, thus affirming the suppression of the drugs seized from the trailer.

- The government argues that the present case is more like that found in United States v. Parada, 577 F.3d 1275 (10th Cir.2009). In Parada, a Kansas highway patrolman stopped the defendant’s van for a traffic violation. Noticing some unusual circumstances, the trooper retrieved his drug dog from his cruiser and walked the dog around defendant’s van. Even though the trooper’s dog was an active alert dog, the trooper stated his dog “alerted” to the driver’s side of the van by “stiffening his body, breathing deeply, and attempting to jump into the window.” Id., 577 F.3d at 1281. The trooper went on to explain his understanding of an alert versus an indication:

Followed up by an alert is an indication. The indication is a conclusion of the search where the dog through its physical characteristics and natural abilities pinpoints that exact location of where the odor is coming from.... [T]he way that Rico indicates is basically done through scratching, biting, barking, any number of things.

Id. Based on this explanation, the Parada court followed the Tenth Circuit’s general rule that “a dog’s alert to the presence of contraband is sufficient to provide probable cause. We decline to adopt the stricter rule urged by Mr. Parada, which would require the dog to give a final indication before probable cause is established.” Id., 577 F.3d at 1282. Using these terms somewhat more loosely, the Tenth Circuit determined that a “casting” (what it called an “alert”) was sufficient to provide probable cause, even in the absence of a true alert (which it called a “final indication”).

The Government in this case argues that Beck’s change of behavior, whether denominated a “casting” or an “alert,” was sufficient to warrant detaining the Defendants. The problem with the Government’s argument is that it is not supported by the evidence. The Court finds that, after a review of the evidence in the record, including the video of Beck’s sniff of the Defendants’ car, Beck did not in fact alert to the presence of narcotics in this case because, at no time, did Beck sit and stare. Moreover, Beck neither alerted nor cast to the presence of narcotics. In short, the Court adopts the Magistrate Judge’s recommended findings that the testimony of Cox, in nearly all material respects, was not credible. The Magistrate Judge found Cox’s testimony credible in that he said Beck had not been trained to detect oxycodone. Therefore, Beck could not have alerted to the pills that the Defendants were concealing. [Doc. 82 at 35]. The Court also finds the testimony of the expert witness, Deputy Blackwell, to be completely credible, especially on the issue that a dog’s “change in behavior” cannot be equated to an “alert.” Given the credible record evidence the Court finds that Defendants were not suspected of trafficking any drug other than oxycodone; Beck was not trained to recognize the odor of oxycodone; a dog trained to alert to the odor of heroin will not alert to the odor of oxycodone; Beck appeared more interested in Smith’s shoes than he did in the Mazda; Beck never gave his trained indication of sitting and staring; no drugs of any kind were found in the Mazda upon searching it; and the CIPD neither sought to consult its own detection dog handlers nor those in the nearest neighboring county before contacting Cox. These findings all lead the Court to the ineluctable and troubling conclusion that a drug dog alert did not occur in this case. In fact, the Court concludes that there is no credible evidence that any dog alert, or even a dog cast, occurred in this instance.

Because of the Court’s findings herein, the Court need not address the open question in this Circuit regarding the proper “alert” standard for detection dogs — the standard adopted by the Fifth Circuit in Rivas or the less stringent one adopted by the Tenth Circuit in Parada. The Court notes that with law enforcement’s use of detection dogs, the dog becomes the functional equivalent of the magistrate. Since a magistrate’s warrant must set forth the objective basis informing the probable cause determination, it is “reasonable” (in the Fourth Amendment sense) to demand no less than the same clarity from a magistrate’s proxy. As was cogently stated by the expert witness Blackwell during the suppression hearing, “Like I said I want a solid sit and stare. Like I said I feel these dogs are a blank signed search warrant and I want something strong.” (Hr’g Tr. 344; Jun. 20, 2013). Even though some lesser, yet objectively definitive, indication by a dog may be sufficient to fulfill this standard under some circumstances, there is no evidence of any such indication here.

A court cannot accept a handler’s subjective determination that a dog has made some otherwise undetectable alért, which conclusion would be, for all practical purposes, immune from review. Given the nature of the constitutional right at issue, the Supreme Court has found this premise to be unacceptable. “If [an officer’s] subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). To allow a search predicated upon an officer’s interpretation of the utterly minimalist lesser showing exhibited by the dog in this case would be tantamount to permitting law enforcement officers to issue their own search warrants based upon their own subjective analysis, something the Framers explicitly prohibited.

Having found that Beck did not alert in this case, the Government cannot rely on Cox’s subjective feeling that the dog had given some sort of otherwise indiscernible alert or cast to constitute reasonable suspicion of criminal activity to warrant detaining Defendants beyond what was necessary to complete the traffic stop. Absent a more definitive alert, there was no reasonable suspicion of criminal activity prior to the time when the traffic stop should have ended. The officers did not question Defendants about where they were going, did not ask who had rented the red Mazda, did not ask if they had permission of the named driver to operate the vehicle, and did not ask if drugs were present in the car. Moreover, the officers testified that Defendants were cooperative, were not sweating excessively, and were not acting suspicious, threatening, or aggressive. In fact, aside from asking for Defendants’ identification, the officers did not ask Defendants any questions until shortly before they began bodily searching them. Aside from some general information they received that led to the initial surveillance of the Mazda, the officers had no reason, apart from the purported alert by Beck, to justify prolonging the stop. Even one of the two officers who initiated the stop recognized this fact. Officer Velez testified that once he had completed a computer check of the Defendants’ information, he saw no reason to continue to detain them. (Hr’g Tr. 239; Jun. 12, 2013). The purported alert by Beck is the lynchpin, and once it is removed there is no justification for the subsequent actions taken by the officers.

In contrast to the Government’s contention to the contrary, the fact that Defendant Wilson broke her cell phone when Smith told her to refrain from using it did not provide reasonable suspicion of criminal activity. At most, Wilson became agitated when Smith told her for the second time to refrain from using the phone. She broke her flip phone in what fairly could be understood as a frustrated effort to demonstrate to Smith that she would not use the phone again. Defendant Wilson was neither using the phone in a threatening manner nor exhibiting any other suspicious behavior. After Wilson broke her phone, Smith did not inquire as to why she broke the phone or ask her any questions about the incident.

The fact that Defendants were traveling in a rental vehicle does not dictate a different result. The officers knew prior to the stop that the red Mazda was a Hertz car rented by David Delly. Hertz had also informed the officers that Wilson was not an authorized driver of the vehicle and requested that the officers not release the car to her. Thus, no additional time was needed for the officers on the scene to contact Hertz during the stop and determine whether Wilson was an authorized driver as far as Hertz was concerned. The Government argues that the officers could have impounded the car at that point, or left it by the side of the road and notified Hertz of its location, but this did not give the officers grounds to detain Defendants further. Even if Defendants’ operation of the vehicle may have constituted a breach of the rental agreement between Delly and Hertz, the officers did not have reasonable suspicion that the Defendants were operating the rental car in violation of North Carolina law. None of the officers inquired as to whether Wilson had the authorization of Delly to operate the vehicle. In fact, the officers state they had reason to believe (through their informants) that Delly had intentionally provided Wilson with the rental vehicle for her use. There was certainly no evidence that the officers believed the red Mazda to be stolen.

After being pulled over, Wilson provided Velez with the rental agreement showing that David Delly had rented the vehicle. Although the officers could have asked the Defendants questions regarding the rental agreement, the identity of Delly, whether Delly had given them permission to operate the vehicle, why Delly was allowing them use the car, where Delly was at the time, or any number of questions related to the rental vehicle