United States v. Pinkard ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS OCT 10 1997
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-6353
v.
(D.C. No. CR-96-116-C)
(W. Dist. Okla.)
RICHARD PINKARD and ALISA
MARIE NEUGENT,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
Richard Pinkard and Alisa Marie Neugent were charged with possession
with intent to distribute approximately 370 grams of methamphetamine in
violation of 21 U.S.C. §841(a)(1). After the district court denied their motion to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
suppress evidence, defendants each pled guilty while reserving the right to appeal
the denial of their motion. On appeal, defendants contend police officers did not
have probable cause to detain or search them. We affirm.
When reviewing the grant of a motion to suppress, we accept the trial
court’s findings of fact unless clearly erroneous. See United States v. Morales-
Zamora, 914 F.2d 200, 202 (10th Cir. 1990). The determination of
reasonableness under the Fourth Amendment is a conclusion of law that we
review de novo. Id.Officer Bo Leach received information from the Drug Enforcement Agency
(DEA) that two people traveling together from California to Oklahoma had
purchased one-way tickets with cash. Upon arriving at the airport, Officer Leach
and Sergeant Ramos observed defendants as the only couple on the plane who
appeared to be traveling together and subsequently followed them to the baggage
claim area. Meanwhile, other agents observed while a trained dog sniffed the
luggage from defendants’ flight. When the dog failed to alert, the bags were
transported to the public baggage claim area.
After watching defendants retrieve their luggage, Officer Leach and
Sergeant Kim, dressed in street clothing with their weapons concealed,
approached them and requested permission to speak with them. Defendants
consented. Prior to questioning defendants, Officer Leach told them they were
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free to leave. Defendants placed a maroon carry-on bag on the floor and gave
permission for the officers to search all their luggage. The officers did not locate
any illegal drugs during their physical search of the bags, but Officer Leach
observed a bulge below Mr. Pinkard’s waist band and requested permission to
search defendants’ clothing. Both defendants refused the request.
Although the exact sequence of these events is not clear from the district
court’s findings, it is uncontested that at some point during his questioning of
defendants, Officer Leach motioned for Agent Roberts to bring the drug dog over
to sniff defendants’ luggage, apparently with defendants’ consent. 1 The dog
alerted to the odor of illegal drugs when she encountered the maroon carry-on
bag. Immediately thereafter, the dog alerted to a stronger scent, went to the front
of Mr. Pinkard, and sat down at his feet without touching him in what is known as
a “passive alert.” As Mr. Pinkard backed away, Officer Leach placed one of his
hands on the bulge he had observed near Mr. Pinkard’s waist band, and the other
hand on Mr. Pinkard’s shoulder. Officer Leach felt two separate bundles which
were later determined to contain methamphetamine. He asked Ms. Neugent if she
1
Although the district court did not specifically find that Mr. Pinkard
consented to a dog sniff of his luggage, Mr. Pinkard testified that Officer Leach
asked him if the dog could sniff his luggage and that he consented. Pl.’s Supp.
App. at 82.
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was in possession of the same items and she nodded affirmatively. Both
defendants were taken into custody.
We agree with the district court that Officer Leach’s questioning of
defendants and his subsequent search of Mr. Pinkard’s person did not violate the
Fourth Amendment. Because Officer Leach informed defendants they were free
to leave and obtained their consent to search, the officers’ questioning of
defendants and search of their luggage was a consensual encounter that neither
implicates the Fourth Amendment nor requires probable cause. See Florida v.
Bostick, 501 U.S. 429, 434-35 (1991); United States v. Davis, 94 F.3d 1465, 1468
(10th Cir. 1996). Moreover, it is well established that a canine sniff of the air
surrounding luggage located in a public airport is not a “search” within the
meaning of the Fourth Amendment and therefore does not require consent. See
United States v. Place, 462 U.S. 696, 707 (1983); see also United States v.
Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993) (canine sniff of vehicle parked in
motel lot not a search); Morales-Zamora, 914 F.2d at 203 (dog sniff of vehicle
lawfully detained by police not a search).
Regardless of the exact chronology of events leading to Officer Leach’s
search of Mr. Pinkard’s person, defendants did not testify and the district court
did not find that they attempted to leave or that they at any time revoked their
permission for the officers to search their luggage. The district court found that
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the dog’s alert to Mr. Pinkard’s person occurred almost immediately following her
alert to the maroon bag.
A positive alert by a dog trained to detect the presence of illegal drugs
constitutes probable cause to make an arrest. See United States v. Klinginsmith,
25 F.3d 1507, 1510 (10th Cir. 1994) (when dog alerted to vehicle there was
probable cause to arrest occupants); United States v. Williams, 726 F.2d 661, 663
(10th Cir. 1984) (dog’s detection of contraband in luggage establishes probable
cause to make arrest); see also United States v. Waltzer, 682 F.2d 370, 372-73 (2d
Cir. 1982). The existence of probable cause to make an arrest clearly
encompasses the authority for a pat-down search. See Williams, 726 F.2d at 663.
Accordingly, when the drug dog alerted to the maroon bag, probable cause to
search defendants existed independent of the dog’s positive alert to Mr. Pinkard’s
person, the constitutionality of which we need not decide here.
We AFFIRM the district court’s order denying defendants’ motion to
suppress.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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