                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      February 20, 2008
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 06-3417
                                                     (D. Ct. No. 05-CR-40043-JAR)
 JOHN RANDALL KOLTHOFF, also                                    (D. Kan.)
 known as John Randall Kelly,

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.



       Defendant-Appellant John R. Kolthoff challenges the District Court’s denial of his

motion to suppress. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

                                    I. BACKGROUND

       On May 14, 2005, Mr. Kolthoff drove a rental car to a motel in Junction City,

Kansas, and checked into a room. Based on their contact with Mr. Kolthoff earlier that

day, several law enforcement officers suspected that he was involved in drug trafficking

and ordered a dog sniff of Mr. Kolthoff’s rental car, which he had left in the motel’s


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
parking lot. Officer Scott Hagemeister, a certified dog handler, oversaw the dog sniff.

According to him, the dog alerted to the presence of drugs in the trunk of the car.

Officers then searched the car and found guns and foreign passports in the trunk and a

ticket dated May 7, 2005, for possession of marijuana in North Carolina. They did not

find any drugs. After the search, Mr. Kolthoff told Officer Hagemeister that he did not

want him to think that the dog had falsely indicated and that Mr. Kolthoff did have

marijuana in the vehicle at one time in the past.

       Mr. Kolthoff was charged with possession of counterfeit identification documents

in violation of 18 U.S.C. § 1546, possession of false military identification in violation of

18 U.S.C. § 499, and being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g). The District Court denied Mr. Kolthoff’s motion to suppress the evidence

obtained during the search, finding that the dog alerted to the presence of drugs and

concluding that the alert gave the officers probable cause to search the vehicle. Mr.

Kolthoff subsequently pleaded guilty to the firearms charge, conditioning his plea on the

right to appeal the court’s denial of his suppression motion.

                                     II. DISCUSSION

A.     The Dog Alert

       Mr. Kolthoff first argues that the District Court clearly erred in finding that the dog

alerted to the presence of narcotics. See United States v. Beckstead, 500 F.3d 1154, 1162

(10th Cir. 2007) (stating that when reviewing the denial of a motion to suppress, we

review factual findings for clear error). “A finding of fact is clearly erroneous if it is

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without factual support in the record or if the appellate court, after reviewing all the

evidence, is left with a definite and firm conviction that a mistake has been made.” Tosco

Corp. v. Koch Indus., Inc., 216 F.3d 886, 892 (10th Cir. 2000) (quotations omitted).

       During the suppression hearing, Officer Hagemeister testified that, on May 14,

2005, he had more than a year’s experience as a dog handler and that he and his dog were

a certified drug-dog detection team. He testified that, based on his knowledge and

training, the dog reliably alerted to the presence of narcotics at the rear portion of the

vehicle. When explaining what, in the dog’s behavior, indicated that it had detected the

odor of a controlled substance, Officer Hagemeister stated:

       He squared his body up to the vehicle, so he’s in line; pressed his nose against
       the vehicle several times up to the vehicle; inhaled deeply through his nose and
       made looks back towards me, which is usually an indication to me he is on a
       drug odor and is expecting a reward. I usually—when we’re training, when
       he’s on a drug he’ll look back to me and expect me to throw a toy or
       something to him.

       Despite Officer Hagemeister’s testimony and his comments on the scene, Mr.

Kolthoff contends that a videotape of the dog sniff “wholly rejects any conclusion the

canine alerted” to the presence of narcotics. Specifically, he argues that the dog “may

have initially seemed interested in the rear portion of the vehicle,” but that it “was nothing

more than a reasonable person would expect from a dog trained to smell out any

controlled substance.”

       Upon reviewing the entire record, including the videotape, there is ample support

for the District Court’s finding that the dog “did more than ‘pay attention’ to the rear of


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the vehicle on two occasions during the sniff.” As the District Court found, the dog

“heavily sniff[ed] the trunk area of the vehicle, twice, and then looked to his handler.”

Indeed, the dog team’s qualifications, Officer Hagemeister’s testimony, the officers’

comments at the scene, and the videotape itself all support a finding that the dog alerted

to the presence of narcotics. The District Court’s finding was therefore not clearly

erroneous.

B.     Probable Cause

       Mr. Kolthoff next argues that, even if the dog alerted to the presence of narcotics,

this alone did not give the officers probable cause to search his vehicle. He contends that

a dog alert only rises to the level of probable cause when it is accompanied by other

indicia of suspicion.

       The Fourth Amendment, under the automobile exception to the warrant

requirement, does not require law enforcement officers to obtain a warrant prior to

searching a vehicle if they have probable cause to believe it contains contraband. United

States v. Stewart, 473 F.3d 1265, 1269–70 (10th Cir. 2007). Probable cause exists if

“there is a fair probability that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). We have held that “a dog

alert usually is at least as reliable as many other sources of probable cause and is certainly

reliable enough to create a ‘fair probability’ that there is contraband.” United States v.

Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993); see also Stewart, 473 F.3d at 1270 (“A

canine alert gives rise to probable cause to search a vehicle.” (quotations omitted));

                                             -4-
United States v. Rosborough, 366 F.3d 1145, 1153 (10th Cir. 2004) (holding that a dog

alert creates probable cause to search the entire vehicle, including the trunk); United

States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989) (“Once the dog ‘keyed,’ the police had

probable cause to believe the automobile contained narcotics.”).

       Despite this line of case law, Mr. Kolthoff argues that probable cause to search a

vehicle cannot be based on a dog sniff alone because a dog alerts only to the presence of

odor and cannot communicate whether drugs are—or when they were—actually present

in the vehicle. In relying on the dog sniff alone, Mr. Kolthoff contends, law enforcement

officers might be using “stale” information to support a determination of probable cause.

See United States v. Snow, 919 F.2d 1458, 1459 (10th Cir. 1990) (“Probable cause to

search cannot be based on stale information that no longer suggests that the items sought

will be found in the place to be searched.”). He urges us to adopt a standard whereby a

dog alert provides probable cause, and thus survives a staleness challenge, only if it is

further corroborated by other indicia of suspicion.

       We decline to do so. As noted, probable cause exists if “there is a fair probability

that contraband or evidence of a crime will be found in a particular place,” Gates, 462

U.S. at 238 (emphasis added), and a dog alert from a reliable dog is sufficient to meet this

threshold, see Ludwig, 10 F.3d at 1528. This, of course, does not mean that drugs will be

discovered each time a dog alerts. As Mr. Kolthoff argues, for instance, it is possible that

the dog picked up on a stale odor left by a previous driver of the rental car. But this

possibility does not negate probable cause under the Fourth Amendment. “Fair

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probability” means just that—fair, not absolute. A reliable dog alert, without more,

supports a determination of probable cause.1

                                  III. CONCLUSION

      For the foregoing reasons, we AFFIRM the District Court’s denial of Mr.

Kolthoff’s motion to suppress.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Circuit Judge




      1
       Although we have indicated that a dog alert may not provide probable cause if the
dog has a poor accuracy record, see Ludwig, 10 F.3d at 1528, Mr. Kolthoff does not
challenge this particular dog’s record, accuracy, or certification.

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