                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS October 12, 2010
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                No. 09-2193 & 09-2194
                                                (D.C. Nos. CR-98-00864-LH-1
 GEORGE R. LUJAN,                                  & CR-08-01843-LH-1)
                                                        (D.N. Mex.)
           Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, HOLLOWAY, Circuit Judge, and MELGREN,
District Judge. **



      George Lujan was convicted by a jury on one count of possessing 100 or

more grams of heroin with intent to distribute and one count of possessing 500 or

more grams of cocaine with intent to distribute, both in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(B). Following these convictions, the district court also

revoked his supervised release. The sole issue briefed on appeal is whether the

      *
        This order and judgment is not binding precedent, except under the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.
      **
         The Honorable Eric F. Melgren, United States District Judge for the
District of Kansas, sitting by designation.
district court erred in denying Lujan’s pre-trial motion to suppress the cocaine

found in his automobile. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.

                                          I

                                Factual Background

      On July 14, 2008, Detective Pat Ruiloba of the Albuquerque Police

Department received a phone call from an FBI agent who indicated that she had

just seen Lujan participate in what appeared to be a drug transaction at an

Albuquerque shopping mall. The agent gave Ruiloba the name of the shopping

mall and the make, model, color, and license plate number of the automobile

Lujan was driving as he left the mall. Shortly after receiving this call, Ruiloba

observed a vehicle matching this description traveling southbound on Interstate

25. Lujan was the driver of this vehicle. Ruiloba testified at trial that his radar

detected Lujan driving at a speed of seventy-five miles per hour in a fifty-five

miles per hour construction zone. As Ruiloba was about to pull the vehicle over,

Lujan turned off of the highway. Ruiloba followed Lujan, activated his lights,

and pulled Lujan over.

      Ruiloba approached the vehicle from the passenger side and asked Lujan if

he knew why he had been stopped. Lujan replied that he did not. Ruiloba

informed Lujan that he had been speeding in a construction zone. Ruiloba then

asked Lujan for his driver’s license, proof of insurance, and vehicle registration

                                          2
form. Lujan was able to locate his driver’s license and proof of insurance, but

could not find his registration. Lujan then began searching the vehicle’s glove

compartment in an attempt to find his registration.

      Ruiloba testified that as Lujan was searching for his registration, he

“lean[ed] over towards the passenger’s side floorboard of the vehicle, and . . .

kind of shov[ed] a white plastic bag under the seat.” ROA Vol. 3, at 78. 1 Ruiloba

asked Lujan if “everything was okay,” and Lujan responded that it was. Id. at 79.

Ruiloba next asked Lujan to step out of his car. Lujan complied and followed

Ruiloba back to the police vehicle.

      Ruiloba proceeded to engage Lujan in casual conversation, asking him

where he was coming from and where he was headed. Eventually, Ruiloba again

asked Lujan for his vehicle registration. Lujan stated that he did not have it, and

he asked Ruiloba for permission to return to his car to continue looking for it.

Ruiloba consented and the two men walked back to the passenger side of Lujan’s

vehicle. Lujan opened the front passenger door, leaned in, and began to search

the glove box for his registration. Ruiloba noticed at this point that Lujan’s hands

were visibly shaking and that he appeared to be very nervous.

      Believing that Lujan was not going to be able to locate his vehicle

registration, Ruiloba asked Lujan to return to his patrol car. Lujan complied.


      1
        Two consolidated appeals are before us. All citations to the record on
appeal are from the record in Case No. 09-2194.

                                          3
When Lujan returned to the patrol car, he left his front passenger door open. As

Lujan waited by the patrol car, Ruiloba opened the front driver’s side door to

check Lujan’s VIN number. He also ran a warrants check. After Ruiloba

confirmed that Lujan was not driving a stolen car and that there were no

outstanding warrants for his arrest, Ruiloba issued Lujan a speeding ticket and a

warning for failure to carry his registration. Ruiloba also returned Lujan’s

driver’s license and insurance verification. Lujan signed his citation and began

walking back to the driver’s side of his car, despite the fact that the front

passenger door remained open.

      When Lujan reached the front driver’s side of his vehicle, Ruiloba called

out to him: “Mr. Lujan, there is [sic] a couple more questions I have. Could you

come talk to me?” Id. at 89. Although there is no indication that Lujan verbally

consented to this request, Lujan walked back to Ruiloba’s patrol car. Ruiloba

then asked Lujan, in separate questions, if he had any weapons, marijuana, heroin,

methamphetamine, or cocaine in the vehicle. According to Ruiloba, Lujan

answered “no” to each question, but he laughed after denying that he had any

cocaine in his vehicle.

      Ruiloba then asked Lujan if he could search his car. Lujan said he could

not. Ruiloba then asked Lujan if he was responsible for everything in his vehicle.

Lujan stated that he was. When Ruiloba again asked Lujan if he could search his

vehicle, Lujan replied: “No, I don’t know why you would want to search my

                                           4
vehicle.” Id. at 92. Ruiloba then told Lujan that he had a narcotics detection dog,

and asked for permission to “r[u]n the dog around [his] car.” Id. Lujan

responded, “[o]kay.” Id.

      Ruiloba then placed Doobie, the drug detection dog, on a leash and led him

to the front driver’s side of Lujan’s vehicle. Ruiloba and Doobie proceeded in a

counter-clockwise direction around Lujan’s car until they reached the front

passenger side. At that point, without encouragement or command from Ruiloba,

Doobie jumped into the passenger area, then into the back seat, and then into the

open area of the car where he began “alerting” to something on the floor of the

car. Id. at 141.

      Ruiloba subsequently initiated his own search of Lujan’s vehicle and

discovered two bundles of what turned out to be cocaine in a white plastic bag

underneath the front passenger seat. Ruiloba then arrested Lujan and transferred

him to the custody of the FBI. While in FBI custody, Lujan made a number of

incriminating statements.

                                Procedural History

      In November 2008, a grand jury indicted Lujan on two counts of possession

of 100 or more grams of heroin with intent to distribute 2 and one count of

possession of 500 or more grams of cocaine with intent to distribute. Before trial,

      2
       Detective Ruiloba did not find heroin in Lujan’s car during the search in
question. The heroin charges stem from separate, prior incidents in which Lujan
apparently sold heroin to an undercover officer.

                                         5
Lujan moved to suppress the cocaine seized during Detective Ruiloba’s traffic

stop and the statements he made following his arrest. After conducting a hearing

on this matter, the district court denied both of Lujan’s suppression motions from

the bench. The district court later entered a written order memorializing its

rulings.

      Following trial, the jury returned guilty verdicts on the charge of

possession of cocaine with intent to distribute and on one of the two charges of

possession of heroin with intent to distribute. The jury did not reach a verdict on

the remaining charge of possession of heroin with intent to distribute. The

district court declared a mistrial on this count and the government subsequently

dismissed the charge.

      After receipt and review of the pre-sentence report, the district court

sentenced Lujan on each count to a concurrent 151-month term of imprisonment

to be followed by a concurrent 8-year term of supervised release. The district

court also revoked Lujan’s supervised release from a prior federal conviction and

sentenced him to a concurrent 24-month term of imprisonment. Lujan

subsequently filed two separate notices of appeal: one challenging the district

court’s denial of his motion to suppress physical evidence (Case No. 09-2194),

and one challenging the district court’s revocation of his supervised release (Case

No. 09-2193). Although we granted Lujan’s motion to consolidate his two

appeals, he now only argues that the district court erred in denying his motion to

                                          6
suppress, which pertains solely to his conviction for possession of cocaine with

intent to distribute.

                                          II

                                 Standard of Review

       In reviewing a district court’s denial of a motion to suppress, “we review

legal conclusions de novo and findings of fact for clear error.” United States v.

Smith, 606 F.3d 1270, 1275 (10th Cir. 2010). We also construe “the evidence in

the light most favorable to the government.” Id.

                                       Analysis

       Lujan asks this court to reverse the district court’s denial of his motion to

suppress because Doobie’s entry into his car violated his Fourth Amendment

rights. In addressing this assertion, we note that while “[a] dog sniff of the

exterior of a vehicle parked in a public place . . . is not a Fourth Amendment

intrusion,” a drug dog’s entry into a vehicle prior to the establishment of probable

cause may raise Fourth Amendment concerns because “[p]eople have a reasonable

expectation of privacy in the interior of their automobiles.” United States v.

Engles, 481 F.3d 1243, 1245 (10th Cir. 2007); United States v. Stone, 866 F.2d

359, 363 (10th Cir. 1989).

       In analyzing whether Doobie’s entry into the interior of Lujan’s car was an

unreasonable search under the Fourth Amendment, we first note our decision in

United States v. Stone, which also involved a drug dog’s entry into a vehicle. In

                                          7
Stone, a police officer stopped a vehicle driven by John Stone, who had been

under investigation for possession of narcotics. 866 F.2d at 360–61. When the

officer informed Stone that he had been speeding, Stone stated that a different

officer had already issued him a speeding ticket earlier that day. Id. at 361. The

officer asked if he could see the citation and Stone stated that the ticket was in the

back of his car. Id. With the officer’s permission, Stone got out of his car,

opened the hatchback, and retrieved the ticket. Id. A few minutes later, another

police officer arrived with a drug dog. The drug dog began sniffing the exterior

of Stone’s vehicle. Id. After sniffing around the side and rear of the car, the dog

“jumped in the open hatchback” and “keyed on a duffel bag.” Id. (internal

quotation marks omitted). The police officers then searched the entire car and

found large amounts of narcotics. Id.

      At trial, Stone moved to suppress the narcotics found in his car, claiming

that his Fourth Amendment rights were violated when the drug dog jumped into

his car. Id. After reviewing this issue on appeal, we held that the dog’s

spontaneous leap into the open hatchback of the car was not improper because

“[a] dog’s instinctive actions d[o] not violate the Fourth Amendment.” Id. at 364.

We also held that the search was valid because the officers did not facilitate the

dog’s leap into the car. Id.; see also United States v. Winnigham, 140 F.3d 1328,

1331 (10th Cir. 1998) (holding that the officers in Stone acted properly because

they did not act with “[a] desire to facilitate a dog sniff” of the car in question)

                                           8
(emphasis in original). As support for this conclusion, we noted there was no

evidence that the officers asked Stone to open the hatchback or insist that he

leave it open. Stone, 866 F.2d at 364. Further, Stone admitted that the officers

did not encourage the dog to jump into his car. Id. Thus, we concluded that the

officers “remained within the range of activities they may permissibly engage in

when they have reasonable suspicion to believe an automobile contains

[contraband].” Id.

      Lujan argues Stone is factually distinguishable from this case in two

regards. First, Lujan points out that Ruiloba was aware that, on at least one prior

occasion, Doobie had “climbed into a car without direction.” ROA Vol. 3, at 135.

According to Lujan, because Ruiloba was aware of this fact, he was on notice that

Doobie had the potential to spontaneously jump into a car and therefore Ruiloba

should have acted to prevent Doobie from jumping into Lujan’s car.

      We are unpersuaded by this argument because the central issue in Stone

was not whether the drug dog had previously jumped into a car undirected, but

whether the officers improperly facilitated the dog’s entry into Stone’s car. In

fact, in Stone we never addressed whether the dog in question had a history of

entering into a car spontaneously and in the absence of any officer direction. We

did not address this question because our holding that “[a] dog’s instinctive

actions d[o] not violate the Fourth Amendment,” Stone, 866 F.2d at 364,

foreclosed the need for further inquiry into the dog’s prior history. We read

                                          9
Stone to hold that a dog’s instinctive leap into a car is not a Fourth Amendment

violation unless an officer improperly facilitates the dog’s entry into the vehicle.

Id.

      Second, Lujan argues this case is distinguishable because unlike the dog in

Stone who “found drugs immediately upon jumping into the car,” “Doobie sniffed

around, both in the back seat and the front, before he ultimately located drugs.”

Aplt. Op. Br. at 27. According to Lujan, Ruiloba had both the opportunity and

obligation to call Doobie out of the car, but nonetheless “chose to let Doobie

continue [his] search[].” Id.

      We are unpersuaded by Lujan’s argument because the record does not

clearly indicate how long Doobie was in the car. Id. Ruiloba testified at the pre-

trial suppression hearing that Doobie first “jumped into passenger area, [then]

into the back seat, and then came back out towards the open area, and . . .

alert[ed] to the floor board. ROA Vol. 3, at 141. After hearing this testimony, as

well as Lujan’s testimony, 3 the district court found that “Doobie entered the

automobile and alerted at the passenger seat of the vehicle.” Id. at 229.

      Reviewing the district court’s findings of fact for clear error, and

construing the facts in the light most favorable to the government, we conclude

the court did not clearly err in denying the motion to suppress. Ruiloba testified


      3
       The district court specifically disregarded Lujan’s testimony, finding that
he had “not been credible.” ROA Vol. 3, at 227.

                                          10
that Doobie moved from the front passenger seat, to the back seat, to the open

area near the passenger seat, but there is no clear indication regarding how long

Doobie was in the car. The district court did not find that Doobie was inside the

car for a substantial period of time, but rather, after hearing Ruiloba’s testimony,

the court simply found that Doobie “entered the automobile and alerted at the

passenger seat of the vehicle.” Id. Reviewing the facts in the light most

favorable to the government, we conclude that the district court’s finding on this

matter was reasonably based on the evidence and therefore not clearly erroneous.

      Because we are unpersuaded by Lujan’s attempts to distinguish this case

from Stone, the only remaining issue is whether Detective Ruiloba improperly

facilitated Doobie’s entrance into the car. On this point, Stone is directly

applicable. Like the officers in Stone, Ruiloba did nothing to facilitate Doobie’s

entry into the car—he neither opened the passenger door, asked Lujan to leave the

door open, nor encouraged Doobie to jump inside. See, 866 F.2d at 364. Thus, as

with the dog in Stone, Doobie’s leap into Lujan’s car was the result of his

“instinctive actions” and not the result of Ruiloba facilitating his entry into the

vehicle. Id. Because Doobie’s entry into Lujan’s car was not improper, we

conclude that Ruiloba had probable cause to search the vehicle after Doobie

alerted to the presence of narcotics. See id. Accordingly, the district court did

not err in denying Lujan’s motion to suppress physical evidence.




                                          11
                                       III

      The judgment of the district court (Case No. 09-2194) is AFFIRMED.

      As Lujan has not challenged the revocation of his supervised release (Case

No. 09-2193), the revocation of his supervised release is also AFFIRMED.



                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Chief Judge




                                       12
