                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                       PUBLISH
                                                                      March 30, 2007
                    UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,
          v.                                            No. 06-5076
 M ICH AEL D ELEVAN EN GLES,

               Defendant - Appellant.



           A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
              FO R TH E NO RTH ERN DISTRICT O F O K LAH O M A *
                         (D.C. NO . 05-CR-104-001-HE)


Submitted on the briefs:

David J. Phillips, Acting Federal Public Defender, and Barry L. Derryberry,
Research & W riting Specialist, Office of Federal Public Defender, Northern &
Eastern Districts of Oklahoma, Tulsa, Oklahoma, for D efendant - Appellant.

David E. O’M eilia, United States Attorney, and Kevin Danielson, Assistant
United States Attorney, Tulsa, Oklahoma, for Plaintiff - Appellee.


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


HA RTZ, Circuit Judge.


      *
       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(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
      M ichael Engles was indicted on November 9, 2005, in the United States

District Court for the District of Oklahoma on six counts arising out of vehicle

searches in M ay 2003 and M ay 2004. Each search led to three charges:

convicted felon in possession of a firearm and ammunition, see 18 U.S.C.

§§ 922(g)(1) and 924(a)(2); possession with intent to distribute controlled

substances, see 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possession of a firearm

and ammunition in furtherance of a drug-trafficking crime, see 18 U.S.C.

§ 924(c)(1)(A). Before his jury trial M r. Engles moved to suppress evidence

obtained in the first search. After the motion was denied, he was tried by a jury

and found guilty on all counts. On February 24, 2006, the district court sentenced

him to 420 months’ imprisonment. He appeals, challenging the denial of his

motion to suppress. He raises no challenge to his three convictions arising out of

the M ay 2004 search. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    B ACKGR OU N D

      W hile on patrol just before midnight on M ay 27, 2003, Officer D avid

Shelby saw M r. Engles at a car wash in Tulsa, Oklahoma. Two months earlier

Shelby had issued M r. Engles a citation for driving with a suspended license. The

day after that encounter an informant had told Shelby that M r. Engles’s car had

contained a large amount of methamphetamine that the officer had failed to

detect. Shelby performed a computer check to determine w hether M r. Engles’s



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license was still suspended. It was, so when M r. Engles drove away from the car

wash, Shelby followed him and turned on his emergency lights. M r. Engles

stopped after turning into a restaurant parking lot about three blocks from the car

wash.

        As he approached M r. Engles’s vehicle, Officer Shelby saw the handle of a

large sheath knife between the center console of the vehicle and M r. Engles’s

right leg. He drew his gun, ordered M r. Engles and his passenger, Kimberly

Dixon, out of the vehicle, and arrested M r. Engles for driving under suspension.

After conducting a records check on M s. Dixon, he arrested her on an outstanding

warrant for driving under suspension. A female police officer soon arrived to

search M s. D ixon and discovered on her person two bags of marijuana and tw o

metal cylinders containing w hat appeared to be narcotics.

        Officer Shelby called for a drug dog, which arrived within 25 minutes.

Upon circling the vehicle the dog alerted to both the trunk and the driver’s door

of the vehicle. Police officers opened the trunk and discovered a large duffle bag,

which contained marijuana, methamphetamine, cocaine, and a loaded handgun.

Once the vehicle was searched, it was towed and impounded in accordance with

Tulsa Police Department procedures.

        After his indictment M r. Engles filed a motion to suppress the evidence

found in his car. The district court denied the motion. On appeal M r. Engles

challenges that ruling.

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II.   D ISC USSIO N

      “W hen reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court’s findings

of fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Apperson, 441

F.3d 1162, 1184 (10th Cir. 2006) (internal quotation marks omitted).

      M r. Engles does not challenge the validity of the initial stop, his arrest, or

the arrest of M s. Dixon. But he contends that his vehicle was unlawfully detained

while the officers awaited the drug dog, because they lacked reasonable suspicion

to believe it contained contraband. The district court ruled that the discovery of

drugs on M s. Dixon provided reasonable suspicion.

      In our view , however, reasonable suspicion was unnecessary. The officers

did not “detain” the vehicle. They law fully arrested M r. Engles and his

passenger. The automobile was parked in a restaurant parking lot; it was going

nowhere. Because they were under arrest, neither M r. Engles nor his passenger

could drive it away. And M r. Engles does not suggest that they were prohibited

from contacting someone else to remove the car.

      A dog sniff of the exterior of a vehicle parked in a public place does not

require reasonable suspicion because it is not a Fourth Amendment intrusion. See

United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998) (“A canine sniff

itself does not implicate Fourth Amendment rights because of the limited

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information it provides and its minimal intrusiveness.”) (citing United States v.

Place, 462 U.S. 696, 707 (1983)); United States v. Ludwig, 10 F.3d 1523, 1527

(10th Cir. 1993) (“[R]andom and suspicionless dog sniffs [of cars in open parking

lots] are not searches subject to the Fourth Amendment.”). If the arresting

officers had merely taken M r. Engles and M s. Dixon from the parking lot to jail,

an officer who later came upon the scene could have employed a dog to sniff the

exterior of the vehicle for drugs. It is irrelevant that the two arrestees remained at

the scene from the time that the drug dog was summoned until it arrived.

       It is undisputed that once the dog alerted to the trunk and side door, the

officers had probable cause to search the car and its contents. See United States

v. Rosborough, 366 F.3d 1145, 1152 (10th Cir. 2004). The conduct of the officers

was therefore lawful throughout the incident.

       Because no illegality tainted the actual search, we need not address the

district court’s alternative ruling that even if the actual search were unlawful, the

evidence would inevitably have been acquired in a lawful inventory search.

III.   C ON CLU SIO N

       W e A FFIR M the judgment below.




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