                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             AUG 11 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 96-6388
                                                          (W.D. Okla.)
 KENTASHA SHARRIE HOLLEY,                             (D.Ct. No. 96-CR-127)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      Kentasha Holley appeals the district court's denial of her 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          This order and judgment is not binding precedent except under the doctrines of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 found subsequent to an allegedly illegal detention. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



      After holding an evidentiary hearing, the district court found the following

facts. On July 18, 1996, a bus originating in Los Angeles stopped at the Union

Bus Station in Oklahoma City, Oklahoma. Ms. Holley and another passenger,

Garrett Leon Fox, got off the bus, walked into the station together, and sat next to

each other, stacking their bags one on top of the other. Drug interdiction

detectives in the station took particular notice of Ms. Holley because she was

wearing a jacket even though it was a warm summer day.



      The detectives brought a drug detection dog into the station and began a

systematic sweep of the public area. As the dog approached, Ms. Holley left her

baggage and went to a restroom. The dog alerted to the two pieces of luggage,

indicating the presence of narcotics. Two detectives, aware of the positive alert,

confronted Ms. Holley as she left the restroom. One of the detectives identified

herself to Ms. Holley and asked to speak with her. The detective told Ms. Holley

she was not under arrest and she was free to leave. (The detective testified at the

evidentiary hearing, however, that Ms. Holley would not have been allowed to

leave because the dog had positively alerted to her baggage.) Ms. Holley agreed


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to talk with the detective.



      The detective informed Ms. Holley that the police dog had alerted to her

baggage and asked if she was carrying any narcotics. Ms. Holley denied carrying

any narcotics and agreed to a search of her bag. The search revealed no

contraband. Ms. Holley then agreed to a search of her purse, which also failed to

reveal narcotics. Finally, the detective asked Ms. Holley if she could perform a

pat search of her and her clothing. Ms. Holley agreed to the pat search. This

search turned up two packages of cocaine in a tight-fitting garment around Ms.

Holley's waist. Ms. Holley then told the detective she had left two other packages

of cocaine in the restroom.



      Ms. Holley moved to suppress evidence obtained during the pat search,

evidence seized from the trash can in the restroom, and incriminating statements

she made after discovery of the cocaine, claiming they were the product of an

illegal seizure of Ms. Holley. Following an evidentiary hearing, the district court

denied Ms. Holley's motion, ruling probable cause existed for the searches and,

alternatively, she voluntarily consented to the searches.



      On appeal, Ms. Holley contends the district court erred in failing to find the


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circumstances surrounding her initial contact with the police constituted an illegal

seizure of her person.



      When reviewing the denial of a motion to suppress, this court views the

evidence in the light most favorable to the government. See United States v.

Austin, 66 F.3d 1115, 1118 (10th Cir. 1995), cert. denied, 516 U.S. 1084 (1996).

We accept the district court's factual findings unless they are clearly erroneous,

and we review de novo the legal question of whether the government conducted

an unconstitutional search or seizure. Id.



      Ms. Holley argues all evidence derived from her encounter with the

detectives should be suppressed because she was illegally detained by the

members of the drug interdiction detail who met her outside of the restroom. Ms.

Holley further argues her consent to the search of her person was improperly

obtained because of her illegal detention and therefore the evidence seized as a

result of the search should be suppressed. Because we find the detectives did not

illegally detain Ms. Holley, we need not address this second argument.



      In support of her contention she was illegally detained by the members of

the drug interdiction detail, Ms. Holley raises four specific points: the initial


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encounter was not in public; the dog did not alert specifically to her bag; she was

not advised of her right to not answer questions; and she was outnumbered by

detectives. These points go to the question of consent. Before we reach that

question, however, we must determine if the district court was correct in ruling

the detectives had probable cause for the search of Ms. Holley’s luggage and

person. If the detectives did have probable cause, the question of consent is

irrelevant.



      The district court concluded the detectives did not make any attempt to

approach or detain Ms. Holley before the dog alerted to the luggage. The court

determined the dog’s positive alert to the odor of narcotics from Ms. Holley’s

luggage provided probable cause for the detectives’ subsequent actions.



      This Circuit has ruled “a drug sniffing dog’s detection of contraband in

luggage ‘itself establish[es] probable cause, enough for the arrest, [and] more

than enough for the stop.’” United States v. Williams, 726 F.2d 661, 663 (10th

Cir.) (quoting United States v. Waltzer, 682 F.2d 370, 372 (2d Cir. 1982), cert.

denied, 463 U.S. 1210 (1983)), cert. denied, 467 U.S. 1245 (1984); see also, e.g.,

United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.) (“when the dog

‘alerted,’ there was probable cause to arrest [the defendants]”), cert. denied, 513


                                         -5-
U.S. 1059 (1994); United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993)

(“We therefore have held in several cases that a dog alert without more gave

probable cause for searches and seizures.”). “[I]f the use of the drug sniffing

dog was proper, the dog’s detection of drugs in defendant’s suitcase constituted

probable cause.” Williams, 726 F.2d at 663. The district court correctly found

the use of the drug sniffing dog to be proper, 1 so the detectives had probable

cause to detain Ms. Holley and search her and her luggage.



      To the limited extent she discusses probable cause, Ms. Holley attempts to

distinguish this line of cases by claiming it was unclear whether the dog alerted to

her or Mr. Fox’s luggage. This argument assumes the dog did not alert to both

pieces of luggage. The district court appears to have found the dog did, indeed,

alert to Ms. Holley’s luggage (“The dog’s positive alert to the odor of narcotics

from the Defendant’s luggage ....” and “Prior to the dog’s alert to the Defendant’s

luggage ....”). However, for purposes of this review, we will assume the dog

alerted to only one of the two pieces of luggage.




      1
         The exposure of luggage located in a public place to a drug-sniffing dog does not
constitute a “search” within the meaning of the Fourth Amendment. See United States v.
Garcia, 42 F.3d 604, 605 (10th Cir. 1994), cert. denied, 514 U.S. 1073 (1995).


                                           -6-
      “The Fourth Amendment probable cause standard deals with probabilities

and common sense conclusions, not certainties.” United States v. Orr, 864 F.2d

1505, 1508 (10th Cir. 1988) (citing Illinois v. Gates, 462 U.S. 213, 231 (1983)).

“A ‘fair probability’ or a ‘substantial basis’ for believing evidence of a crime will

be found at a certain location constitutes probable cause.” Id. (citing Gates, 462

U.S. at 236).



      Even if the detectives were uncertain about which piece of luggage caused

the dog to alert, they still had enough information to determine to a “fair

probability” that Ms. Holley was transporting narcotics: Ms. Holley was dressed

unusually for a warm day in a bulky long-sleeved jacket; she left the area of her

luggage once the drug sniffing dog appeared; she paced and acted nervously in

the restroom; and the dog alerted to her luggage and that of her apparent traveling

companion, Mr. Fox. The existence of two bags adds some doubt to the equation,

but not much. 2 Given the circumstances of this case (and our obligation to view

the facts in the light most favorable to the government), we are confident that



      2
         Ms. Holley asks if the government would have probable cause to detain the
owners of ten bags stacked together if a dog alerted to the stack. We do not have to
decide that question. At some point, of course, the number of bags would be so great that
probable cause would not exist. Today we only decide that two bags, under the
circumstances of this case, is not too great a number.


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dog’s alert to the two bags does not undermine our general rule that dog alerts

provide sufficient probable cause. See Klinginsmith, 25 F.3d at 1510 (finding dog

alert to outside of car was probable cause for arrest of both occupants).



      Ms. Holly also argues there was only probable cause to search her luggage,

not her person. In support of this argument, she cites United State v. Place, 462

U.S. 696 (1983), where the Supreme Court noted that even when reasonable

suspicion or probable cause exists to detain a bag for a drug sniff, the owner is

technically free to leave. Id. at 708. That case, however, is inapposite. In it, the

Supreme Court was considering whether the Fourth Amendment prohibits the

detention of luggage for exposure to a narcotics detection dog on the basis of

reasonable suspicion the luggage contains narcotics. Id. at 697-98. Our case, in

contrast, does not deal with the events before luggage has been exposed to a

narcotics detection dog, but rather it concerns the events after a dog has alerted to

luggage. Consistent with the line of cases cited above, a dog alert gives probable

cause for searches, seizures, and arrests.




      Because the detectives had probable cause for their actions, we AFFIRM


                                             -8-
the district court’s denial of Ms. Holley’s Motion to Suppress.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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