                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                       PUBLISH
                                                                               APR 6 1998
                      UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                  Clerk
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff-Appellant,
 v.
                                                            No. 97-2105
 KENNETH HERMAN WINNINGHAM,

        Defendant-Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                         (D.C. No. 96-CR-613)




John J. Kelly, United States Attorney (Mick I.R. Gutierrez, Assistant United States
Attorney, with him on the briefs), Las Cruces, New Mexico, for Plaintiff-Appellant.

Peter E. Edwards, Assistant Federal Public Defender (Ann Steinmetz, Federal Public
Defender, with him on the brief), Las Cruces, New Mexico, for Defendant-Appellee.


Before PORFILIO, MCKAY, and BRISCOE, Circuit Judges.


PORFILIO, Circuit Judge.



      The government appeals a district court order suppressing evidence obtained by

using a trained dog to perform a roadside search of a van. The government argues: (1)
United States v. Stone, 866 F.2d 359 (10th Cir. 1989), controls this case and places the

drug dog’s activity outside the scope of the Fourth Amendment; and (2), in any event, the

driver’s consent cures any potential Fourth Amendment violation. We conclude Stone

does not apply in this instance and the consent was involuntarily given. We therefore

affirm.

                                       I. Background

          Acting on information, New Mexico border patrol agents stopped a van on the

reasonable suspicion it might be carrying undocumented aliens. Agent Carlos Almengor

approached the van to question the occupants while three other border patrol agents stood

nearby, behind the van, as backup. Agent Almengor asked the driver, Mr. Kenneth

Winningham, and his passenger, Mr. Navarrete, for citizenship papers. Mr. Winningham

and Mr. Navarrete produced papers indicating they were legally within the United States.

Agent Almengor told Mr. Winningham he had information Mr. Winningham’s van was

being used to smuggle illegal aliens into the United States and asked to search the van.

Mr. Winningham consented. Agent Almengor asked Mr. Winningham and Mr. Navarrete

to step out of the van and stand near the other three border patrol agents.

          Agent Almengor opened the sliding door of the van and conducted a visual search

of its interior. Finding no one inside, Almengor left the van door open, told Mr.

Winningham he also had information the van was carrying narcotics, and asked

permission to “run a dog on [the] vehicle.” Mr. Winningham agreed. Because the agents


                                            -2-
did not have a drug dog with them, Mr. Winningham, Mr. Navarrete, and the four border

patrol agents waited five or six minutes for the dog and two other agents to arrive.

       Throughout the encounter, whenever Mr. Winningham or Mr. Navarrete moved,

the border patrol agents moved with them. At one point, Mr. Winningham appeared to be

moving away from the van and up a nearby hill, and one of the agents moved with Mr.

Winningham, prepared to intercept him should he take flight. At the suppression hearing

Agent Almengor admitted, although Mr. Winningham was supposed to be free to leave at

that point, the agents were “trying to keep him there.” Agent Robert Palacios, the dog

handler, arrived with another agent and the drug dog, bringing the number of armed and

uniformed agents to six.

       Agent Palacios started the dog at the front passenger side of the van. Palacios

testified he observed a “just noticeable difference” in the dog’s conduct as he and the dog

reached the rear of the van. Palacios unleashed the dog. The dog continued to sniff,

moving around the right side of the van. When the dog reached the open door, he jumped

into the van and methodically sniffed the van’s interior. Eventually the dog alerted at a

rear vent. Inside the vent, the agents discovered 50 kilograms of marijuana.

       Mr. Winningham was arrested for possession of marijuana with intent to distribute.

In a pretrial motion, Mr. Winningham moved to suppress the evidence borne of the stop.

Following closing argument in the suppression hearing, the district court announced it




                                            -3-
would review the court reporter’s notes and make a ruling on the motion. After reviewing

the notes, the court returned and made the following statement:

       The transcript reflects that Agent Almengor asked for permission to run a
       dog on the vehicle, and this was granted. Consent is not to be lightly
       inferred or unnecessarily extended. Whether or not voluntary consent was
       given is a question of fact based on the totality of the circumstances.

       Under all the circumstances, and particularly the fact that the defendant at
       one point attempted to back up and apparently leave, I’m going to find that
       there was no voluntary consent for the dog to enter the cabin of the van
       and suppress the evidence. So defendant’s motion will be granted.1

(emphasis added). The government filed a motion to reconsider, arguing Stone placed

the dog’s activities outside the scope of the Fourth Amendment. The district court denied

the government’s motion for reconsideration and issued a written order suppressing the

narcotics. In the order, the district court noted the consent problem, but granted

suppression on the ground the second interior search of the van exceeded the scope of Mr.

Winningham’s consent. The government appealed.

                                 II. United States v. Stone

       The government argues United States v. Stone, 866 F.2d 359 (10th Cir. 1989), is

the controlling authority in this case and the district court erred by distinguishing the case.

In Stone, we held the Fourth Amendment was not implicated when a trained drug dog

leapt into the open hatchback door of a suspect’s car during a valid Terry stop because


       1
        Although the dissent asserts we have mischaracterized the court’s finding, these
words speak for themselves. The district court simply found the defendant’s consent to
the entry of his van by the dog was involuntary.

                                             -4-
the dog’s action was “instinctive.” Acting on reasonable suspicion that Mr. Stone

possessed narcotics, police officers stopped his car and asked to see a citation he had

received earlier in the day. Mr. Stone opened his hatchback door to retrieve the citation

and, while the door was open, an officer’s drug dog leapt into the rear of the car and

alerted on a duffel bag. The police then searched the duffel bag and the car and

discovered narcotics. Mr. Stone was arrested and charged with possession of narcotics

with intent to distribute.

       Although the officers in Stone had reasonable suspicion justifying the stop, until

the dog alerted on the duffel bag, the Stone court reasoned, the officers had no probable

cause to search Mr. Stone’s vehicle. Id. at 362-63. The dog, the court observed, “created

a troubling issue under the Fourth Amendment” because he did not key on the duffel bag

until he was inside Mr. Stone’s car. Id. at 363. If the dog’s leap into the car violated the

Fourth Amendment, police were not entitled to draw probable cause from the dog’s alert,

and the resulting search was illegal. Based on the facts of Mr. Stone’s case, we decided

the dog’s leap did not implicate the Fourth Amendment. Id. at 364.

       Mr. Winningham’s case differs from Stone in two material respects, either of

which, in our opinion, renders Stone inapposite. First, our holding in Stone was driven

not by what the officers did, but what they did not do:

       There is no evidence, nor does Stone contend, that the police asked Stone to
       open the hatchback so the dog could jump in. Nor is there any evidence the
       police handler encouraged the dog to jump in the car. The judge asked the
       Officer in charge of the dog: "So you didn't encourage him or discourage

                                            -5-
       him from jumping into the back?" And the Officer replied: "That's correct.
       I just let his leash go and let him go where his nose would take him." In
       these circumstances, we think the police remained within the range of
       activities they may permissibly engage in when they have reasonable
       suspicion to believe an automobile contains narcotics.

Stone, 866 F.2d at 364. In Mr. Winningham’s case, the officers themselves opened the

door, allowing the van to sit on the side of the highway with the sliding door wide open

for a period of at least six minutes until the drug dog could arrive. The dog handler then

unleashed the dog as the dog neared the open door. A desire to facilitate a dog sniff of

the van’s interior, absent in Stone, seems readily apparent here.2

       Second, the officers in Stone acted under reasonable suspicion, a circumstance

underscored by our limited holding. Id. (holding, “[i]n these circumstances, we think the

police remained within the range of activities they may permissibly engage in when they

have reasonable suspicion to believe an automobile contains narcotics” (emphasis

added)). In the present case, however, as we discuss in Part III, reasonable suspicion was

exhausted after Officer Almengor searched the van’s interior. The subsequent police

activity — detaining the van for six minutes to await the dog and allowing the dog to sniff



       2
         The dissent infers more from this statement than intended. We do not state, nor
do we imply, the officers “encouraged” the dog to enter the vehicle. We do, however,
draw a distinction between this case and Stone based upon the conduct of the officers that
“facilitated” the dog’s entry into the van. In Stone the defendant himself opened his
vehicle and provided an opportunity for the dog to jump through the opening. Here, it
was Agent Almengor who opened the door to the van, thus creating the opportunity. This
fact is in the testimony and clear from the record. Citing it does not depend upon an
assessment of the credibility of the witness.

                                            -6-
any portion of the van, internal or external — was permitted, if at all, by Mr.

Winningham’s consent, not by reasonable suspicion. Because the range of acceptable

police activity in the absence of reasonable suspicion may differ considerably from the

range of acceptable police activity in the presence of reasonable suspicion, we see no

reason to find Stone controlling here. Stone is therefore distinguishable on both factual

and legal grounds and is not controlling authority in this case.

                                        III. Consent

       Agent Almengor testified, the district court found, and we agree, when Agent

Almengor opened the van door and found no undocumented aliens inside and no

articulable reason to suspect the presence of narcotics, he exhausted the reasonable

suspicion upon which the stop was predicated. Any further interaction between Agent

Almengor and Mr. Winningham required Mr. Winningham’s consent. United States v.

Peters, 10 F.3d 1517, 1522 (10th Cir. 1993) (“[I]f probable cause is not developed during

a Terry-type encounter, the officer must release the suspect. . . . Absent a new and

independent basis for suspicion, the officer must halt his investigation in accordance with

Terry and Place.” (citing Terry v. Ohio, 392 U.S. 1 (1968), and United States v. Place,

462 U.S. 696 (1983))). We therefore consider the validity of Mr. Winningham’s consent.

       When a search is conducted pursuant to a suspect’s consent, the government bears

the burden of proving consent and must show by “clear and positive testimony that

consent was unequivocal and specific and freely given . . . without duress or coercion,


                                            -7-
express or implied.” United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993)

(citing United States v. Butler, 966 F.2d 559, 562 (10th Cir. 1992)). The voluntariness of

consent is a question of fact to be determined from the totality of the circumstances.

United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990). Here, the district court,

after reviewing the suppression hearing transcripts, made an oral finding “that there was

no voluntary consent for the dog to enter the cabin of the van.” We will accept this

finding unless it is clearly erroneous. United States v. Wright, 932 F.2d 868, 878 (10th

Cir. 1991).

       In determining whether consent was obtained “without duress or coercion, express

or implied,” we will consider, among other factors, whether the consent request occurs

during the suspect’s detention, United States v. Nicholson, 983 F.2d 983, 988 (10th Cir.

1993); whether the officer fails to inform the suspect he or she was free to leave or refuse

consent, United States v. Orrego-Fernandez, 78 F.3d 1497, 1505 (10th Cir. 1996);

whether the person granting consent exhibits discomfort during the search or expresses a

desire to halt the search, United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996);

United States v. Corral, 899 F.2d 991, 994 (10th Cir. 1990); and whether multiple

officers are present, United States v. Soto, 988 F.2d 1548, 1558 (10th Cir. 1993).

       At the time Agent Almengor asked Mr. Winningham for consent to “run a dog on

the vehicle,” Mr. Winningham knew Agent Almengor had taken a specific interest in him

and his van; this was not an ordinary traffic stop. Mr. Winningham had been asked to


                                            -8-
step out of his vehicle and told to stand near three armed and uniformed officers. At no

time during the encounter was Mr. Winningham told he had a right to refuse consent and,

although Agent Almengor had exhausted the reasonable suspicion that had initially

justified the stop, Mr. Winningham was not told he was free to leave. During the search,

Mr. Winningham began to move away from the van, up a hill near the roadside, only to

find his progress blocked by the attending agents. In short, Mr. Winningham’s case

demonstrates several of the factors indicative of involuntary consent. Although each of

these factors would not, by themselves, raise doubt regarding Mr. Winningham’s consent,

given the presence of multiple relevant factors and the totality of the circumstances, we

cannot conclude the district court clearly erred in finding Mr. Winningham’s consent

involuntary; nor can we conclude the government has shown, as it must, that Mr.

Winningham’s consent was obtained “without duress or coercion, express or implied.”

McKneely, 6 F.3d at 1453 (citing United States v. Butler, 966 F.2d 559, 562 (10th Cir.

1992)). Absence of voluntary consent alone would render the subsequent search illegal

and justify suppression of the narcotics in this case; therefore, we need not consider

whether the district court erred in concluding the second search exceeded the scope of

Mr. Winningham’s consent.

       Because the dissent questions our review of the district court’s conclusions, we

reflect specifically upon the written findings of fact made by the district court which state:

“Agent Almengor did not request and Defendant did not grant permission for the dog to


                                             -9-
search inside the Van.” In reference to the apparent attempt by the defendant to “back up

and apparently leave” while the dog was walking around the van, the court also noted:

“Although this raises a question as to whether Defendant was ‘detained’ and whether he

felt compelled to permit the dog ‘on the Van,’ this Court did not grant the motion on this

basis.” (citation omitted). Indeed the court’s written conclusion was focused upon Agent

Almengor’s use of the curiously ambiguous phase “on the van”; holding permission to

“run a dog on the van” could not be understood as consent for the animal to enter the

vehicle.

       These conclusions notwithstanding, the district court did not refute its earlier oral

finding regarding the involuntary nature of the defendant’s consent. It merely decided,

without explanation, to walk down a different path. That decision does not preclude us

from relying on the oral finding, however, because we may affirm the district court on a

wholly different basis so long as our decision finds support in the record. Bolton v.

Schrivener, 36 F.3d 939, 942 (10th Cir. 1994) (The appellate court may affirm summary

judgment “on grounds other than those relied on by the district court when the record

contains an adequate and independent basis for that result.”).

                                      IV. Conclusion

       Because United States v. Stone differs both factually and legally from the present

case, the district court correctly distinguished it. Upon reviewing the totality of the

circumstances surrounding Mr. Winningham’s stop, we are unable to conclude the district


                                            - 10 -
court clearly erred in finding Mr. Winningham’s consent was involuntarily given.

Involuntary consent renders the resulting search invalid, and we therefore AFFIRM the

district court order granting Mr. Winningham’s motion to suppress the evidence

discovered during the roadside search of his van.




                                          - 11 -
No. 97-2105, United States v. Winningham

BRISCOE, Circuit Judge, dissenting:

      I respectfully dissent. I believe United States v. Stone, 866 F.2d 359, 364

(10th Cir. 1989), controls the outcome of this case and cannot be distinguished.

Further, I believe the majority is mischaracterizing the district court’s findings

and conclusions regarding Winningham’s consent. The court did not conclude

Winningham’s consent to use of a drug detection dog was involuntary, but rather

it concluded the dog’s entering the van exceeded the scope of the consent

voluntarily given. Specifically, the court concluded Winningham’s consent to

“run a dog on the vehicle” was not a consent to permit the dog to enter the

vehicle. Therefore, by reviewing a conclusion that Winningham’s consent was

involuntary, the majority is reviewing a conclusion the district court did not make.

      In Stone, we affirmed the district court’s decision to deny suppression of

evidence located by the instinctive actions of a drug detection dog. We agreed

with the conclusion of the district court in Stone that the dog’s instinctive actions

did not violate the Fourth Amendment. As in the present case, the court there did

not find the dog handler had encouraged the dog to jump into the vehicle. In

reviewing the district court’s denial of Stone’s motion to suppress, we considered

the totality of the circumstances and viewed the evidence in a light most favorable

to the government. See United States v. Wood, 106 F.3d 942, 945-46 (10th Cir.

1997). Similarly, in reviewing the district court’s suppression of the marijuana
located in Winningham’s van, we view the evidence in a light most favorable to

Winningham, accept the court’s factual findings, unless clearly erroneous, and

review the court’s legal conclusions de novo. Id. As in Stone, we are not

permitted on appeal to judge the credibility of witnesses, determine the weight to

be afforded testimony, or draw reasonable inferences or conclusions from the

testimony, as these are matters within the exclusive province of the district court.

See United States v. Gutierrez-Daniez, 131 F.3d 939, 940 (10th Cir. 1997).

      The majority holds Stone does not apply because Agent Palacios, the canine

handler, encouraged the dog to jump into Winningham’s van. The district court

did not make a factual finding that Agent Palacios encouraged the dog to enter

Winningham’s van and a review of the record further refutes this conclusion. As

regards the actions of the officers prior to the dog’s entry into the van, the court

found: “As Agent Palacios brought [the dog] around the back of the Van, the dog

began ‘to act on his own.’ Agent Palacios then released Sam who ran inside the

Van through the door Agent Almengor had opened and began pawing a vent in the

rear of the Van.” Record I, Doc. 46 at 2. The majority describes the path of the

dog around the van and concludes since Agent Palacios unleashed the dog near

the open door of the van, he encouraged the dog to enter the van. However,

Agent Palacios testified:

             Q. . . . Now, you ran the dog, you said, starting at the left front end?
             A. Yes, sir.

                                          -2-
             Q. And which direction did the dog go from there?
             A. We started going south, working towards the back of the vehicle,
      and then around.
             Q. Through the side of the driver?
             A. Right.
             Q. Okay.
             A. On the left side.
             Q. When you run the dog around the vehicle, is the dog on a leash?
             A. In that case, being so close to the interstate, I keep the dog on the
      leash.
             Q. So now you’re walking the dog around on the leash, and you said
      there was a JND [Just Noticeable Difference]? . . . .
             A. On the back, once he got towards the back, he started to show--
      it’s something that you notice that the dog does, like he starts working a
      scent.
             Q. What specifically can you recall on that?
             A. He started going up and down, back underneath, and working
      where he went into the vehicle on his own. He jumped into the vehicle,
      working the scent.
             Q. You allowed him to do that since he was still on a leash; is that
      correct?
             A. I let him go.
             Q. He was off the leash then?
             A. Once he started working and he was off the interstate side, I let
      him go.

Record II at 51-52. Thus, the record clearly reflects Agent Palacios led the dog

around the entire length of the van, unleashing him at the back of the van only

after he had alerted and was no longer in danger of being struck by oncoming

vehicles. Even viewing the evidence in a light most favorable to Winningham,

the record does not support the conclusion that Agent Palacios unleashed the dog

near the open door of the van, thereby encouraging the dog to enter the van.




                                         -3-
      Regardless of the path taken around the van, the district court did not find

and the record does not demonstrate that Agent Palacios encouraged the dog to

jump into the van. Agent Almengor already had opened the side door of the van

to look inside for illegal aliens before the drug detection dog arrived. He testified

that “[t]he dog just, on its own, went into the vehicle because the side door that I

had opened was left open.” Id. at 27. These circumstances are indistinguishable

from those in Stone where the canine handler testified he unleashed the dog and

“let him go where his nose would take him.” 866 F.2d at 364. The distinction

that here Agent Almengor opened the side door of the van while in Stone,

defendant himself opened the hatchback of his car, is insignificant. Winningham

consented to Agent Almengor opening the side door of the van.

      To reach the conclusion that the agents did not encourage the drug

detection dog to enter Winningham’s van, one need not judge the credibility of

witnesses, determine the weight to be afforded testimony, or draw inferences or

conclusions from the testimony. This conclusion is based upon the district court’s

factual findings. Viewed in a light most favorable to Winningham, the court did

not find the agents encouraged the dog to enter the van. Instead, the court found

when Agent Palacios brought the drug detection dog around the van, “the dog

began ‘to act on his own.’” Record I, Doc. 46 at 2.




                                          -4-
      The majority also states that “the range of acceptable police activity in the

absence of reasonable suspicion may differ considerably from the range of

acceptable police activity in the presence of reasonable suspicion.” Majority Op.

at 6. Therefore, the majority reasons since the agents did not have reasonable

suspicion to detain Winningham when the dog jumped into the van, Stone does

not control. The district court did not distinguish Stone on these grounds but if it

had, we would review the conclusion de novo.

      If officers have reasonable articulable suspicion that an individual is

committing or has committed a crime, they are permitted to take actions that

would be impermissible in the absence of reasonable suspicion. Boiled down to

its essential premise, that was the Supreme Court’s holding in Terry v. Ohio, 392

U.S. 1 (1968). The majority relies on this basic premise to distinguish the acts of

the officers in Stone with those of the officers here. However, the majority’s

conclusion ignores the fact that Winningham gave consent to the investigating

officers to look in the back of his van and “to run a dog” on the vehicle. Record

II at 12. The range of acceptable police activity is arguably broader when consent

has been given by the suspect than when the police merely have reasonable

articulable suspicion that a suspect is violating the law, as was the case in Stone.

The majority’s decision to ignore the fact that Winningham gave his consent and

to focus on the fact that the agents did not have a reasonable articulable suspicion


                                          -5-
that Winningham was engaged in illegal activity when the dog was used is

especially troubling here because the police had a reasonable articulable suspicion

that Winningham was transporting illegal aliens and narcotics when his vehicle

was initially stopped.

      I also disagree with the basic foundation of the majority’s opinion--that

Winningham’s consent was involuntary. The majority states the district court

made an “oral finding [of fact] ‘that there was no voluntary consent for the dog to

enter the cabin of the van,’” and then reviews this finding for clear error.

Majority Op. at 7. I read the court’s oral statement and written findings

differently. In its written findings, the court clearly stated it was suppressing the

marijuana because the officers exceeded the scope of Winningham’s consent, not

because his consent was involuntary. Specifically, the court stated the

circumstances surrounding Winningham’s detention and questioning “raise[] a

question as to whether Defendant . . . felt compelled to permit the dog ‘on the

Van, [but] this Court did not grant the motion on this basis.” Record I, Doc. 46 at

2 n.1 (citation omitted).

      Since the district court did not find Winningham’s consent was involuntary,

this court is not required to accept this fact and review for clear error. Instead,

the court implicitly found consent was voluntary. This finding should be accepted

by this court absent clear error. See United States v. Pena, 920 F.2d 1509, 1514


                                          -6-
(10th Cir. 1990). I would conclude the district court’s implicit conclusion that

Winningham’s consent was voluntary is not clearly erroneous. Instead, I believe

the government established his consent was obtained without “duress or coercion,

express or implied.” United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir.

1993).

         I would conclude Winningham voluntarily consented to a limited search of

his van and that the instinctive actions of the dog during that limited search did

not violate the Fourth Amendment under Stone. Accordingly, I would reverse the

district court’s order suppressing the marijuana.




                                         -7-
