                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 27, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 10-5167
    v.                                        (D.C. No. 4:09-CR-00138-CVE-9)
                                                         (N.D. Okla.)
    ERLIN AYALA,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


         Defendant Erlin Ayala appeals his conviction by a jury for possessing with

intent to distribute 50 grams or more of a mixture or substance containing

methamphetamine. He argues that the district court erred in denying his motion

to suppress and that there was insufficient evidence to support his conviction.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                   B ACKGROUND

      In October 2009 the federal Drug Enforcement Administration (DEA)

learned that Ruben Garcia-Hernandez, a suspected drug trafficker, would be

participating in a drug transaction. DEA agents and officers from the Tulsa

Police Department began surveilling him. They saw him enter an apartment in

Tulsa and exit carrying a paper bag. He then drove to a gas station, where he

pulled up next to a white Scion bearing Arkansas plates driven by Defendant.

      Tulsa Officer Corbin Collins was watching the gas station. He observed

Defendant exit the Scion, walk over to the passenger side of Garcia-Hernandez’s

vehicle, and place something inside while Garcia-Hernandez stood between the

two vehicles. Collins saw Defendant return to the passenger side of the Scion,

but he could not see “exactly what he was doing.” R., Vol. 3, Jury Tr. Vol. 1 at

27. Afterwards, Defendant got in the Scion, picked up a passenger who had

earlier gone inside the station, and drove north.

      Tulsa Officer Anthony First followed the Scion in the light rain, and

initiated a traffic stop when he observed the Scion make an unsafe lane change.

He approached the car on the passenger side, where he noticed that the

passenger-side window was partially down and that there was “a very strong,

sweet odor coming from the car.” Id., Vol. 2, Mot. Hr’g at 9. Defendant was

unable to produce a driver’s license or proof of insurance, and gave different

versions of who owned the Scion.

                                         -2-
      Officer First returned to his patrol car, accompanied by Defendant, and

began a computer-records check. To obtain the Scion’s vehicle identification

number, First went back to the car, opened the driver’s side door, and examined

the Nader sticker in the door jamb. While there, he asked the Scion’s passenger

about the nature of his and Defendant’s visit to Tulsa. The passenger said that

they were visiting a friend, but he could not remember the friend’s name. Back in

the patrol car, Defendant told First that he was in Tulsa looking for work as a

painter. Suspecting criminal activity, First summoned a canine unit for

assistance.

      A few minutes later, Officer Daryl Johnson arrived with his canine partner,

Max, and began a “free air search” around the Scion, starting at the front

passenger-side headlight and moving counterclockwise around the vehicle. Id. at

42. When he and Max arrived at the passenger-side door, “Max focused in on the

lower edge or the lower seam of the door as well as the seat belt which was

sticking outside of the [Scion].” Id. at 43. Max did not alert, however, and they

resumed circling the Scion. After several more loops around the car, Max “stood

on his back two legs and stuck his nose up in the [driver’s side] window to the

window area and looked to be focusing on something,” but then he became

distracted by the traffic. Id. at 44. The window had been fully open, and Max’s

nose had gone “across the line of the window.” Id. at 45. Max then proceeded

clockwise, stopping 15 or 25 seconds later at the passenger-side door, where he

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“focus[ed] on the window and then again on the seat belt” and “alerted to the odor

of narcotics.” Id. at 46.

      A search of the Scion uncovered almost $1,400 in cash, two cell phones (in

addition to two found on Defendant), two bottles of cologne, and a brown paper

bag on the floor behind the driver’s seat containing methamphetamine wrapped in

cellophane. Defendant and his passenger were arrested and ultimately charged

with possessing with intent to distribute 50 grams or more of a mixture or

substance containing methamphetamine.

      Defendant moved to suppress, alleging that Max “breached the interior of

the vehicle during the sniff.” Id., Vol. 1 at 36. The district court denied the

motion. It said that there was no evidence that the officers rolled down a

window, and even if they did, Max alerted to the passenger-side seat belt, which

was protruding through the closed door.

      At trial, DEA agents and Tulsa officers testified to their surveillance and

search. Garcia-Hernandez, who had pleaded guilty, testified that at the gas

station Defendant had removed from Garcia-Hernandez’s vehicle a paper bag

containing methamphetamine and placed it in the Scion. In addition, in regard to

the methamphetamine seized, DEA agent Michael Rupe testified that its purity

(99.6%) and weight (446 grams) indicated a “distribution quantity,” rather than a

“user quantity.” R., Vol. 3, Jury Tr. Vol. 1 at 124. He also testified that the DEA

had intercepted calls from Defendant’s passenger to Garcia-Hernandez seeking

                                          -4-
pure methamphetamine. And Rupe explained that drug traffickers typically use

multiple cellphones to contact their customers.

      The jury found Defendant guilty, and the district court sentenced him to 60

months’ imprisonment.

                                   D ISCUSSION

                               M OTION TO S UPPRESS

      Defendant argues that Max’s alert to the methamphetamine was invalid and

that the district court erred in denying his motion to suppress. 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). In conducting our review, we view “the evidence in

the light most favorable to the government.” Id.

      The Fourth Amendment, applicable to the States through the Fourteenth

Amendment, protects “against unreasonable searches and seizures.” U.S. Const.

amend. IV. But “[a] canine sniff itself does not implicate Fourth Amendment

rights because of the limited information it provides and its minimal

intrusiveness.” United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998).

A positive alert by a certified drug dog generally provides probable cause for

officers to search a vehicle. See United States v. Parada, 577 F.3d 1275, 1282

(10th Cir. 2009), cert. denied, 130 S. Ct. 3321 (2010). Officers may not,

however, rely on a dog’s alert if they open part of the vehicle so the dog can enter

                                        -5-
or if they encourage the dog to enter. See United States v. Winningham, 140 F.3d

1328, 1331 (10th Cir. 1998); cf. United States v. Stone, 866 F.2d 359, 364 (10th

Cir. 1989) (reliance on alert was proper when dog’s entry into vehicle was

instinctive). 1

       Defendant challenges Max’s intrusion with his nose into the Scion through

the driver’s side window, arguing that the “window was rolled down, and the

officers provided no explanation for the window being down.” Aplt. Br. at 21.

He theorizes that he would not have rolled it down because it was raining and

because Officer First spoke with the occupants from the passenger side. But the

evidence offered at the suppression hearing suggests that the Scion’s occupants

likely opened the window. According to Officer First, it was only “kind of rainy”

or “drizzly.” R., Vol. 2, Mot. Hr’g at 7, 29. Further, when he approached the car

after pulling it over, the passenger-side window was already partially down. And

although First opened the driver’s side door to obtain the vehicle identification

number, the Nader sticker was in the door jamb, so viewing it would not have

required opening the window. Finally, Officer Johnson, who accompanied Max

around the Scion, testified in detail about the free-air search but never mentioned

opening the driver’s side window or doing anything to encourage Max to stick his

nose through the window.

1
       Although “[i]n exceptional cases, a dog alert might not give probable cause
if the particular dog had a poor accuracy record,” Parada, 577 F.3d at 1281
(internal quotation marks omitted), there is no dispute here as to Max’s accuracy.

                                         -6-
      We conclude that Defendant has not met his “burden of establishing a

Fourth Amendment violation.” United States v. Chavira, 467 F.3d 1286, 1290

(10th Cir. 2006).

                           S UFFICIENCY OF THE E VIDENCE

      Defendant argues that the evidence at trial showed only that he possessed

the methamphetamine found in the Scion, not that he intended to distribute it.

“We review sufficiency of the evidence challenges de novo, viewing the evidence

in the light most favorable to the government.” Parada, 577 F.3d at 1283. “We

reverse only if no rational jury could have found each element of the crime

beyond a reasonable doubt.” Id.

      “[W]e have repeatedly stated that possession of a large quantity of

narcotics is sufficient to establish the element of intent to distribute.” United

States v. Delreal-Ordones, 213 F.3d 1263, 1268 n.4 (10th Cir. 2000). And DEA

Agent Rupe testified that the large amount and high purity of the

methamphetamine in this case suggest intent to distribute, rather than mere

possession. He further testified that multiple cellphones, such as the ones

recovered in the Scion, also indicate drug trafficking.

      We conclude that the evidence was sufficient to convict Defendant on the

charge of possession with intent to distribute.




                                         -7-
                          C ONCLUSION

The judgment of the district court is AFFIRMED.

                                          Entered for the Court


                                          Harris L Hartz
                                          Circuit Judge




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