                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1371
                        ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                                Javier Pulido-Ayala,

                      lllllllllllllllllllllDefendant - Appellant.
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                         Submitted: November 16, 2017
                             Filed: June 5, 2018
                                ____________

Before COLLOTON and GRUENDER, Circuit Judges, and READE,1 District Judge.
                         ____________

COLLOTON, Circuit Judge.

       This appeal concerns whether police violated the Fourth Amendment rights of
Javier Pulido-Ayala when a police drug dog instinctively lunged into Pulido-Ayala’s
vehicle. Police eventually found drugs in the car, and Pulido-Ayala entered a

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, sitting by designation.
conditional plea to a drug trafficking charge, reserving the right to appeal whether the
evidence was the fruit of an unlawful search. Assuming for the sake of analysis that
the dog’s entry into the vehicle was a “search” under the Fourth Amendment, we
conclude on the facts here that the search was justified by probable cause to believe
that the car contained contraband. We therefore reject Pulido-Ayala’s contention that
evidence seized from the vehicle should have been excluded from a trial, and we
affirm the judgment of the district court.2

                                           I.

       The incident in question occurred after the Missouri Highway Patrol and
Lafayette County Drug Task Force set up a ruse checkpoint to investigate drug
trafficking on Interstate 70. Immediately before an exit ramp, law enforcement
officers placed several signs that announced a fictitious drug checkpoint located a
quarter-mile ahead. The chosen exit had no amenities, so drivers ordinarily would not
leave the highway there for fuel or food.

        On the morning of October 8, 2015, Detective Hammond of Lafayette County
saw a red Mini Cooper traveling east on Interstate 70 in the left lane. Hammond
testified that after the car passed the checkpoint signs, it made an “abrupt jerk” to the
right lane and exited at “a high rate of speed.” The vehicle changed lanes without
using a turn signal, failed to obey the stop sign at the top of the exit ramp, and
immediately returned to the highway on the other side, heading west and away from
the fictitious checkpoint.




      2
        The Honorable David Gregory Kays, Chief Judge, United States District Court
for the Western District of Missouri, adopting the report and recommendation of the
Honorable Robert E. Larsen, United States Magistrate Judge for the Western District
of Missouri.

                                          -2-
      Hammond notified colleagues, and two officers in a patrol car began to follow
the Mini Cooper. The patrolmen activated their lights and siren to stop the vehicle.
There were two men in the Mini Cooper; Pulido-Ayala was the driver. A state
trooper brought Pulido-Ayala back to the patrol car. The second officer, Sanders,
remained near the Mini Cooper and spoke with the passenger, Sandoval-Herrera,
through the open front passenger’s window.

       About ten minutes after the stop, Patrol Sergeant McGinnis arrived at the scene
with a drug dog named “Jampy” in his vehicle. Jampy was a German Shepherd
trained to detect the odor of illegal narcotics with a track record of reliability over two
years. After a brief conversation with Sanders and Sandoval-Herrera, McGinnis
decided to employ Jampy to conduct a narcotics sniff.

      Before retrieving the dog from his car, McGinnis asked Sandoval-Herrera
whether he wanted to remain in the vehicle during the dog sniff or get out. Sandoval-
Herrera asked to leave the car, and a video recording of the incident shows that he
opened the door and walked away. As Sandoval-Herrera exited the car, Sanders had
his hand on the door, and neither Sandoval-Herrera nor Sanders closed the door after
Sandoval-Herrera was outside the vehicle.

       McGinnis brought the canine to the rear of the Mini Cooper. He later testified
that his intent was to start down the driver’s side and to walk Jampy clockwise around
the vehicle. McGinnis told Jampy to “find it”—the signal to begin the sniff—and the
dog immediately pulled McGinnis toward the open door on the passenger’s side.
Jampy jumped into the car through the opening and “alerted” (i.e., signaled the
presence of drugs) at the fender area. McGinnis pulled the dog out of the opening
and attempted to walk him clockwise around the vehicle. Again, Jampy snapped his
head back and went through the open door, alerting at the same location. Based on
the canine’s alert, officers searched the Mini Cooper and found three kilograms of
cocaine inside the fender of the vehicle.

                                           -3-
       A grand jury charged Pulido-Ayala with aiding and abetting possession with
the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B),
and 18 U.S.C. § 2. Pulido-Ayala moved to suppress evidence obtained from the car
on the ground that the search violated his rights under the Fourth Amendment. The
district court denied the motion, reasoning that the officers had probable cause to
search the Mini Cooper after Jampy instinctively jumped through the vehicle door
and alerted. We review the district court’s factual findings for clear error and the
legal determinations de novo. See United States v. Bloomfield, 40 F.3d 910, 918 (8th
Cir. 1994).

                                          II.

       The use of a well-trained narcotics dog around the exterior of a vehicle that has
been lawfully stopped “does not expose noncontraband items that otherwise would
remain hidden from public view,” United States v. Place, 462 U.S. 696, 707 (1983),
and “generally does not implicate legitimate privacy interests.” Illinois v. Caballes,
543 U.S. 405, 409 (2005). “Official conduct that does not ‘compromise any
legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Id.
at 408 (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)). Consequently,
“[t]he use of the drug-sniffing dog on the exterior of a vehicle during a valid traffic
stop” is not a search and “does not infringe upon any Fourth Amendment rights.”
United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005).

       The inside of a car, however, is typically a different story. Police ordinarily
cannot search the interior of an automobile unless they have probable cause to believe
that the vehicle contains contraband or other evidence of a crime. California v.
Carney, 471 U.S. 386, 392 (1985); United States v. Ross, 456 U.S. 798, 823 (1982).
A drug dog is an instrumentality of the police, and the actions of “an instrument or
agent” of the government normally are governed by the Fourth Amendment. Skinner
v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614 (1989). It is foreseeable that trained

                                          -4-
canines will react instinctively to the scent of drugs, and Pulido-Ayala argues with
some force that when police bring a dog to a scene with an open car door, and the dog
enters a citizen’s vehicle, the police have conducted a “search” within the meaning
of the Fourth Amendment. See United States v. Winningham, 140 F.3d 1328, 1331
(10th Cir. 1998).

       The government, citing prior decisions, suggests that if there is no “police
misconduct,” then the “instinctive action” of a trained police canine to enter a car
does not violate the Fourth Amendment. In United States v. Michael Lyons, 957 F.2d
615 (8th Cir. 1992), this court did say that “[w]ithout misconduct by the police,” a
dog’s “instinctive actions” in tearing open a package in an airline freight room did not
constitute a “search.” Id. at 617. In that case, however, the court continued by
reasoning that the dog’s alert alone, without the unintended opening of the package,
would have given investigators probable cause to search the package, so the
inevitable discovery doctrine justified admitting evidence of the package’s contents.
Id. Likewise, although United States v. Kelvin Lyons, 486 F.3d 367 (8th Cir. 2007),
cited Michael Lyons for the proposition that “instinctive actions of a trained canine
do not violate the Fourth Amendment,” that decision too concluded that the
challenged search inevitably would have occurred based on independent probable
cause, even if the drug dog had not instinctively entered the defendant’s vehicle. Id.
at 373-74.

       The district court thought the Lyons cases meant that “the officers’ intent is
dispositive,” so that there was no search if Jampy acted instinctively and Sergeant
McGinnis did not direct him to enter the car. But since the Lyons cases, the Supreme
Court has emphasized that with two “limited exception[s]” for special-needs and
administrative searches, the subjective intent of police officers is almost always
irrelevant to whether an action violates the Fourth Amendment. Ashcroft v. al-Kidd,
563 U.S. 731, 736-37 (2011) (internal quotation marks omitted). There is reason to
doubt, therefore, whether the district court’s reading of the Lyons cases endures.

                                          -5-
       We need not explore the problem further in this case, because it is
uncontroversial that if police had probable cause to search the car before the dog
entered the interior, then any search effected by the entry was permissible. No
warrant is required to search a car with probable cause. Carroll v. United States, 267
U.S. 132, 149 (1925). Here, the district court found that when Sergeant McGinnis
commanded the canine to find drugs, the dog “immediately” pulled McGinnis toward
the open passenger door. Given the strong reaction of the trained drug dog while it
was outside the car, together with Pulido-Ayala’s suspicious reaction to the drug
checkpoint, we conclude that police had probable cause to believe that the vehicle
contained contraband in the moment before Jampy actually crossed the threshold into
the interior of the Mini Cooper. The dog’s reaction outside Pulido-Ayala’s car
distinguishes this case from Winningham, where the court affirmed the suppression
of evidence when a police dog moved around the exterior of a car, entered through
an open door, and “methodically sniffed” the vehicle’s interior before alerting at a
rear vent. 140 F.3d at 1330.

       Pulido-Ayala complains that Officer Sanders facilitated a search by leaving the
car door open after the passenger, Sandoval-Herrera, climbed out. The district court
found, without clear error, that while Sanders kept his hand on the passenger door
after the passenger exited, it was Sandoval-Herrera who chose to get out of the car,
and Sandoval-Herrera never touched the car door to shut it after he left the vehicle.
We agree with the district court that the officers had no responsibility to close the
door; they simply took the situation as they found it. Insofar as the dog’s ability to
perceive the odor of drugs from outside the car was enhanced by the open door, the
situation was created voluntarily by the passenger, and there was no unlawful search
in leaving the door open.

                                  *       *       *

      The judgment of the district court is affirmed.
                     ______________________________

                                         -6-
