                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          OCT 10 1997

                                TENTH CIRCUIT                        PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 96-6353
 v.
                                                  (D.C. No. CR-96-116-C)
                                                      (W. Dist. Okla.)
 RICHARD PINKARD and ALISA
 MARIE NEUGENT,

          Defendants-Appellants.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.



      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(a); 10th Cir. R. 34.1.9.

      Richard Pinkard and Alisa Marie Neugent were charged with possession

with intent to distribute approximately 370 grams of methamphetamine in

violation of 21 U.S.C. §841(a)(1). After the district court denied their 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       This order and judgment is not binding precedent, except under the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, defendants each pled guilty while reserving the right to appeal

the denial of their motion. On appeal, defendants contend police officers did not

have probable cause to detain or search them. We affirm.

       When reviewing the grant of a motion to suppress, we accept the trial

court’s findings of fact unless clearly erroneous. See United States v. Morales-

Zamora, 914 F.2d 200, 202 (10th Cir. 1990). The determination of

reasonableness under the Fourth Amendment is a conclusion of law that we

review de novo. Id.

      Officer Bo Leach received information from the Drug Enforcement Agency

(DEA) that two people traveling together from California to Oklahoma had

purchased one-way tickets with cash. Upon arriving at the airport, Officer Leach

and Sergeant Ramos observed defendants as the only couple on the plane who

appeared to be traveling together and subsequently followed them to the baggage

claim area. Meanwhile, other agents observed while a trained dog sniffed the

luggage from defendants’ flight. When the dog failed to alert, the bags were

transported to the public baggage claim area.

      After watching defendants retrieve their luggage, Officer Leach and

Sergeant Kim, dressed in street clothing with their weapons concealed,

approached them and requested permission to speak with them. Defendants

consented. Prior to questioning defendants, Officer Leach told them they were


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free to leave. Defendants placed a maroon carry-on bag on the floor and gave

permission for the officers to search all their luggage. The officers did not locate

any illegal drugs during their physical search of the bags, but Officer Leach

observed a bulge below Mr. Pinkard’s waist band and requested permission to

search defendants’ clothing. Both defendants refused the request.

      Although the exact sequence of these events is not clear from the district

court’s findings, it is uncontested that at some point during his questioning of

defendants, Officer Leach motioned for Agent Roberts to bring the drug dog over

to sniff defendants’ luggage, apparently with defendants’ consent. 1 The dog

alerted to the odor of illegal drugs when she encountered the maroon carry-on

bag. Immediately thereafter, the dog alerted to a stronger scent, went to the front

of Mr. Pinkard, and sat down at his feet without touching him in what is known as

a “passive alert.” As Mr. Pinkard backed away, Officer Leach placed one of his

hands on the bulge he had observed near Mr. Pinkard’s waist band, and the other

hand on Mr. Pinkard’s shoulder. Officer Leach felt two separate bundles which

were later determined to contain methamphetamine. He asked Ms. Neugent if she




      1
       Although the district court did not specifically find that Mr. Pinkard
consented to a dog sniff of his luggage, Mr. Pinkard testified that Officer Leach
asked him if the dog could sniff his luggage and that he consented. Pl.’s Supp.
App. at 82.

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was in possession of the same items and she nodded affirmatively. Both

defendants were taken into custody.

      We agree with the district court that Officer Leach’s questioning of

defendants and his subsequent search of Mr. Pinkard’s person did not violate the

Fourth Amendment. Because Officer Leach informed defendants they were free

to leave and obtained their consent to search, the officers’ questioning of

defendants and search of their luggage was a consensual encounter that neither

implicates the Fourth Amendment nor requires probable cause. See Florida v.

Bostick, 501 U.S. 429, 434-35 (1991); United States v. Davis, 94 F.3d 1465, 1468

(10th Cir. 1996). Moreover, it is well established that a canine sniff of the air

surrounding luggage located in a public airport is not a “search” within the

meaning of the Fourth Amendment and therefore does not require consent. See

United States v. Place, 462 U.S. 696, 707 (1983); see also United States v.

Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993) (canine sniff of vehicle parked in

motel lot not a search); Morales-Zamora, 914 F.2d at 203 (dog sniff of vehicle

lawfully detained by police not a search).

      Regardless of the exact chronology of events leading to Officer Leach’s

search of Mr. Pinkard’s person, defendants did not testify and the district court

did not find that they attempted to leave or that they at any time revoked their

permission for the officers to search their luggage. The district court found that


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the dog’s alert to Mr. Pinkard’s person occurred almost immediately following her

alert to the maroon bag.

      A positive alert by a dog trained to detect the presence of illegal drugs

constitutes probable cause to make an arrest. See United States v. Klinginsmith,

25 F.3d 1507, 1510 (10th Cir. 1994) (when dog alerted to vehicle there was

probable cause to arrest occupants); United States v. Williams, 726 F.2d 661, 663

(10th Cir. 1984) (dog’s detection of contraband in luggage establishes probable

cause to make arrest); see also United States v. Waltzer, 682 F.2d 370, 372-73 (2d

Cir. 1982). The existence of probable cause to make an arrest clearly

encompasses the authority for a pat-down search. See Williams, 726 F.2d at 663.

Accordingly, when the drug dog alerted to the maroon bag, probable cause to

search defendants existed independent of the dog’s positive alert to Mr. Pinkard’s

person, the constitutionality of which we need not decide here.

      We AFFIRM the district court’s order denying defendants’ motion to

suppress.

                                               ENTERED FOR THE COURT


                                               Stephanie K. Seymour
                                               Chief Judge




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