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United States v. Pulido-Ayala

United States Court of Appeals, Eighth Circuit

June 5, 2018

United States of America, Plaintiff- Appellee,
Javier Pulido-Ayala, Defendant-Appellant.

          Submitted: November 16, 2017

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

          Before COLLOTON and GRUENDER, Circuit Judges, and READE, [1] District 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 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]


         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.

         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.

         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 ...

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