Submitted: November 16, 2017
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON and GRUENDER, Circuit Judges, and READE,  District
COLLOTON, CIRCUIT JUDGE.
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.
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.
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.
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
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.
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.
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.
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 ...