F I LED

United States Court of Appeals

Tenth Circuit

January 19, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 05-4255

ADRIAN T. STEWART,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. NO. 2:04-CR-00024 BSJ)

Scott C. Williams, Salt Lake City, Utah, for Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Brett L. Tolman, United States

Attorney, with her on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee.

Before HENRY, HOLLOWAY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

A traffic stop of Adrian T. Stewart’s car in Heber City, Utah, led to the

discovery under his seat of a loaded .9 millimeter pistol with the safety off and a

package of methamphetamine hidden in a rollerblade. Mr. Stewart moved to

suppress this evidence, arguing that the officer’s question that led to the
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discovery of the gun, and the subsequent search of his vehicle, violated his Fourth

Amendment rights. The district court denied his motion, and a jury convicted him

of methamphetamine possession. The government dismissed the gun charge. He

now appeals from the district court’s denial of his suppression motion.

In light of the Supreme Court’s recent decision in Muehler v. Mena, 544

U.S. 93 (2005), we hold that the officer’s question was not a Fourth Amendment

violation because—as Mr. Stewart concedes—it did not prolong the length of the

traffic stop. We also hold that the vehicle search was proper under the

automobile exception to the warrant requirement. We therefore AFFIRM the

district court’s denial of Mr. Stewart’s motion to suppress.

FACTS

On September 11, 2003, Sergeant Jeffery Winterton of the Wasatch County

Sheriff’s Office received a phone call from an informant “indicat[ing] that there

was a vehicle parked at a location in Heber City, [Utah,] and that every time that

vehicle was in town there was dope in it.” R. Vol. III, at 8. At first, Sergeant

Winterton rebuffed the informant’s invitation to come see the vehicle, citing his

heavy workload. He eventually relented, however, and met the informant in a

McDonald’s parking lot. The two traveled together in Winterton’s car to the Bear

Mountain Chalet, a Heber City motel, where the informant pointed out a white

Chevrolet Tahoe backed into a motel parking stall. It bore an Idaho license plate. 

Winterton saw that the Tahoe lacked a front license plate as both Utah and Idaho
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law require. Idaho Code Ann. § 49-428(1); Utah Code Ann. § 41-1a-404(1). 

Because no one was in or around the Tahoe at that time, and because he had other

work to do, Winterton returned the informant to his own car at McDonald’s and

continued working on his previously scheduled tasks. 

More than two hours later, Sergeant Winterton returned to the Bear

Mountain Chalet’s parking lot and saw that the Tahoe was still there. He

reconnoitered and observed a woman open the Tahoe’s passenger side front door

and repeatedly walk from there to the Tahoe’s rear hatch. At the time, he was

unable to discern what the woman was doing. He also saw that the driver’s door

was open, but he did not see anyone other than the woman near the Tahoe. The

woman eventually sat in the front passenger seat and closed the door. 

Approximately one minute later, the driver’s door shut, and the Tahoe left the

parking lot. 

Sergeant Winterton followed the Tahoe. He tried to run a records search

but was unable to see the Tahoe’s license plate number because some straps from

a bicycle rack were obscuring it. Winterton then turned on his emergency lights

and stopped the Tahoe. 

The driver was Adrian Stewart. When Sergeant Winterton asked him for

his driver’s license and registration, Mr. Stewart “became very nervous” and

“delayed” giving a response. Id. at 13. Stewart “look[ed] around inside the
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vehicle . . . then said he thought” his license was “in the back.” Id. He then

“made a furtive movement to the back of the vehicle.” Id.

Sergeant Winterton told Mr. Stewart to stop reaching for the backseat. He

asked if Stewart could obtain his driver’s license from the back of the Tahoe if

Stewart stepped out of the car. Mr. Stewart said that he could. Before opening

the door and letting Mr. Stewart out of the vehicle, Sergeant Winterton “asked

Mr. Stewart if he had any weapons or contraband in the vehicle that [Winterton]

needed to be concerned about.” Id. at 13. When Stewart responded that he had a

gun under the driver’s seat, Sergeant Winterton asked him to exit the Tahoe. He

did, and Winterton escorted him to the back of the vehicle. 

While Mr. Stewart waited, Sergeant Winterton checked under the driver’s

seat and found in a pistol case a loaded .9 millimeter handgun with the safety off.

This discovery prompted Winterton to arrest Mr. Stewart. He did not, however,

search the vehicle incident to this arrest. Instead, he received permission from

Mr. Stewart to enter the Tahoe for the limited purpose of finding Stewart’s

driver’s license. After several failed attempts to find the license, and repeated

calls to dispatch, Sergeant Winterton was able to verify that Mr. Stewart had a

valid Idaho’s driver’s license. Winterton then took Mr. Stewart to jail. 

Before leaving, however, Winterton called for other officers to impound the

Tahoe and inventory its contents. One of those was Deputy Gregory Royal, a dog

handler. Deputy Royal arrived to impound the Tahoe, but decided to deploy his
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narcotics detection dog Boomer before doing so. Boomer had been certified in

Colorado as a narcotics detection dog in August 2003—approximately one month

before this sniff occurred—and he had not yet been certified in Utah. Deputy

Royal started Boomer “at the back of the vehicle on the passenger side, and [he]

walked Boomer around, up the passenger side, around the front, down the driver’s

side of the vehicle, where Boomer then alerted” on the rear driver’s side by

aggressively scratching at the Tahoe. Id. at 50–51. 

Deputy Royal notified Sergeant Olsen of the alert and put Boomer away. 

The two officers then began to inventory the Tahoe’s contents. No search,

inventory or otherwise, occurred until after Boomer alerted. During the inventory

search, the officers found a pair of rollerblades in the Tahoe’s rear hatch, on the

driver’s side of the car. They discovered inside one rollerblade a four- to fiveinch-long package that “was wrapped in duct tape which appeared to have maybe

a sock that was showing on the corner that was poking out.” Id. at 52. Based on

Deputy Royal’s training, he suspected the package contained narcotics. Royal

contacted Sergeant Olsen, another officer on the scene, who opened the package

to discover a white, crystal-like substance that turned out to be methamphetamine.

Mr. Stewart was eventually indicted for possession of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and for possession of a firearm by a restricted

person in violation of 18 U.S.C. § 922(g)(9). A jury convicted him, and he was
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sentenced to ninety-seven months imprisonment and forty-eight months of

supervised release.

DISCUSSION

I. Winterton’s Question to Stewart Was Constitutional.

Mr. Stewart bases his first argument—that Winterton violated his Fourth

Amendment rights by asking about the presence of weapons or contraband—on

United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) (en banc). In Holt, a

majority of this Court sitting en banc “delineate[d] the scope of permissible

questioning during a routine traffic stop,” id. at 1217, by holding “that both the

length and scope of a traffic stop are relevant factors in deciding whether the stop

comports with the Fourth Amendment,” id. at 1227. Discussing the “scope”

aspect, we held that an “officer’s question about the existence of a loaded weapon

in the vehicle” did not violate the driver’s Fourth Amendment rights because that

inquiry “was justified on the grounds of officer safety.” Id. at 1217. 

The en banc Holt court, however, split on the question presented here:

whether the Constitution permits officers to ask about unloaded weapons or other

contraband. Four judges “reject[ed] the government’s invitation to adopt” a

“bright-line rule allowing an officer conducting a traffic stop to ask the driver

about the presence of weapons, absent reasonable suspicion that the driver may be

armed and dangerous.” Id. at 1230 (opinion of Briscoe, J.). One judge saw no

constitutional problem with such questions as long as they did not “prolong the
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duration of the stop or alter its fundamental character as a Terry-type detention.” 

Id. at 1237 (opinion of Henry, J.). And four judges preferred not to resolve that

question in that case due to an inadequately developed factual record. Id. at

1226–27 (opinion of Ebel, J.). 

Thus, following Holt, the constitutionality of inquiries such as Winterton’s

to Mr. Stewart was an open question. So if Holt were the most recent decision on

this subject, Mr. Stewart’s argument might well have merit. Unfortunately for

him, it is not. The Supreme Court has since adopted Judge Henry’s view in Holt

by holding that the content of police questions during a lawful detention does not

implicate the Fourth Amendment as long as those questions do not prolong the

detention. Muehler v. Mena, 544 U.S. 93, 101 (2005). We have applied Muehler

in traffic stop cases to resolve Fourth Amendment objections similar to Mr.

Stewart’s. See United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258–59 (10th

Cir. 2006); United States v. Wallace, 429 F.3d 969, 974 (10th Cir. 2005).

We now make explicit what we implied in Alcaraz-Arellano and Wallace:

in light of Muehler, the language from Holt approving traffic stop questions only

when the officers specifically mention loaded weapons is no longer good law. 

See Alcaraz-Arellano, 441 F.3d at 1258 (“In light of Muehler, we have held that

‘[a]s long as the [deputy’s] questioning did not extend the length of the detention,

. . . there is no Fourth Amendment issue with respect to the content of the

questions.’” (quoting Wallace, 429 F.3d at 974)). The correct Fourth Amendment
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inquiry (assuming the detention is legitimate) is whether an officer’s traffic stop

questions “extended the time” that a driver was detained, regardless of the

questions’ content. Muehler, 544 U.S. at 101.

Here, Mr. Stewart concedes in his reply brief that “[i]t certainly can’t be

said that [Sergeant Winterton’s] question in and of itself appreciably extended the

duration of the stop.” Reply Br. 5. This admission ends our inquiry. We

therefore affirm the district court’s ruling that Winterton’s query—even though it

sought information about “any weapons or contraband in the vehicle,” R. Vol. III,

at 13 (emphasis added), not just loaded ones—was constitutional.

II. The Tahoe Search Was Constitutional under the Automobile Exception

to the Warrant Requirement.

Mr. Stewart next argues that the district court erred by holding that the

search of his Tahoe was a lawful search incident to arrest. Citing this Court’s

decision in United States v. Dennison, 410 F.3d 1203, 1209 (10th Cir. 2005), the

government concedes that this ruling is erroneous because Mr. Stewart had left

the scene and was en route to the police station when the police searched his

Tahoe. Appellee’s Br. 13–14. The government nevertheless asks us to affirm on

the alternative ground that the search was justified under the automobile

exception to the warrant requirement. Because there are sufficient grounds in the

record to support the government’s alternative theory, see United States v.

Ledford, 443 F.3d 702, 707 (10th Cir. 2005), we affirm on that basis.
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“The police may search an automobile and the containers within it where

they have probable cause to believe contraband or evidence is contained.” 

California v. Acevedo, 500 U.S. 565, 580 (1991). “A canine alert gives rise to

probable cause to search a vehicle.” United States v. Williams, 403 F.3d 1203,

1207 (10th Cir. 2005). This is so even when the dog alert occurs during a

warrantless sniff on “the exterior of a vehicle during a lawful traffic stop”

because such sniffs do not implicate the Fourth Amendment. Id. (citing Illinois v.

Caballes, 543 U.S. 405, 409 (2005)).

The record reveals that Sergeant Winterton had two objectively reasonable

bases for stopping Mr. Stewart’s Tahoe. First, it lacked a front license plate. 

Second, its rear license plate was obscured. R. Vol. III, at 28–29. The traffic

stop was therefore lawful. And after Sergeant Winterton arrested Mr. Stewart for

keeping a loaded gun in his car, another violation of Utah law, Deputy Royal

arrived and deployed Boomer before anyone searched the Tahoe. Id. at 60–61. 

Boomer alerted on the Tahoe’s rear driver’s side by aggressively scratching at it. 

Id. at 50–51. This alert gave rise to probable cause to search Mr. Stewart’s Tahoe

and its contents. The officers did so, and discovered the drugs, only after Boomer

alerted. Id. at 61. Based on these facts, we hold that the officers’ search of Mr.

Stewart’s Tahoe was lawful under the automobile exception to the warrant

requirement. 
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Mr. Stewart, however, urges us not to affirm on this basis. He states that

he first learned of Boomer’s sniff at the evidentiary hearing, and that the belated

disclosure prevented him from adequately investigating it. While the timing of

the disclosure may be suspect, Mr. Stewart nonetheless was able to investigate

fully. His lawyer thoroughly cross-examined Deputy Royal about Boomer’s

training and experience. He then asked for and received more than ten days to

further investigate Boomer’s qualifications and Deputy Royal’s report. His posthearing investigation did not produce any new evidence that Mr. Stewart could

have used to expand the scope of Deputy Royal’s cross-examination. 

Accordingly, the exact time that Mr. Stewart learned of Boomer’s alert does not

change the Fourth Amendment calculus here.

Similarly, Mr. Stewart urges us to ignore Boomer’s alert because the

district court instructed the government to “skip the dog” and described the dog

sniff as “superfluous.” R. Vol. V, at 24–25. The district court made these

comments, however, during oral argument on Mr. Stewart’s motion to suppress,

not during the evidentiary hearings on that motion. The court gave Mr. Stewart

tremendous latitude in the evidentiary hearing to conduct whatever inquiry he felt

was appropriate. Only after it decided that the search was properly categorized as

an inventory search or a search incident to arrest did the district court limit the

prosecutor’s arguments about the dog sniff. 
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We are not limited by the district court’s legal conclusions. Indeed, this is

precisely the type of case susceptible to affirmance on alternate grounds: the

defendant had every opportunity to develop a factual record on this issue. Our

view of those facts persuades us that the dog sniff may be serendipitous, but it is

not superfluous. 

CONCLUSION

We AFFIRM the district court’s denial of Mr. Stewart’s motion to suppress.