* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 10 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

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



### ORDER AND JUDGMENT *

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

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision 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 charge d with possession with intent to distribute approximately 370 grams o f methamphetamine in violation of 21 U.S.C. §841(a)(1). After the distr ict court denied their motion to-2-

suppress evidence, defendants each pled guilty whil e 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 a ffirm. 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. MoralesZamora , 914 F.2d 200, 202 (10th Cir. 1990). The determin ation of reasonableness under the Fourth Amendment is a conc lusion of law that we review de novo . Id

. Officer Bo Leach received information from the DrugEnforcement Agency (DEA) that two people traveling together from Calif ornia to Oklahoma had purchased one-way tickets with cash. Upon arrivingat 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 fail ed to alert, the bags were transported to the public baggage claim area. After watching defendants retrieve their luggage, O fficer Leach and Sergeant Kim, dressed in street clothing with theirweapons concealed, approached them and requested permission to speak w ith them. Defendants consented. Prior to questioning defendants, Office r Leach told them they were1 Although the district court did not specifically fi nd that Mr. Pinkard

consented to a dog sniff of his luggage, Mr. Pinkar d testified that Officer Leach asked him if the dog could sniff his luggage and th at he consented. Pl.’s Supp. App. at 82. -3- free to leave. Defendants placed a maroon carry-onbag on the floor and gave permission for the officers to search all their lug gage. 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 andrequested permission to search defendants’ clothing. Both defendants refus ed the request. Although the exact sequence of these events is not clear from the district court’s findings, it is uncontested that at some po int during his questioning of defendants, Officer Leach motioned for Agent Robert s to bring the drug dog over to sniff defendants’ luggage, apparently with defen dants’ 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 to uching him in what is known as a “passive alert.” As Mr. Pinkard backed away, Off icer 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 felttwo separate bundles which were later determined to contain methamphetamine. He asked Ms. Neugent if she-4-

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 d efendants they were free to leave and obtained their consent to search, the officers’ questioning of defendants and search of their luggage was a consen sual encounter that neither implicates the Fourth Amendment nor requires probab le cause. See Florida v. Bostick , 501 U.S. 429, 434-35 (1991); United States v. Dav is , 94 F.3d 1465, 1468 (10th Cir. 1996). Moreover, it is well establishedthat 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 leadin g 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-5-

the dog’s alert to Mr. Pinkard’s person occurred al most immediately following her alert to the maroon bag. A positive alert by a dog trained to detect the pre sence 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 alert ed 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 mak e an arrest clearly encompasses the authority for a pat-down search. S ee Williams , 726 F.2d at 663. Accordingly, when the drug dog alerted to the maroo n 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’ mot ion to
suppress. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge