United States v. John David Stone, 866 F.2d 359 (10th Cir. 1989). · Go Syfert
United States v. John David Stone, 866 F.2d 359 (10th Cir. 1989). Cases Citing This Book View Copy Cite
“people have a reasonable expectation of privacy in the interiors of their automobiles . . . .”
291 citation events (166 in the last 25 years) across 50 distinct courts.
Strongest positive: STATE OF NEW JERSEY VS. TYQUAN FUQUA STATE OF NEW JERSEY VS. DEREK FUQUA STATE OF NEW JERSEY VS. CHANELL VIRGIL STATE OF NEW JERSEY VS. TREVIS THOMAS (14-04-0026, MIDDLESEX COUNTY AND STATEWIDE) (njsuperctappdiv, 2021-08-20)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) STATE OF NEW JERSEY VS. TYQUAN FUQUA STATE OF NEW JERSEY VS. DEREK FUQUA STATE OF NEW JERSEY VS. CHANELL VIRGIL STATE OF NEW JERSEY VS. TREVIS THOMAS (14-04-0026, MIDDLESEX COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2021 · quote attribution · 1 verbatim quote · confidence high
dog's instinctive actions did not violate the fourth amendment
discussed Cited as authority (verbatim quote) United States v. Montes-Ramos (2×) also: Cited "see, e.g."
10th Cir. · 2009 · signal: see also · quote attribution · 1 verbatim quote · confidence high
people have a reasonable expectation of privacy in the interiors of their automobiles . . . .
discussed Cited as authority (rule) United States v. Steven Tilden Fellmy
6th Cir. · 2026 · confidence medium
United States v. Williams, 726 F.2d 661, 664 (10th Cir. 1984).6 4 See, e.g., United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989). 5 See, e.g., United States v. Keller, 123 F.4th 264 , 266 (5th Cir. 2024) (canine “placed his paws on the rear bumper of the vehicle and sniffed near the back hatch”). 6 See also, e.g., United States v. $639,558, 955 F.2d 712, 713 (D.C.
cited Cited as authority (rule) ORGAN, COURTNEY JAMES-VARNELL v. the State of Texas
Tex. Crim. App. · 2025 · confidence medium
ORGAN DISSENT—4 v. Olivera-Mendez, 484 F.3d 505 , 511–12 (8th Cir. 2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989).
discussed Cited as authority (rule) ORGAN, COURTNEY JAMES-VARNELL v. the State of Texas
Tex. Crim. App. · 2025 · confidence medium
The State argues that to search the interior because [the dog] indicated that the car contained drugs while sniffing the car’s perimeter). 113 Id.; see also United States v. Sharp, 689 F.3d 616, 620 (6th Cir. 2012) (pre-Jardines case holding a drug-dog’s sniff inside of a vehicle after instinctively jumping into the car was not a search but failing to discuss Jones); United States v. Pierce, 622 F.3d 209, 213-14 (3d Cir. 2010) (pre-Jones and Jardines holding there was “no error in the District Court’s finding that [the drug dog] altered to narcotics in Pierce’s glove box, jumped thro…
discussed Cited as authority (rule) Juan C. Ocampo v. State of Indiana (2×) also: Cited "see"
Ind. Ct. App. · 2025 · confidence medium
Thus, the resolution of this appeal requires us to examine the legality of Swag’s interior sniff. [24] Though an Indiana appellate court has yet to address this issue, we observe that the federal circuit courts have consistently adopted the instinctive entry rule, under which a K9’s entry into a vehicle is not a Fourth Amendment search where there “is no indication that the officers intended to facilitate the dog’s entry into the car.” United States v. Guidry, 817 F.3d 997, 1006 (7th Cir. 2016), cert. denied; see also United States v. Pierce, 622 F.3d 209, 214-15 (3d Cir. 2010) (find…
discussed Cited as authority (rule) State v. Barton
Ohio Ct. App. · 2025 · confidence medium
See, e.g., United States v. Sharp, 689 F.3d 616, 619 (6th Cir. 2012), cert. denied, 568 U.S. 1056 (2012) (noting that the unanimous view of the circuits considering the issue is that where a drug-detecting canine, without any command or encouragement by law enforcement, “instinctive[ly] jump[s]” into a private vehicle on its own initiative, its action does not violate the Fourth Amendment (citing decisions of the Third, Eighth, and Tenth Circuits)); United States v. Pierce, 622 F.3d 209, 214-215 (3d Cir. 2010) (concluding that no Fourth Amendment violation occurred when a dog jumped instin…
discussed Cited as authority (rule) The People of the State of Colorado v. Tien Dinh Pham
Colo. · 2025 · confidence medium
For example, the Tenth Circuit compared Winningham, 140 F.3d at 1330-31 , in which the court found a "desire to facilitate a dog sniff of the van's interior" where officers opened the van door and unleashed their K-9 prior to its entry, with United States v. Stone , 866 F.2d 359, 363-64 (10th Cir. 1989), where the court found no facilitation when a car's owner voluntarily opened the vehicle's rear hatch and there was no evidence that the police "encouraged the dog to jump in the car." Felders , 755 F.3d at 885 .
discussed Cited as authority (rule) United States v. Keller
5th Cir. · 2024 · confidence medium
See, e.g., United States v. Shen, 749 F. App’x 256 , 263 (5th Cir. 2018); United States v. Guidry, 817 F.3d 997, 1006 (7th Cir. 2016); United States v. Sharp, 689 F.3d 616 , 619–20 (6th Cir. 2012); United States v. Pierce, 622 F.3d 209 , 213–15 (3d Cir. 2010); United States v. Olivera- Mendez, 484 F.3d 505 , 511–12 (8th Cir. 2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989).
discussed Cited as authority (rule) State of Iowa v. Kyra Rose Bauler
Iowa · 2024 · confidence medium
Even before Jardines, the federal courts of appeals that addressed the issue qualified their “holding[s] that a dog’s instinctive jump into a car does not violate the Fourth Amendment” by adding: “as long as the canine enters the vehicle on its own initiative and is neither encouraged nor placed into the vehicle by law enforce- ment.” United States v. Sharp, 689 F.3d 616 , 619–20 (6th Cir. 2012) (discussing, and joining, the holdings in United States v. Pierce, 622 F.3d 209 , 213–14 (3d Cir. 2010); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); and United States v. St…
discussed Cited as authority (rule) State v. Ashley Jean Campbell (2×) also: Cited "see, e.g."
Wis. Ct. App. · 2024 · confidence medium
According to the State, the exception applies when a “canine enters a suspect’s vehicle without the direction or facilitation of his handler” and is acting “instinctively.” A canine is acting instinctively, says the State, if it is “(a) seeking out an odor that it is trained to seek out; or (b) pursuing a scent that it already detected outside the vehicle.” ¶28 The instinct exception traces back to United States v. Stone, 866 F.2d 359, 360-62 (10th Cir. 1989), where an officer stopped a vehicle driven by Stone for speeding, which was Stone’s second traffic stop of the day.
discussed Cited as authority (rule) State of Iowa v. Yale Stevens (2×) also: Cited "see"
Iowa · 2022 · confidence medium
The court did not elaborate on how the dog alert provided probable cause to arrest both occupants, only citing United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), to support its conclusion that it did.
examined Cited as authority (rule) State v. Randall (3×)
Idaho · 2021 · confidence medium
See id. at 259 , 359 P.3d at 1056 (citing United States v. Sharp, 689 F.3d 616, 620 (6th Cir. 2012); United States v. Pierce, 622 F.3d 209 , 214–15 (3d Cir. 2010); United States v. Lyons, 486 F.3d 367 , 373–74 (8th Cir. 2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989); United States v. Hutchinson, 471 F.Supp.2d 497 , 510–11 (M.D.Pa. 2007); United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998)).
discussed Cited as authority (rule) State v. Ruiz
Utah Ct. App. · 2021 · confidence medium
A drug-sniffing “dog’s instinctive actions [do] not violate the Fourth Amendment” where “[t]here is no evidence . . . that the police asked [a suspect] to open the [vehicle] so the dog could jump in” or “any evidence the police handler encouraged the dog to jump in the car.” United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989); see also Felders ex rel.
discussed Cited as authority (rule) State v. Medina (2×)
Del. Super. Ct. · 2020 · confidence medium
Feb. 2, 2009) (citing Caballes, 543 U.S. at 409 - 10). 57 Id.; U.S. v. Stone, 866 F.2d 359, 262-64 (10" Cir. 1989); U.S. v. Hutchinson, 471 F. Supp. 2d 497, 505-10 (M.D.
discussed Cited as authority (rule) United States v. Russell Shen
5th Cir. · 2018 · confidence medium
Cf. United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007) (“Appellants do not cite to any authority that holds 10 Case: 17-11253 Document: 00514640537 Page: 11 Date Filed: 09/13/2018 No. 17-11253 c/w 17-11260 that the officers had the affirmative duty to close the windows in preparation for the dog sniff, and we find none.”); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989) (noting “the police remained within the range of activities they may permissibly engage in when they have reasonable suspicion to believe an automobile contains narcotics” in a case where there was no …
examined Cited as authority (rule) State of Iowa v. Jonathon D. George (4×) also: Cited "see"
Iowa Ct. App. · 2016 · confidence medium
In 1989, the Tenth Circuit Court of Appeals in United States v. Stone was faced with substantially the same circumstances we face here. 866 F.2d 359, 361 (10th Cir. 1989).
discussed Cited as authority (rule) State v. Freddie Anthony Naranjo
Idaho Ct. App. · 2015 · confidence medium
United States v. Sharp, 689 F.3d 616, 620 (6th Cir.2012) (no search when dog jumped through open window without facilitation by police); United States v. Pierce, 622 F.3d 209, 214-15 (3d Cir.2010) (no search when, without facilitation by police, dog entered car door opened by defendant); United States v. Lyons, 486 F.3d 367, 373-74 (8th Cir.2007) (no search when, without facilitation by police, dog’s head entered window opened by passenger); United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989) (no search when dog jumped in hatchback that was not opened to permit dog to enter and police …
discussed Cited as authority (rule) United States v. Harrell
A.F.C.C.A. · 2015 · confidence medium
See United States v. Sharp, 8 ACM 38538 689 F.3d 616, 620 (6th Cir. 2012); United States v. Pierce, 622 F.3d 209, 214-16 (3d Cir. 2010); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989).
discussed Cited as authority (rule) Felders v. Malcom (2×)
10th Cir. · 2014 · signal: cf. · confidence medium
See United States v. Vazquez, 555 F.3d 923, 930 (10th Cir.2009) (no constitutional violation where “(1) the dog’s leap into the car was instinctual rather than orchestrated, and (2) the officers did not ask the driver to open the point of entry, such as a hatchback or window, used by the dog.”); see also United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir.1998) (dog’s jump into car through door officers opened and where evidence indicated a desire to facilitate the dog’s entrance into the interior violated the Fourth Amendment); cf. United States v. Stone, 866 F.2d 359, 364 (1…
cited Cited as authority (rule) People v. Canizalez-Cardena
Ill. App. Ct. · 2012 · confidence medium
United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989).
discussed Cited as authority (rule) United States v. David Sharp (2×)
6th Cir. · 2012 · confidence medium
This Court noted that “at least two circuits have found that, absent police misconduct, the instinctive acts of trained canines, such as trying to open a container containing narcotics, do[ ] not violate the Fourth Amendment.” Reed, 141 F.3d at 650 (citing United States v. Lyons, 957 F.2d 615, 617 (8th Cir.1992); United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989)).
discussed Cited as authority (rule) United States v. Ezra Mostowicz
11th Cir. · 2012 · confidence medium
See United States v. Pierce, 622 F.3d 209, 213-14 (3rd Cir.2010) (concluding that no Fourth Amendment violation occurred when a dog jumped instinctively through an open car door “without facilitation by his handler”); United States v. Vazquez, 555 F.3d 923, 930 (10th Cir. 2009) (stating that “we have upheld the legality of [a dog] sniff during a lawful detention when, as here, (1) the dog’s leap into the car was instinctual rather than orchestrated and (2) the officers did not *891 ask the driver to open the point of entry ... used by the dog”); United States v. Lyons, 486 F.3d 367, …
discussed Cited as authority (rule) United States v. Wilson
D. Maryland · 2011 · confidence medium
Stone, 866 F.2d at 364 (drug dog's "instinctive” jump into a hatchback was constitutional); see also Batista, 2011 WL 1636401 , at *4 (drug dog’s entry into’ a car interior was permissible because, inter alia, "it [did] not appear that [the officer] left the door open ... to invite [the drug dog] to enter”). .
discussed Cited as authority (rule) United States v. Ayala
10th Cir. · 2011 · signal: cf. · confidence medium
See United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir.1998); cf. United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989) (reliance on alert was proper when dog’s entry into vehicle was instinctive). 1 *81 Defendant challenges Max’s intrusion with his nose into the Scion through the driver’s side window, arguing that the “window was rolled down, and the officers provided no explanation for the window being down.” Aplt.
cited Cited as authority (rule) United States v. Ludwig
10th Cir. · 2011 · confidence medium
United States v. Ortiz-Ortiz, 57 F.3d 892, 895 (10th Cir. 1995); see also United States v. Salzano, 158 F.3d 1107, 1114 (10th Cir.1998); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989).
examined Cited as authority (rule) United States v. Lujan (3×) also: Cited "see"
10th Cir. · 2010 · confidence medium
In addressing this assertion, we note that while “[a] dog sniff of the exterior of a vehicle parked in a public place ... is not a Fourth Amendment intrusion,” a drug dog’s entry into a vehicle prior to the establishment of probable cause may raise Fourth Amendment concerns because “[pjeople have a reasonable expectation of privacy in the interior of their automobiles.” United States v. Engles, 481 F.3d 1243, 1245 (10th Cir.2007); United States v. Stone, 866 F.2d 359, 363 (10th Cir.1989).
discussed Cited as authority (rule) United States v. Pierce
3rd Cir. · 2010 · confidence medium
Moving to the particular issue before us, the interior sniffs and alerts that led to the discovery of narcotics, both the Hutchinson decision and the District Court’s opinion here rejecting Pierce’s suppression arguments particularly relied on the Tenth Circuit’s reasoning in United States v. Stone that a trained narcotic dog’s instinc *214 tive action of jumping into the car does not violate the Fourth Amendment. 866 F.2d 359, 364 (10th Cir.1989).
cited Cited as authority (rule) United States v. Parada
10th Cir. · 2009 · confidence medium
United, States v. Stone, 866 F.2d 359, 364 (10th Cir.1989).
discussed Cited as authority (rule) Feeney v. State
Wyo. · 2009 · confidence medium
"Fourth Amendment precedent is clear that the seent of a potential masking agent is one factor which may be considered in a reasonable suspicion analysis." Flood, 2007 WY 167, ¶ 24 , 169 P.3d at 546 (citing United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir.1997) (odor of detergent supported reasonable suspicion of criminal activity)); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989) (odor of patchouli ofl supported reasonable suspicion of drug offense where officer testified the oil was often used to cover the scent of marijuana).
discussed Cited as authority (rule) People v. Bartelt (2×)
Ill. App. Ct. · 2008 · confidence medium
In United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), the Tenth Circuit opined people have a reasonable expectation of privacy in the interiors of their automobiles, but it upheld an interior sniff as lawful where a canine jumped though an open hatchback and alerted on a duffle bag.
discussed Cited as authority (rule) People v. Bartelt
Ill. App. Ct. · 2008 · confidence medium
In United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), the Tenth Circuit opined people have a reasonable expectation of privacy in the interiors of their automobiles, but it upheld an interior sniff as lawful where a canine jumped though an open hatchback and alerted on a duffle bag.
discussed Cited as authority (rule) United States v. Chavez (2×) also: Cited "see"
10th Cir. · 2008 · confidence medium
See United States v. Cortez-Galaviz, 495 F.3d 1203, 1205-06 (10th *1344 Cir.2007) (“[A] traffic stop will be held reasonable when, under the totality of the circumstances, the officer bears a ‘reasonable suspicion’ that criminal activity ‘may be afoot.’ ”) (quoting United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002)); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989) (citing United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985)).
discussed Cited as authority (rule) United States v. Powell
10th Cir. · 2008 · confidence medium
Our cases have consistently acknowledged that “a strong odor may give rise to reasonable suspicion on the part of law enforcement officials that the odor is being used to mask the smell of drugs.” United States v. Salzano, 158 F.3d 1107, 1114 (10th Cir. *786 1998); see United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir.1997) (odor of detergent and visible soap crystals contributed to reasonable suspicion); United States v. Hernandez-Rodriguez, 57 F.3d 895, 898 (10th Cir.1995) (strong smell of perfume supported reasonable suspicion that it was masking odor of drugs); United States…
discussed Cited as authority (rule) United States v. Kolthoff
10th Cir. · 2008 · confidence medium
We have held that “a dog alert usually is at least as reliable as many other sources of probable cause and is certainly reliable enough to create a ‘fair probability’ that there is contraband.” United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir.1993); see also Stewart, 473 F.3d at 1270 (“A canine alert gives rise to probable cause to search a vehicle.” (quotations omitted)); United States v. Rosborough, 366 F.3d 1145, 1153 (10th Cir.2004) (holding that a dog alert creates probable cause to search the entire vehicle, including the trunk); United States v. Stone, 866 F.2d 359, 364…
discussed Cited as authority (rule) Flood v. State
Wyo. · 2007 · confidence medium
See, eg., United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir.1997) (odor of detergent supported reasonable suspicion of criminal activity); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989) (odor of patchouli oil supported reasonable suspicion of drug offense where officer testified the oil was often used to cover the seent of marijfua-na).
discussed Cited as authority (rule) Kokinda v. Peterson
10th Cir. · 2007 · confidence medium
The magistrate judge correctly noted that this court has held in United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), that the Fourth Amendment is not implicated when a drug detection dog jumps into a suspect’s vehicle during a traffic stop if the dog’s actions were instinctual.
discussed Cited as authority (rule) Kokinda v. Peterson
10th Cir. · 2007 · confidence medium
The magistrate judge correctly noted that this court has held in United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989), that the Fourth Amendment is not implicated when a drug detection dog jumps into a suspect’s vehicle during a traffic stop if the dog’s actions were instinctual.
discussed Cited as authority (rule) United States v. Morales
D.N.M. · 2007 · confidence medium
In United States v. Stone, the Tenth Circuit held that the Fourth Amendment was not implicated when a trained drug dog leapt into the open hatchback door of a suspect’s car during a valid Terry 5 stop because the dog’s action was “instinctive.” United States v. Stone, 866 F.2d 359, 363-364 (10th Cir.1989); see also United States *1265 v. Hutchinson, 471 F.Supp.2d 497 (M.D.Pa.2007). 6 The defendant had opened the hatchback to search for a traffic ticket or citation that the detaining police officer had asked to see.
discussed Cited as authority (rule) United States v. Hutchinson (2×)
M.D. Penn. · 2007 · confidence medium
Under these circumstances, police use of a narcotics dog is not a search requiring a search warrant or probable cause.” Id. at 363.
cited Cited as authority (rule) United States v. Wisniewski
D. Utah · 2005 · confidence medium
See also United States v. Sanchez-Valderuten, 11 F.3d 985, 989 (10th Cir. *1091 1993); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989).
discussed Cited as authority (rule) United States v. Molina
D. Kan. · 2004 · confidence medium
See e.g., United States v. Wilson, 96 Fed.Appx. 640, 647 , 2004 WL 928270 , *7 (10th Cir.2004) (finding reasonable suspicion where officer noted ether-like odor, knew defendant was suspected of involvement in the manufacture of methamphetamine, and saw a covered object between defendant’s feet large enough to contain implements used to manufacture methamphetamine); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989) (holding the odor of Patchouli oil, the officer’s knowledge that the oil was often used to mask the odor of illegal drugs, and the officer’s learning from the DEA that …
discussed Cited as authority (rule) Fitzgerald v. State
Md. Ct. Spec. App. · 2003 · confidence medium
See, e.g., United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995) (“The fact that the dog alerted provided probable cause to search.”); United States v. Seals, 987 F.2d 1102, 1107 (5th Cir.1993); United States v. Diaz, 25 F.3d 392, 394 (6th Cir.1994) (“[A]n alert by a properly trained and reliable dog establishes probable cause.”); United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir.1993) (“We therefore have held in several cases that a dog alert without more gave probable cause for searches and seizures.”); United States v. Florez, 871 F.Supp. 1411, 1417 (D.N.M.1994) (“The T…
discussed Cited as authority (rule) United States v. Landshof
10th Cir. · 2003 · confidence medium
See, e.g., United States v. Villar-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997) (“Although the scent of a masking agent alone is insufficient to establish reasonable suspicion, we have repeatedly held that air freshener coupled with other indicia of criminal activity supports a reasonable brief inquiry”) (internal quotation marks and quotation omitted); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989) (finding reasonable suspicion based, in part, on odor of Patchouli oil).
discussed Cited as authority (rule) Wallace v. State (2×)
Md. Ct. Spec. App. · 2002 · confidence medium
The Tenth Circuit held that “when the dog ‘alerted,’ there was probable cause to arrest Magee and Klinginsmith and to search the vehicle without a warrant under the automobile exception even had there been no prior consent.” Klingins-mith, 25 F.3d at 1510 (citing United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989)).
discussed Cited as authority (rule) State v. Van Cleave (2×)
N.M. Ct. App. · 2000 · signal: cf. · confidence medium
Cf. United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989) (determining that so long as officers do not ask a defendant to open his trunk, the officers "remain[] within the range of activities they may permissibly engage in when they have reasonable suspicion" of criminal activity). {16} For these reasons, we conclude that the request to inspect the trunk, combined with the direction of the dog sniff, took the agents out of "the range of activities" permissible of law enforcement officers.
discussed Cited as authority (rule) State v. England (2×)
Tenn. · 2000 · confidence medium
Accord, e.g., United States v. Holloman, 113 F.3d 192, 194 (11th Cir.1997); United States v. Jeffus, 22 F.3d 554, 557 (4th Cir.1994); United States v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993); United States v. Rodriguez-Morales, 929 F.2d 780, 788 (1st Cir.1991); United States v. Stone, 866 F.2d 359, 363 (10th Cir.1989).
cited Cited as authority (rule) United States v. Meindl
D. Kan. · 1999 · confidence medium
See United States v. Lyons, 957 F.2d 615, 617 (8th Cir.1992); United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989). 141 F.3d at 650 .
cited Cited as authority (rule) United States v. Neatherlin
D. Mont. · 1999 · confidence medium
United States v. Stone, 866 F.2d 359, 363 (10th Cir.1989).
discussed Cited as authority (rule) United States v. Quiroz
D. Minnesota · 1999 · confidence medium
The Eighth Circuit Court of Appeals has stated that “[a] dog’s identification of drugs in luggage or in a car provides probable cause that drugs are present.” United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir.1994), cert. denied, 514 U.S. 1113 , 115 S.Ct. 1970 , 131 L.Ed.2d 859 (1995) (citing Place, 462 U.S. at 706 , 103 S.Ct. 2637 ; United States v. Stone, 866 F.2d 359, 363 (10th Cir.1989)); United States v. Dennis, 115 F.3d 524, 531-32 (7th Cir.1997) (“if law enforcement authorities possess reasonable suspicion to believe that a package contains contraband, they may detain that …
UNITED STATES of America, Plaintiff-Appellee,
v.
John David STONE, Defendant-Appellant
87-2858.
Court of Appeals for the Tenth Circuit.
Jan 25, 1989.
866 F.2d 359
Edmund J. Lang, Albuquerque, N.M., for defendant-appellant., Mark Jarmie, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., were also on the brief), for plaintiff-appellee.
Holloway, Brorby, Anderson.
Cited by 143 opinions  |  Published
Pinpoint authority: bottom 54%
HOLLOWAY, Chief Judge.

John David Stone challenges on appeal the trial court’s denial of his motion to suppress narcotics seized by police and statements he made during and following a search of his automobile. After the motion was denied, Stone was convicted on a jury verdict of possession with intent to distribute methaqualone in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting in violation of 18 U.S.C. § 2. We affirm.

I

A.

On 11 February 1987, defendant Stone and Athena Anderson were driving west on Interstate 40 in New Mexico when Officer Clayton of the New Mexico State Police stopped them for speeding. While Officer Clayton was writing the citation, he smelled an odor he thought was either cocaine or crystal methadrine coming from the car. Stone reacted nervously when Clayton accused him of carrying narcotics. When Stone refused to consent to a search of the car, Officer Clayton told Stone to follow him to the police station in nearby Moriarity, New Mexico, where Clayton would get a warrant to search the car. II R. at 29, 33. In Moriarity, Officer Clayton called agent Small of the Drug Enforcement Administration and requested a background check on Stone. Agent Small told Clayton the DEA “had been doing surveillance on [Stone] for drug trafficking.” With these facts, Officer Clayton went before a state magistrate and requested a search warrant for Stone’s car. The magistrate refused to issue the warrant. Id. at 35. Clayton then released Stone.

When agent Small discovered Stone had been released, he telephoned Detective Na-gee of the Albuquerque Police Department. Agent Small asked Detective Nagee “if they could possibly obtain a narcotics sniffing dog and stop the vehicle as it came into Albuquerque.” Id. at 59. Officer Jones was called by another officer and advised[*361] that they were possibly going to stop the car. Jones proceeded to the area of Interstate 40 just east of Albuquerque and set up his radar. Id. at 76. Jones testified that his radar detected Stone traveling 65 miles per hour in a 55 mile per hour zone. Id. at 78.

Jones testified that Stone said he was not speeding and that he had been stopped earlier. Id. at 86. The government’s witnesses testified that Officer Jones asked to see the ticket. Stone replied that it was in the rear of the hatchback. Jones reiterated he would like to see the citation. Tr. at 87. Stone got out of the car, opened the hatchback, and retrieved the ticket. Id. at 88. Sometime during this encounter, several other Albuquerque police officers arrived at the scene and engaged Stone and Athena Anderson in conversation. Within a few more minutes another police officer arrived with the dog. The dog circled the car, showed interest underneath the rear area of the car and at the passenger door, and then jumped in the open hatchback where he “keyed” on a duffel bag. Id. at 101, 120-121. The police then searched the entire car and the duffel bag. Id. 101-102. The bag contained approximately 38,000 methaqualone tablets. IV R. at 182.

Stone also testified at the suppression hearing. He denied that he had been speeding when he was stopped by Officer Jones. Stone said after he got the ticket at Moriarity he figured he was being followed and was very careful and set his cruise control at 55 miles per hour. He testified that his radar detector never gave an indication that radar had spotted him. II R. at 146, 149.

Stone also denied he had consented to the search of his car and said no one ever asked whether they had permission to search it. Id. at 147, 148. Stone said he opened the trunk of his car because the Officer insisted on seeing the citation he had received; he understood that he had no options at that point and that the Officers were going to get into his car. Stone said he was detained about two and a half hours in Moriarity and it was probably an hour and a half following his departure from Moriarity when he was stopped again. Id. at 147.

Stone was indicted for possession with intent to distribute methaqualone in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. I R. at 1. Stone’s pretrial motion to suppress the narcotics alleged that both the stop of his car and the subsequent search violated the Fourth Amendment. I R. at 5. (Motion to Suppress — Automobile Search and Supporting Authorities); I R. at 6 (Motion to Suppress —Automobile Stop and Supporting Authorities). The trial judge denied the motion. Stone was then tried before a jury and convicted. I R. at 26. Stone claims the trial court erroneously denied his motion to suppress the narcotics.

B.

At the conclusion of the suppression hearing, the trial judge orally stated his findings and conclusions in support of his ruling denying Stone’s motion to suppress. II R. 153 et seq.

The judge found there were two trains of events involved. He found the second stop on Interstate 40 at Albuquerque was a legitimate traffic stop; Officer Jones’ radar detected defendant traveling 65 miles per hour in a 55 mile per hour zone. The stop was not pretextual, but a legitimate traffic stop. Id. at 154.

The other train of events was initiated at Moriarty by Officer Clayton. The judge found that facts obtained by police during this train of events gave them a reasonable suspicion Stone was transporting drugs in his car, which prompted them to call for the assistance of the narcotics dog at Albuquerque. Id. at 155. When the dog was commanded to sniff the car he became interested underneath the car at the passenger side where the door was open. Then when he came to the back of the vehicle he jumped into the open hatchback. The dog keyed, the handler testified, on substances he was trained to detect, including methamphetamine and the other controlled substances. Id. at 156. The judge found that these actions by the dog gave the police[*362] probable cause to search the automobile. Id. at 55.

The judge found further that the dog’s leap into the back of the car did not vitiate the seizure, regardless of whether or not it was a search. The judge found that the defendant voluntarily opened the hatchback to retrieve the citation requested by Officer Jones. Id. at 156. Then the dog came along and “on his own, apparently jumped into the back of this car and immediately found what is sought to be suppressed here.” Id. at 156-157. The judge found that in these circumstances the search and seizure did not violate the Fourth Amendment. He therefore denied the motion to suppress the narcotics found in the automobile and statements made at the time of the seizure.

II

The Fourth and Fourteenth Amendments protect the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Officer Jones seized Stone and his car and the police discovered the narcotics during a search of Stone’s car. Berkemer v. McCarty, 468 U.S. 420, 436-437, 104 S.Ct. 3138, 3148-3149, 82 L.Ed.2d 317 (1983) (“stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth] Amendment], even though the purpose of the stop is limited and the resulting detention quite brief.”) New York v. Class, 475 U.S. 106, 115, 106 S.Ct. 960, 966, 89 L.Ed.2d 81 (1986) (when police moved papers on a car’s dashboard to uncover the vehicle identification number they conducted a “search” within the meaning of the Fourth Amendment). The issues presented here are whether the seizure or the search were unreasonable within the meaning of the Fourth Amendment. If either was unreasonable, the narcotics and the statements may not be used as evidence against Stone. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (evidence obtained by state Officers which violated the defendant’s Fourth and Fourteenth Amendment right to be free from unreasonable searches and seizures is inadmissible in a federal criminal trial).

A. The Seizure

Stone argues that Officer Jones stopped him for speeding merely as a pretext to give the narcotics dog an opportunity to sniff his car. The district court, however, found the stop justified on an alternative ground: the police had reasonable suspicion to believe Stone was transporting narcotics. Because we hold the stop was justified by this reasonable suspicion, we need not decide whether the speeding ground was a pretext.

Police may stop and detain an automobile and its occupants if they have an articula-ble and reasonable suspicion that the car is carrying contraband. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). We agree that the Officers’ actions were lawful here.

First, here the judge found there was the presence of the Patchouli oil which, it was testified, was a type of substance emitting a very strong and distinctive odor and is used to shield or mask other smells. II R. 155. The testimony of Officer Clayton supports this finding; the oil was shown to Clayton by defendant and Clayton learned it was sold and used in California, mainly to cover up the smell of marijuana. II R. 36, 52.

Second, a DEA computer indicated that Stone had been “involved in a case in Tucson.” II R. 57. And upon inquiring further of the DEA office in Tucson, agent Small learned that they suspected Stone of being involved in a cocaine smuggling ring and that he associated with people who were known methamphetamine dealers. This finding is supported by the record testimony of agent Small. II R. at 57-58.

In sum, the finding of reasonable suspicion supported the stopping of the car at Albuquerque and the call for the narcotics dog.

B. The Search

Even though the police legally stopped Stone, the drugs are inadmissible[*363] against him unless the search during which they were seized was legal. “It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). The police had no warrant to search Stone’s car. Their search, therefore, was unreasonable unless justified by an exception to the search warrant requirement.

Stone contends that police use of the narcotics dog to sniff his automobile was a search within the meaning of the Fourth and Fourteenth Amendments. [1] We disagree. Upon reasonable suspicion, police may temporarily detain luggage at an airport. Under such circumstances, police use of a narcotics dog to sniff the luggage is not a search. United States v. Place, 462 U.S. 696, 706-707, 103 S.Ct. 2637, 2644-2645, 77 L.Ed.2d 110 (1983); United States v. Williams, 726 F.2d 661, 663 (10th Cir.1984). Likewise, we think police may employ a narcotics dog to sniff an automobile which they have stopped upon reasonable suspicion to believe it contains narcotics. [2] Under these circumstances, police use of a narcotics dog is not a search requiring a search warrant or probable cause. See United States v. Hardy, 855 F.2d 753, 758-759 (11th Cir.1988) (canine sniff of an automobile detained upon reasonable suspicion to believe it contains narcotics is not a search within the meaning of the Fourth Amendment).

Even though the police could use a trained dog to sniff the exterior of Stone’s automobile, the dog created a troubling issue under the Fourth Amendment when it entered the hatchback. People have a reasonable expectation of privacy in the interiors of their automobiles; police may not search an automobile unless they have probable cause to believe it contains contraband. Almeida-Sanchez v. United States, 413 U.S. 266, 269-270, 93 S.Ct. 2535, 2537-2538, 37 L.Ed.2d 596 (1973) (“Automobile or no automobile, there must be probable cause for the search.”).

The trial judge found that the dog “became interested underneath the passenger side of the automobile,” but apparently did not positively “key” on the methaqualone until he was inside the car. This interpretation of the judge’s findings is supported by the following exchange between the court and defense counsel just before the judge denied the motion to suppress:

MR. McCUE: [I]t’s our contention that the dog sniff in this case was a search, that the dog intruded upon the area where Mr. Stone had a legitimate expectation or reasonable expectation of privacy*
THE COURT: You think the exclusionary rule is intended to exclude a dog from jumping into a place that’s open where a smell or an odor is emanating from as described in these circumstances?
MR. McCUE: Yes, sir.... I think that — my impression is that the state is saying that the dog supplies probable cause, whereas that’s putting the cart before the horse.
The dog was the one who was doing the searching....
THE COURT: Well, I disagree.

Considering the above colloquy, and the uncertain testimony regarding when the dog’s responses were sufficiently positive to provide the police with probable cause, we think the trial judge based his ruling on the assumption the dog did not positively[*364] “key” until he was in the hatchback. Thus, when the dog jumped into the hatchback of Stone’s car the police had only reasonable suspicion to believe it contained narcotics. Only after the dog was in the trunk, where it “keyed” on the methaqualone, did the police have probable cause to search the car.

We agree with the district judge that the dog’s instinctive actions did not violate the Fourth Amendment. There is no evidence, nor does Stone contend, that the police asked Stone to open the hatchback so the dog could jump in. Nor is there any evidence the police handler encouraged the dog to jump in the car. II R. at 124, 128. The judge asked the Officer in charge of the dog: “So you didn’t encourage him or discourage him from jumping into the back?” And the Officer replied: “That’s correct. I just let his leash go and let him go where his nose would take him.” II R. 128. In these circumstances, we think the police remained within the range of activities they may permissibly engage in when they have reasonable suspicion to believe an automobile contains narcotics.

Once the dog “keyed,” the police had probable cause to believe the automobile contained narcotics. Williams, 726 F.2d at 663. Thereafter, the search of Stone's car and the duffel bag in which the narcotics were found was justified by the “automobile exception” to the search warrant requirement. The automobile exception justifies a police search of an automobile travel-ling on the highway, including all containers therein, upon probable cause to believe it contains contraband. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982) (“if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”). Therefore, the search of Stone’s car and the duffel bag was not unreasonable within the meaning of the Fourth Amendment and did not render the narcotics seized or statements uttered inadmissible.

III.

No reversible error is demonstrated and the judgment is accordingly

AFFIRMED.

1

. Stone relies on United States v. Thomas, 757 F.2d 1359, 1366-1367 (2d Cir.), cert. denied sub nom. Fisher v. United States, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985), which held that use of a dog to sniff for narcotics at a defendant's apartment violated Fourth Amendment principles. Such a case, based as it was, on the “heightened expectation of privacy" in the home, is distinguishable.

2

. As in Williams, we need not decide whether police must have a reasonable suspicion before employing a narcotics dog to sniff a car because we hold there was reasonable suspicion in this case. See Williams, 726 F.2d at 663.