©2010 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) United States v. Lujan, 2010 U.S. App. LEXIS 21021 (10th Cir. Decided October 12, 2010)
It has long been established that a canine sniff of the exterior of a vehicle that is located in a public place does not implicate the Fourth Amendment because it provides only information about contraband and is minimally intrusive.[i] This rule begs the question about the possible Fourth Amendment implications when a police canine that is conducting a sniff of the exterior of a vehicle, jumps into the vehicle during the sniff. This was just the case in the United States v. Lujan.[ii] The facts of Lujan are as follows:
On July 14, 2008, Detective Pat Ruiloba of the Albuquerque Police Department received a phone call from an FBI agent who indicated that she had just seen Lujan participate in what appeared to be a drug transaction at an Albuquerque shopping mall… Shortly after receiving this call, Ruiloba observed a vehicle matching this description traveling southbound on Interstate 25. Lujan was the driver of this vehicle. Ruiloba testified at trial that his radar detected Lujan driving at a speed of seventy-five miles per hour in a fifty-five miles per hour construction zone. As Ruiloba was about to pull the vehicle over, Lujan turned off of the highway. Ruiloba followed Lujan, activated his lights, and pulled Lujan over.
Ruiloba approached the vehicle from the passenger side and asked Lujan if he knew why he had been stopped. Lujan replied that he did not. Ruiloba informed Lujan that he had been speeding in a construction zone. Ruiloba then asked Lujan for his driver’s license, proof of insurance, and vehicle registration form. Lujan was able to locate his driver’s license and proof of insurance, but could not find his registration. Lujan then began searching the vehicle’s glove compartment in an attempt to find his registration.
Ruiloba testified that as Lujan was searching for his registration, he “lean[ed] over towards the passenger’s side floorboard of the vehicle, and . . . kind of shov[ed] a white plastic bag under the seat.” Ruiloba asked Lujan if “everything was okay,” and Lujan responded that it was. Ruiloba next asked Lujan to step out of his car. Lujan complied and followed Ruiloba back to the police vehicle.
Ruiloba proceeded to engage Lujan in casual conversation, asking him where he was coming from and where he was headed. Eventually, Ruiloba again asked Lujan for his vehicle registration. Lujan stated that he did not have it, and he asked Ruiloba for permission to return to his car to continue looking for it. Ruiloba consented and the two men walked back to the passenger side of Lujan’s vehicle. Lujan opened the front passenger door, leaned in, and began to search the glove box for his registration. Ruiloba noticed at this point that Lujan’s hands were visibly shaking and that he appeared to be very nervous.
Believing that Lujan was not going to be able to locate his vehicle registration, Ruiloba asked Lujan to return to his patrol car. Lujan complied. When Lujan returned to the patrol car, he left his front passenger door open. As Lujan waited by the patrol car, Ruiloba opened the front driver’s side door to check Lujan’s VIN number. He also ran a warrants check. After Ruiloba confirmed that Lujan was not driving a stolen car and that there were no outstanding warrants for his arrest, Ruiloba issued Lujan a speeding ticket and a warning for failure to carry his registration. Ruiloba also returned Lujan’s driver’s license and insurance verification. Lujan signed his citation and began walking back to the driver’s side of his car, despite the fact that the front passenger door remained open.
When Lujan reached the front driver’s side of his vehicle, Ruiloba called out to him: “Mr. Lujan, there is [sic] a couple more questions I have. Could you come talk to me?” Although there is no indication that Lujan verbally consented to this request, Lujan walked back to Ruiloba’s patrol car. Ruiloba then asked Lujan, in separate questions, if he had any weapons, marijuana, heroin, methamphetamine, or cocaine in the vehicle. According to Ruiloba, Lujan answered “no” to each question, but he laughed after denying that he had any cocaine in his vehicle.
Ruiloba then asked Lujan if he could search his car. Lujan said he could not. Ruiloba then asked Lujan if he was responsible for everything in his vehicle. Lujan stated that he was. When Ruiloba again asked Lujan if he could search his vehicle, Lujan replied: “No, I don’t know why you would want to search my vehicle.” Ruiloba then told Lujan that he had a narcotics detection dog, and asked for permission to “r[u]n the dog around [his] car.” Lujan responded, “[o]kay.”
Ruiloba then placed Doobie, the drug detection dog, on a leash and led him to the front driver’s side of Lujan’s vehicle. Ruiloba and Doobie proceeded in a counter-clockwise direction around Lujan’s car until they reached the front passenger side. At that point, without encouragement or command from Ruiloba, Doobie jumped into the passenger area, then into the back seat, and then into the open area of the car where he began “alerting” to something on the floor of the car.
Ruiloba subsequently initiated his own search of Lujan’s vehicle and discovered two bundles of what turned out to be cocaine in a white plastic bag underneath the front passenger seat. Ruiloba then arrested Lujan and transferred him to the custody of the FBI. While in FBI custody, Lujan made a number of incriminating statements.[iii] [internal quotations omitted]
Lujan was subsequently indicted on federal drug charges. He filed a motion to suppress the cocaine and the district court denied the motion. He was convicted by a jury. He then appealed the denial of his motion to suppress to the Tenth Circuit Court of Appeals.
The issue before the court was whether the canine’s spontaneous entry into Lujan’s vehicle constituted an unreasonable search under the Fourth Amendment? This issue was further broken down into three separate issues which are discussed below.
At the outset, the Tenth Circuit noted that
while [a] dog sniff of the exterior of a vehicle parked in a public place . . . is not a Fourth Amendmentintrusion,” a drug dog’s entry into a vehicle prior to the establishment of probable cause may raise Fourth Amendment concerns because [p]eople have a reasonable expectation of privacy in the interior of their automobiles.[iv] [internal quotations omitted]
Lujan first argued that Doobie had on a previous occasion spontaneously jumped into a vehicle during a sniff. As such, he states that Officer Ruiloba should have taken steps to ensure that this did not happen in Lujan’s case. However, citing previous case law, the Tenth Circuit noted that the issue is not whether the canine had previously jumped into a car, but rather whether the police improperly facilitated or caused the canine to jump into the car.[v] The Tenth Circuit then stated, in Stone, without addressing the canine’s prior history, they held that
[A] dog’s instinctive leap into a car is not a Fourth Amendment violation unless an officer improperly facilitates the dog’s entry into the vehicle.[vi]
As such, the court of appeals found Lujan’s first argument unpersuasive.
Second, Lujan argued that his case is different from Stone, because in Stone, the canine immediately located the drugs upon entering the car but in his case, Doobie had to sniff around and continue his search inside the car to locate the drugs. However, Officer Ruiloba testified that upon jumping into the car, Doobie jumped into the back seat and then jumped back to the area near the front seat where he alerted. The district court, after hearing the testimony of both Officer Ruiloba and Lujan, ruled that Doobie “entered the automobile and alerted at the passenger seat of the vehicle.” The court of appeals held that since the trial court’s finding was based upon evidence at hand, the ruling was not clearly erroneous and therefore did not merit reversal.
Lujan’s last argument centered upon whether Officer Ruiloba facilitated Doobie’s entry into his vehicle. To this argument, the court of appeals stated
Ruiloba did nothing to facilitate Doobie’s entry into the car—he neither opened the passenger door, asked Lujan to leave the door open, nor encouraged Doobie to jump inside. Thus, as with the dog in Stone, Doobie’s leap into Lujan’s car was the result of his “instinctive actions” and not the result of Ruiloba facilitating his entry into the vehicle.[vii] [internal citations omitted]
The Tenth Circuit then held that, because Officer Ruiloba’s actions were not improper, Doobie’s alert in the vehicle provided the officer with probable cause to search the vehicle. As such, the district court was correct in upholding the search.
NOTE:Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
SEE RELATED ARTICLES:
U.S. Supreme Court Upholds Canine Sniffs of Vehicles (Legal Update 2005)
Police Canine Sniffs in Public Schools (Legal Update 2010)
Dog Sniff’s and Probable Cause (Legal Question 2008)
Bite and Hold Canines: Warning Required Before release (Legal Question 2006)
[i] See United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983)); United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993); United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998)
[ii] No. 09-2193 & 09-2194, 2010 U.S. App. LEXIS 21021 (10th Cir. Decided October 12, 2010)
[iii] Id. at 2-6
[iv] Id. at 8 (quoting United States v. Engles, 481 F.3d 1243, 1245 (10th Cir. 2007); United States v. Stone, 866 F.2d 359, 363 (10th Cir. 1989))
[v] Id. at 11 (citing Stone, 866 F.2d 359)
[vi] Id. at 11-12 (citing Stone, 866 F.2d at 364)
[vii] Id. at 13-14