United States v. Romero

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 20 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 97-2345 (D. Ct. No. CR-97-57-JC) (D. N. M.) FRANCISCO RICARDO ROMERO,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA, BALDOCK, and KELLY, Circuit Judges.

Defendant Francisco Romero appeals the district court’s denial of his

motion to suppress cocaine seized from him following his arrest at a border patrol

checkpoint. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

On January 13, 1997, United States Border Patrol Agent Enrique Davila

was working at the border patrol checkpoint on Interstate 25, north of Las Cruces,

New Mexico. Defendant Romero approached the primary inspection area in a

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1995 Mitsubishi Mirage. Upon questioning Romero, Agent Davila became

suspicious and asked for permission to use a dog to inspect Romero’s vehicle.

Romero consented, and the agent directed Romero out of the car and into the

secondary inspection area. The dog alerted, indicating the presence of a

controlled substance. After the dog alerted, Agent Davila escorted Romero into

the checkpoint trailer and read Romero his Miranda rights. Agent Kevin Thatcher

took custody of Romero while Agent Davila and a third agent searched Romero’s

vehicle. When they searched the car, they found a trace amount of marijuana.

The agents went inside the trailer and informed Agent Thatcher of the marijuana.

They then searched Romero’s person, revealing cocaine.

On appeal, Romero asserts that his arrest was illegal, though he concedes

that the agents’ search of his vehicle was legal. He contends that at the point that

Agent Davila escorted him into the checkpoint trailer and read him his Miranda

rights, the agents did not yet have probable cause to arrest him because they had

not yet searched his car and found the marijuana. He argues that after the dog

alerted, but before the agents searched the vehicle, there was probable cause to

search the car but not probable cause to arrest Romero. Consequently, he argues,

the cocaine subsequently seized from his person must be suppressed because it

resulted from the illegal arrest, in violation of the Fourth Amendment.

In reviewing a district court’s denial of a motion to suppress, we accept the

-2- court’s factual findings unless they are clearly erroneous, and we consider the

evidence in the light most favorable to the government. See United States v.

Glover, 104 F.3d 1570, 1576 (10th Cir. 1997). The ultimate question of whether

a search and seizure was reasonable under the Fourth Amendment is a question of

law that we review de novo. See id. It is well established in this circuit that a

drug sniffing dog’s detection of contraband itself establishes probable cause

enough for an arrest. See United States v. Williams, 726 F.2d 661, 663 (10th Cir.

1984). The defendant asserts that the above-quoted rule from Williams is dicta

and was not necessary to that decision because the panel later noted that the

defendant’s fitting a drug courier profile, “along with the alert by the dog,

sufficed to justify . . . the arrest,” suggesting that both facts were necessary to

establish probable cause. Id. at 664. We disagree. The Williams panel’s

articulation of the rule that the alert of a drug-sniffing dog is sufficient to

establish probable cause to arrest could not be more clear or precise. A dog alert

alone establishes probable cause to arrest. Here, the dog’s alert to Romero’s

vehicle gave the agents probable cause to place Romero under arrest.

-3- Consequently, their subsequent search of his person was a valid search incident to

arrest. See Lavicky v. Burnett, 758 F.2d 468, 474 (10th Cir. 1985). The seizure

of the cocaine was legal.

AFFIRMED.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge

-4-