F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

APR 6 1998

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

UNITED STATES OF AMERICA,

v.

Plaintiff-Appellant,

KENNETH HERMAN WINNINGHAM,

No. 97-2105

Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 96-CR-613)

John J. Kelly, United States Attorney (Mick I.R. Gutierrez, Assistant United States
Attorney, with him on the briefs), Las Cruces, New Mexico, for Plaintiff-Appellant.
Peter E. Edwards, Assistant Federal Public Defender (Ann Steinmetz, Federal Public
Defender, with him on the brief), Las Cruces, New Mexico, for Defendant-Appellee.
Before PORFILIO, MCKAY, and BRISCOE, Circuit Judges.
PORFILIO, Circuit Judge.

The government appeals a district court order suppressing evidence obtained by

using a trained dog to perform a roadside search of a van. The government argues: (1)

United States v. Stone, 866 F.2d 359 (10th Cir. 1989), controls this case and places the
drug dogs activity outside the scope of the Fourth Amendment; and (2), in any event, the
drivers consent cures any potential Fourth Amendment violation. We conclude Stone
does not apply in this instance and the consent was involuntarily given. We therefore
affirm.
I. Background
Acting on information, New Mexico border patrol agents stopped a van on the
reasonable suspicion it might be carrying undocumented aliens. Agent Carlos Almengor
approached the van to question the occupants while three other border patrol agents stood
nearby, behind the van, as backup. Agent Almengor asked the driver, Mr. Kenneth
Winningham, and his passenger, Mr. Navarrete, for citizenship papers. Mr. Winningham
and Mr. Navarrete produced papers indicating they were legally within the United States.
Agent Almengor told Mr. Winningham he had information Mr. Winninghams van was
being used to smuggle illegal aliens into the United States and asked to search the van.
Mr. Winningham consented. Agent Almengor asked Mr. Winningham and Mr. Navarrete
to step out of the van and stand near the other three border patrol agents.
Agent Almengor opened the sliding door of the van and conducted a visual search
of its interior. Finding no one inside, Almengor left the van door open, told Mr.
Winningham he also had information the van was carrying narcotics, and asked
permission to run a dog on [the] vehicle. Mr. Winningham agreed. Because the agents
-2-

did not have a drug dog with them, Mr. Winningham, Mr. Navarrete, and the four border
patrol agents waited five or six minutes for the dog and two other agents to arrive.
Throughout the encounter, whenever Mr. Winningham or Mr. Navarrete moved,
the border patrol agents moved with them. At one point, Mr. Winningham appeared to be
moving away from the van and up a nearby hill, and one of the agents moved with Mr.
Winningham, prepared to intercept him should he take flight. At the suppression hearing
Agent Almengor admitted, although Mr. Winningham was supposed to be free to leave at
that point, the agents were trying to keep him there. Agent Robert Palacios, the dog
handler, arrived with another agent and the drug dog, bringing the number of armed and
uniformed agents to six.
Agent Palacios started the dog at the front passenger side of the van. Palacios
testified he observed a just noticeable difference in the dogs conduct as he and the dog
reached the rear of the van. Palacios unleashed the dog. The dog continued to sniff,
moving around the right side of the van. When the dog reached the open door, he jumped
into the van and methodically sniffed the vans interior. Eventually the dog alerted at a
rear vent. Inside the vent, the agents discovered 50 kilograms of marijuana.
Mr. Winningham was arrested for possession of marijuana with intent to distribute.
In a pretrial motion, Mr. Winningham moved to suppress the evidence borne of the stop.
Following closing argument in the suppression hearing, the district court announced it

-3-

would review the court reporters notes and make a ruling on the motion. After reviewing
the notes, the court returned and made the following statement:
The transcript reflects that Agent Almengor asked for permission to run a
dog on the vehicle, and this was granted. Consent is not to be lightly
inferred or unnecessarily extended. Whether or not voluntary consent was
given is a question of fact based on the totality of the circumstances.
Under all the circumstances, and particularly the fact that the defendant at
one point attempted to back up and apparently leave, Im going to find that
there was no voluntary consent for the dog to enter the cabin of the van
and suppress the evidence. So defendants motion will be granted.1
(emphasis added). The government filed a motion to reconsider, arguing Stone placed
the dogs activities outside the scope of the Fourth Amendment. The district court denied
the governments motion for reconsideration and issued a written order suppressing the
narcotics. In the order, the district court noted the consent problem, but granted
suppression on the ground the second interior search of the van exceeded the scope of Mr.
Winninghams consent. The government appealed.
II. United States v. Stone
The government argues United States v. Stone, 866 F.2d 359 (10th Cir. 1989), is
the controlling authority in this case and the district court erred by distinguishing the case.
In Stone, we held the Fourth Amendment was not implicated when a trained drug dog
leapt into the open hatchback door of a suspects car during a valid Terry stop because
Although the dissent asserts we have mischaracterized the courts finding, these
words speak for themselves. The district court simply found the defendants consent to
the entry of his van by the dog was involuntary.
1

-4-

the dogs action was instinctive. Acting on reasonable suspicion that Mr. Stone
possessed narcotics, police officers stopped his car and asked to see a citation he had
received earlier in the day. Mr. Stone opened his hatchback door to retrieve the citation
and, while the door was open, an officers drug dog leapt into the rear of the car and
alerted on a duffel bag. The police then searched the duffel bag and the car and
discovered narcotics. Mr. Stone was arrested and charged with possession of narcotics
with intent to distribute.
Although the officers in Stone had reasonable suspicion justifying the stop, until
the dog alerted on the duffel bag, the Stone court reasoned, the officers had no probable
cause to search Mr. Stones vehicle. Id. at 362-63. The dog, the court observed, created
a troubling issue under the Fourth Amendment because he did not key on the duffel bag
until he was inside Mr. Stones car. Id. at 363. If the dogs leap into the car violated the
Fourth Amendment, police were not entitled to draw probable cause from the dogs alert,
and the resulting search was illegal. Based on the facts of Mr. Stones case, we decided
the dogs leap did not implicate the Fourth Amendment. Id. at 364.
Mr. Winninghams case differs from Stone in two material respects, either of
which, in our opinion, renders Stone inapposite. First, our holding in Stone was driven
not by what the officers did, but what they did not do:
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. The judge asked the
Officer in charge of the dog: "So you didn't encourage him or discourage
-5-

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." 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.
Stone, 866 F.2d at 364. In Mr. Winninghams case, the officers themselves opened the
door, allowing the van to sit on the side of the highway with the sliding door wide open
for a period of at least six minutes until the drug dog could arrive. The dog handler then
unleashed the dog as the dog neared the open door. A desire to facilitate a dog sniff of
the vans interior, absent in Stone, seems readily apparent here.2
Second, the officers in Stone acted under reasonable suspicion, a circumstance
underscored by our limited holding. Id. (holding, [i]n 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 (emphasis
added)). In the present case, however, as we discuss in Part III, reasonable suspicion was
exhausted after Officer Almengor searched the vans interior. The subsequent police
activity detaining the van for six minutes to await the dog and allowing the dog to sniff

The dissent infers more from this statement than intended. We do not state, nor
do we imply, the officers encouraged the dog to enter the vehicle. We do, however,
draw a distinction between this case and Stone based upon the conduct of the officers that
facilitated the dogs entry into the van. In Stone the defendant himself opened his
vehicle and provided an opportunity for the dog to jump through the opening. Here, it
was Agent Almengor who opened the door to the van, thus creating the opportunity. This
fact is in the testimony and clear from the record. Citing it does not depend upon an
assessment of the credibility of the witness.
2

-6-

any portion of the van, internal or external was permitted, if at all, by Mr.
Winninghams consent, not by reasonable suspicion. Because the range of acceptable
police activity in the absence of reasonable suspicion may differ considerably from the
range of acceptable police activity in the presence of reasonable suspicion, we see no
reason to find Stone controlling here. Stone is therefore distinguishable on both factual
and legal grounds and is not controlling authority in this case.
III. Consent
Agent Almengor testified, the district court found, and we agree, when Agent
Almengor opened the van door and found no undocumented aliens inside and no
articulable reason to suspect the presence of narcotics, he exhausted the reasonable
suspicion upon which the stop was predicated. Any further interaction between Agent
Almengor and Mr. Winningham required Mr. Winninghams consent. United States v.
Peters, 10 F.3d 1517, 1522 (10th Cir. 1993) ([I]f probable cause is not developed during
a Terry-type encounter, the officer must release the suspect. . . . Absent a new and
independent basis for suspicion, the officer must halt his investigation in accordance with
Terry and Place. (citing Terry v. Ohio, 392 U.S. 1 (1968), and United States v. Place,
462 U.S. 696 (1983))). We therefore consider the validity of Mr. Winninghams consent.
When a search is conducted pursuant to a suspects consent, the government bears
the burden of proving consent and must show by clear and positive testimony that
consent was unequivocal and specific and freely given . . . without duress or coercion,
-7-

express or implied. United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993)
(citing United States v. Butler, 966 F.2d 559, 562 (10th Cir. 1992)). The voluntariness of
consent is a question of fact to be determined from the totality of the circumstances.
United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990). Here, the district court,
after reviewing the suppression hearing transcripts, made an oral finding that there was
no voluntary consent for the dog to enter the cabin of the van. We will accept this
finding unless it is clearly erroneous. United States v. Wright, 932 F.2d 868, 878 (10th
Cir. 1991).
In determining whether consent was obtained without duress or coercion, express
or implied, we will consider, among other factors, whether the consent request occurs
during the suspects detention, United States v. Nicholson, 983 F.2d 983, 988 (10th Cir.
1993); whether the officer fails to inform the suspect he or she was free to leave or refuse
consent, United States v. Orrego-Fernandez, 78 F.3d 1497, 1505 (10th Cir. 1996);
whether the person granting consent exhibits discomfort during the search or expresses a
desire to halt the search, United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996);
United States v. Corral, 899 F.2d 991, 994 (10th Cir. 1990); and whether multiple
officers are present, United States v. Soto, 988 F.2d 1548, 1558 (10th Cir. 1993).
At the time Agent Almengor asked Mr. Winningham for consent to run a dog on
the vehicle, Mr. Winningham knew Agent Almengor had taken a specific interest in him
and his van; this was not an ordinary traffic stop. Mr. Winningham had been asked to
-8-

step out of his vehicle and told to stand near three armed and uniformed officers. At no
time during the encounter was Mr. Winningham told he had a right to refuse consent and,
although Agent Almengor had exhausted the reasonable suspicion that had initially
justified the stop, Mr. Winningham was not told he was free to leave. During the search,
Mr. Winningham began to move away from the van, up a hill near the roadside, only to
find his progress blocked by the attending agents. In short, Mr. Winninghams case
demonstrates several of the factors indicative of involuntary consent. Although each of
these factors would not, by themselves, raise doubt regarding Mr. Winninghams consent,
given the presence of multiple relevant factors and the totality of the circumstances, we
cannot conclude the district court clearly erred in finding Mr. Winninghams consent
involuntary; nor can we conclude the government has shown, as it must, that Mr.
Winninghams consent was obtained without duress or coercion, express or implied.
McKneely, 6 F.3d at 1453 (citing United States v. Butler, 966 F.2d 559, 562 (10th Cir.
1992)). Absence of voluntary consent alone would render the subsequent search illegal
and justify suppression of the narcotics in this case; therefore, we need not consider
whether the district court erred in concluding the second search exceeded the scope of
Mr. Winninghams consent.
Because the dissent questions our review of the district courts conclusions, we
reflect specifically upon the written findings of fact made by the district court which state:
Agent Almengor did not request and Defendant did not grant permission for the dog to
-9-

search inside the Van. In reference to the apparent attempt by the defendant to back up
and apparently leave while the dog was walking around the van, the court also noted:
Although this raises a question as to whether Defendant was detained and whether he
felt compelled to permit the dog on the Van, this Court did not grant the motion on this
basis. (citation omitted). Indeed the courts written conclusion was focused upon Agent
Almengors use of the curiously ambiguous phase on the van; holding permission to
run a dog on the van could not be understood as consent for the animal to enter the
vehicle.
These conclusions notwithstanding, the district court did not refute its earlier oral
finding regarding the involuntary nature of the defendants consent. It merely decided,
without explanation, to walk down a different path. That decision does not preclude us
from relying on the oral finding, however, because we may affirm the district court on a
wholly different basis so long as our decision finds support in the record. Bolton v.
Schrivener, 36 F.3d 939, 942 (10th Cir. 1994) (The appellate court may affirm summary
judgment on grounds other than those relied on by the district court when the record
contains an adequate and independent basis for that result.).
IV. Conclusion
Because United States v. Stone differs both factually and legally from the present
case, the district court correctly distinguished it. Upon reviewing the totality of the
circumstances surrounding Mr. Winninghams stop, we are unable to conclude the district
- 10 -

court clearly erred in finding Mr. Winninghams consent was involuntarily given.
Involuntary consent renders the resulting search invalid, and we therefore AFFIRM the
district court order granting Mr. Winninghams motion to suppress the evidence
discovered during the roadside search of his van.

- 11 -

No. 97-2105, United States v. Winningham

BRISCOE, Circuit Judge, dissenting:
I respectfully dissent. I believe United States v. Stone, 866 F.2d 359, 364
(10th Cir. 1989), controls the outcome of this case and cannot be distinguished.
Further, I believe the majority is mischaracterizing the district courts findings
and conclusions regarding Winninghams consent. The court did not conclude
Winninghams consent to use of a drug detection dog was involuntary, but rather
it concluded the dogs entering the van exceeded the scope of the consent
voluntarily given. Specifically, the court concluded Winninghams consent to
run a dog on the vehicle was not a consent to permit the dog to enter the
vehicle. Therefore, by reviewing a conclusion that Winninghams consent was
involuntary, the majority is reviewing a conclusion the district court did not make.
In Stone, we affirmed the district courts decision to deny suppression of
evidence located by the instinctive actions of a drug detection dog. We agreed
with the conclusion of the district court in Stone that the dogs instinctive actions
did not violate the Fourth Amendment. As in the present case, the court there did
not find the dog handler had encouraged the dog to jump into the vehicle. In
reviewing the district courts denial of Stones motion to suppress, we considered
the totality of the circumstances and viewed the evidence in a light most favorable
to the government. See United States v. Wood, 106 F.3d 942, 945-46 (10th Cir.
1997). Similarly, in reviewing the district courts suppression of the marijuana

located in Winninghams van, we view the evidence in a light most favorable to

Winningham, accept the courts factual findings, unless clearly erroneous, and
review the courts legal conclusions de novo. Id. As in Stone, we are not
permitted on appeal to judge the credibility of witnesses, determine the weight to
be afforded testimony, or draw reasonable inferences or conclusions from the
testimony, as these are matters within the exclusive province of the district court.
See United States v. Gutierrez-Daniez, 131 F.3d 939, 940 (10th Cir. 1997).
The majority holds Stone does not apply because Agent Palacios, the canine
handler, encouraged the dog to jump into Winninghams van. The district court
did not make a factual finding that Agent Palacios encouraged the dog to enter
Winninghams van and a review of the record further refutes this conclusion. As
regards the actions of the officers prior to the dogs entry into the van, the court
found: As Agent Palacios brought [the dog] around the back of the Van, the dog
began to act on his own. Agent Palacios then released Sam who ran inside the
Van through the door Agent Almengor had opened and began pawing a vent in the
rear of the Van. Record I, Doc. 46 at 2. The majority describes the path of the
dog around the van and concludes since Agent Palacios unleashed the dog near
the open door of the van, he encouraged the dog to enter the van. However,
Agent Palacios testified:
Q. . . . Now, you ran the dog, you said, starting at the left front end?
A. Yes, sir.
-2-

Q. And which direction did the dog go from there?

A. We started going south, working towards the back of the vehicle,
and then around.
Q. Through the side of the driver?
A. Right.
Q. Okay.
A. On the left side.
Q. When you run the dog around the vehicle, is the dog on a leash?
A. In that case, being so close to the interstate, I keep the dog on the
leash.
Q. So now youre walking the dog around on the leash, and you said
there was a JND [Just Noticeable Difference]? . . . .
A. On the back, once he got towards the back, he started to show-its something that you notice that the dog does, like he starts working a
scent.
Q. What specifically can you recall on that?
A. He started going up and down, back underneath, and working
where he went into the vehicle on his own. He jumped into the vehicle,
working the scent.
Q. You allowed him to do that since he was still on a leash; is that
correct?
A. I let him go.
Q. He was off the leash then?
A. Once he started working and he was off the interstate side, I let
him go.
Record II at 51-52. Thus, the record clearly reflects Agent Palacios led the dog
around the entire length of the van, unleashing him at the back of the van only
after he had alerted and was no longer in danger of being struck by oncoming
vehicles. Even viewing the evidence in a light most favorable to Winningham,
the record does not support the conclusion that Agent Palacios unleashed the dog
near the open door of the van, thereby encouraging the dog to enter the van.

-3-

Regardless of the path taken around the van, the district court did not find
and the record does not demonstrate that Agent Palacios encouraged the dog to
jump into the van. Agent Almengor already had opened the side door of the van
to look inside for illegal aliens before the drug detection dog arrived. He testified
that [t]he dog just, on its own, went into the vehicle because the side door that I
had opened was left open. Id. at 27. These circumstances are indistinguishable
from those in Stone where the canine handler testified he unleashed the dog and
let him go where his nose would take him. 866 F.2d at 364. The distinction
that here Agent Almengor opened the side door of the van while in Stone,
defendant himself opened the hatchback of his car, is insignificant. Winningham
consented to Agent Almengor opening the side door of the van.
To reach the conclusion that the agents did not encourage the drug
detection dog to enter Winninghams van, one need not judge the credibility of
witnesses, determine the weight to be afforded testimony, or draw inferences or
conclusions from the testimony. This conclusion is based upon the district courts
factual findings. Viewed in a light most favorable to Winningham, the court did
not find the agents encouraged the dog to enter the van. Instead, the court found
when Agent Palacios brought the drug detection dog around the van, the dog
began to act on his own. Record I, Doc. 46 at 2.

-4-

The majority also states that the range of acceptable police activity in the
absence of reasonable suspicion may differ considerably from the range of
acceptable police activity in the presence of reasonable suspicion. Majority Op.
at 6. Therefore, the majority reasons since the agents did not have reasonable
suspicion to detain Winningham when the dog jumped into the van, Stone does
not control. The district court did not distinguish Stone on these grounds but if it
had, we would review the conclusion de novo.
If officers have reasonable articulable suspicion that an individual is
committing or has committed a crime, they are permitted to take actions that
would be impermissible in the absence of reasonable suspicion. Boiled down to
its essential premise, that was the Supreme Courts holding in Terry v. Ohio, 392
U.S. 1 (1968). The majority relies on this basic premise to distinguish the acts of
the officers in Stone with those of the officers here. However, the majoritys
conclusion ignores the fact that Winningham gave consent to the investigating
officers to look in the back of his van and to run a dog on the vehicle. Record
II at 12. The range of acceptable police activity is arguably broader when consent
has been given by the suspect than when the police merely have reasonable
articulable suspicion that a suspect is violating the law, as was the case in Stone.
The majoritys decision to ignore the fact that Winningham gave his consent and
to focus on the fact that the agents did not have a reasonable articulable suspicion
-5-

that Winningham was engaged in illegal activity when the dog was used is
especially troubling here because the police had a reasonable articulable suspicion
that Winningham was transporting illegal aliens and narcotics when his vehicle
was initially stopped.
I also disagree with the basic foundation of the majoritys opinion--that
Winninghams consent was involuntary. The majority states the district court
made an oral finding [of fact] that there was no voluntary consent for the dog to
enter the cabin of the van, and then reviews this finding for clear error.
Majority Op. at 7. I read the courts oral statement and written findings
differently. In its written findings, the court clearly stated it was suppressing the
marijuana because the officers exceeded the scope of Winninghams consent, not
because his consent was involuntary. Specifically, the court stated the
circumstances surrounding Winninghams detention and questioning raise[] a
question as to whether Defendant . . . felt compelled to permit the dog on the
Van, [but] this Court did not grant the motion on this basis. Record I, Doc. 46 at
2 n.1 (citation omitted).
Since the district court did not find Winninghams consent was involuntary,
this court is not required to accept this fact and review for clear error. Instead,
the court implicitly found consent was voluntary. This finding should be accepted
by this court absent clear error. See United States v. Pena, 920 F.2d 1509, 1514
-6-

(10th Cir. 1990). I would conclude the district courts implicit conclusion that
Winninghams consent was voluntary is not clearly erroneous. Instead, I believe
the government established his consent was obtained without duress or coercion,
express or implied. United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir.
1993).
I would conclude Winningham voluntarily consented to a limited search of
his van and that the instinctive actions of the dog during that limited search did
not violate the Fourth Amendment under Stone. Accordingly, I would reverse the
district courts order suppressing the marijuana.

-7-