When in Doubt, Defer to the Dog

United States v. Stewart, 2007 WL 127374 (1/19/07) - The 10th makes absolutely clear that the division among the 10th's judges in the en banc decision in U.S. v. Holt, 264 F.3d 1215 (10th Cir. 2001), has been resolved by the S.Ct. in Muehler v. Mena, 544 U.S. 93 (2005). During a traffic stop it is now okay to question people about anything, including about weapons, even about unloaded weapons, as long as the questioning does not extend the duration of the stop. The 10th upholds a search of the defendant's car on a ground not relied upon by the d.ct. The d.ct. was wrong to justify the search on the grounds that it was incident to an arrest where the defendant was already on his way to the police station at the time. But, the 10th and "Boomer," the wonder dog, save the day. The dog's alert established probable cause to search the car. It was fair to affirm on that basis, even though the government didn't inform the defendant about the alert until the evidentiary hearing, because defense counsel brilliantly cross-examined the canine officer and the d.ct. gave counsel 10 days to produce new evidence regarding the alert. Although the d.ct. said "skip the dog," that was after all the evidence had been presented and the defense was given "tremendous" latitude. The 10th concluded "the dog sniff may have been serendipitous, but it is not superfluous."