FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    October 6, 2009
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 08-3319
                                             (D. Ct. No. 6:08-CR-10004-JTM-1)
 ESMERELDA VILLA,                                         (D. Kan.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and GORSUCH, Circuit Judges.


      Defendant-appellant Esmerelda Villa was charged with possession of

cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A). The district court denied Ms. Villa’s motion to suppress evidence

found in the rental vehicle she was driving at the time of her arrest. Ms. Villa

then entered a guilty plea conditioned on the outcome of this appeal of the denial

of her motion to suppress. On appeal, Ms. Villa contends: (1) the dog sniff of the

rental vehicle that was parked in a public place required probable cause; (2) the



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
dog used in this case was too unreliable for its alert to provide probable cause to

search the rental vehicle; and (3) the district court erred by refusing to order

additional discovery of documentary evidence regarding the dog’s reliability.

We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

                                I. BACKGROUND

      In September 2007, Ms. Villa was driving a rental vehicle on a Kansas

highway when Kansas State Trooper Charles Boydston stopped her for speeding.

After Ms. Villa admitted to driving on a suspended license, Trooper Boydston

arrested her and asked Ms. Villa’s passenger to follow him and Ms. Villa to the

Phillips County Sheriff’s Department. While Trooper Boydston processed Ms.

Villa, Sheriff’s Deputy Nathan Mathes led a drug-detection dog around the rental

vehicle Ms. Villa’s passenger had parked in front of the Phillips County Sheriff’s

Department. The dog immediately alerted by barking, biting, and scratching at

the driver’s side door. Deputy Mathes then returned the dog to his own vehicle,

obtained the keys to the rental vehicle, and executed a search of the rental vehicle

with another officer. During the search the officers discovered 7.48 kilograms of

cocaine.

      Ms. Villa moved to suppress the drugs found during the search of the rental

vehicle. At the suppression hearing, Deputy Mathes testified that the dog used in

this case was certified at the time it alerted to the rental vehicle. On cross

examination, Deputy Mathes testified that during his work with the dog he had

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found drugs after the dog alerted about thirty times and had not found drugs after

the dog alerted about thirty times. Deputy Mathes clarified, however, that ninety-

nine percent of the times when he did not find drugs after the dog alerted, the

subject of the search admitted drugs had been kept in the area in the past. The

district court denied Ms. Villa’s motion to suppress which she now appeals.

                                 II. DISCUSSION

      “When reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court’s findings

of fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Apperson, 

, 1184 (10th Cir. 2006) (quotations omitted).

A.    The Dog Sniff Was Not a Search that Required Probable Cause

      Police conduct that “does not ‘compromise any legitimate interest in

privacy’ is not a search subject to the Fourth Amendment.” United States v.

Caballes, 

, 408 (2005) (quoting United States v. Jacobsen, 

, 123 (1984)). There is no legitimate interest in possessing illegal substances;

therefore, police conduct that only reveals the presence of illegal substances does

not “compromise any legitimate interest in privacy.” 

use of

a reliable drug-detection dog, which does not expose the presence of legal

substances or other items in which there is a legitimate privacy interest, generally

is not a search that implicates the Fourth Amendment. 

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      Ms. Villa contends the Supreme Court’s holding in Caballes—that a dog

sniff by a reliable drug-detection dog does not implicate the Fourth

Amendment—is limited to dog sniffs executed during the course of a legal traffic

stop. Accordingly, Ms. Villa argues that in this case the dog sniff of the rental

vehicle parked in a public place required probable cause because the rental

vehicle was no longer part of a legal traffic stop. Ms. Villa invokes the dissenting

opinions in Caballes to support her position.

      This court has rejected the limited reading of Caballes Ms. Villa proposes.

Prior to Caballes, we held that a random dog sniff of a vehicle without prior

lawful detention or reasonable suspicion is not a search subject to the Fourth

Amendment. United States v. Ludwig, 

, 1527 (10th Cir. 1994).

After Caballes, we confirmed our position on this issue and held that “[a] dog

sniff of the exterior of a vehicle parked in a public place . . . is not a Fourth

Amendment intrusion.” United States v. Engles, 

, 1245 (10th Cir.

2007). Therefore, Ms. Villa’s limited reading of Caballes is foreclosed by circuit

precedent. In this circuit, a dog sniff by a reliable drug-detection dog of a vehicle

parked in a public place does not implicate the Fourth Amendment and does not

require probable cause.

B.    The Dog Was Sufficiently Reliable for Its Alert to Establish Probable

      Cause

      The probable cause standard does not require certainty or even a showing

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that it is more probable than not that contraband or evidence will be found. Texas

v. Brown, 

, 742 (1983). Rather, probable cause requires only a “fair

probability that contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 

, 238 (1983). It is firmly established in

this circuit that alerts by reliable drug-detection dogs provide probable cause to

conduct a search. See, e.g., United States v. Kennedy, 

, 1378 (10th

Cir. 1997); United States v. Klinginsmith, 

, 1510 (10th Cir. 1994);

. Indeed, we have found 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.” 

(quotations omitted). A drug-detection dog’s reliability is primarily

established by the dog’s training and certification. See 

(stating that a dog’s “reliability should come from the fact that the dog is

trained and annually certified to perform a physical skill”) (citation omitted).

      Ms. Villa contends Deputy Mathes established only a fifty percent

reliability rate for the dog used in this case which, she argues, is insufficient to

provide probable cause to search. Indeed, an alert by a dog with a poor accuracy

record might not provide probable cause to search. 

. In

this case, however, the district court found that the dog used had completed

certification for the three years prior to the search of Ms. Villa’s rental vehicle

and was “fully trained and certified to detect narcotics” at the time it alerted to

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Ms. Villa’s rental vehicle. United States v. Villa, No. 08-10004-01-JTM, 

, at *2 (D. Kan. July 30, 2008). This critical finding is fatal to Ms.

Villa’s claim, because a drug-detection dog’s reliability is primarily based on the

dog’s proper training and certification.

      Moreover, Deputy Mathes’s testimony established a much higher reliability

rate than Ms. Villa suggests. Although Deputy Mathes testified that he did not

find drugs about fifty percent of the times his dog alerted, he clarified that in

ninety-nine percent of those instances where no drugs were found the subject of

the search confirmed that drugs had been kept in the place searched on prior

occasions. Therefore, the dog’s reliability was adequately established both by the

evidence of its proper training and certification and by Deputy Mathes’s

testimony. Accordingly, the alert by the dog in this case sufficiently established

probable cause to search the rental vehicle.

C.    The District Court did not Err in Refusing to Order Additional Discovery of

      Documentary Evidence Regarding the Dog’s Reliability

      “A district court’s discovery rulings are reviewed for an abuse of

discretion.” Diaz v. Paul J. Kennedy Law Firm, 

, 674 (10th Cir.

2002). “Under this standard, we defer to the trial court’s judgment because of its

first-hand ability to view the witness or evidence and assess credibility and

probative value.” United States v. Gonzalez-Acosta, 

, 388 (10th Cir.

1993) (quotations omitted). Therefore, we will only reverse a district court’s

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discovery ruling that is “arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. Hernandez-Herrera, 

, 343 (10th Cir.

1991) (quotations omitted).

      In this case, the district court found the dog’s reliability was sufficient to

provide probable cause based on the dog’s proper certification and Deputy

Mathes’s testimony at the suppression hearing. Considering the dog’s proper

certification, Deputy Mathes’s testimony regarding the dog’s reliability, and Ms.

Villa’s cross examination of Deputy Mathes, we find the district court’s refusal to

order additional discovery of documentary evidence regarding the dog’s

reliability was not arbitrary, capricious, or manifestly unreasonable. See

(holding that further documentary evidence of a

dog’s reliability was not necessary because the dog was properly certified and

defense counsel had the opportunity to extensively cross-examine the dog’s

handler). Therefore, the district court did not abuse its discretion in making this

discovery ruling.

                                III. CONCLUSION

      In this case, the dog sniff was not a search under the Fourth Amendment

and did not require probable cause. Furthermore, the dog’s reliability, which was

adequately established by its certification and Deputy Mathes’s testimony, was

sufficient to provide probable cause to search the vehicle; therefore, the district

court did not err in refusing to order additional discovery of documentary

                                         -7-
evidence regarding the dog’s reliability. Accordingly, we AFFIRM the district

court’s judgment.

                                     ENTERED FOR THE COURT,



                                     Deanell Reece Tacha
                                     Circuit Judge




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