     Case: 12-51161       Document: 00512400809         Page: 1     Date Filed: 10/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 8, 2013

                                       No. 12-51161                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

TEDDY CHARLES THOMPSON,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1269-1


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Teddy Charles Thompson was convicted in a bench trial based on
stipulated facts for possession with intent to distribute 100 kilograms or more
of marijuana. He reserved his right to appeal the district court’s denial of his
motion to suppress. His only argument is that the district court erroneously
failed to conduct an evidentiary hearing on his suppression motion.                       We
AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-51161

      On April 29, 2012, Thompson entered the Border Patrol checkpoint in
Sierra Blanca, Texas, driving a tractor trailer rig. According to the Government,
a drug-detection dog alerted to the driver side door of the tractor as it passed the
primary inspection area. Thompson was directed to the secondary inspection
area, where the same dog again alerted to the driver side of the truck. Inside the
sleeper compartment, Border Patrol agents discovered several black garbage
bags on the bed of the sleeper area containing 603 bundles of marijuana
weighing approximately 300 kilograms, as well as a plastic box containing user
amounts of marijuana and methamphetamine. A large amount of cash was also
discovered in the glove box.
      Thompson moved to suppress the evidence, arguing that the seizure and
search of his truck at the checkpoint occurred without a warrant or an exception
to the warrant requirement.        The fact section of the motion included the
following statement: “Mr. Thompson further contends that the dog-handler
actively manipulated an alert by prompting a reaction from the dog when the
dog failed to alert on its own.” The district court denied the motion without an
evidentiary hearing and without discussion. On appeal, Thompson argues that
it was error for the court to deny of the suppression motion without a hearing to
resolve factual issues.
      The district court’s decision whether to conduct an evidentiary hearing on
a motion to suppress is reviewed for an abuse of discretion. United States v.
Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). “Evidentiary hearings are not
granted as a matter of course, but are held only when the defendant alleges
sufficient facts which, if proven, would justify relief.” Id. “Factual allegations
set forth in the defendant’s motion, including any accompanying affidavits, must
be sufficiently definite, specific, detailed, and nonconjectural, to enable the court
to conclude that a substantial claim is presented.” Id. (internal quotation marks
and citation omitted).

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                                  No. 12-51161

      Thompson argues that he alleged sufficient facts in his suppression motion
to warrant an evidentiary hearing because he claimed that the drug-detection
dog did not alert until the dog was manipulated by the handler. He contends
that because this alleged fact, if proven, would have justified relief, the district
court was required to conduct a hearing to resolve the factual dispute.
Thompson primarily relies on the Supreme Court’s recent decision in Florida v.
Harris, 133 S. Ct. 1050 (2013), which was decided after the district court’s
decision in this case.
      In Harris, the Supreme Court addressed how a court should evaluate
probable cause based on an alert from a drug-detection dog when the defendant
has challenged the dog’s reliability. See 133 S. Ct. at 1053. The Court rejected
Florida’s rigid test that required the state in every case to present exhaustive
evidence of reliability in favor of a more flexible, common-sense approach that
examines the dog’s training. Id. The Court held that “evidence of a dog’s
satisfactory performance in a certification or training program can itself provide
sufficient reason to trust his alert.” Id. at 1057. The Court noted, however, that
a defendant “must have an opportunity to challenge such evidence of a dog’s
reliability, whether by cross-examining the testifying officer or by introducing
his own fact or expert witnesses.” Id. The Court believed that “even assuming
a dog is generally reliable, circumstances surrounding a particular alert may
undermine the case for probable cause—if, say, the officer cued the dog
(consciously or not).” Id. at 1057–58.
      Although Harris recognized that a defendant may challenge the
Government’s evidence of the reliability of a dog’s alert when reliability is at
issue, the Court’s opinion does not address whether or when the district court is
required to grant an evidentiary hearing in the first place. Indeed, the Harris
Court held that “a probable-cause hearing focusing on a dog’s alert should
proceed much like any other.” Id. at 1058. In this circuit, it is well-established

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that “‘an alert by a drug-detecting dog provides probable cause to search [a
vehicle],’ . . . and that ‘a showing of the dog’s training and reliability is not
required if probable cause is developed on site as a result of a dog sniff of a
vehicle.” United States v. Rodriguez, 702 F.3d 206, 210 (5th Cir. 2012) (quoting
United States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir. 2003)), cert. denied,
Izquierdo v. United States, 133 S. Ct. 1615 (2013). Thompson’s suppression
motion provided insufficient detail to call this general rule into question and
show that an evidentiary hearing was required.
      Although Thompson asserted in one sentence of the fact section of his
motion that the dog-handler manipulated the dog into an alert, Thompson did
not brief this assertion further. Thompson argued only that, pursuant to Terry
v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), and United States v. Martinez-Fuerte,
428 U.S. 543, 96 S. Ct. 3074 (1976), border checkpoint inspections are limited to
immigration matters, and that there was no basis for the Border Patrol to
investigate his immigration status. He did not discuss this court’s precedent
allowing probable cause based on an alert by a drug-detection dog, he gave no
supporting detail or explanation of the dog’s alert in this case, and he did not
request either discovery about the dog’s training and reliability or an
opportunity to cross-examine the handler. His bare assertion that the dog-
handler manipulated the dog provided no facts as to how the handler allegedly
cued the dog.
      Furthermore, Thompson did not provide an affidavit to aver the details of
the allegedly unlawful stop or further explain his motion. Thompson appeared
to indicate in his motion that the dog was manipulated at the primary inspection
area, yet he said nothing about the additional alert at the secondary inspection
area. The Government’s sworn complaint from a DEA agent, on the other hand,
averred that the dog alerted in both locations and then further alerted to the bag
of marijuana on the bed after entering the truck. In short, Thompson gave no

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                                  No. 12-51161

indication of how the “circumstances surrounding [this] particular alert”
undermined the existence of probable cause. Harris, 133 S. Ct. at 1057–58. In
light of these shortcomings, and in the face of clear circuit precedent allowing
probable cause based on a dog’s alert, we cannot say that it was an abuse of
discretion for the district court to decide the suppression motion without an
evidentiary hearing. See Harrelson, 705 F.2d at 737 (“General or conclusionary
assertions, founded upon mere suspicion or conjecture, will not suffice.”); see also
United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) (“A court need
not act upon general or conclusory assertions founded on mere suspicion or
conjecture, and the court has discretion in determining the need for a hearing.”);
United States v. Dean, 100 F.3d 19, 21 (5th Cir. 1996) (holding that the
defendant was not entitled to an evidentiary hearing where he claimed that the
Government failed to show seized money was proceeds from illegal activity but
he alleged no facts to support his claim and offered no explanation as to how he
legitimately came to possess the money); cf. Koch v. Puckett, 907 F.2d 524, 531
(5th Cir. 1990) (holding that “bare allegations” are insufficient to establish a due
process claim or warrant an evidentiary hearing on such a claim).
      We do not hold that, after Harris, a defendant may never obtain an
evidentiary hearing based on a claim that a drug-detection dog was manipulated
into an alert; rather, we hold only that the bare assertion of manipulation here,
with no supporting details or facts, is insufficient to show that the district court
abused its discretion by not conducting a hearing.
      AFFIRMED.




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