                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4172



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


KOON CHUNG WU, a/k/a Alex Wu, a/k/a Joe Wu,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00269-WLO)


Submitted:   January 4, 2007                 Decided:   February 2, 2007


Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     After    the   district   court    denied     his   motion   to   suppress

evidence, Koon Chung Wu entered a conditional guilty plea to using

over forty counterfeit credit cards with an intent to defraud, in

violation of 18 U.S.C.A. § 1029(a)(1) (West 2000), and to using

unauthorized credit cards to obtain items collectively valued at

approximately $300,000, in violation of 18 U.S.C.A. § 1029(a)(2).

Wu reserved his right to appeal the district court’s denial of his

suppression motion. On appeal, Wu argues that the evidence against

him was obtained in violation of the Fourth Amendment.                 For the

reasons that follow, we affirm the district court’s denial of Wu’s

motion   to    suppress   evidence         and,   accordingly,     affirm    his

convictions.



                                       I.

     The facts of this case are undisputed.                  On May 9, 2005,

officers from the Cabarrus County, North Carolina Sheriff’s Office

received a tip about a suspicious package located at the United

Parcel Service (UPS) distribution center in Kannapolis, North

Carolina.     The tip suggested that the package contained controlled

substances.      The officers located the package, which weighed

approximately    forty-four    pounds       and   was   labeled   “books,”   and

determined that it had been shipped via UPS’s overnight service by

“Alex Wu” from a UPS office in Concord, North Carolina.                      The


                                       2
officers called in a North Carolina State Highway Patrol K-9 unit

to conduct a drug dog sniff of the package.         Trooper G.A. Barger

arrived with his drug detection dog “Cody,” and Cody sniffed three

separate “lineups” of packages that included the suspicious package

and packages known not to contain controlled substances. Each time

Cody alerted to the presence of controlled substances in the

suspicious package.

      On the basis of Cody’s positive alerts, Detective T.D. Parker

applied for and obtained a search warrant to search the package for

controlled substances.      Aside from describing the tip about the

package and Cody’s alerts to the presence of controlled substances,

the   warrant   affidavit    also   described     Cody’s   training   and

certification as a drug-detection dog.          The affidavit stated in

pertinent part that

      Trooper G. Barger, of the North Carolina State Highway
      Patrol, and narcotics detection K-9 “Cody,” are certified
      as a team in narcotics detection by the North Carolina
      Police Work-dog Association.    Trooper G.A. Barger and
      “Cody” graduated from the North Carolina State Highway
      Patrol K-9 Detection School in affiliation with the North
      American Police Work-dog Association, on April 30, 2004.
      They successfully completed 240 hours of instruction from
      March 2004 through May 2004. During this training and
      certification period “Cody” has been allowed to sniff a
      large number of packages, parcels and luggage.       When
      “Cody” has alerted to any of these items, narcotics have
      been present in the overwhelming majority of these cases.
      Trooper Barger and “Cody” also completed one re-
      certification session at the Cumberland County Sheriff’s
      Office on January 14, 2005.       These re-certification
      courses are designed to update previous certifications
      and to confirm narcotics detection ability.



                                      3
(J.A. at 22-23. (footnote omitted))

      The officers searched the package but did not find any drugs.

Instead, they found three Rolex watches, three Apple iPods, three

Sony DVD camcorders, two Sony PlayStation consoles, three digital

cameras, and several other small electronic items.                  The Cabarrus

County Sheriff’s office seized the items, which were all new and

unopened in their original boxes.

      On June 27, 2005, Parker received information about two more

suspicious packages located at the UPS office in Concord, North

Carolina.    The packages, also labeled as containing “books,” had

been dropped off for shipment by “Joe Wu, 903 Lilly Green Court,

Concord, NC.”     Barger and Cody were called in for a drug-dog sniff

of these packages, and Cody alerted to the odor of controlled

substances   on    one    of   the    packages.       Based   on   Cody’s   alert,

Detective D.J. Degrace applied for a search warrant to search the

two packages.       In the warrant affidavit, Degrace repeated the

information about Cody’s training that was included in the May 9

warrant application.       The affidavit also described Cody’s alert to

the   package     and    stated      that   Degrace    “received    information,

corroborated by Trooper G. Barger, that the same person shipping

the packages was responsible for sending a package on May 9, 2005

through UPS weighing 45 pounds that contained thousands of dollars

of stolen merchandise.”           (J.A. at 12.)       The affidavit also noted

that “‘Cody’ positively alerted for the presence of controlled


                                            4
substances odor on one of the packages [searched on May 9].”                  (J.A.

at 12.)     Accordingly, Degrace sought a warrant to “inspect the

contents of the two packages for controlled substances and/or

stolen property.”        (J.A. at 13.)

        The warrant issued, and the officers searched the packages.

They found four Apple laptop computers, five Sony Vaio laptop

computers, one Sony digital recorder, one Canon digital camera, and

one Apple 20GB iPod.       As was true of the items seized in the May 9

search, all of the items were new and unopened in their original

boxes.    The Cabarrus County Sheriff’s Office seized these items as

well.

     The officers transported the seized items to the Sheriff’s

Office, where Detective Carl Gadd inspected them.                      During his

inspection, Gadd noticed a green “Office Depot Store #41” sticker

on one of the Sony Vaio laptops.                He contacted Dee Moore, the

assistant manager of Office Depot Store #41, in Charlotte, North

Carolina, to determine if the computer had been purchased using a

fraudulent credit card. Gadd gave Morrison identifying information

about the computer, and Morrison told Gadd that she would research

the transaction.     The next day Morrison informed Gadd that a Visa

credit    card   number    ending   in   9746    was    used    to   purchase    the

computer.     Gadd contacted the credit card issuer, Navy Federal

Credit    Union,   and     determined    that     the    card    had   been     used

fraudulently.      The counterfeit card used at the time of purchase


                                         5
was embossed with the name Tom E. Russo, and the individual who

used the credit card provided a counterfeit identification card in

the same name.     The officers contacted the legal owner of the

credit card number, a Mr. Roberts from Virginia, and confirmed that

the card information had been stolen and used for unauthorized

transactions.    The officers also discovered that two additional

fraudulent transactions had been made with the counterfeit card,

one for $1504.99 at an Office Depot in Charlotte and one for $428

at Office Max in Gastonia, North Carolina.

     Based on this information, Gadd obtained a search warrant for

903 Lilly Green Court, Concord, North Carolina, the shipper’s

address on the packages.    The warrant authorized the officers to

search for counterfeit credit cards, counterfeit identification

cards, financial records, machinery used in the counterfeiting of

credit cards and identification cards, bank records, various types

of electronic equipment, and watches.         On June 28, 2005, Cabarrus

County detectives executed the warrant and searched the Lilly Green

Court residence.    Wu and a woman named Carmen Marie Hensley were

present at the residence when the officer arrived to conduct the

search. The officers discovered and seized fifty-eight counterfeit

credit cards and four counterfeit New York driver’s licenses. They

also seized the following items: two large flat screen plasma/LCD

televisions;    approximately   $3,800   in   cash;   several   computers;

dozens of DVD movies; several HDTV receivers; stereo equipment;


                                   6
iPods; and a 1996 Lexus four-door sedan.     These items had a total

value of approximately $100,000.       The officers arrested Wu and

Hensley immediately, and Wu was charged with twenty-seven counts of

felony financial card forgery in the Cabarrus County District Court

in Concord.1

     On June 29, 2005, U.S. Secret Service agents interviewed Wu

and Hensley.     Special Agent James Motley interviewed Wu.   Prior to

the interview, Motley advised Wu of his Miranda rights, which Wu

acknowledged and waived in writing.      Following the interview, Wu

provided a written, signed statement in which he made numerous

incriminating admissions, including describing in some detail how

he and Hensley conducted their counterfeiting enterprise.     Hensley

also made numerous incriminating statements during her interview.

Wu admitted that between January 2005 and June 2005 he and Hensley

obtained approximately $300,000 in merchandise through counterfeit

credit cards.2

     On July 26, 2005, a grand jury sitting in the Middle District

of North Carolina returned a two-count indictment against Wu and

Hensley, charging them with using over forty counterfeit credit


     1
      These charges were dismissed on July 6, 2005, in light of the
federal indictment against Wu.
     2
      Drug dog sniffs of the Lexus sedan and the Lilly Green
residence resulted in positive alerts for the presence of
controlled substances. While no illegal drugs were found in either
the sedan or the residence, both Wu and Hensley admitted that they
used controlled substances and Hensley admitted that she stored
drugs on occasion in the sedan and the residence.

                                   7
cards with intent to defraud, in violation of 18 U.S.C.A. §

1029(a)(1), and with using unauthorized credit cards to obtain

items collectively valued at over $300,000, in violation of 18

U.S.C.A. § 1029(a)(2).

     On August 3, 2005, Wu appeared for arraignment and pleaded not

guilty to the indictment.     Wu then filed a motion to suppress the

evidence obtained from the May 9 and June 27 searches of the UPS

packages and the June 28 search of his home.        He claimed that the

officers lacked probable cause for both the May 9 and June 27

searches   because   the   Government   had   not   demonstrated   Cody’s

reliability as a drug-detection dog.      Wu also requested a hearing

under Franks v. Delaware, 438 U.S. 154 (1978) on the ground that

the warrant affidavits for the May 9 and June 27 searches contained

knowing or reckless falsity that misled the magistrate; Wu claimed

that the affidavits greatly overstated Cody’s accuracy in drug

sniffs.    Accordingly, Wu contended that all evidence that flowed

from the search -– including the contents of the packages, the

items seized from his residence, and the incriminating statements

made by both him and Hensley -- should be suppressed as fruit of

the poisonous tree under Wong Sung v. United States, 371 U.S. 471

(1963).

     On September 12, 2005, the district court conducted a hearing

and denied Wu’s motion to suppress.           The court concluded that

probable cause existed for both the May 9 and June 27 searches.


                                   8
The   court   also    held   that       Wu       had    not     made   the   substantial

preliminary showing necessary to justify a Franks hearing because

it found that the representation in the warrant affidavits that

Cody had been accurate in an “overwhelming majority” of cases was

not “particularly inaccurate.”               (J.A. at 195.)

      Following      the   district      court’s          rulings,      Wu   entered   a

conditional    guilty      plea    to    both          counts    of    the   indictment,

preserving only his right to appeal the district court’s ruling on

his motion to suppress.           On January 27, 2006, the district court

sentenced Wu to 48 months’ imprisonment on each count, to run

concurrently, and to three years’ supervised release.                         Wu timely

noted an appeal. We have jurisdiction to hear this appeal pursuant

to 28 U.S.C.A. § 1291 (West 2006).



                                        II.

      On appeal, Wu argues that the district court erred in denying

his motion to suppress because (1) the                   warrant affidavits for the

May 9 and June 27 searches did not establish probable cause for the

searches and (2) the searches were also unconstitutional because

the officer-affiants made representations in the warrant affidavits

that were knowingly false or indicated a reckless disregard for the

truth.   We address each argument in turn.




                                             9
                                 A.

         In considering a district court’s ruling on a motion to

suppress evidence, we review questions of law de novo and findings

of historical fact and reasonable inferences drawn from those

findings for clear error.   Ornelas v. United States, 517 U.S. 690,

699 (1996); United States v. Moreland, 437 F.3d 424, 429 (4th Cir.

2006).   Because the district court denied Wu’s motion to suppress,

we view the facts adduced at the suppression hearing in the light

most favorable to the Government.     United States v. Holmes, 376

F.3d 270, 273 (4th Cir. 2004).

      Our legal inquiry begins with the Fourth Amendment, which

provides that people are “to be secure in their persons . . .

against unreasonable searches and seizures . . . and no Warrants

shall issue, but upon probable cause . . . .”   U.S. Const. amend.

IV.   Probable cause exists when, after considering the totality of

the circumstances, there is a “‘fair probability that contraband or

evidence of a crime will be found in a particular place.’”   United

States v. Grubbs, 126 S. Ct. 1494, 1499 (2006)(quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)).     “The probable cause standard

does not demand any showing that such a belief be correct or more

likely true than false.”    Simmons v. Poe, 47 F.3d 1370, 1379 (4th

Cir. 1995)(internal quotation marks omitted).   It is “a practical,

nontechnical conception that deals with the factual and practical

considerations of everyday life on which reasonable and prudent


                                 10
men, not legal technicians, act.”        United States v. Humphries, 372

F.3d 653, 657 (4th Cir. 2004)(internal quotation marks omitted).

Accordingly, we “have always applied a highly deferential standard

of review in considering the sufficiency of a finding of probable

cause by a magistrate.”      Simmons, 47 F.3d at 1378.

     We have stated that “[t]he detection of narcotics by a trained

dog is generally sufficient to establish probable cause.”            United

States v. Robinson, 707 F.2d 811, 815 (4th Cir. 1983); see also

United States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994)(“When the

dog ‘alerted positive’ for the presence of drugs, the officer was

given probable cause for the search that followed.”).            Of course,

implicit in our statement in Robinson is the assumption that a drug

dog’s positive alert for contraband must possess some indicia of

reliability for the alert to establish probable cause.           Our sister

circuits have held that a search warrant based on a positive alert

by a drug dog is sufficient on its face to establish probable cause

if the affidavit supporting the warrant states that the dog is

trained and certified to detect controlled substances.           See, e.g.,

United   States   v.   Kennedy,   131   F.3d   1371,   1376-77   (10th   Cir.

1997)(“As a general rule, a search warrant based on a narcotics

canine alert will be sufficient on its face if the affidavit states

that the dog is trained and certified to detect narcotics.”);

United States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996)(holding

that an affidavit need not describe the particulars of the dog's


                                    11
training; an affidavit's description of a drug dog’s positive alert

for controlled substances coupled with a reference to the dog's

training     in    narcotics      investigations      is    enough   to    establish

probable cause); United States v. Klein, 626 F.2d 22, 27 (7th Cir.

1980)(holding that a statement that a dog graduated from training

class and has proven reliable in detecting drugs on prior occasions

is sufficient to support probable cause).

      Assuming       that   evidence      of    a    drug   dog’s    training    and

certification is needed to establish the dog’s reliability, such

evidence was clearly present in the instant case.                         Aside from

providing accounts of Cody’s positive alerts to the packages, the

affidavits supporting both the May 9 and June 27 warrants described

in   some   detail     Cody’s     training     and   certification    as    a   drug-

detection dog, including describing how Trooper Barger and Cody had

completed 240 hours of instruction from March 2004 through May 2004

and noting that Barger and Cody had completed one re-certification

session     on    January   14,    2005   to    “confirm     narcotics     detection

ability.”        (J.A. at 23.)

      We    believe     that     this   evidence      of    Cody’s   training    and

certification was enough by itself to establish Cody’s reliability

so that his positive alerts for controlled substances established

probable cause for both the May 9 and June 27 searches.                     Probable

cause only requires a “fair probability” that contraband will be

found in a certain place, Gates, 462 U.S. at 238, and Cody’s


                                          12
positive    alerts     to    the    packages       in   both     searches      clearly

established    a    fair     probability     that       the    packages     contained

controlled substances, given his training and certification as a

drug-detection dog.

     In addition to reviewing the evidence of Cody’s training and

certification, however, the district court also heard testimony

from Trooper Barger, Cody’s handler, about Cody’s performance

statistics and his field experience from March 2005 to May 2005.

The district court found that Cody had demonstrated an impressive

degree of accuracy in training exercises, and based on its review

of Cody’s past field sniffs, the court found that Cody was accurate

approximately 67% of the time in the field when sniffing for

narcotics.3        While    we   believe    that    this      factual   finding   was

unnecessary for the district court to have concluded that probable

cause    existed    for    the   searches    given      the    evidence   of   Cody’s

training and certification, it serves to bolster the court’s

determination that Cody was sufficiently reliable for his positive

alerts to establish probable cause for the May 9 and June 27

searches.     See United States v. Robinson, 390 F.3d 853, 874 (6th

Cir. 2004)(“[A]fter it is shown that the dog is certified, all

     3
      Wu incorrectly states in his opening brief that the district
court found that Cody was 60% accurate in the field when sniffing
for controlled substances. The district court clearly found that,
from March 2005 to May 2005, drugs were found six times when Cody
alerted and were not found three times, which, when expressed as a
percentage, was a finding that Cody was accurate approximately 67%
of the time in the field.

                                       13
other   evidence   relating      to   his    accuracy   goes    only    to   the

credibility of the testimony, not to the dog's qualifications.”

(internal quotation marks omitted)).

     Despite this, Wu argues that the officers lacked probable

cause to conduct the June 27 search of the packages because Cody

had already proven unreliable – Cody had positively alerted for the

presence of controlled substances when none were present -- in the

May 9 search.    Cody’s apparently “false” alert on May 9, however,

does not undermine the entire body of his previous work.               That Cody

positively alerted to the presence of controlled substances when

none were found certainly is a factor to be considered under the

totality of the circumstances in determining whether probable cause

existed for the June 27 search, see Robinson, 390 F.3d at 874, but

the reliability of a drug-detection dog does not rise or fall on

the basis of one sniff.         Cody had proven very accurate in sniffs

during his training.     Moreover, factoring the May 9 alert into the

district court’s original calculation of Cody’s field accuracy

rate,   Cody    would   still    have    been   “correct”      six   times   and

“incorrect” four times, rendering an accuracy rate of 60%. Because

“the probable cause-standard does not require that the officer’s

belief be more likely true than false,” Humphries, 372 F.3d at 660,

an accuracy rate of 60% is more than reliable enough for Cody’s

alert to have established probable cause.               Thus, even without

considering the information in the June 27 warrant affidavit


                                        14
concerning   the   stolen   goods4   found   during   the   May   9   search,


     4
      There is no indication in the record as to how the officers
determined that the items seized in the May 9 search were stolen.
In a brief styled as a “Supplemental Brief,” however, Wu argues for
the first time on appeal that the Cabarrus County officers’
seizures of the electronic items uncovered in the May 9 and June 27
searches were illegal under the Fourth Amendment. Relying on the
Supreme Court’s decision in Marron v. United States, 275 U.S. 192,
196 (1927), Wu contends that because the warrants only authorized
searches for controlled substances, the officers’ seizures of the
electronic items unconstitutionally transformed the warrants into
general warrants by violating the rule that a warrant describe with
particularity the things to be searched/seized.         Wu further
contends that the “plain view” exception does not apply here
because the contraband nature of the electronic items could not
have been immediately apparent to the officers who searched the
packages.
     This argument is wholly different from the argument that Wu
makes in the argument section of his opening brief. In his opening
brief, Wu only makes probable cause challenges to the initial
searches of the packages, focusing exclusively on Cody’s
reliability, and does not argue that the seizures of the items
found in the packages violated the Fourth Amendment.       He also
contends in his opening brief that the affidavits supporting the
May 9 and June 27 searches contained knowing or reckless falsity.
Because Wu did not challenge the legality of the seizures in his
opening brief, and because this argument was readily available to
him at the time that he filed his opening brief, his argument that
the seizures violated the Fourth Amendment is waived. See Fed. R.
App. P. 28(a)(9)(“[T]he argument [section of appellant's brief] .
. . must contain . . . appellant's contentions and the reasons for
them, with citations to the authorities and parts of the record on
which the appellant relies.”); Yousefi v. INS, 260 F.3d 318, 326
(4th Cir. 2001) (holding that petitioner waived argument on appeal
raised for the first time in his reply brief by failing to raise it
in his opening brief).     As we recently noted, “considering an
argument advanced for the first time in a [supplemental] filing is
not only unfair to the appellee, it also creates the risk of an
improvident or ill-advised opinion being issued on an unbriefed
issue.” United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir.
2006). Accordingly, because Wu has waived his argument concerning
the legality of the seizures, we do not address it.




                                     15
probable cause existed for the June 27 search based on Cody’s

positive alert to the presence of controlled substances in the

package.   Under the totality of the circumstances, the officers’

knowledge at the time of the June 27 search that the items seized

in the May 9 search had been stolen only further solidified the

probable cause finding.



                                  B.

     In his final argument, Wu contends that the May 9 and June 27

searches   were   constitutionally     tainted   because   the   officers

preparing the warrant affidavits provided information that was

knowingly false or at the least indicated a reckless disregard for

the truth.   Specifically, Wu argues that the statement in both

affidavits that controlled substances have been recovered in an

“overwhelming majority” of cases when Cody has positively alerted

misled the magistrate because the officers knew that Cody had only

demonstrated around 67% accuracy in the field. Wu also argues that

the “overwhelming majority” statement was especially untruthful

when it was included in the June 27 warrant affidavit because Cody

had recently falsely alerted in the May 9 search.

     While warrant affidavits are presumed valid, an affiant may be

impeached by a showing of deliberate falsity or reckless disregard

for the truth.    Franks, 438 U.S. at 155-56; United States v. Jones,

913 F.2d 174, 176 (4th Cir. 1990).       A defendant is entitled to a


                                  16
Franks hearing only after making “a substantial preliminary showing

that a false statement knowingly or intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant

affidavit” and that the false information was essential to the

probable cause determination.          Franks, 438 U.S. at 155-56.         Even

then, a Franks hearing is not required “if, when [the] material

that is the subject of the alleged falsity or reckless disregard is

set to one side, there remains sufficient content in the warrant

affidavit to support a finding of probable cause.”             Id. at 171-72.

     We agree with the district court that Wu did not make the

requisite substantial preliminary showing to justify a Franks

hearing.      The   statement   that    Cody   has     been   accurate   in   an

“overwhelming majority” of cases simply does not rise to the level

of knowing falsity or reckless disregard for the truth. Indeed,

although the district court reasonably found that the statement

referred to Cody’s accuracy in training exercises, not field

sniffs, we agree with the district court that even if the statement

referred to Cody’s accuracy in the field, it was not “particularly

inaccurate”    given   Cody’s   67%    accuracy   in    his   previous   field

experiences.    (J.A. at 195.)    Moreover, even if we were to excise

the challenged statement from the affidavits, there was still

sufficient information in both the May 9 and June 27 warrant

affidavits to establish probable cause: both affidavits described

Cody’s   training    and   certification,      along   with   describing      his


                                       17
positive alerts to the packages, and the June 27 affidavit added

the information about the stolen goods retrieved during the May 9

search.   We therefore conclude that the district court did not err

in denying Wu a Franks hearing.5



                               III.

     Because we hold that probable cause existed for both the May

9 and June 27 searches of the UPS packages, we affirm the district

court’s denial of Wu’s motion to suppress.   Accordingly, we affirm

his convictions.



                                                          AFFIRMED




     5
      Because we conclude that probable cause existed for both the
May 9 and June 27 searches even if the “overwhelming majority”
representation is excised from the affidavits, we need not reach
Wu’s argument, based on United States v. Leon, 468 U.S. 897 (1984),
that the “good faith” exception does not apply in this case.

                                18
