     Case: 18-40311      Document: 00514880736         Page: 1    Date Filed: 03/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                      No. 18-40311                          FILED
                                                                      March 20, 2019

UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
                                                                            Clerk

              Plaintiff - Appellee

v.

HECTOR GUADALUPE LOZANO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-605-1


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Hector Guadalupe Lozano appeals the district court’s denial of his
motion to suppress evidence collected from his vehicle that was searched after
a drug-sniffing dog alert. We find no error and 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40311
              FACTUAL AND PROCEDURAL BACKGROUND

      Hurricane Harvey caused significant damage along the Texas coast
when it struck on August 28, 2017. The city of Aransas Pass had been in the
storm’s destructive path and imposed a curfew from 7:00 p.m. to 7:00 a.m. to
reduce looting and other problems. While the curfew was still in effect, Hector
Guadalupe Lozano was stopped around midnight while driving his Cadillac
Escalade in that city without its headlights on. He was traveling with his
common law wife, Laura Cortez.
      One of the officers who stopped Lozano asked him for identification and
proof of insurance. Lozano claimed that he had none, causing Officer Reyes to
ask him to step out of the vehicle. The officer requested permission to search
the vehicle, but Lozano declined. In order to allow a search of the database for
warrants, Officer Reyes asked Lozano for his information, but Lozano gave an
incorrect first name.     The initial search therefore incorrectly showed no
outstanding warrants. Separately, another officer questioned Cortez, who said
Lozano indeed had an outstanding warrant.          When confronted with this
information, Lozano gave his actual first name and was arrested for being a
fugitive who failed to identify himself.
      Officer Reyes testified that he decided to impound the Escalade and not
let Cortez drive the vehicle home. Officer Reyes requested that a drug dog
come to the scene to determine whether there were drugs in the vehicle. A
canine unit with the San Patricio County Sheriff’s department arrived at the
scene. Deputy Olan Brooks brought his canine partner Karr, who performed a
free-air sniff of the vehicle. Karr alerted to the presence of contraband at the
driver’s side front door. The officers searched the Escalade and found 71 bars
of Xanax, 10 ecstasy pills, 229 grams of methamphetamine, and 45.8 grams of
heroin.


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                                  No. 18-40311
      Lozano was indicted on two federal drug charges: possession with intent
to distribute more than 50 grams of methamphetamine, 21 U.S.C. § 841(a)(1),
(b)(1)(A), and possession with intent to distribute less than 100 grams of
heroin, 21 U.S.C. § 841(a)(1), (b)(1)(C).
      Lozano moved to suppress the drugs found in his vehicle as the fruit of
an unlawful search. The district court held a hearing to address the issue. At
the hearing, Deputy Brooks, Karr’s handler, testified that Karr was obtained
from Worldwide Canine, which trains dogs and handlers. Deputy Brooks took
a three-week training program at Worldwide, which included specific training
on substance detection. Karr is certified to detect cocaine, marijuana, heroin,
methamphetamines, and ecstasy. Deputy Brooks and Karr must be certified
annually, and the certification was up to date.
      Deputy Brooks testified that Karr does not make false alerts. Deputy
Brooks testified that although Karr alerted on multiple occasions when
contraband was not thereafter found, he did not believe Karr falsely alerted in
those instances. On cross-examination, Deputy Brooks explained why these
instances should not be considered errors by the dog.          He testified that
although Karr made a positive alert 14 times in 2017, drugs were discovered
only four times. Of the ten times drugs were not found, Deputy Brooks’ forms
reflected that in eight, residual marijuana was found. In two others, nothing
was found. In one instance where nothing was found, Deputy Brooks explained
that the suspect admitted he had “just finished smoking weed” in the vehicle.
Deputy Brooks testified that he did not have the marijuana residue tested to
confirm that it was indeed marijuana. He testified that this residue is not lab
tested because it is not a chargeable amount. The part of the testimony that
Lozano seizes upon is when Deputy Brooks stated that Karr will alert to Xanax
even though the dog is not certified to alert to that substance. Further, Deputy


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                                 No. 18-40311
Brooks testified that Karr will alert to Xanax even if there is no other drug
present.
      In the district court proceeding, Lozano argued that Deputy Brooks’
testimony undermined Karr’s drug alert reliability and that there was not a
sufficient basis to form probable cause. The district court denied the motion to
suppress, finding Karr’s alert to be reliable. After the denial of the motion,
Lozano entered a conditional guilty plea to the first charge, reserving the right
to appeal the denial of the motion. On appeal, Lozano argues that the district
court erred when it denied his motion to suppress the evidence.


                                 DISCUSSION
      “When reviewing a denial of a motion to suppress evidence, we review
the district court’s factual findings for clear error and its legal conclusions,
including the ultimate constitutionality of the actions of law enforcement, de
novo.” United States v. Williams, 880 F.3d 713, 717 (5th Cir. 2018). This court
reviews the evidence “in the light most favorable to the prevailing party.” Id.
(quoting United States v. Zuniga, 860 F.3d 276, 280 (5th Cir. 2017)). The
reliability of a canine alert is a factual finding reviewed for clear error. See
United States v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003).
      Lozano argues that the totality of the circumstances surrounding the
search did not establish probable cause to search his vehicle. Specifically,
Lozano argues that Deputy Brooks’ testimony about Karr’s ability to alert to
Xanax, as well as the alerts that produced no contraband, undermined Karr’s
presumptive reliability. Nothing else, he argues, suggested a fair probability
that the Escalade contained contraband.         Lozano concedes that Karr’s
certification by a bona fide organization creates a presumption that his alert
provided probable cause, but such a presumption may be rebutted through


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                                  No. 18-40311
cross examination that undermines the dog’s reliability. See Florida v. Harris,
568 U.S. 237, 246-47 (2013).
      Lozano argues that two features of Deputy Brooks’ testimony undermine
Karr’s presumptive reliability. First, of the 14 times Karr alerted in 2017,
contraband was found only 4 times, or 29% of the time. Factoring in the time
the occupants admitted to smoking marijuana after Karr’s alert, Karr’s field
alert accuracy was not much better. Lozano argues there was no evidence
validating the other times Karr alerted, because the alleged residual
marijuana was never tested. Second, Deputy Brooks’ testimony that Karr
alerts to Xanax, even though not trained or certified to do so, undermines
Karr’s reliability. Because Xanax is often legally prescribed, Lozano argues
Karr’s alerts are not reliable evidence of contraband.
      Having argued that Karr’s alert was not presumptively reliable, Lozano
then argues that the other circumstances of the traffic stop do not suggest that
a reasonably prudent person would believe that a search would reveal
contraband or evidence of a crime. Lozano argues that his being out after
curfew just before midnight did not suggest other evidence of criminal activity,
and that Officer Reyes did not suspect criminal activity. Lozano claims that
his lying about his identity was with respect to his outstanding traffic violation
warrant, not because he was hiding anything in his vehicle. Lozano also notes
that he was well within his rights to refuse a search.
      When reviewing Lozano’s claims, we repeat that the district court’s
determination that the canine’s alert was reliable is reviewed for clear error.
See Outlaw, 319 F.3d at 704. When reviewing for clear error on a district
court’s factual findings based upon live testimony, we will uphold the district
court’s decision “if there is any reasonable view of the evidence to support it.”
United States v. Mendez, 885 F.3d 899, 908 (5th Cir. 2018) (quoting United
States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999)).
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                                  No. 18-40311
      Canine alerts by trained and certified dogs are presumptively reliable.
Harris, 568 U.S. at 246-47. Further, the district court reasonably could have
credited Deputy Brooks’ testimony that in many of the alerts that did not result
in seizure of contraband, there was either an admission of previous use of drugs
by the suspect or residue. An alert without seizure of contraband often will be
based on residue or previous use by the occupants. Id. at 245-46. Therefore,
the district court reasonably could have concluded that Karr reliably alerted
on 13 of 14 searches. Furthermore, Deputy Brooks testified that his dog is
trained in a controlled environment, which is a “better measure of a dog’s
reliability.” Id. at 246.
      The evidence undermining reliability of the dog was Deputy Brooks’
testimony that Karr will alert to Xanax even though that drug is not
necessarily contraband, and there was a substantial quantity of that drug in
the vehicle. The district court did not mention that part of Deputy Brooks’
testimony in its ruling. No field evidence supported that Karr had ever alerted
to Xanax when it was the only substance present. Whatever should be made
of Deputy Brooks’ statement about Xanax, there was no evidence that the dog
either in this situation or previously had alerted in the field solely because of
that substance. We cannot conclude that the district court clearly erred when
it found Karr’s alert reliable.
      AFFIRMED.




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