                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-1825
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                  JAMES DENNIS,
                                             Appellant
                              _______________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        D.C. Criminal No. 2-10-cr-00233-001
                            (Honorable Gene E.K. Pratter)
                                  ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 4, 2013

               Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.

                                  (Filed: June 10, 2013)

                                  _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

             James Dennis appeals the District Court’s orders denying his motions to

suppress physical evidence obtained from a search of his car and to withdraw his guilty

plea for possession of 500 grams or more of cocaine with intent to distribute. We will
affirm.

                                              I.

          In August 2009, the Drug Enforcement Administration (“DEA”) intercepted phone

calls between Dennis and A.G., a known drug dealer they were investigating, in which

the two men negotiated a drug buy.1 Dennis and A.G. agreed to meet at a predetermined

time and location in Philadelphia, Pennsylvania. DEA agents surveilled this location at

the designated time and observed Dennis arrive in a gold Chevrolet Tahoe. A.G. and

another man entered Dennis’s waiting car. Approximately fifteen minutes later, the two

men exited and Dennis drove away.

          The DEA agents informed Pennsylvania state police of the suspected drug sale and

requested that state troopers intercept Dennis. Specifically, the DEA agents told the state

police that the driver of the gold Chevrolet Tahoe had just met with the target of a

wiretap drug trafficking investigation and had purchased 500 grams of cocaine that could

be found in the vehicle. The DEA agents asked the police to develop an independent

basis for stopping Dennis in order to conceal their ongoing investigation of A.G.

          Based on the DEA’s tip, Pennsylvania state troopers located Dennis’s car and

pulled him over for suspected violations of the Pennsylvania motor vehicle code.2 A

field sobriety test indicated that Dennis was not intoxicated; a pat-down revealed no

contraband; and a background check revealed several prior drug convictions, but no open



1
 The calls were intercepted through a court-authorized wiretap of A.G.’s phone.
2
 Prior to pulling Dennis over, the troopers noted that his car had heavily tinted
windows—a possible violation of the Pennsylvania motor vehicle code. The troopers
                                              2
warrants. The troopers noted that Dennis’s car smelled strongly of air freshener, which

can be used to mask the scent of narcotics. Dennis declined the troopers’ request to

search his vehicle and a canine unit was called to the scene, which arrived approximately

an hour later. After the dog failed to alert, the troopers told Dennis he was free to leave,

but that his car would be seized because they suspected it contained contraband.

Subsequently, the troopers obtained a warrant to search Dennis’s car. A search

uncovered a manila envelope containing approximately 500 grams of cocaine.

       Dennis was indicted for possession of 500 grams or more of cocaine with intent to

distribute (21 U.S.C. § 841(a)(1)). The District Court denied Dennis’s motion to

suppress the physical evidence obtained from the search of his car, finding that the state

police had probable cause to conduct a warrantless search based on the information

provided by the DEA agents. On March 1, 2011, one day after his motion to suppress

was denied, Dennis entered into a plea agreement in which he pled guilty to possession of

500 grams or more of cocaine with intent to distribute in violation of 21 U.S.C. §

841(a)(1).

       On November 1, 2011, Dennis moved to withdraw his guilty plea, asserting that

his plea was not knowing, intelligent, and voluntary and that his prior counsel misled him

into pleading guilty.3 The District Court denied Dennis’s motion to withdraw his guilty




also observed the car weaving within its lane—a possible indication of an intoxicated
driver.
3
  Several weeks after entering his guilty plea, Dennis wrote to the District Court asking to
withdraw his guilty plea due to ineffective assistance of counsel. The attorney who
represented Dennis at his guilty plea hearing then moved to withdraw as counsel. The
                                              3
plea and sentenced him to 180 months of imprisonment, 8 years of supervised release, a

fine of $2500, and a special assessment of $100. Dennis timely appeals the District

Court’s denial of his motions to suppress the evidence obtained from the search of his car

and to withdraw his guilty plea. Dennis’s plea agreement preserved his right to appeal

the denial of his motion to suppress.

                                            II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291. We review the denial of a motion to suppress “for clear error as

to the underlying factual findings and exercise[] plenary review of the District Court’s

application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.

2002) (citing United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)). We review the

denial of a motion to withdraw a guilty plea for abuse of discretion. United States v.

Martinez, 785 F.2d 111, 113 (3d Cir. 1986) (citations omitted).

                                            III.

       We agree with the District Court that the DEA’s tip was sufficient to provide the

state police with probable cause to conduct a warrantless search of Dennis’s car after they

had impounded it.4

       “The automobile exception to the warrant requirement permits law enforcement to


District Court granted the motion and appointed new counsel, who represented Dennis on
his motion to withdraw his guilty plea.
4
  Because the warrantless search was supported by probable cause, we will not address
the propriety of the search warrant. See, e.g., United States v. Martinez, 78 F.3d 399,
400-01 (8th Cir. 1996) (upholding an automobile search supported by probable cause,
notwithstanding any potential deficiencies in warrant obtained by officers).
                                             4
seize and search an automobile without a warrant if ‘probable cause exists to believe it

contains contraband.’” United States v. Burton, 288 F.3d 91, 100 (3d Cir. 2002) (quoting

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)). The police’s authority to conduct

such a search adheres even if the automobile has been seized and immobilized at the

stationhouse, provided the police had probable cause to search when they initially

stopped the vehicle. See Chambers v. Maroney, 399 U.S. 42, 51-52 (1970) (upholding

the warrantless search of a car secured at a police stationhouse where police had probable

cause to search the car when they initially stopped it); see also California v. Acevedo, 500

U.S. 565, 570 (1991) (“Following Chambers, if the police have probable cause to justify

a warrantless seizure of an automobile on a public roadway, they may conduct either an

immediate or a delayed search of the vehicle.”).

       Probable cause to search requires a “‘fair probability that contraband or evidence

of a crime will be found in a particular place.’” Burton, 288 F.3d at 103 (quoting Illinois

v. Gates, 462 U.S. 213, 238 (1983)). The officer conducting a search need not personally

possess knowledge of the facts giving rise to the probable cause to conduct the search.

See id. at 99 (“[T]he arresting officer need not possess . . . the facts supporting probable

cause, but can instead rely on an instruction to arrest delivered by other officers

possessing probable cause.”).

       Given the facts arising out of the DEA’s investigation, probable cause existed to

believe that Dennis’s car contained contraband. Recorded phone calls revealed Dennis’s

plan to purchase drugs from A.G., a known drug dealer, at a specific time and location.



                                              5
DEA agents then observed A.G. enter Dennis’s car at the specified time and location.

These facts permitted the DEA agents to conclude that A.G. and Dennis had

consummated their planned transaction and that drugs were present in Dennis’s car—

facts which the DEA communicated to the Pennsylvania state police. Thus, the state

troopers had probable cause to search Dennis’s car.

       The trooper’s probable cause to search Dennis’s car was not vitiated by the drug-

sniffing dog’s failure to alert. See United States v. Jodoin, 672 F.2d 232, 236 (1st Cir.

1982) (“The dog’s failure to react does not . . . destroy the ‘probable cause’ that would

otherwise exist.”), abrogated on other grounds by Bloate v. United States, 559 U.S. 196

(2010). Nor was the Fourth Amendment offended by the troopers’ pretext for stopping

Dennis’s car, see United States v. Lewis, 672 F.3d 232, 237 (3d Cir. 2012) (“[P]retextual

traffic stops supported by reasonable suspicion do not run afoul of the Fourth

Amendment.”), or the sixty minutes it took for the canine unit to arrive, see Burton, 288

F.3d at 101-02 (explaining that the temporary seizure of a vehicle for approximately

forty-five minutes pending the arrival of a canine unit did not offend the Fourth

Amendment).

                                            IV.

       Dennis also lacks adequate grounds to withdraw his guilty plea. In order for a

guilty plea to be valid, it must represent “‘a voluntary and intelligent choice among the

alternative courses of action open to the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56

(1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A criminal defendant

may withdraw a guilty plea after the court accepts it, but before the court imposes a

                                             6
sentence, if “the defendant can show a fair and just reason for requesting the withdrawal.”

Fed. R. Crim. P. 11(d)(2)(B).

       In determining whether the defendant has met this burden, a district court must

consider three factors: “(1) whether the defendant asserts his innocence; (2) the strength

of the defendant’s reasons for withdrawing the plea; and (3) whether the government

would be prejudiced by the withdrawal.” United States v. Jones, 336 F.3d 245, 252 (3d

Cir. 2003) (citations omitted). With respect to the first factor, “[b]ald assertions of

innocence are insufficient . . . . ‘Assertions of innocence must be buttressed by facts in

the record that support a claimed defense.’” Id. at 252 (quoting United States v. Brown,

250 F.3d 811, 818 (3d Cir. 2001)). When asserting his innocence, a defendant must also

provide a sufficient explanation for the contradictory position he took at his guilty plea

hearing. Id. at 253 (citing United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992),

superseded by statute on other grounds as stated in United States v. Roberson, 194 F.3d

408, 417 (3d Cir. 1999)).

       With respect to the first factor, the District Court concluded that Dennis failed to

adequately assert his innocence because he could not buttress his bald assertion of

innocence with facts from the record. At the plea withdrawal hearing, Dennis asserted

his innocence by stating, “I’m not guilty of being in possession with the intent to

distribute 500 grams of cocaine.” Dennis attempted to support this assertion with two

facts: (1) he was not in his car when the drugs were discovered and (2) he did not see the

police remove the drugs from his car. Yet these meager details do not buttress his

assertion of innocence—they merely describe the circumstances surrounding the search

                                              7
of his car. It is unremarkable that Dennis was not present when the drugs were

discovered given that the search occurred after the police had impounded his car.5

Moreover, Dennis has failed to explain the inconsistency between his present assertion of

innocence and his earlier admissions of guilt.6

       With respect to the second factor, the District Court concluded that Dennis’s

reasons for seeking to withdraw his guilty plea—that he was tricked, misled, and rushed

into pleading guilty—were thoroughly contradicted by the record. At the Rule 11

colloquy, the District Court stressed that the decision to plead guilty should not be made

hastily and repeatedly offered to postpone the hearing so that Dennis could further

contemplate his decision. Yet Dennis insisted, “I’m ready. I’m ready.” Dennis also

confirmed that he had sufficient time to confer with his lawyer and was satisfied with the

advice he had received. The District Court then carefully walked Dennis through the

charges against him; the government’s obligation to prove its case at trial if he decided to

plead not guilty; the specific terms of the plea agreement, including the rights he would

waive by agreeing to it; and the mandatory minimum sentence he faced.

       The record clearly establishes that Dennis’s decision to plead guilty was made

voluntarily, knowingly, and with a full understanding of the consequences. There is

ample support for the District Court’s conclusions that (1) Dennis failed to adequately


5
  If Dennis cited these facts to suggest that the police planted the cocaine in his car, his
assertion of innocence remains unsupported. Assertions of innocence in a motion to
withdraw a guilty plea require support from facts in the record, not speculation.
6
  At the Rule 11 colloquy, Dennis agreed that the government’s version of events “is
what happened,” and responded “yes” when asked by the District Court if he had
intended to sell the cocaine found in his car.
                                               8
assert his innocence and (2) his reasons for seeking withdrawal of his guilty plea lacked

merit. Accordingly, the District Court did not abuse its discretion when it denied

Dennis’s motion to withdraw his guilty plea.7

                                             V.

       For the foregoing reasons, we will affirm the rulings of the District Court denying

Dennis’s motions to suppress the evidence obtained from the search of his car and to

withdraw his guilty plea.




7
  Because we find that the District Court did not abuse its discretion with respect to the
first two factors, there is no need to consider the third factor—whether the government
would be prejudiced by withdrawal. Jones, 336 F.3d at 255.
                                              9
