     Case: 09-40779     Document: 00511050463          Page: 1    Date Filed: 03/12/2010




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

                                                   FILED
                                                                           March 12, 2010

                                       No. 09-40779                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
v.

RICKY LEE CLAYTON,

                                                   Defendant-Appellant.




                     Appeal from the United States District Court
             for the Southern District of Texas, Corpus Christi Division;
                                 USDC No. 09CR219


Before JONES, Chief Judge, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Ricky Lee Clayton appeals the district court’s denial
of his motion to suppress evidence he claims was obtained in violation of his
Fourth Amendment rights. Finding no error in the district court’s denial of the
Defendant-Appellant’s motion to suppress, we AFFIRM.
        I.      BACKGROUND
        On February 28, 2009, at some time between 11:00 and 11:30 AM, Clayton
arrived at the Sarita, Texas Border Patrol immigration checkpoint driving a

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40779

vacuum truck. Border Patrol Agent Reese Wade Osborne testified that Clayton
stopped the vacuum truck in the primary inspection area near where Osborne
and his service canine, Verzir, were standing. Verzir alerted to the vacuum
truck almost immediately, within the first minute after Clayton’s arrival at the
checkpoint. Osborne testified that he watched as Verzir’s “nose c[a]me up and
jerk[ed] towards the center of th[e] truck.” Osborne stated that Verzir then
“pulled him towards the center of the tanker and began to alert.”
      Meanwhile, Border Patrol Agent Alan Garcia proceeded to question
Clayton in the primary inspection area. Garcia approached Clayton and asked
him whether he was a U.S. citizen, to which he replied: “uh-huh.”         Garcia
testified that Clayton seemed tense, his eyes were wide, and that he was
murmuring. While Garcia was questioning Clayton, Osborne informed Garcia
that Verzir had alerted to Clayton’s vehicle. Garcia then asked Clayton whether
he could take a closer look at Clayton’s vehicle. Clayton replied, “I guess.”
Garcia then directed Clayton to the secondary inspection area. This initial
encounter took approximately forty-five seconds to one and a half minutes.
      The subsequent search of the vacuum truck led to the discovery of
approximately 822.28 kilograms of marijuana.         Clayton was arrested and
ultimately charged in a one-count indictment for possessing with the intent to
distribute 822.28 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B). Clayton filed a motion to suppress, asking the district court to
suppress “all evidence, observations, and statements” on the basis that the
search of his vehicle was “unsupported by either reasonable suspicion or
probable cause.”




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                                  No. 09-40779

      On April 28, 2009, the district court conducted a hearing on the motion,
denying the motion from the bench. On May 4, 2009, the district court entered
an order detailing its reasons for denying Clayton’s motion.         Clayton then
entered a plea of not guilty, and the case proceeded to a jury trial. After the jury
returned a guilty verdict, the district court sentenced Clayton on July 24, 2009.
The district court filed its judgment and statement of reasons on July 27, 2009,
and Clayton timely filed his notice of appeal on August 3, 2009.
      On appeal, Clayton argues that the district court’s factual finding that the
canine dog “alerted” to his vehicle is clearly erroneous, and consequently, that
the Border Patrol Agents did not have probable cause to search his vehicle.
Furthermore, Clayton argues that his statement “I guess” did not constitute
voluntary consent, and as a result, the Border Patrol Agents did not have
consent to search his vehicle. With no probable cause or consent for the Agents’
search of his vehicle, Clayton asks this Court to reverse the district court’s
denial of his motion and suppress any and all evidence obtained from what he
claims was an unconstitutional search and seizure.
      II.   STANDARD OF REVIEW
      “In reviewing a district court’s denial of a defendant’s motion to suppress,
this court reviews factual findings . . . for clear error, while we review legal
conclusions de novo.” United States v. Rangel-Portillo, 586 F.3d 376, 379 (5th
Cir. 2009) (quotation marks and citation omitted). Thus, “[a]ppellate review of
a district court’s ruling on a motion to suppress based on testimony at a
suppression hearing is subject to the clearly erroneous standard.” United States
v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995); see also United States v. Alvarez, 6
F.3d 287, 289 (5th Cir. 1993) (“This Circuit’s standard of review for a motion to


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                                        No. 09-40779

suppress based on live testimony at a suppression hearing is to accept the trial
court’s factual findings unless clearly erroneous or influenced by an incorrect
view of the law.”). Furthermore, when reviewing the district court’s factual
findings under the clearly erroneous standard, we “vie[w] the evidence in the
light most favorable to the government.” United States v. Waldrop, 404 F.3d 365,
368 (5th Cir. 2005). The Court “may affirm the district court’s decision on any
basis established by the record.” United States v. Charles, 469 F.3d 402, 405 (5th
Cir. 2006).
              III.    ANALYSIS
       On appeal, Clayton asserts that the district court committed clear error
when it considered the live testimony at the hearing and concluded that the
canine dog had in fact “alerted” to Clayton’s vehicle. Having reviewed the record
and the district court’s decision under the clearly erroneous standard, we
conclude that this factual finding is supported by the record and, therefore, does
not constitute clear error.           Furthermore, since the canine’s alert itself
established sufficient probable cause to justify the agents’ search of the vehicle,
we find the district court did not err when it denied Clayton’s motion to
suppress. 1 For the reasons articulated in greater detail herein, we affirm the
district court’s denial of the Defendant-Appellant’s motion to suppress.

       1
         Because the canine sniff of Defendant-Appellant’s vehicle establishes probable cause
for the Agents’ search of the vehicle, this Court need not address the Defendant-Appellant’s
additional issue raised on appeal: his contention that his statement “I guess” did not constitute
voluntary consent. See United States v. Marchuca-Barrera, 261 F.3d 425, 431 (5th Cir. 2001)
(holding that Border Patrol Agents can justify their “further detention” of a vehicle at an
immigration checkpoint “based on consent or probable cause.”) (emphasis added); see also
United States v. Williams, 69 F.3d 27, 28 (5th Cir. 1995) (“The fact that the dog alerted
provided probable cause to search.”). Thus, the existence of probable cause in this instance
precludes the necessity of our determining whether Clayton gave his consent. In this
particular instance, Clayton’s consent was not constitutionally necessary.

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                                     No. 09-40779

      “The Fourth Amendment declares the right to be secure against
unreasonable searches.” Waldrop, 404 F.3d at 368 (quotation marks, brackets,
and citation omitted). “It is agreed that checkpoint stops are ‘seizures’ within
the meaning of the Fourth Amendment.” United States v. Martinez-Fuerte, 428
U.S. 543, 556 (1976). The Fourth Amendment, however, does not prohibit all
searches and seizures, but rather, only those that constitute an unreasonable or
arbitrary use of the government’s police power. See Martinez-Fuerte, 428 U.S. at
554   (holding   that      the   Fourth   Amendment           only     “imposes    limits     on
search-and-seizure powers in order to prevent arbitrary and oppressive
interference by enforcement officials. . . .”). “In delineating the constitutional
safeguards applicable in particular contexts, the Court has weighed the public
interest against the Fourth Amendment interest of the individual, a process
evident   in   [the   Court’s]    previous       cases    dealing     with   Border    Patrol
traffic-checking operations.” Id. at 555 (internal citations omitted).
      Thus, “[i]n United States v. Martinez-Fuerte[,] the Supreme Court upheld
the constitutionality of immigration checkpoints [where agents routinely
conduct] suspicionless ‘stops for brief questioning                    . . . at permanent
checkpoints.’” United States v. Machuca-Barrera, 261 F.3d 425, 431 (5th Cir.
2001) (quoting Martinez-Fuerte, 428 U.S. at 566). The Supreme Court “explicitly
limited its holding to stops and questioning to enforce the immigration laws.” Id.
Thus, “[a]s we have stated, the Constitution is violated when the detention
extends beyond the valid reason for the initial stop.” Id. at 432. Accordingly, “[i]t
is the length of the detention, not the questions asked, that makes a specific stop
unreasonable. . . .” Id.




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                                     No. 09-40779

      In this particular instance, Agent Garcia questioned Clayton regarding his
immigration status for approximately 45 to 90 seconds.              The district court
concluded that Agent Garcia’s questioning for this length of time did not amount
to an unconstitutional search and seizure, and Clayton does not appeal this
portion of the district court’s ruling. Thus, we find it important to recognize that
it was during this 45 to 90 second encounter that Verzir alerted to Clayton’s
vehicle. The sequence of events is significant since “border patrol agents [who]
wish to employ a drug-sniffing dog at an immigration stop . . . may do so only if
it does not lengthen the stop beyond the time necessary to verify the
immigration status of the vehicle’s passengers.” United States v. Garcia-Garcia,
319 F.3d 726, 730 (5th Cir. 2003). In the present case, however, no party
disputes that Verzir’s initial sniff and alert to Clayton’s vehicle was well-within
the length of time necessary to verify Clayton’s immigration status. Likewise,
Clayton does not dispute the district court’s determination that a canine alert
to a vehicle provides probable cause to search that vehicle. See United States v.
Williams, 69 F.3d 27, 28 (5th Cir. 1995) (“The fact that the dog alerted provided
probable cause to search.”); see also United States v. Dovali-Avila, 895 F.2d 206,
207 (5th Cir. 1990) (“[A] ‘dog sniff’ does not constitute a search . . . and . . . a ‘dog
alert’ is sufficient to create probable cause to conduct a warrantless vehicle
search.”).
      Instead, Clayton appeals the district court’s factual conclusion that Agent
Osborne’s canine, Verzir, actually alerted to Clayton’s vehicle. In support of his
argument, Clayton submitted David Kroyer’s affidavit to the district court–
highlighting what Kroyer articulates as the difference between “mere interest
and an alert or indication.” According to Kroyer, the “dog’s claimed ‘alert’ in this


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                                       No. 09-40779

case does not amount to probable cause.” Thus, Clayton avers that the district
court’s conclusion that Verzir alerted to his vehicle constitutes clear error. In
support of this alleged factual distinction, Clayton argues that “[v]arious federal
appellate courts have distinguished a dogs [sic] showing of interest with an
actual alert.”
           The three cases Clayton cites from our sister circuits, however, do not
support Clayton’s proposition that the district court, in this instance, clearly
erred when it determined that Verzir alerted to Clayton’s vehicle. Although the
Sixth Circuit did “acknowledge that [a] dog’s ‘interest’ in [a] bag alone would not
constitute probable cause,” United States v. Guzman, 75 F.3d 1090, 1096 (6th
Cir. 1996), the Sixth Circuit did not second guess the police officer’s “awareness
of the dog’s interest in [the Defendant’s] bag when determining whether the
totality of the circumstances established probable cause to seize [the]
defendant[.]” Id. Thus, because the Guzman Court simply concluded that a dog’s
interest– when considered in conjunction with the totality of the circumstances–
could give rise to probable cause, the Guzman Court’s decision fails to provide
this Court with any specific guidance as to how the Court should evaluate the
district court’s factual determination that an individual dog’s actions do
constitute an alert– as opposed to an interest or indication. See id. To the extent
that Clayton attempts to rely on the Sixth Circuit’s decision as support for his
contention that the district court clearly erred in concluding that Verzir alerted
to his vehicle, such reliance is misplaced.2


       2
        Likewise, Clayton’s reliance on both the Eighth Circuit’s decision in United States v.
Jacobs, and the Tenth Circuit’s decision in United States v. Munoz-Nava, is also misplaced.
The Eighth Circuit’s decision in Jacobs is inapplicable to the present case because in Jacobs,
the Court was determining whether a police officer’s attempts to obtain a warrant by

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                                       No. 09-40779

       Although Clayton maintains that the district court erred when it
determined that Verzir did in fact alert to Clayton’s vehicle, this Court’s
precedent serves to support the district court’s adoption of Osborne’s testimony
regarding his dog’s “alert” as both credible and reliable. Previously, this Court
has “determined that . . . evidence that the dog was certified was sufficient proof
of his training to make an effective alert.” United States v. Sanchez-Pena, 336
F.3d 431, 444 (5th Cir. 2003). That is, in cases where the evidence indicates that
a drug dog has been properly trained and certified, we have found “the record to
support the district court’s finding that the dog’s alert was reliable and
established probable cause for a search of the vehicle.” Id.
       In the present case, Agent Osborne testified before the district court that
he has worked with Verzir since September of 2007– when Agent Osborne first
trained with Verzir for six weeks in El Paso, Texas, at the National Canine


“underlining [of the word] ‘interest’ . . . was attempting to mislead the magistrate judge by
emphasizing the word in such a fashion as to equate it with the term of art ‘alert.’” United
States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993). In the present case, however, we are not
reviewing a warrant issued based on a police officer’s exaggeration of the fact that his dog
showed an “interest” in the Defendant’s property, but rather, we are evaluating the district
court’s factual determination that an individual dog’s reaction to a Defendant’s vehicle was
in fact an alert– as opposed to a mere indication. Consequently, the Eighth Circuit’s decision
in Jacobs is not presently applicable. Likewise, the Tenth Circuit’s decision in Munoz-Nava
offers no guidance to our consideration of the present appeal. In Munoz-Nava, the Tenth
Circuit reasoned that “absent a full alert, the dog’s behavior was not sufficient to support
probable cause, but the [dog’s] behavior change could be considered in the totality of the
circumstances.” United States v. Munoz-Nava, 524 F.3d 1137, 1145 (10th Cir. 2008). Thus, in
Munoz-Nava, the dispute was not whether the dog had in fact alerted, but rather, the dispute
was whether the court could find probable cause in circumstances where the drug dog had
failed to alert. We are not presented with a case in which a drug dog has failed to alert.
Instead, we have been presented with a case where the Defendant-Appellant contests the
Agent’s characterization of his dog’s actions as an alert. Accordingly, the Tenth Circuit’s
reasoning in Munoz-Nava is irrelevant to the present appeal.



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                                  No. 09-40779

Facility.   Since that time, he has worked on 46 individual cases where he
interpreted Verzir’s actions to be an “alert” to illegal narcotics. Out of those 46
cases, not once has Agent Osborne mistaken Verzir’s actions to be an alert, nor
has Verzir ever falsely alerted. Agent Osborne also testified that they continue
to train and test Verzir’s reliability, as they are both subject to training and
testing for one eight-hour block, once every two weeks.
      In fact, the record is absolutely devoid of anything that could possibly
undermine the credibility of Agent Osborne or the reliability of his canine.
Despite this almost impeccable record, Clayton contends that the district court
clearly erred in adopting Agent Osborne’s testimony that Verzir alerted because
Agent Osborne himself testified that Verzir often “alerts” by sitting near the
source of illegal narcotics– and in this particular instance, Verzir did not sit.
Instead, Agent Osborne testified that Verzir pulled Osborne towards Clayton’s
vehicle and jumped up on it. Notably, Osborne testified that Verzir:
      didn’t go past [Clayton’s vehicle] to another vehicle. He didn’t go
      and try to sniff what was in the cab of the vehicle, along with the
      driver. He went past it and stopped there at the center of the truck,
      worked all underneath it. . . . even when I tried to move him to other
      areas, he went back to that one spot and worked it as is, I mean, as
      hard as he could. That to me tells me he’s alerting. His body
      posture changed. . . . As I remember it, his mouth closed, his ears
      went up, he was sniffing all around. . . . His nose was in just about
      every part of that center of the truck.
According to Clayton, because Osborne testified that Verzir is a “passive
indicator” that usually sits to indicate the presence of illegal narcotics, the
district court clearly erred when it found that Verzir’s actions in this instance
constituted an “alert.”




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                                   No. 09-40779

      We disagree. The record in this case reveals that Verzir and Osborne have
gone through significant training and have an extremely reliable record
together. Not once has Osborne mistakenly interpreted Verzir’s actions to be an
alert. Furthermore, although Verzir did not sit in this instance, Osborne was
able to articulate several specific indicators he used, as Verzir’s handler, to
interpret Verzir’s actions to be an “alert.” None of the above listed indicators
(i.e., Verzir’s jumping on the vehicle, the elevation of his ears, his pulling
Osborne to the vehicle, etc.), are objectively unreasonable. Instead, the record
only provides support for the district court’s conclusion that Agent Osborne
properly interpreted his dog’s actions to be an “alert.” Although Verzir did not
passively indicate or sit in this instance, our Fourth Amendment jurisprudence
does not require drug dogs to abide by a specific and consistent code in signaling
their sniffing of drugs to their handlers. So long as officers are able to articulate
specific, reasonable examples of the dog’s behavior that signaled the presence of
illegal narcotics, this Court will not engage itself in the evaluation of whether
that dog should have used alternative means to indicate the presence of the
drugs.
      Accordingly, we cannot conclude that the district court clearly erred when
it concluded that Verzir did in fact alert to the illegal narcotics in Clayton’s
vehicle, and as a result, we affirm the district court’s denial of Clayton’s motion
to suppress.
      IV.      CONCLUSION
      For the aforementioned reasons, we AFFIRM the district court’s denial of
the Defendant-Appellant’s motion to suppress.




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