     Case: 11-50128       Document: 00512191527         Page: 1     Date Filed: 03/29/2013




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

                                                                            FILED
                                                                          March 29, 2013
                                     No. 11-50128
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHNNY HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-2926-7


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Johnny Hernandez was convicted by a jury of conspiracy to possess with
intent to distribute five kilograms or more of cocaine; possession with intent to
distribute five kilograms or more of cocaine; and conspiracy to import five
kilograms or more of cocaine.           He was sentenced in accordance with the
sentencing enhancement provision of 21 U.S.C. § 851 to a total of 240 months of
imprisonment and 10 years of supervised release. Hernandez contends that the
district court plainly erred in denying his pretrial motion to suppress the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-50128      Document: 00512191527       Page: 2    Date Filed: 03/29/2013

                                    No. 11-50128

evidence. Although he acknowledges that there was probable cause to stop and
search the tractor-trailer he was driving, Hernandez contends that probable
cause dissipated once the officers unsuccessfully searched the truck for at least
three hours. He argues that because the probable cause dissipated after the
unsuccessful search, the officers did not have probable cause to seize the truck
and remove it to another location for a continued two-day search.
      In reviewing a district court’s denial of a motion to suppress, we consider
questions of law de novo and will reverse factual findings only if they are clearly
erroneous. United States v. Raney, 633 F.3d 385, 389 (5th Cir. 2011). However,
as the Government argues, Hernandez did not raise his probable cause
argument in his motion to suppress before the district court. Thus, we review
his argument for plain error. See United States v. Scroggins, 599 F.3d 433, 448-
49 (5th Cir. 2010). To demonstrate plain error, Hernandez must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If Hernandez makes such a showing,
this court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      Hernandez provided written consent for the officers to search the tractor-
trailer and does not dispute that the officers had probable cause to conduct the
initial search. Officers used a canine unit during the search, and a dog alerted
to the outside driver’s side and inside the cab of the tractor-trailer. At the
suppression hearing, Case Agent Ellen Thompson, a detective with the El Paso
County Sheriff’s Office and a sworn task force officer with the Drug Enforcement
Administration, explained that the tractor-trailer was moved to another location
so that it could be x-rayed and searched by someone more qualified in finding
hidden compartments in tractor-trailers. This decision by the officers was not
unreasonable given the fact that narcotics transported in tractor-trailers are
often hidden in secret compartments. See United States v. Gourley, 168 F.3d
165, 167-68 (5th Cir. 1999). Further, the fact that it took two days for the

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                                  No. 11-50128

officers to conduct the more thorough search does not make the warrantless
search of the truck less justified. See United States v. Johns, 469 U.S. 478, 486-
87 (1985); United States v. Moody, 564 F.3d 754, 761 (5th Cir. 2009). While
police may not “disregard facts tending to dissipate probable cause,” Bigford v.
Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988), Hernandez does not cite case law
suggesting that an unsuccessful three- to four-hour search would itself dissipate
existing probable cause. Cf. United States v. Bowling, 900 F.2d 926, 934 (6th
Cir. 1990) (whether an initial unsuccessful consent search dissipates probable
cause depends on the scope and intricacy compared to the subsequent search).
Further, we have held that a warrant is not required to seize a vehicle on a
public street when “the police have probable cause to believe that the car
contains evidence of crime.” United States v. Cooper, 949 F.2d 737, 747 (5th Cir.
1991). Here, there is sufficient evidence, including the wiretap investigation,
Hernandez and his passenger’s answers to police questions, and the two dog
alerts, to find that the officers had probable cause to believe that the tractor-
trailer contained contraband.
      Accordingly, the district court did not commit error, plain or otherwise, in
denying Hernandez’s motion to suppress the evidence. See Scroggins, 599 F.3d
at 449; Puckett, 556 U.S. at 135. We therefore need not address Hernandez’s
alternative argument that the search of the tractor-trailer exceeded the scope of
his consent to search. See United States v. Banuelos-Romero, 597 F.3d 763, 767
(5th Cir. 2010) (stating that “if probable cause existed [to search the vehicle],
[then] Appellant’s consent was not required for [the officer] to search”); see also
United States v. Mata, 517 F.3d 279, 284 (5th Cir. 2008) (noting that we can
affirm the district court’s decision regarding a motion to suppress on any basis
in the record).
      Pursuant to the penalty provision in 21 U.S.C. § 841(b)(1)(A) and the
procedure set forth in § 851, the mandatory minimum sentence increases from
10 years to 20 years if the defendant has at least one prior felony drug

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conviction. Hernandez argues that this violates the principle announced in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because the prior conviction
does not have to be alleged in the indictment and proven beyond a reasonable
doubt. However, he concedes that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 243-47 (1998), and he raises the issue
solely to preserve for further review.
      Accordingly, the judgment of the district court is AFFIRMED.




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