     Case: 17-30085       Document: 00514467613         Page: 1     Date Filed: 05/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                     No. 17-30085
                                                                                 Fifth Circuit

                                                                               FILED
                                   Summary Calendar                        May 10, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                  Plaintiff - Appellee

v.

JOSE D. BASTARDO-VILLANUEVA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CR-176-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Jose D. Bastardo-Villanueva challenges the judgment and sentence of
48-months’ imprisonment, imposed after he entered a conditional guilty plea
to possession with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841 (a)(1). Bastardo claims the court erred in denying his motion to suppress
evidence seized from his rental vehicle after a traffic stop because: (1) the use
of a dog sniff impermissibly extended the length of the traffic stop beyond its


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-30085

original purpose; (2) the officer did not have a reasonable suspicion of criminal
activity to extend the stop; and (3) the officer did not have a valid consent to
search the vehicle.
      In reviewing the denial of a suppression motion, in this instance through
a detailed and comprehensive order, “we review factual findings for clear error,
and the ultimate constitutionality of law enforcement action de novo”. United
States v. Zuniga, 860 F.3d 276, 280 (5th Cir. 2017). “Factual findings are
clearly erroneous only if a review of the record leaves this [c]ourt with a definite
and firm conviction that a mistake has been committed.” United States v.
Hearn, 563 F.3d 95, 101 (5th Cir. 2009) (internal quotation omitted).
      The clearly erroneous standard is particularly deferential where, as
here, “denial of a suppression motion is based on live oral testimony . . . because
the judge had the opportunity to observe the demeanor of the witnesses”.
United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (internal quotation
omitted). Moreover, in addition to deferring to the court’s factual findings, the
evidence must be viewed in the light most favorable to the prevailing party, in
this instance, the Government. United States v. Pack, 612 F.3d 341, 347 (5th
Cir. 2010). The district court’s ruling may be upheld “on any basis established
by the record”. Id. (citing United States v. Charles, 406 F.3d 402, 405 (5th Cir.
2006)).
      The legality of a traffic stop is examined under the two-pronged analysis
described in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Brigham, 382
F.3d 500, 506 (5th Cir. 2004) (en banc). First examined is whether the initial
official action was justified; second, whether the subsequent action was
reasonably related in scope either to the circumstances that justified the stop
or to dispelling a reasonable suspicion that developed during the stop. Id. at
506–07.



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                                  No. 17-30085

      Bastardo does not dispute the initial stop was “arguably justified” based
on probable cause to believe a traffic violation had occurred.         The court
pretermitted the issues of whether the dog sniff impermissibly extended the
duration of the stop and whether Bastardo provided valid consent to search his
vehicle. We need not address those issues, because this appeal is resolved by
addressing Bastardo’s challenge to the court’s ruling the officer had reasonable
suspicion to continue the traffic stop.
      Regarding whether the officer who initiated the traffic stop had a
reasonable suspicion to continue it, the record reveals the officer: (1) was a 12-
year veteran of the sheriff’s department, was assigned to the K-9 unit, and was
traveling with his dog, which was trained to detect drugs; (2) was also a
member of the task force with the Drug Enforcement Administration;
(3) noticed Bastardo was so nervous his hand was visibly shaking to such an
extent that he dropped his driver’s license; (4) noticed Bastardo’s rented vehicle
was almost two days past the return date memorialized on the rental
agreement and Bastardo was driving in the opposite direction of the drop-off
location; and (5) doubted Bastardo’s travel itinerary, which conflicted with his
explanation that he wanted to save money and had been in Texas for the week
prior. The record further reveals the officer had not obtained the results of his
requested computer check and had not completed the initial purpose of the stop
by issuing a citation prior to the use of the dog-sniff. Viewing these facts in
the above-referenced requisite light most favorable to the Government, the
officer had a particularized and objective basis to believe criminal activity was
afoot. Zuniga, 860 F.3d at 280 (evidence viewed in light most favorable to
prevailing party).
      Furthermore, the length of the Terry stop was not impermissibly long.
The 15 minutes that elapsed from the stop until the dog’s positive alert on the



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                                  No. 17-30085

vehicle was reasonable, in the light of the officer’s early formation of reasonable
suspicion of criminal activity, and because the K-9 unit was already on the
scene at the time of the initial stop. Pack, 612 F.3d at 345–46.
      As Bastardo concedes on appeal, the dog’s positive alert for the presence
of narcotics provided sufficient probable cause to search Bastardo’s vehicle,
regardless of any subsequent consent. United States v. Sanchez-Pena, 336 F.3d
431, 444 (5th Cir. 2003).      Accordingly, the court did not err in denying
Bastardo’s suppression motion. Zuniga, 860 F.3d at 280.
      AFFIRMED.




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