     Case: 17-11253   Document: 00514640537      Page: 1   Date Filed: 09/13/2018




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

                                  No. 17-11253                      FILED
                                                            September 13, 2018
                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                           Clerk

             Plaintiff–Appellee

v.

RUSSELL TIM SHEN,

            Defendant–Appellant
____________________________

Cons. w/ No. 17-11260

UNITED STATES OF AMERICA,

            Plaintiff–Appellee

v.

ANDRE JORGE HERNANDEZ,

            Defendant–Appellant


                Appeals from the United States District Court
                     for the Northern District of Texas
                           USDC No. 2:16-CR-70-1
                           USDC No. 2:16-CR-70-2
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                              No. 17-11253 c/w 17-11260
Before JONES, BARKSDALE, and WILLETT, Circuit Judges.
PER CURIAM:*
       A police officer stopped Russell Shen and Andre Jorge Hernandez for
following a truck too closely in the rain. After speaking with them for about
ten minutes, the officer suspected the men were up to more than traffic
violations. A quick walk around the vehicle with a canine proved the officer
correct—Shen and Hernandez were trafficking 71 pounds of marijuana.
       Both men pleaded guilty. Both men also filed separate but substantially
similar motions to suppress all evidence, arguing (1) their traffic stop was
unreasonably prolonged and (2) the officer’s canine never properly alerted to
the presence of narcotics. The district court denied the two motions in one order
that was as thorough as it was correct.
       We AFFIRM.

                                    I. BACKGROUND
A.     Factual
       Officer Coy Teichelman conducted a traffic stop involving Defendants
Russell Shen and Andre Jorge Hernandez because they were following too
closely to a semi-trailer truck. Shen was driving and Hernandez was a
passenger. Teichelman suspected wrongdoing soon after greeting Shen
because, among other things, Shen was acting nervously and his hands were
shaky as he thumbed through the rental-car paperwork. And when Teichelman
asked for a copy of the rental-car agreement, Shen provided him an XM
satellite radio channel menu.




       * 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. 17-11253 c/w 17-11260
      Based on this, Teichelman informed Shen he would issue a warning for
the traffic violation but asked Shen to join him in the patrol car as he completed
the paperwork.
      In the patrol car, Teichelman noticed the rental car was in Hernandez’s
name and was reserved for a one-way trip. Teichelman testified that the road
on which he stopped the Defendants had a “pretty high” rate of drug
trafficking. When Teichelman asked Shen about the itinerary and nature of
his and Hernandez’s trip, Shen responded by shaking his head and stating,
“Not even gonna bother with that,” and “I can’t deal with it.” Shen then showed
Teichelman a federal badge—leading Teichelman to wonder if the two men
were engaged in a controlled delivery—but then clarified that Hernandez was
not an agent and that their trip to Denver and the drive to Miami were for
pleasure. Hernandez, however, told Teichelman that the men visited Denver
so Shen could undergo chemotherapy.
      Based on these and other factors, Teichelman suspected criminal activity
and asked Shen for consent to search the vehicle. Shen declined. Teichelman
then walked his canine, Alis, around the vehicle and explained to Shen that if
the canine alerted on the car, he would have probable cause to search it. When
Teichelman conducted the walk-around, approximately 14 minutes had passed
since the Defendants were stopped.
      Teichelman’s canine was a “passive” alert dog trained to alert by sitting
and staring, or, as Teichelman testified, “just stand[ing] and . . . maybe kind of
even squat[ting], but she would be focused and staring at the area of the
narcotics or the odor where she’s detecting the narcotics.” When Teichelman
walked his canine around the car, she did not sit. But she exhibited other
behavior Teichelman previously observed her exhibit when detecting narcotics
in a controlled environment. Based on that behavior, Teichelman concluded
there was probable cause to search the vehicle.
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                          No. 17-11253 c/w 17-11260
      Upon searching the vehicle, Teichelman and two other uniformed police
officers found approximately 71 pounds of marijuana.
B.    Procedural
      Shen and Russell were charged with conspiracy to distribute and possess
with intent to distribute marijuana, in violation of 21 U.S.C. § 846, and
distribution and possession with intent to distribute marijuana, and aiding
and abetting, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) and 18 U.S.C.
§ 2. Both men filed nearly identical, nearly boilerplate motions to suppress all
evidence and statements, which the district court denied in one order. Both
men pleaded guilty to one count of distribution and possession with intent to
distribute marijuana and aiding and abetting, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2.
      The district court entered judgment on Shen’s and Hernandez’s guilty
pleas. The defendants timely appealed.

                II. JURISDICTION AND STANDARD OF REVIEW
A.    Statement of Jurisdiction
      This is a consolidated appeal from final judgments in a criminal case.
The district court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction under 28 U.S.C. § 1291.
B.    Standard of Review
      “In reviewing a motion to suppress, this court reviews the district court’s
legal determinations de novo and its factual findings for clear error.” United
States v. Boche-Perez, 755 F.3d 327, 333 (5th Cir. 2014) (citation omitted). We
view the evidence in the light most favorable to the prevailing party—here, the
Government. Id. (citation omitted). We may affirm on any basis supported by
the record. Id. (citing United States v. Ibarra–Sanchez, 199 F.3d 753, 758 (5th
Cir. 1999)).


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                          No. 17-11253 c/w 17-11260
                                III. DISCUSSION
A.    The Length of the Traffic Stop
      Shen and Hernandez first argue that, under Terry v. Ohio, 392 U.S. 1,
20 (1968), their 15-minute traffic stop was unreasonably prolonged in relation
to its initial justification. This argument is unpersuasive.
      A traffic stop is a Terry stop subject to Fourth Amendment scrutiny. See
Berkemer v. McCarty, 468 U.S. 420, 439 (1984). We generally evaluate the
reasonableness of a Terry stop using a two-part inquiry. We “first examine
whether the officer’s action was justified at its inception, and then inquire
whether the officer’s subsequent actions were reasonably related in scope to
the circumstances that justified the stop.” United States v. Brigham, 382 F.3d
500, 506 (5th Cir. 2004) (en banc). The Defendants’ contention that their stop
was unreasonably prolonged implicates the second prong of this analysis.
      If an officer develops reasonable suspicion of criminal activity during a
traffic stop, “he may further detain [the] occupants [of the vehicle] for a
reasonable time while appropriately attempting to dispel this reasonable
suspicion.” United States v. Andres, 703 F.3d 828, 833 (5th Cir. 2013) (quoting
United States v. Pack, 612 F.3d 341, 350 (5th Cir. 2010)). The officer’s
reasonable-suspicion determination is “based on the totality of the
circumstances and the . . . knowledge and experience of the officer.” United
States v. Estrada, 459 F.3d 627, 631–32 (5th Cir. 2006).
      When Teichelman handed Shen a traffic warning, only ten minutes had
passed. The district court identified at least seven factors that had generated
reasonable suspicion by that time:
      1. Shen and Hernandez were driving a rental vehicle under a one-
         way rental agreement.
      2. They paid more than $1,800 for the rental.
      3. They did not care if the rental car was returned late.


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      4. They had flown to Colorado and were driving a rental car on
         their return trip, and it is more expensive to drive a rental car
         at this cost than to fly.
      5. It was essentially Shen’s trip, but the car was rented in
         Hernandez’s name.
      6. They were making a questionable quick stop in Houston before
         traveling to Florida.
      7. Shen identified himself as a federal officer and stated he was
         picking “stuff” up, but Teichelman had worked with the DEA
         and had done controlled deliveries, and there were always
         multiple officers around when he did them.
Add to this list the facts that the men were found violating a traffic law on a
highway known for high drug trafficking and that Shen provided Teichelman
an XM satellite radio channel menu instead of the rental agreement.
      It is important to remember the Government need not demonstrate that
any one factor discussed above could alone justify Teichelman’s reasonable
suspicion. Instead, “[r]easonableness . . . is measured in objective terms by
examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39
(1996). And under the totality of the circumstances, it was reasonable for
Teichelman to suspect something more than a traffic violation was afoot.
      Because Teichelman “develop[ed] reasonable suspicion of additional
criminal activity during his investigation of the circumstances that originally
caused the stop, he [was entitled to] further detain [Shen and Hernandez] for
a reasonable time while appropriately attempting to dispel this reasonable
suspicion.” Pack, 612 F.3d at 350. We believe that ten minutes to issue a traffic
warning and ask questions constitutes “a reasonable time.” See United States
v. Villafranco-Elizondo, 897 F.3d 635, 644 (5th Cir. 2018) (finding traffic stop
reasonable where officer did not run a check on driver’s license and registration
until 11 minutes into the stop). We also believe questioning the men about
their trip and plans was an “appropriate[] attempt[] to dispel . . . suspicion.”
Pack, 612 F.3d at 350; see also Brigham, 382 F.3d at 508 (“An officer may also

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                           No. 17-11253 c/w 17-11260
ask about the purpose and itinerary of a driver’s trip during the traffic stop.”).
And given the answers to his questions and the Defendants’ behavior, it was
reasonable for Teichelman to take an additional five minutes to lead his canine,
Alis, around the vehicle for an open-air drug sniff.
B.    The Dog That Didn’t Bark
      Shen and Hernandez next argue that Teichelman lacked probable cause
to search their vehicle because Alis did not fully alert to the presence of
narcotics.
      When dealing with a probable-cause challenge to a drug dog’s alert,
“[t]he question—similar to every inquiry into probable cause—is whether all
the facts surrounding [the] dog’s alert, viewed through the lens of common
sense, would make a reasonably prudent person think that a search would
reveal contraband or evidence of a crime.” Florida v. Harris, 133 S. Ct. 1050,
1058 (2013). “A sniff is up to snuff when it meets that test.” Id.
      Shen and Hernandez claim Teichelman lacked probable cause to search
the vehicle because Alis did not fully alert. Specifically, Defendants point out
that Alis was trained to sit when alerting to narcotics. But footage from
Teichelman’s dashcam reveals that Alis never sat.
      As the district court noted, there is no Fifth Circuit law demanding that
a drug dog come to a full and final alert before probable cause exists. Nor does
the Supreme Court’s instruction that we weigh “all the facts surrounding [the]
dog’s alert, viewed through the lens of common sense,” imply such a rigid
standard. See id. at 1058. In that vein, our court has held in an unpublished
decision that a dog provided probable cause even though it did not sit as trained
to do when alerting to narcotics. See United States v. Clayton, 374 F. App’x 497,
502 (5th Cir. 2010) (per curiam) (“[A]lthough [the dog] did not sit in this
instance, [the officer] was able to articulate several specific indicators he used,
as [the dog’s] handler, to interpret [the dog’s] actions to be an ‘alert.’”); cf.
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Villafranco-Elizondo, 897 F.3d at 644 (“[W]e have previously rejected the
notion that the failure of a drug dog to alert deprives officers of existing
probable cause. We apply that principle here.” (emphasis added)).
      Although we are not bound by an unpublished decision, we find the
reasoning in Clayton persuasive and consistent with the decisions of several of
our sister circuits. See, e.g., United States v. Holleman, 743 F.3d 1152, 1156–
57 (8th Cir. 2014) (“[W]e are not concerned about [the dog’s] failure to give a
full indication.”); United States v. Thomas, 726 F.3d 1086, 1098 (9th Cir. 2013)
(“Evidence from a trained and reliable handler about alert behavior he
recognized in his dog can be the basis for probable cause. Whether a particular
dog displays enough signaling behavior will depend on the facts and
circumstances of each case.”); United States v. Parada, 577 F.3d 1275, 1281–
82 (10th Cir. 2009) (“We decline to adopt the stricter rule urged by [the
defendant], which would require the dog to give a final indication before
probable cause is established.”).
      All the facts surrounding Alis’s alert, viewed through the lens of common
sense, would lead a reasonably prudent person to think a search of Shen and
Hernandez’s rental vehicle would reveal contraband. The district court listed
several of these facts:
      • Teichelman had been working with Alis for about two years.
      • Alis was certified by the National Narcotic Detector Dog
        Association and the National Police Canine Association.
      • Alis’s annual certification, with blind testing, establishes that
        she reliably detects drugs in a controlled environment.
      • According to Teichelman’s uncontradicted testimony, every
        case of a false-positive response by Alis in the field was
        explained by the presence of recognizable narcotics odors, even
        if no drugs were ultimately found.
Plus, as Teichelman took her around the vehicle, Alis showed signs of interest,
such as an increased breathing rate, wagging her tail, and sniffing more air

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                          No. 17-11253 c/w 17-11260
through her nose. At one point, Alis paused, sniffed the car’s door seam heavily,
and stared at the passenger door seam for about one second.
      No, Alis never sat down. But the Defendants are barking up the wrong
tree. Teichelman testified Alis never sits in water, and during the open-air
sniff, the rental car was parked in a puddle of water. See Holleman, 743 F.3d
at 1156–57 (noting the “officer explained the dog’s failure to give a full
‘indication’”). More importantly, Teichelman testified that Alis was acting as
she has in the past when identifying a narcotic odor. When counsel asked
Teichelman to clarify that he has previously seen Alis “respond in that way
when detecting narcotics,” Teichelman answered affirmatively.
      Viewing “all of the evidence introduced at [the] suppression hearing in
the light most favorable to . . . the Government,” United States v. Santiago, 310
F.3d 336, 340 (5th Cir. 2002), and considering Teichelman’s two years of
experience with Alis, there was probable cause to believe the vehicle contained
contraband.
C.    Hernandez’s Window Argument
      Hernandez lastly claims Teichelman put his arm into the vehicle’s open,
driver-side window, which caused Alis to stick her head into the vehicle.
Hernandez cites several out-of-circuit cases for the proposition that it is
unconstitutional for a dog’s nose to break the plane of a vehicle’s open window
before probable cause exists.
      The Government says this argument is subject to plain-error review
because Hernandez did not raise it below. United States v. De Jesus-Batres,
410 F.3d 154, 158 (5th Cir. 2005) (“If a particular suppression argument is not
made to the district court, review is for plain error.”). That is questionable.
Hernandez did not raise this argument in his motion to suppress, but his
counsel asked an expert witness during the suppression hearing whether an
officer may stick his hand inside a vehicle while handling a drug dog. And
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Shen’s counsel, at the same suppression hearing, questioned Teichelman at
length about whether he directed Alis to enter the driver-side window. Indeed,
Shen’s counsel asked Teichelman whether he was “supposed to be searching
inside of the vehicle.” After the joint suppression hearing, the district court
ruled on the Defendants’ motions to suppress jointly.
      But we need not grapple with the appropriate standard of review. Even
assuming Hernandez properly preserved his argument, it is unavailing under
the resulting standard—which is more forgiving than plain-error review. See,
e.g., United States v. Maldonado, 241 F. App’x 198, 201 (5th Cir. 2007) (“When
error is properly preserved, a suppression ruling is reviewed de novo; factual
findings, for clear error.” (citing United States v. Castro, 166 F.3d 728, 731 (5th
Cir. 1999))).
      Hernandez correctly summarizes the law: The Fourth Amendment
comes into play when an officer facilitates, encourages, or prompts a drug dog
to enter a vehicle. Hernandez argues Teichelman placed his arm into the
driver-side window and commanded Alis to get up on that open window,
thereby facilitating, encouraging, and prompting Alis to enter it. But
Hernandez points to no evidence that Teichelman directed Alis to enter the
window.
      To the contrary, the district court found that Teichelman’s hand
movements were part of the high and low passes Teichelman described as
standard procedure. The court also explicitly found Teichelman’s standard
procedures “did not improperly cue Alis.” These factual findings are not clearly
erroneous. Viewing these findings in the light most favorable to the
Government, we believe Hernandez has not shown that Teichelman’s use of a
standard “high and low” pass procedure became an unlawful search because
the window was down and Alis entered it. Cf. United States v. Lyons, 486 F.3d
367, 373 (8th Cir. 2007) (“Appellants do not cite to any authority that holds
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                          No. 17-11253 c/w 17-11260
that the officers had the affirmative duty to close the windows in preparation
for the dog sniff, and we find none.”); United States v. Stone, 866 F.2d 359, 364
(10th Cir. 1989) (noting “the police remained within the range of activities they
may permissibly engage in when they have reasonable suspicion to believe an
automobile contains narcotics” in a case where there was no evidence that “the
police asked [the defendant] to open the hatchback so the dog could jump in”
or that “the police handler encouraged the dog to jump in the car”).

                                 CONCLUSION
      For these reasons, we AFFIRM the judgment of the district court.




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