     Case: 10-40868     Document: 00511554515         Page: 1     Date Filed: 07/28/2011




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

                                                                            FILED
                                                                            July 28, 2011
                                     No. 10-40868
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RICARDO JAVIER RODRIGUEZ-TREVINO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:10-CR-357-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Ricardo Javier Rodriguez-Trevino (Rodriguez) was convicted by a jury of
possessing with intent to distribute more than five kilograms of cocaine, and he
received a sentence of 151 months in prison. On appeal, Rodriguez asserts that
the district court erred in denying his motion to suppress evidence obtained
during a search of his vehicle at the immigration checkpoint near Falfurrias,
Texas. He contends that Dialo, the drug canine, failed to pinpoint his vehicle as
the location of any narcotics in the primary inspection area and that a defense

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40868    Document: 00511554515      Page: 2    Date Filed: 07/28/2011

                                    No. 10-40868

expert testified at the suppression hearing that Dialo had not had enough time
to change his behavior in such a way that would reflect that the dog had
identified the presence of contraband. To the extent that Rodriguez is asserting
that the district court should have found that Dialo did not “alert” on his vehicle,
the court based its factual finding on the credibility of the canine handler’s
testimony about Dialo’s behavior. Rodriguez has not established that this ruling
is clearly erroneous. See United States v. Levine, 80 F.3d 129, 132 (5th Cir.
1996).
      In conjunction with this assertion, Rodriguez also contends that any
“alert” by Dialo was insufficient to establish probable cause to search his vehicle
or reasonable suspicion supporting prolonged detention for further investigation.
He maintains that this circuit’s case law requires a more focused identification
of the source of the canine’s reaction. Contrary to Rodriguez’s assertion, this
court has upheld a search based upon the dog’s initial “alert” rather than the
pinpoint of the drugs’ location. In Garcia-Garcia, agents were conducting a
checkpoint inspection of a bus, with one agent questioning passengers on board
while the second agent led a trained dog along the bus’s undercarriage. United
States v. Garcia-Garcia, 319 F.3d 726, 727 (5th Cir. 2003). When sniffing near
the ceiling of the luggage bins underneath the bus, the dog had “alerted,” which
the handler described as a change in respiration and an increase in excitement
and speed when trying to locate the source. Id. at 728. The handler brought the
dog on the bus, where the canine again “alerted” by passing Garcia-Garcia, then
stopping and turning around. Id. The canine ultimately “indicated” the source
of the odor as the defendant by putting his nose under Garcia-Garcia’s seat. Id.
The court found that “[o]nce the dog alerted, the agents had, at a minimum,
sufficient reasonable suspicion to permit them to prolong the stop to explore
further the potential source of the dog’s alert.” Id. at 730. The court also
specified that “the sniff alert to the undercarriage of the bus provided probable
cause to search the vehicle.” Id.

                                         2
   Case: 10-40868   Document: 00511554515      Page: 3   Date Filed: 07/28/2011

                                  No. 10-40868

      In the instant case, the district court accepted Garcia’s testimony that
Dialo “alerted” on Rodriguez’s vehicle. Under the reasoning of Garcia-Garcia,
the Border Patrol agents possessed at least reasonable suspicion to investigate
further the source of Dialo’s olfactory interest in the vehicle, if not probable
cause to conduct the search. See id.
      Rodriguez also argues that the district court should have found that the
Border Patrol agents lacked the authority to X-ray his vehicle even if they had
reasonable suspicion warranting further investigation. Because he did not raise
this argument in the district court, we review for plain error. United States v.
Baker, 538 F.3d 324, 328-29 & n.1 (5th Cir. 2008). Rodriguez has not established
that the district court’s failure to rule on the propriety of the X-ray search
constituted a clear or obvious error. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009); see also United States v. Flores-Montano, 541 U.S. 149, 150
(2004); Cardwell v. Lewis, 417 U.S. 583, 591 (1974). In light of these rulings, we
need not address Rodriguez’s argument that he did not consent to a search of his
vehicle.
      AFFIRMED.




                                        3
