U.S. v. Stevenson

• Decision Date: 19 August 2002
• Docket Number: No. 01-CR-1312-ALL.,01-CR-1312-ALL.
• Citation: 274 F.Supp.2d 819
• Parties: UNITED STATES of America, v. John David STEVENSON
• Court: U.S. District Court — Southern District of Texas

Page 819

274 F.Supp.2d 819

UNITED STATES of America, v. John David STEVENSON

No. 01-CR-1312-ALL.

United States District Court, S.D. Texas. Laredo Division.

August 19, 2002.

John David Stevenson, Laredo, TX, pro se.

Indalecio R. Guardiola, U.S. Attorney's Office, Laredo, TX, for U.S.

MEMORANDUM AND ORDER

ELLISON, District Judge.

Defendant John David Stevenson has been charged with unlawfully, knowingly and intentionally possessing with intent to distribute over 100 kilograms of marijuana. Pending before this Court is Defendant's motion to suppress. He contests the existence of probable cause arising from a canine alert that led to the search and seizure of marijuana in his possession. For the reasons stated below, the motion to suppress is DENIED.

I. Factual Background

On November 12, 2001, Defendant was driving a van on Highway 59 when he came to a stop at the Border Patrol checkpoint located about sixteen miles west of Freer, Texas. Defendant was the only visible occupant in a van that had an open interior. While Defendant was answering inquiries about his citizenship, Carlo, a canine used for detection of both human and narcotics odors, alerted to the door on the driver's side. Border Patrol Agent Fernando Terrazas, Carlo's handler, searched the van and discovered a large bag containing marijuana in the back of the van. Defendant was arrested and charged with knowingly possessing in excess of 100 kilograms of marijuana.

II. Discussion

[1] Defendant first seeks to challenge the constitutionality of Border Patrol immigration checkpoints. He argues that the primary or secondary purpose of such checkpoints is the interdiction of narcotics, an impermissible purpose under City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). This Court, however, lacks the authority as well as the inclination to overrule the precedent adverse to Defendant's position established by the Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), and its progeny in the Fifth Circuit. Brief, suspicion-less seizures at fixed checkpoints designed to intercept illegal aliens are constitutional in today's jurisprudence. See Edmond, 531 U.S. at 37, 121 S.Ct. 447; United States v. Machuca-Barrera, 261 F.3d 425, 431 (5th Cir.2001); see also United States v. Waldron, 178 F.Supp.2d 738, 743 (W.D.Tex.2002) (affirming the primary immigration purpose of Border Patrol checkpoints and concluding that only a contrary opinion from a higher court can redesignate them as drug interdiction checkpoints).

Next, in order to challenge the canine's alert as the basis of probable cause for the search, Defendant questions the training of Carlo. Defendant claims that, while United States v. Williams, 69 F.3d 27 (5th Cir.1995), held that a showing of a dog's reliability is not required if probable cause is developed on site as result of a dog sniff of a vehicle, it did not resolve the issue of a dog's training. See United States v. Hare, 932 F.Supp. 852, 853 (E.D.Tex.1996) (stating that "Williams left unanswered question of whether proof of dog's training must be shown"). Defendant's arguments make a distinction between a showing of the dog's reliability, which is unnecessary under Williams, and a showing of training. In Williams, the Fifth Circuit declined to adopt the Sixth Circuit standard, set in United States v. Diaz, 25 F.3d 392, 394 (1994), requiring that the government prove the training and reliability of a canine before an alert can give rise to probable cause to search. Instead, the Fifth Circuit held that a showing of a canine's reliability is not required if probable cause is developed on site as result of the dog sniff of a vehicle. 69 F.3d at 28. The Williams opinion did not distinguish between training and reliability factors, and generally omitted any separate discussion of the training of canines.

Defendant urges this Court to follow the reasoning of two district court opinions that, according to Defendant, extrapolate from Williams's silence a rule that the government has a distinct and separate evidentiary burden to prove that a canine is trained to detect the odor of the contraband seized. In Hare, the district court emphasized references to "trained" dogs in canine alert case law, and concluded that "it appears that some showing of training must be made." 932 F.Supp. at 853. Defendant also relies on United States v. Outlaw, 134 F.Supp.2d 807, 812 (W.D.Tex. 2001), where the court interpreted case law dealing with canine alerts to contain an implicit requirement that the canine and handler team "have completed a minimum level of drug detection training and that the team possess a certain level of reliability." Specifically, Defendant argues that the government must prove that Carlo was trained to distinguish between the odor of Defendant, the only visible occupant in the van, and the marijuana hidden in the van. Since Carlo alerted to odors emanating from the driver's door, Defendant contends that Carlo might have been responding to Defendant's human odor rather than marijuana odor. Defendant argues, therefore, that if Carlo was alerting to Defendant's human odor rather than the marijuana's odor, Carlo's alert can not establish probable cause to search his van.

Defendant misstates Williams for the proposition that "Williams requires that the government prove how the canine is trained to distinguish between one and the other, if at all." Def.'s Mot. for Order at 8. In fact, Williams rejected this proposition by ruling that the dog's alert provides probable cause for a search. 69 F.3d at 28. This Court has also previously confronted this issue and held that "there is no requirement that the government prove that a canine alert related specifically to the contraband eventually discovered on the defendant." United States v. Kelly, 128 F.Supp.2d 1021, 1026 n. 6.

While this Court does not read Williams to foreclose legal challenges to a canine alert, this Court declines Defendant's invitation to fashion the additional requirement that the government prove the canine's training by producing certification documents and detailed training and field work records. The defendant in Williams unsuccessfully had argued in district court that a showing of the training and reliability of a drug dog was required prior to reliance on the dog's alert. 69 F.3d at 28. In affirming the district court's denial of the motion to suppress, the Fifth Circuit expressly declined to follow the training and reliability standard adopted by the Sixth Circuit in Diaz. Instead, Williams held that "a showing of the dog's reliability is not required if probable cause is developed on site as a result of a dog sniff of a vehicle." Id. Even though Williams did not address the precise issue of training, it appears to dispose of Defendant's argument that a separate showing of training is required before a canine alert can establish probable cause for a warrantless search.

This Court's decision not to create a separate evidentiary showing of training does not mean that the government is absolved from verifying that a properly trained dog and handler conducted the challenged canine inspection. See Outlaw, 134 F.Supp.2d at 814 ("For instance, it stretches the bounds of jurisprudential imagination to believe that a positive alert by an untrained dog or by a dog with an extensive history of false positive alerts could be relied upon to establish probable cause without raising Fourth Amendment concerns."). Canine inspections at immigration checkpoints utilize dogs especially trained to detect contraband or hidden people in vehicles. When a dog trained to detect such contraband or people alerts in the near presence of a particular vehicle, "that action is sufficient to give rise to probable cause to search that vehicle." United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir.1990). Courts have found that the government sufficiently verifies a canine alert when the agent handling the canine testifies under oath that his or her canine partner was so trained and certified to alert on the day in question. See e.g., United States v. Sundby, 186 F.3d 873, 876 (8th Cir.1999) (finding dog's reliability established by affidavit only stating dog's training and certification to detect contraband; detailed accounting of dog's track record and education not required). Even the district court cases that Defendant relies upon so hold. See Hare, 932 F.Supp. at 852 (finding that canine handler's testimony that canine was certified in detecting narcotics on day of search was sufficient showing of dog's training); Outlaw, 134 F.Supp.2d at 814 (reading Williams to require that, once government proves drug detection training of canine inspection team, government does not have additional burden of producing field work records or detailed training records to establish reliability of canine alert).

It is worth noting that, even under the Diaz training and reliability standard, the Sixth Circuit has found that the testimony of the dog's handler suffices to establish a dog's training and reliability for the purpose of supporting a determination of probable cause. In Diaz, the Sixth Circuit rejected an argument similar to one that the Defendant makes here. The defendant in Diaz argued that the government could not establish the drug detection dog's training and reliability because the handler failed to produce the dog's training and performance records. 25 F.3d at 395. The court rejected the defendant's claim and determined that the dog's training and reliability were established by the district court's determination of the handler's credible testimony as to the dog's training, certification, and experience. Id. The court concluded that "[r]egarding the failure to prove [the canine's] training and reliability with training and performance records, this court has indicated that testimony is sufficient to establish a dog's...