United States Court of Appeals

Fifth Circuit



## FILED

October 28, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-41327

UNITED STATES OF AMERICA

Plaintiff-Appellee,

VERSUS

ROBERTO ALEJANDRO REYES

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas



### %

Before EMILIO M. GARZA and DENNIS, Circuit Judges, and DUPLANTIER, District Judge

DUPLANTIER, District Judge:

After entering a conditional plea of guilty of possession with intent to distribute in excess of

500 grams o f cocaine, defendant-appellant Reyes appeals the denial of his motion to suppress

evidence. We affirm.1 The dog was trained and certified to detect concealed people, heroin, cocaine, marijuana,

and methamphetamine.

2 

### % Senior District Judge for the Eastern District of Louisiana, sitting by designation.

FACTS AND PROCEEDINGS BELOW

On December 6, 2001 Roberto Alejandro Reyes arrived at the El Expresso Bus Stati on i n

Brownsville, Texas carrying a blue suitcase. An unidentified companion accompanied Reyes. Both

men boarded a bus destined for Dallas.

With the consent of the El Expresso Bus Company, U.S. Border Patrol Agent David Morales,

a certified dog handler, had his dog 1 search the cargo compartment of the bus boarded by Reyes. Had

the search of the compartment proved uneventful, Morales intended to board the bus without the dog

and conduct an immigration check of the passengers.

During the search of the cargo compartment, the dog alerted to the blue suitcase previously

carried by Reyes. Pursuant to Agent Morales’s request that he locate the owner of the blue bag,

the man loading b ags int o the cargo compartment boarded the bus and returned with Reyes’s

companion, who claimed ownership and consented to a search of the bag. That search revealed no

contraband. However, in response to questioning by Agent Morales, Reyes’s companion admitted

that he had smoked marijuana that morning before arriving at the bus station. Agent Morales allowed

Reyes’s c o mpanion to re-board the bus. During Agent Morales’s interaction with Reyes’s

companion, the dog did not alert to him.

Intending to remove the dog from the area of the bus, Agent Morales walked with the dog

in front of the open door of the bus, at which point the dog jumped into the passenger compartment.

Agent Morales interpreted the dog’s behavior as indicating that the dog was alerting to the smell

of narcotics or to a concealed person in the passenger compartment. Agent Morales asked the bus3

driver to get the passengers off the bus so that the dog could search the passenger compartment. The

bus driver told the passengers "[y]ou need to get off the bus because the immigration official needs

to get on to check the bus."

Agent Morales then walked toward the front of the bus and stood with the dog approximately

four to five feet from the passenger door of the bus. The bus was on the right side of Agent Morales,

and the dog was on his left side. As passengers exited the bus they walked within four to five feet

of the dog. After exiting the bus, the passengers were not required to remain in a designated area.

The dog did not alert to any of the passengers until Reyes and his companion exited the bus.

At that point the dog alerted to an odor and pulled Agent Morales toward Reyes and his companion,

both of whom then entered the bus station. Agent Mora les fo llowed the men. Once inside the

station, Reyes and his companion began to separate. After the men separated, the dog briefly alerted

to Reyes and then walked back and forth between the two men, barking and following them. Agent

Morales asked the men to stop and to approach him.

After asking Reyes to sit, Agent Morales questioned the companion, who again stated that

he had smoked marijuana earlier in the day. Based on his experience and training, Agent Morales was

concerned about the presence of weapons, because he knew that weapons often accompany

narcotics. In response to a request by Agent Morales, Reyes’s companion emptied his pockets and

lift ed his shirt. No contraband was found. After completing his search of the companion, Agent

Morales asked Reyes to stand. When Agent Morales asked Reyes if he had smoked any marijuana

or done any drugs, the companion responded that Reyes had not smoked anything. Agent Morales

asked Reyes to empty his pockets and lift his shirt. When Reyes lifted his shirt, Agent Morales saw

a bundle taped to Reyes’s bac k. Reyes then ran and abandoned the bundle before he was4

apprehended by Agent Morales. Agent Morales retrieved the bundle, which contained cocaine.

A grand jury indicted Reyes on one count of knowingly and intentionally conspiring to possess

in excess of 500 grams of cocaine with intent to distribute (21 U.S. C. §§ 846, 841(a)(1), and

841(b)(1)(B)) and one count of possessing in excess of 500 grams of cocaine with intent to distribute

(21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)). Reyes moved to suppress the seized cocaine. Following

a hearing on the motion to suppress, the district judge denied the motion. Thereafter, Reyes entered

a conditional plea of guilty to possession in excess of 500 grams of cocaine with intent to distribute

(21 U.S.C. §§841(a)(1) and 841(b)(1)(B)), reserving his right to appeal the denial of his motion to

suppress. The district judge sentenced Reyes to a 28 month term of imprisonment and a five year

term of supervised release. Reyes timely appealed his conviction.

STANDARD OF REVIEW

"In considering a ruling on a motion suppress, we review the district court’s factual findings

for clear error and its legal conclusions, including its ultimate conclusion as to the constitutionality

of the law enforcement action, de novo." U nited States v. Chavez

, 281 F.3d 479, 483 (5th Cir. 2002)

(citing United States v. Carreon-Palacio

, 2 67 F.3d 381, 387 (5th Cir. 2001)). The evidence is

viewed in the light most favorable to the prevailing party. United States v. Jordan , 232 F.3d 447, 448

(5th Cir. 2000).

SEIZURE OF PASSENGERS

Defendant urges that Agent Morales unreasonably seized the passengers by forcing them off

the bus after the dog alerted to the passenger compartment of the bus. We need not address whether

the bus driver’s request, at the behest of Agent Morales, that the passengers exit the bus, constituted

a seizure of the passengers, including the defendant. Assuming arguendo that there was a seizure,5

considering the totality of the circumstances, it was clearly rea so nable. "Reasonableness . . .

depends ‘on a balance between the public interest and the individual’s right to personal security free

from arbitrary interference by law officers.’" P ennsylvania v. Mimms

, 434 U.S. 106, 109, 98 S.Ct.

330, 332, 54 L.Ed.2d 331 (1977) (quoting United States v. Brignoni-Ponce

, 422 U.S. 873, 878, 95

S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975))

.

The dog’s alert to the passenger compartment of the bus constitutes probable cause for Agent

Morales to lead a canine search of that compartment. U nited States v. Duffaut

, 314 F.3d 203, 208

(5th Cir. 2002). Following the dog’s strong alert to the passenger compartment, Agent Morales

would have been derelict in his duty if he had failed to search that compartment of the bus.

Considering the totality of the circumstances, including the close confines of the interior of the bus,

Agent Morales’ extensive knowledge of the dog , and concern for the safety of the passengers, we

should not second-guess t he agent’s decision to comply with Border Patrol policy and require the

passengers to exit the bus prior to commencing the search of the passenger compartment. Our

conclusion that it was reasonable under the circumstances to have the passengers exit the bus prior

to the canine search of the passenger compartment does not mean that a canine search of a bus with

passengers aboard is never appropriate. S ee United States v. Garcia-Garcia

, 319 F.3d 726, 731 (5th

Cir. 2003).

CANINE SNIFF

As noted above, prior to the passengers exiting the bus, Agent Morales positioned himself and

his dog near the front of the bus, approximately four to five feet from the passenger door of the bus.

As the passengers, including defendan t , exit ed t he bus, they walked within four to five feet of the

search do g. Defendant contends that the dog’s non-contact sniff of him as he exited the bus6

constitutes an unconstitutional search because Agent Morales had no individualized suspicion that

Reyes was connected to criminal activity when he was forced to walk within smelling distance of the

canine.

Activity constitutes a "search" if it infringes reasonable expectations of privacy. Segura v.

United States

, 468 U.S. 796, 820, 104 S.Ct. 3380, 3393, 82 L.Ed .2d 599 (1984). "[T]he

application of

t he Fourth Amendment depends on whether the person invoking its protection can

claim a justifiable, a reasonable, or a legitimate expectation of privacy t hat has been invaded by

government action." S mith v. Maryland

, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220

(1979) (internal quotations and citations omitted).

Whether a non-contact dog sniff constitutes a "search" is a question of first impression in this

circuit. However, we are not completely without guidance. In Horton v. Goose Creek Independent

School District

, 690 F.2d 470 (5th Cir. 1982) , t he court analyzed whether a dog sniff involving

contact with a person

qualified as a search under the Fourth Amendment . After noting that

"[i ]nt ent ional close proximity sniffing of the person is offensive whether the sniffer be canine or

human," the court held that "sniffing by dogs of the students’ persons in the manner involved in this

case is a search within the purview of the [F]ourth [A]mendment." I

d at 479. The importance of

the close proximity of the sniffing to the court’s conclusion is demonstrated by the court’s subsequent

statement that "[w]e need not decide today whether the use of do gs t o sniff people in some other

manner, e.g., at some distance, is a search." Id. The Ninth Circuit has held that a non-contact dog

sniff of students at school constitutes a search under the Fourth Amendment. B .C. v. Plumas Unified

School District

, 192 F.3d 1260, 1266 (9t h Cir. 1999). For our purposes, it is significant that in

reaching that conclusion, the Ninth Circuit agreed with the Fifth Circuit’s statement in Horton that7

"close proximity sniffing of a person is offensive whether the sniffer be canine or human." Id.

Both H orton and Plumas emphasize the "close proximity" of the sniff, an element not

present in this case. Construing the evidence in the light most favorable to the government, as we

are required to do, we accept the testimony of Agent Morales that defendant and his companion were

approximately four to five feet away from the dog when they exited the bus and the dog alerted to

an odor. Because the dog was not in close proximity to the defendant at t he t ime he alerted, the

dog’s sniff was only minimally intrusive. Moreover, t here is no evidence that Agent Morales

intended to search the passengers exiting the bus or to have the dog sniff them. He testified that he

intended "[t]o wait for everybody to get off . . . and then put the dog inside the bus." Considering

that the sniff wa s unint entional and that the dog was approximately four to five away from the

defendant at the time the sniff occurred, we conclude that the sniff does not constitute a search with

the meaning of the Fourth Amendment.

STOP AND SEARCH

Law enforcement officers may briefly detain pedestrians in public "so long as the officers have

reasonable suspicion to believe that criminal activity is afoot." U nited States v. Ibarra-Sanchez , 199

F.3d 753, 758 (5th Cir. 1999). The facts giving rise to reasonable suspicion are judged against an

objective standard. I

d. (citing T

erry v. Ohio

, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Evaluating the legality of an investigatory stop involves a two-step inquiry: "1) whether the officer’s

action was justi fied at its inception; and 2) whether it was reasonably related in scope to the

circumstances that justified the interference in the first place." U nited States v. Jones

, 234 F.3d 234,

240 (5th Cir. 2000). Here, a number of facts gave rise to a reasonable suspicion that defendant was

involved in criminal activity. The dog alerted to defendant and his companion as they exited the bus,8

and the dog pulled Agent Morales to follow the odor. When Agent Morales opened the door to the

bus stati on in order to enter the station , the dog again began following defendant and his companion.

When defendant and his companion separated, the dog again alerted to both of them and then alerted

to defendant when he was alone. Other facts also support the conclusion that there was reasonable

suspicion to detain defendant. The bus station was a mere two blocks away from the border with

Mexico, and Brownsville has a reputati on as a gateway for drug smuggling. Additionally, the dog

did not alert to defendant’s companion during the search of the bag to which the dog had alerted.

The totality of the circumstances support a conclusion that there was reasonable suspicion to stop

defendant and investigate him further.

A law enf

o rcement officer may conduct a limited search of a subject for weapons if he

reasonably believes that the suspect may be armed and dangerous. T erry

, 392 U.S. at 29, 88 S.Ct.

at 1884. Absolute certainty that a suspect is armed is not required; "the issue is whether a reasonably

prudent man in the circumstances would be warranted in the belief that his safety or that of others was

in danger." Id . at 27, 88 S.Ct. at 1883. Ample facts support the conclusion that it was

reasonable for Agent Mor ales t o believe that defendant might be armed and dangerous. Agent

Morales testified that after stopping the defendant and his compani o n he knew that his dog was

reacting to the scent of narcotics and that he was concerned about weapons because based on his

experience and training he knew that "weapons accompany narcotics." Reyes and his companion

were also wearing large jackets that could have conceal ed a weapon. In addition, the officer was

outnumbered by the two suspects and was conducting the stop at a public bus station. Therefore, the

officer had a reasonable belief that his safety and that of others was in danger.

The Fourth Circuit has noted that a law enforcement officer’s interest in self-protection must9

be balanced against the intrusion of the rights of th e individual being searched in determining the

reasonableness of a protective search. U nited States v. Baker

, 78 F.3d 135, 137 (4th Cir. 1996).

Agent Morales did not frisk defendant after he detained him; rather, he asked defendant to empty his

pockets and raise his shirt. Defendant contends that Agent Morales exceeded the bounds of Terry

by requesting that defendant empty his pockets and lift his shirt. The issue then is whether asking a

suspect to empty his pockets and raise his shirt is more intrusive than the frisk permitted in Terry and

therefore prohibited by the Fourth Amendment. "Terry does not in terms limit a weapons search to

a so-called ‘pat-down’ search. Any limited intrusion designed to discover guns, knives, clubs or other

instruments of assault are [sic] permissible." United States v. Hill

, 545 F.2d 1191, 1193 (9th Cir.

1976). Thus, the raising of a suspect’s shirt by a law enforcement o fficer does not violate the

boundaries established in Terry

. Id. Neither does directing a suspect to lift his shirt to permit an

inspection for weapons; a request that a suspect lift his shirt is "less intrusive than the patdown frisk

sanctioned in Terry ." B aker , 78 F.3d at 138. At no time during the inspection for weapons did

Agent Mo rales touch the defendant. Non-consensual touching of another in most cases is clearly

more intrusive of an individual’s personal se curity than is a request to raise a shirt or to empty

pockets. Agent Morales’ request that defendant empty his pockets and lift his shirt was permissible

under Terry.

We affirm the district court’s denial of the defendant’s motion to suppress.