# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-40366

____________ United States of America, Plaintiff—Appellee ,

versus Buzzy Martinez, Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 2:22-CR-509-1

______________________________ Before Dennis, Southwick, and Ho, Circuit Judges

. James L. Dennis, Circuit Judge : Defendant-Appellant Buzzy Martinezwas arrested and charged with transporting undocumented aliens hidde n in his tractor-trailer after a U.S. Border Patrol (USBP) canine alerted to the vehicle. Martinez sought to suppress evidence gathered from his ve hicle, arguing the canine’s alerts could not provide his hand ler the necessary reasonable suspicion to extend the stop of his vehicle and probable caus e to search it because dogs are unable to reliably differentiate between the scen ts of a vehicle’s dr iver and concealed humans within the vehicle. The district court denied Martinez’s motion to United States Court of Appeals Fifth Circuit 

### FILED May 17, 2024 Lyle W. Cayce Clerk Case: 23-40366 Document: 75-1 Page: 1 Date Filed: 05/17/2024No. 23-40366

2 suppress, Martinez pleaded guilty, and he now appeals the suppression ruling. We AFFIRM

. I. On July 23, 2022, Martinez arri ved at the USBP checkpoint in Falfurrias, Texas, driving a tractor-trailer. Working at the checkpoint that day were USBP Agent Steven Compton, a canine handler, and his canine, “Bak.” Agent Compton has been a USBP ca nine handler for seven years and has handled three different canines, including Bak. To become a canine handler, he trained at the USBP Cani ne Academy for seven weeks, where he learned how to properly care for an d train a canine in how to detect contraband. He passed a written exam ination at the end of this training. Agent Compton has since passed certific ation—which tests the canine team in seventeen scenarios—with each of his three canines.
Bak is a canine trained and certifie d to detect concealed humans and controlled substances. Bak responds to contraband in two ways: (1) he may “alert,” which refers to the canine ’s immediate response to stimulus, including respiratory and posture changes as well as more aggressive signals, after having identified something he ha s been trained to detect; and (2) he may “indicate,” which is a more passive response the canine is trained to perform when the canine has found th e source of what it has detected— which, in Bak’s case, is sitting. After successfully indicati ng contraband, Bak is rewarded with a toy. Bak went throug h his initial training process with a different handler. After four successful ce rtifications with that handler, Bak was paired with Agent Compton. Agen t Compton then trained with Bak for fifteen days, and the team passed certif ication on July 21 , 2022, two days before the events underlying this case. Case: 23-40366 Document: 75-1 Page: 2 Date Filed: 05/17/2024No. 23-40366

3 On the day of the events in this case, as Martinez drove down the primary inspection lane toward the primary inspection point, Agent Compton and Bak walked alongside the ve hicle conducting a “free air sniff.” Bak immediately alerted to Martinez ’s tractor-trailer by pulling Agent Compton toward the vehicle. When Mart inez’s tractor-trailer stopped at the primary inspection area to answer immigration questions from the primary inspection agent, Bak again alerted byjumping and hitting his paws against the rear cab area of the tractor. Bak then indicated by sitting down next to the rear of the cab. Bak did this process two more times , jumping against the rear of the cab, then sitting. Agent Compton, recognizing Bak’s al erts and indications, instructed the questioning agent to refer Martin ez and his tractor-trailer to the secondary inspection area. Once at secondary, agents asked Martinez to step out of the vehicle and, after he did so, asked whether anyone else was inside, to which Martinez replied there was no one else. Agent Compton and Bak then approached for a secondary sniff of the vehicle to confirm Bak was not alerting to Martinez. Bak again alerted to the cab by jumping against the door. Bak then hesitated, but he did not fully sit down, i.e., indicate. Agent Compton opened the driver’s door, an d Bak jumped into the vehicle and went straight to the rear of the cab. Agent Compton searched the cab and found ten individuals conc ealed in the sleeper area and closets, all of whom were determined to be undocumented immigrants. Martinez was arrested and charged by indictment with three counts of transporting an undocumented alie n, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (A)(v)(II), and (B)(ii). Martinez filed a mo tion to suppress all evidence resulting from the search of his tractor-trailer, arguing Agent Compton lacked reasonable suspicion to lengthen his stop and probable cause to search his tractor-trailer becaus e Bak’s alerts and indications were unreliable. Martinez’s primary argument was that dogs like Bak are too short Case: 23-40366 Document: 75-1 Page: 3 Date Filed: 05/17/2024No. 23-40366

4 to see into the driver’s window of a tractor-trailer and, under these circumstances, a dog cannot reliably di fferentiate between the scents of the driver and any other conceale d humans in the vehicle. After a two-day suppression hearing, the district court issued a written order denying Martinez’s motion to suppress. The court found that Agent Compton and Bak were adequately traine d and certified to detect concealed humans, that the USBP training program is sound, and that dogs are capable of detecting concealed humans. Accordingly, the court found that Bak’s alerts and indications were reliable. Th e court consequently found that Bak’s alerts and indications at the initial in spection provided re asonable suspicion for Agent Compton to extend the stop fora second sniff, an d Bak’s alerts at the second inspection after Martinez was removed from the vehicle provided probable cause to search Martinez’s tractor-trailer. After the district court’s ruling, Mart inez agreed to plead guilty to one count of transporting an undocumented alien, pursuant to a conditional plea agreement preserving his right to ap peal the suppression ruling. At sentencing, on June 13, 2023, the dist rict court granted Martinez a downward variance and sentenced him to eighteen months in pr ison, to be followed by a term of supervised release of th ree years. Martinez timely appealed.
II. When reviewing a ruling on a motionto suppress, we review factual findings for clear error and legal conclusions de novo , viewing the evidence in the light most favorable to the prev ailing party, here, the Government. United States v. Zavala , 541 F.3d 562, 573–74 (5th Cir. 2008) (citing United States v. Ibarra , 493 F.3d 526, 530 (5th Cir. 2007)). The determination that there was reasonable suspicion or pr obable cause is a legal conclusion reviewed de novo

. See id. (citingIbarra , 493 F.3d at 530). The reliability of a canine’s alert is a factual find ing reviewed for clear error. United States v. Case: 23-40366 Document: 75-1 Page: 4 Date Filed: 05/17/2024No. 23-40366

5 Outlaw , 319 F.3d 701, 704 (5th Cir. 2003); United States v. Gonzales , 79 F.3d 413, 418 n.11 (5th Cir. 1996). “A factual finding that is plausible based on the record as a whole is not clearly erroneous.” United States v. Ochoa-Gomez , 777 F.3d 278, 282 (5th Cir. 2015) (citing United States v. Zuniga , 720 F.3d 587, 590 (5th Cir. 2013)). “Where a di strict court’s denial of a suppression motion is based on live oral testimon y, the clearly erroneous standard is particularly strong 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) (quoting United States v. Santiago , 410 F.3d 193, 197 (5th Cir. 2005)). In the absence of a warrant, th e burden of proof is on the Government to justify the search. United States v. De La Fuente , 548 F.2d 528, 533 (5th Cir. 1977) (citing Manuel v. United States , 355 F.2d 344 (5th Cir. 1966)). This court may affirm on any basis established by the record. United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013) (citing United States v. Ibarra– Sanchez , 199 F.3d 753, 758 (5th Cir. 1999)).
III. The Fourth Amendment protects ag ainst “unreasonable searches and seizures.” U.S. Const. amend. IV. “The sto pping of a vehicle and detention of its occupants constitutes a ‘seizure’ under the Fourth Amendment.” United States v. Brigham , 382 F.3d 500, 506 (5th Cir. 2004) (en banc). “Ordinarily, a search or se izure is unreasonable ‘in the absence of individualized suspicion of wrongdoing.’” United States v. Tello , 924 F.3d 782, 786 (5th Cir. 2019) (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000)). However, as a “narrow exce ption to the general requirements of reasonable suspicion and probable cause,” the Supreme Court has held that border agents at immigration chec kpoints may “stop travelers without suspicion for questioning about immigration status.” United States v. Machuca-Barrera , 261 F.3d 425, 431 (5th Cir. 2001) (citing United States v. Martinez–Fuerte , 428 U.S. 543 (1976)). Case: 23-40366 Document: 75-1 Page: 5 Date Filed: 05/17/2024No. 23-40366

6 Like any traffic stop, “the tolerable duration” of a stop at an immigration checkpoint “is determined by the seizure’s ‘mission,’” and the stop “may ‘last no longer than is ne cessary to effectuate th[at] purpose.’” See United States v. Rodriguez, 575 U.S. 348, 354 (2015) (second alteration in original) (first quoting Illinois v. Caballes , 543 U.S. 405, 407 (2005); and then quoting Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality op.)). At a border checkpoint, the permissible duration is “the time necessary to ascertain the number and identity of the occupants of the vehicle, inquire about citizenship status, request identification or ot her proof of citizenship, and request consent to extend the detention.” Machuca-Barrera , 261 F.3d at 433. To extend a stop beyond the time necessaryto investigate normal immigration matters, the border agent must deve lop “reasonable suspicion of other criminal activity,” and “[f]or extended detentions or for searches,” the agent must have “consent or probable cause.” Id. at 434 (citing Martinez-Fuente , 428 U.S. at 567). “[A] border patrol agent may refer a car to secondary [inspection] for any reason (or no reas on at all),” but “the length of the detention is still limited by the immi gration-related justification for the stop.” Id. at 434 n.29 (citing United States v. Jackson , 825 F.2d 853, 862 (5th Cir. 1987)). A canine sniff of the outside of a vehicle is not a search, United States v. Dovali-Avilia , 895 F.2d 206 (5th Cir. 1990) (citing United States v. Lovell, 849 F.2d 910, 913 (5th Cir. 1988)), and accordingly during the time necessary to investigate normal immi gration matters, border agents may conduct a canine sniff to search for drugs or concea led aliens so long as “conducting the sniff does not prolong the purpose of the stop,” Tello , 924 F.3d at 787 (first citing United States v. Ventura , 447 F.3d 375, 378 (5th Cir. 2006); and then citing Rodriguez , 575 U.S. at 357). An agent has probable cause to se arch when, considering the totality of the circumstances, “the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is Case: 23-40366 Document: 75-1 Page: 6 Date Filed: 05/17/2024No. 23-40366

7 present.” Florida v. Harris , 568 U.S. 237, 243 (2013) (cleaned up) (quoting Texas v. Brown , 460 U.S. 730, 742 (1983) (plu rality opinion)). Probable cause requires only “the kind of ‘fair pr obability’ on which ‘reasonable and prudent [people,] not le gal technicians, act.’” Id. at 244, 249 (alteration in original) (quoting Illinois v. Gates , 462 U.S. 213, 238 (1983)). “[W]e do not evaluate probable cause in hindsight, ba sed on what a search does or does not turn up.” Id. at 249 (citing United States v. Di Re , 332 U.S. 581, 595 (1948)). “‘Reasonable suspicion is a low th reshold’ and requires only ‘some minimal level of objective justification.’” United States v. Smith , 952 F.3d 642, 648 (5th Cir. 2020) (quoting United States v. Castillo , 804 F.3d 361, 367 (5th Cir. 2015)). “Reasonable suspic ion demands something more than a ‘mere hunch’ but ‘considerably le ss than proof of wrongdoing by a preponderance of the evidence, and ob viously less than is necessary for probable cause.’” Id. (cleaned up) (quoting Navarette v. California , 572 U.S. 393, 397 (2014)). When a dog that is “trained to aler t . . . [to] contraband or people” does so “alert[] in the near presence of a particular vehicle, that action is sufficient to give rise to probable cause to search that vehicle.” Dovali-Avila , 895 F.2d at 207. “A defendant, however, must have an opportunity to challenge . . . a dog’s reliability.” Harris , 568 U.S. at 247. The Supreme Court addressed how co urts should evaluate a dog’s reliability in Florida v. Harris , 568 U.S. at 243–48. “The question—similar to every inquiry into probable cause— is whether all the facts surrounding a dog’s alert, viewed through the le ns of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Id. at 248. The Court emphasiz ed a dog’s performance in “controlled testing environments” over “[f]ield data.” Id. at 246. “[E]vidence of a dog’s satisfactory perfor mance in a certification or training Case: 23-40366 Document: 75-1 Page: 7 Date Filed: 05/17/2024No. 23-40366

8 program can itself provide sufficient reason to trust his alert.” Id. “If a bona fide organization has cert ified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.” Id. at 246–47. However, a defendant “may contest the adequacy of a certification or training program, perhaps asserting that its standards ar e too lax or its methods faulty,” and may “examine how the dog (or handler) performed in the assessments made in those settings.” Id. at 247. Furthermore, “evi dence of the dog’s (or handler’s) history in the field, . . . may sometimes be relevant,” and “even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if th e team was workin g under unfamiliar conditions.” Id. On appeal, Martinez renews his attack on the adequacy of Bak’s training. He argues a dog cannot be re liably trained to differentiate between the scents of the driver and other concealed humans in a vehicle. Accordingly, he argues Bak’s alerts and indications did not provide Agent Compton reasonable suspicion to exte nd his stop and probable cause to search his tractor-trailer. That argument fails for two reasons. First, by focusing on a dog’s ability to detect concealed humans, Martinez improperly parses the situatio n in hindsight, rather than examining it through the totality of Agent Compton’s experience in the moment. The record shows that Bak is trained and certified to detect both concealed humans and controlled substances. WhenBak alerted to Martinez’s tractortrailer, a reasonable person could have thought Bak was detecting either concealed humans or controlled substances. Of course, Bak actually found concealed humans, but “we do not eval uate probable cause in hindsight, based on what a search does or does not turn up.” Id. at 249 (citing Di Re , 332 U.S. at 595). Martinez does no t challenge Bak’s ability to detect Case: 23-40366 Document: 75-1 Page: 8 Date Filed: 05/17/2024No. 23-40366

9 controlled substances, a skill he is ce rtified in. “If the [Government] has produced proof from controlled setting s that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.” Id. at 248. Because Bak is trained and certified to detect controlled substanc es, which Martinez does not contest, his alert provided Agent Compton reason able suspicion to investigate for and probable cause to search for controlled substances. See Powell, 732 F.3d at 369 (stating this court may affirm on any basis established by the record); cf. Outlaw , 319 F.3d at 704 (holding that the alert of a dog that was reliably certified to detect marijuana, co caine, heroin, and methamphetamine provided reasonable suspicion, even th ough the briefcase the dog alerted to actually contained phencyclidine, known as PCP, which the dog was not trained to detect); United States v. Viera , 644 F.2d 509, 511–12 (5th Cir. Unit B May 1981) (holding that the alerts of dogs that were trained to detect heroin, cocaine, hashish, marijuana, and related drugs provided probable cause, even though the briefcases th e dogs alerted to actually contained quaaludes, which the dogs we re not trained to detect). Second, even evaluating Bak’s ability to detect concealed humans, the district court’s finding that Bak was re liable in this regard is not clearly erroneous. The district court found Ma rtinez’s argument that dogs cannot differentiate between the scents of different concealed humans to be speculative and noted the ability of rescue dogs to find people buried under rubble and to work around the obvious orother people engaged in the search and rescue operation. The court also note d Bak can go weeks without an alert, controverting Martinez’s ar gument that Bak is alerti ng to the smell of the drivers or responding to cues. The co urt examined the standards of USBP’s training program and noted USBP has been training canines to detect concealed humans for nearly forty years with reliable results in testing. Both Bak and Agent Compton are trained and certified through USBP’s program Case: 23-40366 Document: 75-1 Page: 9 Date Filed: 05/17/2024No. 23-40366

10 and have continued to receive above- average scores on their bi-weekly trainings. Because the court’s conclusion that Bak was reliable is “plausible in light of the record as a whol e,” it is not clearly erroneous. See OchoaGomez , 777 F.3d at 282. Based on this finding, the district court correctly held Bak’s alerts and indications at the primary inspecti on point provided Agent Compton reasonable suspicion to extend the stop and investigate for concealed humans. See Machua-Barrera , 261 F.3d at 434. Further, the district court also correctly held that, at the secondary in spection point, after Martinez exited the vehicle 1 and stated no one else was inside, Bak’s continued alerts to the cab area of Martinez’s tractor-trailer pr ovided probable ca use to search the cab for concealed humans. See Harris , 568 U.S. at 248; Dovali-Avila , 895 F.2d at 207; Machua-Barrera , 261 F.3d at 434.
IV. The judgment of the district court is AFFIRMED

.

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1 It is well established that, once a vehicl e has been lawfully stopped, officers may order the driver out of the vehicle without violating the Fourth Amendment due to concerns for officer safety. See, e.g. , Pennsylvania v. Mimms , 434 U.S. 106, 111 (1977); United States v. Meredith , 480 F.3d 366, 369 (5th Cir. 2007). That objective just ification remains, “subjective thoughts notwithstanding,” i.e., even if the officer has different subjective intentions for ordering the driver out of the ve hicle, such as, here, to conduct a secondary sniff. See Ohio v. Robinette , 519 U.S. 33, 38 (1996). Case: 23-40366 Document: 75-1 Page: 10 Date Filed: 05/17/2024