IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30196

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

HARRY BERRY, also known as Slim Berry, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:11-CR-271-4

Before JONES, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Defendant–Appellant Harry Berry appeals the district court’s denial of 

two motions to suppress. The first motion challenged the warrantless, longterm GPS surveillance of Berry’s vehicle by the Drug Enforcement Agency 

(“DEA”). The second motion challenged the length of Berry’s detention during 

a traffic stop conducted by Louisiana State Police (“LSP”) troopers. Both 

motions sought to suppress heroin discovered in Berry’s vehicle during the 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 1, 2016

Lyle W. Cayce

Clerk

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stop. For the reasons stated below, we AFFIRM the district court’s denial of 

both motions to suppress.

I. FACTUAL AND PROCEDURAL BACKGROUND

Beginning in 2010, DEA agents in New Orleans began investigating 

Berry for his suspected involvement in a narcotics trafficking ring. As part of 

their investigation, the DEA agents obtained a warrant to monitor Berry’s cell 

phone from approximately May 27, 2011 to July 31, 2011.1 The wiretap gave 

agents the ability to monitor Berry’s phone calls and track the location of his 

cell phone. On June 9, 2011, DEA agents also installed a GPS tracking device 

on Berry’s car without a warrant while it was located in the parking garage of 

a hospital. The tracker was on the vehicle until Berry’s arrest on August 20, 

2011—a total of seventy-three days. Although the tracker was capable of 

constant monitoring, agents had only set the tracker to send an e-mail alert 

when the vehicle travelled past a certain location, called a “geofence.” The 

Government contends that “agents did not monitor Berry’s movements 24 

hours per day” and the tracker simply served as a “back-up” to the wiretap on 

Berry’s cellphone. But the DEA acknowledged that the GPS tracker was used 

to track Berry’s movements between July 31 and his arrest on August 20—a 

period during which Berry’s calls were not being monitored. 

Over the course of their investigation, DEA agents observed Berry travel 

to Houston at least three times to meet with coconspirators. During at least 

two of these trips, agents observed Berry visit an apartment that they later 

discovered was a “stash location” for Berry and several coconspirators. After at 

least two of the trips to Houston, DEA agents observed Berry or a coconspirator 

 

1 There is some conflicting testimony in the record as to whether the warrant 

continued without interruption during this period. 

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throw away materials “consistent with the packaging material of drug 

traffickers,” and these materials tested positive for heroin residue. 

On August 20, 2011, DEA agents received an alert that Berry’s vehicle 

had passed a geofence, indicating that he was making another trip to Houston. 

DEA agents in New Orleans then alerted agents in Houston of Berry’s 

impending arrival and requested surveillance. Suspecting he would be 

travelling back to New Orleans with a sizeable amount of heroin, DEA agents 

met with LSP troopers to brief them on Berry’s suspected involvement with 

narcotics trafficking. Several troopers set up surveillance along Interstate 10

and Berry was pulled over for a traffic violation by Trooper Jason St. Romain.

During the traffic stop, Berry gave Trooper St. Romain his license and 

registration, which Trooper St. Romain used to conduct a record and 

background check. The records search revealed that Berry had a criminal 

history but that there were no outstanding warrants for his arrest. After the 

records search was complete and Berry refused to consent to a search of his 

vehicle, Trooper St. Romain deployed a police dog, Niko, to conduct a sniff 

search. 

At a suppression hearing, Trooper St. Romain testified that Niko alerted 

to or indicated the presence of narcotics at several locations around the vehicle, 

which prompted Trooper St. Romain and his partner to search the vehicle. 

Their search included a search of the truck bed and its contents, which lasted

about forty-five minutes. Trooper St. Romain testified that when Niko was 

redeployed to the interior of the vehicle, “she went immediately to the speaker 

box” and indicated narcotics were present. Inside the speaker box, Trooper St. 

Romain found 2.5 pounds of heroin. 

Berry was ultimately charged with one count of conspiracy to possess 

with the intent to distribute heroin, in violation of 21 U.S.C. § 846, and three 

counts of using a communication device to facilitate narcotics trafficking, in 

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violation of 21 U.S.C. § 843(b). Berry filed two separate motions to suppress 

the heroin found during the stop. The first challenged the government’s 

warrantless GPS tracking of Berry’s vehicle. The second challenged the 

extension of the traffic stop and subsequent search of his vehicle. The district 

court denied both motions. Berry entered a conditional guilty plea, reserving 

his right to challenge the suppression rulings. He now appeals the district 

court’s denial of both motions.

II. DISCUSSION

In an appeal of a suppression ruling, this Court “reviews questions of law 

de novo and questions of fact for clear error.” United States v. Cooke, 674 F.3d 

491, 493 (5th Cir. 2012). A finding of fact is “clearly erroneous only if the court 

is left with a definite and firm conviction that a mistake has been committed.” 

United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010). Evidence 

introduced at a suppression hearing is viewed “in the light most favorable to 

the prevailing party (here, the government).” Cooke, 674 F.3d at 493. And the 

district court’s ruling will be upheld “if there is any reasonable view of the 

evidence to support it.” Id. (quoting United States v. Michelletti, 13 F.3d 838, 

841 (5th Cir. 1994) (en banc)). Since this case involves a warrantless search 

and seizure, “the government bears the burden of proving, by a preponderance 

of the evidence, that the search or seizure was constitutional.” United States v. 

Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). 

“The Fourth Amendment provides in relevant part that ‘[t]he right of the 

people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated.’” United States v. 

Jones, 132 S. Ct. 945, 949 (2012) (quoting U.S. Const. amend. IV). Warrantless 

searches “are per se unreasonable under the Fourth Amendment—subject only 

to a few specifically established and well-delineated exceptions.” California v. 

Acevedo, 500 U.S. 565, 580 (1991) (quoting Mincey v. Arizona, 437 U.S. 385, 

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390 (1978)). The protections of the Fourth Amendment “extend[] to vehicle 

stops and temporary detainment of a vehicle’s occupants.” United States v. 

Andres, 703 F.3d 828, 832 (5th Cir. 2013) (citing United States v. Shabazz, 993 

F.2d 431, 434 (5th Cir. 1993)). This appeal involves two motions to suppress 

evidence challenging two different warrantless searches. Each is addressed in 

turn.

A. Motion to Suppress Based on the DEA’s Warrantless GPS 

Surveillance

Berry argues that both attachment of the GPS tracker and that the

seventy-three day surveillance of his vehicle that followed were “objectively 

unreasonable” under the Fourth Amendment. Because we are convinced that 

the DEA agents in this case relied in good faith on controlling Fifth Circuit 

precedent when they attached the GPS device and tracked Berry’s 

whereabouts, we believe the district court properly denied Berry’s motion to 

suppress on these grounds.2

In Davis v. United States, 564 U.S. 229 (2011), the Supreme Court held 

that “evidence obtained during a search conducted in reasonable reliance on 

binding precedent is not subject to the exclusionary rule” even if that precedent 

is later overturned. Id. at 241. In this case, the Government argues that the 

agents who installed and monitored the GPS tracker affixed to Berry’s vehicle 

relied on this Court’s opinion in United States v. Michael, 645 F.2d 252 (5th 

Cir. 1981) (en banc), which held that the warrantless attachment and 

monitoring of a beeper on a defendant’s car was justified as long as there was 

 

2 In his brief, Berry argues that the Supreme Court’s opinion in United States v. Jones

should apply to our analysis. In Jones, the Supreme Court held that the attachment of a GPS 

tracker to a vehicle and the use of the tracker to monitor the vehicle’s movements constituted 

a search under the Fourth Amendment. 132 S. Ct. at 949. However, because Jones was 

decided in 2012, after the GPS tracker was installed on Berry’s car, see Jones, 132 S. Ct. at 

945, the opinion does not control our analysis.

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reasonable suspicion that the defendant was engaging in criminal activity, 645 

F.2d at 255, 257. In Andres,3 this Court applied Davis, holding that prior to 

Jones “it was objectively reasonable for agents operating within the Fifth 

Circuit to believe that warrantless GPS tracking was permissible under 

[Michael].” 703 F.3d at 834–35.

Thus, under Andres, the actions of the DEA agents in this case were 

certainly not “objectively unreasonable.” Berry’s attempt to distinguish Andres

by arguing that it only addressed the placement, but not monitoring, of a GPS 

tracker is unavailing. Not only did we discuss GPS tracking as a whole in 

Andres, but we also specifically endorsed reliance on Michael, which dealt with 

both the placement and monitoring of tracking device. Id. at 832, 834–35; see 

also Michael, 645 F.2d at 258–59 (“We hold that the installation and 

monitoring of the beeper involved no violation of Michael’s fourth amendment 

rights.” (emphasis added)). Although Berry also attempts to distinguish 

Andres on the basis of the total time the defendant’s movements in that case 

were monitored, duration did not play a role in this Court’s decision to find 

warrantless monitoring of the defendant’s whereabouts permissible, and we do 

not consider the duration of GPS monitoring now. See Andres, 703 F.3d at 830–

31 (tracking for approximately four days). An agent relying on binding Fifth 

Circuit precedent at the time the GPS tracker was placed on Berry’s vehicle 

and monitored would thus have had no reason to believe that a warrant was 

required either to place the tracker or to monitor it for a certain duration.

In the alternative, Berry argues that the DEA agents here were not 

acting in good faith when they installed the GPS tracker on Berry’s car without 

a warrant because this purportedly violated DEA policy. At a suppression 

 

3 Although the claim in Andres was reviewed for plain error, it was reviewed on the 

first prong of that inquiry and therefore dealt with the same question presented by this case—

whether a Fourth Amendment violation even occurred. See Andres, 703 F.3d at 834–35.

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hearing, DEA agent Kenneth Solek, Jr. testified that under DEA policy a 

vehicle could be monitored when it was in a “public thoroughfare[],” as long as 

an Assistant U.S. Attorney had approved the warrantless surveillance. While 

Agent Solek admitted that “to [his] knowledge” neither he nor any other agent 

ever contacted the local U.S. Attorney’s Office for approval of warrantless GPS 

monitoring, he also stated that he believed there was “an understanding” with 

the local U.S. Attorney’s Office that approval was not required before placing 

and monitoring a GPS tracker without a warrant. Based on this testimony, the 

district court found that Agent Solek and his colleagues “believed in good faith 

that their conduct was lawful” and that this belief was “objectively reasonable” 

under Davis. Because we review this factual determination for clear error, 

Cooke, 674 F.3d at 493, and because no case law supports a finding of clear 

error in this case, we do not agree with Berry. Thus, we affirm the district 

court’s denial of Berry’s motion to suppress based on the attachment and 

monitoring of the GPS tracking device.

B. Motion to Suppress Based on the Extended Traffic Stop

In his second motion to suppress, Berry argues that notwithstanding the 

GPS tracking, the traffic stop conducted by LSP troopers violated his Fourth 

Amendment rights. Berry argues the following: (1) the length of the traffic stop 

was impermissibly extended after his background check came back clean; and 

(2) even if there was reasonable suspicion to initially extend the stop, the 

probable cause created by Niko’s initial alert “dissipated” when nothing was 

discovered after a forty-five minute search of the car. Because we believe that 

the stop was not impermissibly extended and that probable cause continued to 

exist throughout the entire course of the stop, we find that the district court 

properly denied Berry’s motion to suppress on these grounds.

This Court analyzes traffic stops under the Fourth Amendment using

the two-step inquiry adopted in Terry v. Ohio, 392 U.S. 1 (1968). United States 

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v. Powell, 732 F.3d 361, 369 (5th Cir. 2013). “First, we determine whether 

stopping the vehicle was initially justified by reasonable suspicion.” Id.

“Second, we evaluate whether the officer’s actions were reasonably related in 

scope to the circumstances that justified the stop.” Id. “An officer’s subsequent 

actions are not reasonably related in scope to the circumstances that caused 

him to stop the vehicle if he detains its occupants beyond the time needed to 

investigate the circumstances that caused the stop, unless he develops 

reasonable suspicion of additional criminal activity in the meantime.” United 

States v. Pack, 612 F.3d 341, 350 (5th Cir. 2010).

1. Extension of the Stop

Berry first argues the stop was impermissibly extended when his 

background check came back clean.4 In this situation, “[a]uthority for the 

seizure . . . ends when tasks tied to the traffic infraction are—or reasonably 

should have been—completed.” Rodriguez v. United States, 135 S. Ct. 1609, 

1614 (2015). For instance,“[i]f all computer checks come back clean, then as a 

general matter reasonable suspicion disappears, and there is no legitimate 

reason for extending the stop.” United States v. Jenson, 462 F.3d 399, 404 (5th 

Cir. 2006). Therefore, without additional reasonable suspicion, “waiting for or 

conducting a dog sniff cannot prolong a stop justified by only a traffic violation 

beyond the amount of time reasonably required to complete the mission of 

issuing a traffic ticket and attending to related safety concerns.” United States 

v. Spears, 636 F. App’x 893, 901 (5th Cir. 2016) (“A dog sniff is not part of the 

mission of issuing a traffic ticket.”).5 A stop may only be further extended if 

 

4 Berry does not contest that Trooper St. Romain permissibly stopped him under 

reasonable suspicion of a traffic violation. 

5 We cite unpublished opinions in this decision not because they are precedential, 

which they are not, see 5TH CIR. R. 47.5.4, but to show the consistency of our dispositions.

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law enforcement “develops reasonable suspicion of additional criminal activity 

in the meantime.” Pack, 612 F.3d at 350. 

Reasonable suspicion requires an examination of the totality of the 

circumstances. Ohio v. Robinette, 519 U.S. 33, 38–39 (1996). “We traditionally 

give due deference to the experience of officers . . . in identifying a number of 

factors that, although insufficient by themselves to suggest illegal activity, 

taken together are indicia of certain types of illicit acts.” United States v. 

Sanchez-Pena, 336 F.3d 431, 437 (5th Cir. 2003). “The officer, of course, must 

be able to articulate something more than an ‘inchoate and unparticularized 

suspicion or “hunch.”’” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting 

Terry, 392 U.S. at 27).

We agree with the Government that Berry’s behavior during the stop 

along with the briefing LSP troopers received from the DEA were enough to 

support reasonable suspicion to extend the traffic stop. This Court has 

previously determined that inconsistent and untruthful statements can be a 

factor in developing reasonable suspicion during a traffic stop, see, e.g., Andres, 

703 F.3d at 834, as can an individual’s nervous behavior during that stop, see, 

e.g., United States v. Wallstrum, 515 F. App’x 343, 347, 350 (5th Cir. 2013) (per 

curiam); United States v. Henton, 600 F. App’x 263, 264 (5th Cir. 2015) (per 

curiam). Both were present here. First, at a suppression hearing, Trooper St. 

Romain testified he believed Berry was lying during the stop. Trooper St. 

Romain concluded Berry’s story that he was travelling to Lake Charles to do 

construction work for his aunt was implausible not only because of the briefing 

he had received from the DEA, which contradicted this statement, but also

because Berry was wearing clothes not suitable for construction work. Trooper 

St. Romain also testified that he found it odd that Berry had not called his aunt 

prior to travelling such a long distance. Second, Trooper St. Romain testified 

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that Berry appeared nervous during the traffic stop because he “was shaking 

when he handed [over] his information” and “wouldn’t make eye contact.”6

We have also determined that reasonable suspicion can be developed 

from the “collective knowledge” of various law enforcement officers or agencies. 

See, e.g., United States v. Carmenate, 344 F. App’x 941, 942 (5th Cir. 2009) (per 

curiam); United States v. Ibarra-Sanchez, 199 F.3d 753, 759–60 (5th Cir. 1999). 

Here, the Government argues that the information Trooper St. Romain 

received from the DEA about Berry’s suspected narcotics trafficking 

contributed to his decision to extend the traffic stop. Because this information 

related to a “long-standing, ongoing pattern of criminal activity,” it had not 

gone stale as Berry claims, see United States v. Craig, 861 F.2d 818, 822 (5th 

Cir. 1988) (quoting Unites States v. Webster, 734 F.2d 1048, 1056 (5th Cir. 

1984)), and was thus another factor that properly contributed to Trooper St. 

Romain’s determination that reasonable suspicion to extend the stop existed.

In reviewing the totality of the circumstances, and particularly in light of the 

briefing Trooper St. Romain received from the DEA, we conclude that Trooper 

St. Romain had reasonable suspicion of additional criminal activity—

suspected narcotics trafficking—that permitted him to extend the stop beyond 

mere investigation of Berry’s traffic violation.

2. Dissipation of Probable Cause

In the alternative, Berry contends that even assuming Trooper St. 

Romain had reasonable suspicion to extend the stop, the probable cause 

created by Niko’s initial alert dissipated when nothing was discovered after a 

 

6 Although the latter behavior is not clearly presented by the dash cam video, the 

district court implicitly found Trooper St. Romain’s testimony credible and Berry has not 

demonstrated that this credibility finding rises to the level of clear error, see Cooke, 674 F.3d 

at 493.

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forty-five minute search of the car.7 As a result, Berry argues that 

redeployment of Niko and the subsequent search of the truck’s interior violated

his Fourth Amendment rights. We disagree.

“A warrantless search is permissible under the automobile exception if 

(1) the officer conducting the search had ‘probable cause to believe that the 

vehicle in question contain[ed] property that the government may properly 

seize’; and (2) exigent circumstances justified the search.” United States v. 

Castelo, 415 F.3d 407, 412 (5th Cir. 2005) (alteration in original) (quoting 

United States v. Reyes, 792 F.2d 536, 538 (5th Cir. 1986)); see also United States 

v. Machuca-Barrera, 261 F.3d 425, 432 (5th Cir. 2001) (“To determine the 

lawfulness of a stop, we ask whether the seizure exceeded its permissible 

duration.”). Driving along an interstate highway provides the “requisite 

exigent circumstances.” Castelo, 415 F.3d at 412. But officers “may not 

disregard facts tending to dissipate probable cause.” Bigford v. Taylor, 834 

F.2d 1213, 1218 (5th Cir. 1988).

Although Berry argues that the length of the stop was unreasonable 

because the first forty-five minutes of the search did not recover evidence of 

wrongdoing, he fails to present any cases to support a finding that the length 

of a search alone would dissipate probable cause. In fact, this Court has 

rejected that very argument at least once before. See, e.g., United States v. 

Hernandez, 518 F. App’x 270 (5th Cir. 2013) (per curiam). In Hernandez, the 

defendant argued that probable cause dissipated after officers searched his 

vehicle for approximately three hours. Id. at 271. In rejecting that argument, 

this Court noted that the defendant cited no “case law suggesting that an 

unsuccessful three- to four-hour search would itself dissipate existing probable 

 

7 Berry does not dispute that Trooper St. Romain had probable cause to search the 

vehicle after Niko’s initial alerts. 

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cause” and held there was sufficient probable cause to continue searching the 

vehicle based on a “wiretap investigation, [defendant] and his passenger’s 

answers to police questions, and the two dog alerts.” Id. Likewise, here the 

length of the search alone did not dissipate probable cause where probable 

cause was based on a combination of the following: (1) a briefing from the DEA;

(2) Berry’s suspicious behavior and answers to the troopers’ questions; and (3) 

Niko’s initial alerts and indications around the car.

Moreover, “[i]n assessing whether a detention is too long in duration to 

be justified as an investigative stop, we consider it appropriate to examine 

whether the police diligently pursued a means of investigation that was likely 

to confirm or dispel their suspicions quickly, during which time it was 

necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686 

(1985). Under the circumstances present in this case, the officers involved 

acted diligently and do not appear to have extended the search any longer than 

was necessary. There were at most only two officers searching the vehicle at 

any time, and the majority of the first forty-five minutes of the search were 

spent meticulously going through the plethora of objects in the truck bed.8

Given the nature of the object for which officers were searching—illegal 

narcotics—and the fact that probable cause permits officers to search “every 

part of a vehicle which may conceal the object of the search,” United States v. 

Zucco, 71 F.3d 188, 191–92 (5th Cir. 1995), probable cause did not dissipate in 

the first forty-five minutes. Thus, extension of the search past that period did 

not violate Berry’s Fourth Amendment rights, and we conclude the district 

court properly denied Berry’s motion to suppress on these grounds.

 

8 According to the Government, this included “a wheel barrow, fuel canister, push 

lawn mower, hand-held lawn mower, two rakes, an industrial-sized broom, a leaf blower with 

a bag, a large aluminum truck tool box, a generator, and other objects.” 

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III. CONCLUSION

For the reasons stated above, the district court’s denial of both motions 

to suppress is AFFIRMED.

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