*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-40987

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN MARK ROUSSET,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 2:98-CR-14-1

 

February 24, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Rousset pleaded guilty to possession with intent to distribute

marijuana, reserving his right to appeal the district court's

denial of his motion to suppress. He appeals the district court's

denial of that motion, and we AFFIRM. 

The arresting officer's discovery of marijuana in Rousset's

vehicle began with a traffic stop for failure to wear a seat belt.

The officer testified that he stopped Rousset for failure to wear

a seat belt, and the court found that the officer stopped Rousset

for that reason. Rousset argues that the district court erred in
2

finding the arresting officer's testimony plausible because he

could not have believed Rousset was not wearing a seatbelt under

the conditions in which he observed Rousset. We review questions

of law on a motion to suppress de novo, and we review findings of

fact for clear error. See United States v. Carillo-Morales, 27

F.3d 1054, 1060-61 (5th Cir. 1994). We consider the evidence in a

light most favorable to the prevailing party. See United States v.

Nichols, 142 F.3d 857, 866 (5th Cir. 1998). 

A traffic stop must be justified under the Fourth Amendment at

its inception, and the scope of the officer's actions must be

reasonably related to the facts that led to the stop. See United

States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993). An officer

must have an articulable and reasonable suspicion of criminal

activity to justify a traffic stop. See United States v. Harrison,

918 F.2d 469, 472 (5th Cir. 1990). The arresting officer testified

at the suppression hearing that he stopped Rousset because he saw

that Rousset was not wearing a seatbelt. Driving without a

seatbelt is a violation of Texas law and officers are authorized to

arrest violators. See United States v. Castro, 166 F.3d 728, 732

n.5 (5th Cir. 1999)(en banc). Rousset was traveling east on an

interstate highway, and the officer was traveling in the opposite

direction on the other side of the highway. The median was 35 to

40 feet wide. Rousset was wearing his seat belt when the officer

approached the car. 

On viewing Rousset's license and the car's registration, the

officer found that the car was rented, and as Rousset turned to
3

find the rental agreement, the officer smelled marijuana in the

vehicle through the open driver's side window. The odor of

marijuana emanating from a vehicle can establish probable cause to

search the vehicle for contraband. See United States v. Thomas, 12

F.3d 1350, 1366 (5th Cir. 1994). 

The officer noted that Rousset appeared nervous. He asked

Rousset if he could search the trunk of the car. Rousset refused

to consent to a search of the vehicle. The officer's dog alerted

on the trunk. A dog sniff of a vehicle is not a search for

purposes of the Fourth Amendment. See United States v. Mendez, 27

F.3d 126, 129 n.4 (5th Cir. 1994). A drug-sniffing dog's alert can

establish probable cause for a search. See United States v. Zucco,

71 F.3d 188, 192 (5th Cir. 1995). The officer opened the trunk and

found 305 pounds of marijuana.

Rousset argues that the district court should not have

credited the officer's testimony that he stopped Rousset for

failure to wear a seat belt. The two were traveling on opposite

sides the interstate, Rousset wore dark clothing, and the dashboard

and steering wheel were in front of Rousset. Under these

conditions, Rousset claims, the officer could not possibly have

seen whether Rousset wore a seat belt. Rousset had a private

investigator videotape a reenactment of the highway conditions to

prove the officer could not have seen whether Rousset wore a seat

belt. Rousset also questions whether the officer could have

smelled marijuana through the driver's window when he was using
4

chewing tobacco and notes that the dog alerted on the trunk rather

than the passenger compartment.

Rousset would have us find that the officer's testimony that

he stopped Rousset for failure to wear a seat belt was implausible,

but we decline to do so. We are unpersuaded that the district

court's finding that Rousset was not wearing a seat belt when the

officer decided to stop him was clearly erroneous. 

Rousset argues that the district court erroneously believed

that it was required to find the officer's testimony credible under

United States v. Castro, 166 F.3d 728 (5th Cir. 1999)(en banc). In

its orally presented findings of fact and conclusions of law, the

court stated that it found the officer's testimony more credible

than Rousset's evidence. The court likened its situation to that

of the district court in Castro. The transcript shows that the

court did not consider itself obligated to accept the officer's

version of events, and Rousset's argument to the contrary is

unsupported by the record.

AFFIRMED.