IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11253

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee

v.

RUSSELL TIM SHEN, 

 Defendant–Appellant

____________________________

Cons. w/ No. 17-11260

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee 

v. 

ANDRE JORGE HERNANDEZ, 

 Defendant–Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 2:16-CR-70-1

USDC No. 2:16-CR-70-2

United States Court of Appeals

Fifth Circuit

FILED

September 13, 2018

Lyle W. Cayce

Clerk

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Before JONES, BARKSDALE, and WILLETT, Circuit Judges. 

PER CURIAM:*

A police officer stopped Russell Shen and Andre Jorge Hernandez for 

following a truck too closely in the rain. After speaking with them for about 

ten minutes, the officer suspected the men were up to more than traffic 

violations. A quick walk around the vehicle with a canine proved the officer

correct—Shen and Hernandez were trafficking 71 pounds of marijuana.

Both men pleaded guilty. Both men also filed separate but substantially 

similar motions to suppress all evidence, arguing (1) their traffic stop was 

unreasonably prolonged and (2) the officer’s canine never properly alerted to 

the presence of narcotics. The district court denied the two motions in one order 

that was as thorough as it was correct.

We AFFIRM.

I. BACKGROUND

A. Factual

Officer Coy Teichelman conducted a traffic stop involving Defendants 

Russell Shen and Andre Jorge Hernandez because they were following too

closely to a semi-trailer truck. Shen was driving and Hernandez was a

passenger. Teichelman suspected wrongdoing soon after greeting Shen 

because, among other things, Shen was acting nervously and his hands were 

shaky as he thumbed through the rental-car paperwork. And when Teichelman 

asked for a copy of the rental-car agreement, Shen provided him an XM 

satellite radio channel menu.

 

* 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.

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Based on this, Teichelman informed Shen he would issue a warning for 

the traffic violation but asked Shen to join him in the patrol car as he completed 

the paperwork.

In the patrol car, Teichelman noticed the rental car was in Hernandez’s 

name and was reserved for a one-way trip. Teichelman testified that the road 

on which he stopped the Defendants had a “pretty high” rate of drug 

trafficking. When Teichelman asked Shen about the itinerary and nature of 

his and Hernandez’s trip, Shen responded by shaking his head and stating, 

“Not even gonna bother with that,” and “I can’t deal with it.” Shen then showed 

Teichelman a federal badge—leading Teichelman to wonder if the two men 

were engaged in a controlled delivery—but then clarified that Hernandez was 

not an agent and that their trip to Denver and the drive to Miami were for 

pleasure. Hernandez, however, told Teichelman that the men visited Denver 

so Shen could undergo chemotherapy.

Based on these and other factors, Teichelman suspected criminal activity 

and asked Shen for consent to search the vehicle. Shen declined. Teichelman 

then walked his canine, Alis, around the vehicle and explained to Shen that if 

the canine alerted on the car, he would have probable cause to search it. When 

Teichelman conducted the walk-around, approximately 14 minutes had passed 

since the Defendants were stopped.

Teichelman’s canine was a “passive” alert dog trained to alert by sitting 

and staring, or, as Teichelman testified, “just stand[ing] and . . . maybe kind of 

even squat[ting], but she would be focused and staring at the area of the 

narcotics or the odor where she’s detecting the narcotics.” When Teichelman 

walked his canine around the car, she did not sit. But she exhibited other 

behavior Teichelman previously observed her exhibit when detecting narcotics 

in a controlled environment. Based on that behavior, Teichelman concluded 

there was probable cause to search the vehicle.

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Upon searching the vehicle, Teichelman and two other uniformed police 

officers found approximately 71 pounds of marijuana.

B. Procedural

Shen and Russell were charged with conspiracy to distribute and possess 

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

distribution and possession with intent to distribute marijuana, and aiding 

and abetting, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) and 18 U.S.C. 

§ 2. Both men filed nearly identical, nearly boilerplate motions to suppress all 

evidence and statements, which the district court denied in one order. Both 

men pleaded guilty to one count of distribution and possession with intent to 

distribute marijuana and aiding and abetting, in violation of 21 U.S.C. 

§§ 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2.

The district court entered judgment on Shen’s and Hernandez’s guilty 

pleas. The defendants timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

A. Statement of Jurisdiction

This is a consolidated appeal from final judgments in a criminal case. 

The district court had jurisdiction under 18 U.S.C. § 3231. This Court has 

jurisdiction under 28 U.S.C. § 1291.

B. Standard of Review

“In reviewing a motion to suppress, this court reviews the district court’s 

legal determinations de novo and its factual findings for clear error.” United 

States v. Boche-Perez, 755 F.3d 327, 333 (5th Cir. 2014) (citation omitted). We 

view the evidence in the light most favorable to the prevailing party—here, the 

Government. Id. (citation omitted). We may affirm on any basis supported by 

the record. Id. (citing United States v. Ibarra–Sanchez, 199 F.3d 753, 758 (5th 

Cir. 1999)).

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III. DISCUSSION

A. The Length of the Traffic Stop

Shen and Hernandez first argue that, under Terry v. Ohio, 392 U.S. 1, 

20 (1968), their 15-minute traffic stop was unreasonably prolonged in relation 

to its initial justification. This argument is unpersuasive.

A traffic stop is a Terry stop subject to Fourth Amendment scrutiny. See 

Berkemer v. McCarty, 468 U.S. 420, 439 (1984). We generally evaluate the 

reasonableness of a Terry stop using a two-part inquiry. We “first examine 

whether the officer’s action was justified at its inception, and then inquire 

whether the officer’s subsequent actions were reasonably related in scope to 

the circumstances that justified the stop.” United States v. Brigham, 382 F.3d 

500, 506 (5th Cir. 2004) (en banc). The Defendants’ contention that their stop 

was unreasonably prolonged implicates the second prong of this analysis.

If an officer develops reasonable suspicion of criminal activity during a 

traffic stop, “he may further detain [the] occupants [of the vehicle] for a 

reasonable time while appropriately attempting to dispel this reasonable 

suspicion.” United States v. Andres, 703 F.3d 828, 833 (5th Cir. 2013) (quoting 

United States v. Pack, 612 F.3d 341, 350 (5th Cir. 2010)). The officer’s 

reasonable-suspicion determination is “based on the totality of the 

circumstances and the . . . knowledge and experience of the officer.” United 

States v. Estrada, 459 F.3d 627, 631–32 (5th Cir. 2006).

When Teichelman handed Shen a traffic warning, only ten minutes had 

passed. The district court identified at least seven factors that had generated 

reasonable suspicion by that time:

1. Shen and Hernandez were driving a rental vehicle under a oneway rental agreement.

2. They paid more than $1,800 for the rental.

3. They did not care if the rental car was returned late.

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4. They had flown to Colorado and were driving a rental car on 

their return trip, and it is more expensive to drive a rental car 

at this cost than to fly.

5. It was essentially Shen’s trip, but the car was rented in 

Hernandez’s name.

6. They were making a questionable quick stop in Houston before 

traveling to Florida.

7. Shen identified himself as a federal officer and stated he was 

picking “stuff” up, but Teichelman had worked with the DEA 

and had done controlled deliveries, and there were always 

multiple officers around when he did them.

Add to this list the facts that the men were found violating a traffic law on a 

highway known for high drug trafficking and that Shen provided Teichelman

an XM satellite radio channel menu instead of the rental agreement.

It is important to remember the Government need not demonstrate that 

any one factor discussed above could alone justify Teichelman’s reasonable 

suspicion. Instead, “[r]easonableness . . . is measured in objective terms by 

examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 

(1996). And under the totality of the circumstances, it was reasonable for 

Teichelman to suspect something more than a traffic violation was afoot. 

Because Teichelman “develop[ed] reasonable suspicion of additional 

criminal activity during his investigation of the circumstances that originally 

caused the stop, he [was entitled to] further detain [Shen and Hernandez] for 

a reasonable time while appropriately attempting to dispel this reasonable 

suspicion.” Pack, 612 F.3d at 350. We believe that ten minutes to issue a traffic 

warning and ask questions constitutes “a reasonable time.” See United States 

v. Villafranco-Elizondo, 897 F.3d 635, 644 (5th Cir. 2018) (finding traffic stop 

reasonable where officer did not run a check on driver’s license and registration 

until 11 minutes into the stop). We also believe questioning the men about 

their trip and plans was an “appropriate[] attempt[] to dispel . . . suspicion.”

Pack, 612 F.3d at 350; see also Brigham, 382 F.3d at 508 (“An officer may also 

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ask about the purpose and itinerary of a driver’s trip during the traffic stop.”).

And given the answers to his questions and the Defendants’ behavior, it was 

reasonable for Teichelman to take an additional five minutes to lead his canine, 

Alis, around the vehicle for an open-air drug sniff.

B. The Dog That Didn’t Bark

Shen and Hernandez next argue that Teichelman lacked probable cause 

to search their vehicle because Alis did not fully alert to the presence of 

narcotics.

When dealing with a probable-cause challenge to a drug dog’s alert, 

“[t]he question—similar to every inquiry into probable cause—is whether all 

the facts surrounding [the] dog’s alert, viewed through the lens of common 

sense, would make a reasonably prudent person think that a search would 

reveal contraband or evidence of a crime.” Florida v. Harris, 133 S. Ct. 1050, 

1058 (2013). “A sniff is up to snuff when it meets that test.” Id.

Shen and Hernandez claim Teichelman lacked probable cause to search 

the vehicle because Alis did not fully alert. Specifically, Defendants point out 

that Alis was trained to sit when alerting to narcotics. But footage from 

Teichelman’s dashcam reveals that Alis never sat.

As the district court noted, there is no Fifth Circuit law demanding that 

a drug dog come to a full and final alert before probable cause exists. Nor does 

the Supreme Court’s instruction that we weigh “all the facts surrounding [the]

dog’s alert, viewed through the lens of common sense,” imply such a rigid 

standard. See id. at 1058. In that vein, our court has held in an unpublished 

decision that a dog provided probable cause even though it did not sit as trained 

to do when alerting to narcotics. See United States v. Clayton, 374 F. App’x 497, 

502 (5th Cir. 2010) (per curiam) (“[A]lthough [the dog] did not sit in this 

instance, [the officer] was able to articulate several specific indicators he used, 

as [the dog’s] handler, to interpret [the dog’s] actions to be an ‘alert.’”); cf. 

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Villafranco-Elizondo, 897 F.3d at 644 (“[W]e have previously rejected the 

notion that the failure of a drug dog to alert deprives officers of existing 

probable cause. We apply that principle here.” (emphasis added)).

Although we are not bound by an unpublished decision, we find the 

reasoning in Clayton persuasive and consistent with the decisions of several of 

our sister circuits. See, e.g., United States v. Holleman, 743 F.3d 1152, 1156–

57 (8th Cir. 2014) (“[W]e are not concerned about [the dog’s] failure to give a 

full indication.”); United States v. Thomas, 726 F.3d 1086, 1098 (9th Cir. 2013) 

(“Evidence from a trained and reliable handler about alert behavior he 

recognized in his dog can be the basis for probable cause. Whether a particular 

dog displays enough signaling behavior will depend on the facts and 

circumstances of each case.”); United States v. Parada, 577 F.3d 1275, 1281–

82 (10th Cir. 2009) (“We decline to adopt the stricter rule urged by [the 

defendant], which would require the dog to give a final indication before 

probable cause is established.”).

All the facts surrounding Alis’s alert, viewed through the lens of common 

sense, would lead a reasonably prudent person to think a search of Shen and 

Hernandez’s rental vehicle would reveal contraband. The district court listed 

several of these facts:

• Teichelman had been working with Alis for about two years.

• Alis was certified by the National Narcotic Detector Dog 

Association and the National Police Canine Association.

• Alis’s annual certification, with blind testing, establishes that 

she reliably detects drugs in a controlled environment.

• According to Teichelman’s uncontradicted testimony, every 

case of a false-positive response by Alis in the field was 

explained by the presence of recognizable narcotics odors, even 

if no drugs were ultimately found.

Plus, as Teichelman took her around the vehicle, Alis showed signs of interest, 

such as an increased breathing rate, wagging her tail, and sniffing more air 

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through her nose. At one point, Alis paused, sniffed the car’s door seam heavily, 

and stared at the passenger door seam for about one second.

No, Alis never sat down. But the Defendants are barking up the wrong 

tree. Teichelman testified Alis never sits in water, and during the open-air 

sniff, the rental car was parked in a puddle of water. See Holleman, 743 F.3d 

at 1156–57 (noting the “officer explained the dog’s failure to give a full 

‘indication’”). More importantly, Teichelman testified that Alis was acting as 

she has in the past when identifying a narcotic odor. When counsel asked 

Teichelman to clarify that he has previously seen Alis “respond in that way 

when detecting narcotics,” Teichelman answered affirmatively.

Viewing “all of the evidence introduced at [the] suppression hearing in 

the light most favorable to . . . the Government,” United States v. Santiago, 310 

F.3d 336, 340 (5th Cir. 2002), and considering Teichelman’s two years of 

experience with Alis, there was probable cause to believe the vehicle contained 

contraband.

C. Hernandez’s Window Argument

Hernandez lastly claims Teichelman put his arm into the vehicle’s open, 

driver-side window, which caused Alis to stick her head into the vehicle.

Hernandez cites several out-of-circuit cases for the proposition that it is 

unconstitutional for a dog’s nose to break the plane of a vehicle’s open window 

before probable cause exists.

The Government says this argument is subject to plain-error review

because Hernandez did not raise it below. United States v. De Jesus-Batres, 

410 F.3d 154, 158 (5th Cir. 2005) (“If a particular suppression argument is not 

made to the district court, review is for plain error.”). That is questionable. 

Hernandez did not raise this argument in his motion to suppress, but his 

counsel asked an expert witness during the suppression hearing whether an 

officer may stick his hand inside a vehicle while handling a drug dog. And 

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Shen’s counsel, at the same suppression hearing, questioned Teichelman at 

length about whether he directed Alis to enter the driver-side window. Indeed, 

Shen’s counsel asked Teichelman whether he was “supposed to be searching 

inside of the vehicle.” After the joint suppression hearing, the district court 

ruled on the Defendants’ motions to suppress jointly.

But we need not grapple with the appropriate standard of review. Even 

assuming Hernandez properly preserved his argument, it is unavailing under 

the resulting standard—which is more forgiving than plain-error review. See, 

e.g., United States v. Maldonado, 241 F. App’x 198, 201 (5th Cir. 2007) (“When 

error is properly preserved, a suppression ruling is reviewed de novo; factual 

findings, for clear error.” (citing United States v. Castro, 166 F.3d 728, 731 (5th 

Cir. 1999))).

Hernandez correctly summarizes the law: The Fourth Amendment

comes into play when an officer facilitates, encourages, or prompts a drug dog 

to enter a vehicle. Hernandez argues Teichelman placed his arm into the 

driver-side window and commanded Alis to get up on that open window, 

thereby facilitating, encouraging, and prompting Alis to enter it. But 

Hernandez points to no evidence that Teichelman directed Alis to enter the 

window.

To the contrary, the district court found that Teichelman’s hand 

movements were part of the high and low passes Teichelman described as 

standard procedure. The court also explicitly found Teichelman’s standard 

procedures “did not improperly cue Alis.” These factual findings are not clearly 

erroneous. Viewing these findings in the light most favorable to the 

Government, we believe Hernandez has not shown that Teichelman’s use of a

standard “high and low” pass procedure became an unlawful search because 

the window was down and Alis entered it. Cf. United States v. Lyons, 486 F.3d 

367, 373 (8th Cir. 2007) (“Appellants do not cite to any authority that holds 

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that the officers had the affirmative duty to close the windows in preparation 

for the dog sniff, and we find none.”); United States v. Stone, 866 F.2d 359, 364 

(10th Cir. 1989) (noting “the police remained within the range of activities they 

may permissibly engage in when they have reasonable suspicion to believe an 

automobile contains narcotics” in a case where there was no evidence that “the 

police asked [the defendant] to open the hatchback so the dog could jump in” 

or that “the police handler encouraged the dog to jump in the car”).

CONCLUSION

For these reasons, we AFFIRM the judgment of the district court.

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