1 Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20932

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LAWRENCE LEE MCMILLIAN,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(CR-H-95-0119)

May 15, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: 1

On appeal of his conviction a s a felon in possession of a

firearm, Appellant contends that the district court erred by

failing to conduct an evidentiary hearing on his motion to suppress

and in failing to grant the motion to suppress because the

reliability (credibility?) of the drug sniffing dog was not

sufficiently established in the affidavit which supp o rted the2

warrant. We affirm.

Following a tip regarding suspicious activity possibly

i nvolving drugs, the police discovered the Appellant and another

person loading canisters into a pickup truck. After receiving

consent to search the truck, the officers found several i tems

associated with drug manufacturin g and smelled a strong

unidentifiabl e odor emanating from a metal drum loaded in the

truck. An additional officer was called to the scene and confirmed

that the odor was that of a chemical used to manufacture illegal

drugs. Suspecting that an automobile also on the premises, which

had been driven there by Appellant, contained evidence of drug

activity, but unable to obtain consent to search the vehicle, the

officers brought forward a drug sniffing dog which alerted on the

rear of the car. Based upon this alert and the other information

that was available to them, the officers obtained a search warrant

for the car. Execution of the warrant revealed a handgun in the

front seat of the car, and a shotgun in the trunk, but no drugs.

Appellant argues that the district court erred by failing to

conduct an evidentiary hearing on his motion to suppress the

evidence obtained as a result of the search of his car and that the

warrant lacked probable cause because it failed to provide a basis

for the issuing magistrate to evaluate the accuracy and reliability

of the dog. He argues that, standing alone, the dog’s alert cannot

constitute probable cause.

We review a refusal to conduct an evidentiary hearing on a

motion to suppress for abuse of discretion. U nited States v.3

Harrelson , 705 F.2d 733, 737 (5th Cir. 1983). Because the law of

this Circuit has made clear that a supporting affidavit need not

establish the reliability of the narcotics dog the district court

did not abuse its discretion by declining to hold a hearing.

United St ates v. Daniel , 982 F.2d 146, 151 n. 7 (5th Cir. 1993).

There were no factual allegations made to the district court which,

if proven, would justify suppressing evidence from the search of

the car. This Court, in U nited States v. Williams

, 69 F.3d 27, 28

(5th Cir. 1995); cert. denied

, 116 S.Ct. 1284 (1996), following the

earlier opinion in Daniel held that the drug dog’s alert, in and of

itself, constitutes probable cause for the search. In W illiams we

specifically declined to adopt the contrary rule expressed by the

Sixth Circuit in United States v. Diaz

, 25 F.3d 392, 394 (6th Cir.

1994) which McMillian now urges us to do. W illiams

, 69 F.3d at 28.

We are unable to comply.

AFFIRMED.