Case: 12-50289 Document: 00512233205 Page: 1 Date Filed: 05/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 7, 2013
No. 12-50289
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHRISTOPHER KEITH NAGY,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:11-CR-646-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Christopher Keith Nagy pleaded guilty to possessing with intent to
distribute and manufacture 100 plants or more of marijuana and aiding and
abetting and also to possessing a firearm in furtherance of a drug trafficking
crime. He was sentenced to a cumulative term of 78 months in prison.
In his plea agreement, Nagy reserved the right to appeal the district
court’s denial of his motion to suppress evidence seized from his residence
following the issuance of a search warrant. See FED. R. CRIM. P. 11(a)(2). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-50289 Document: 00512233205 Page: 2 Date Filed: 05/07/2013
No. 12-50289
motion maintained that evidence was seized from Nagy’s residence on the basis
of a state warrant issued without probable cause or without a sufficient basis for
an officer’s reasonable reliance on the probable cause determination. The
warrant was preceded by, inter alia, a police canine sniff at Nagy’s garage that
indicated the presence of narcotics.
The district court gave more than one reason for denying Nagy’s
suppression motion. First, the district court held that the pre-warrant sniff did
not constitute a Fourth Amendment search. Second, the district court
determined that (a) the post-sniff warrant that issued to search the residence
was based on probable cause even excluding from consideration the information
revealed by the sniff (and the canine alert that it prompted) and (b) law
enforcement officers acted in objectively reasonable reliance on the warrant even
if there was no probable cause.
The district court’s first reason for denying suppression—a sniff is not a
search—does not withstand scrutiny. See Florida v. Jardines, __ S. Ct. __, No.
11-654, 2013 WL 1196577, at *2-7 (Mar. 26, 2013). Jardines does not, however,
dictate the conclusion that the evidence found in the post-warrant search of
Nagy’s residence must be suppressed. In Jardines, the Court concluded that the
warrant that issued to search the defendant’s house depended on
information—the presence of narcotics in the house—revealed by a sniff search
conducted in violation of the Fourth Amendment. 2013 WL 1196577, at *3. In
the instant case, the district court reasoned, inter alia, that the validity of the
warrant authorizing the search of Nagy’s residence did not depend on
information revealed by the sniff; the court determined that the warrant was
supported by probable cause even if the information revealed by the sniff (and
the dog’s alert) was not taken into account. Thus, Jardines does not call into
question the probable cause ruling, which, in any event, Nagy does not
challenge. See Brinkmannn v. Dallas County Deputy Sheriff Abner, 813 F.2d
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No. 12-50289
744, 748 (5th Cir. 1987); FED. R. APP. P. 28(a)(9); Beasley v. McCotter, 798 F.2d
116, 118 (5th Cir. 1986).
We therefore uphold the district court’s denial of Nagy’s suppression
motion based on the unchallenged determination that the post-sniff search was
valid because the warrant authorizing it was supported by probable cause even
excluding from consideration information revealed by the sniff search. If a court
rules on separate, alternative bases, the judgment may stand on any of them;
“[i]t does not make a reason given for a conclusion in a case obiter dictum,
because it is only one of two reasons for the same conclusion.” Richmond Screw
Anchor Co. v. United States, 275 U.S. 331, 340 (1928); see also United States v.
Bueno, 585 F.3d 847, 850 n.3 (5th Cir. 2009). Therefore, we need not consider
whether Jardines casts doubt on the district court’s other alternative
determination—that if the warrant was indeed invalid, the officers nevertheless
reasonably relied on it. See United States v. Rodriguez, 523 F.3d 519, 525 (5th
Cir. 2008).
Because we do not disturb the district court’s suppression ruling, Nagy’s
conviction is AFFIRMED.
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