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 as 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 supported the
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this opinion should not be published and is not precedent except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.
warrant. We affirm.
Following a tip regarding suspicious activity possibly
involving 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 items
associated with drug manufacturing and smelled a strong
unidentifiable 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. United States v.
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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 States 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 United 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 Williams 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. Williams, 69 F.3d at 28.
We are unable to comply.
AFFIRMED.
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