dissenting:
I cannot agree with my distinguished colleagues that the 900 pounds of cocaine seized in this case must be suppressed under the Fourth Amendment. I write to express the reasons for my disagreement.
As an initial matter, the majority fails to give proper deference to the findings of fact made by the district court in the 48-page memorandum explaining its decision to deny the motion to suppress. This is evident throughout the majority’s opinion, where time and time again the facts of this case are characterized in a manner that contravenes the express findings of the district judge. In its memorandum opinion, the district court found that the Suburban exceeded the posted speed limit. Yet, the majority examines anew the accuracy and credibility of that determination:
Nettles testified at the suppression hearing that he did not use his radar unit to clock the speed of the Suburban because he was afraid that to do so would “tip off’ the driver of the Suburban about his presence. Nettles did npt explain, however, why using the radar unit would be any more conspicuous than his presence in a marked patrol car on the median. In addition, Nettles'conceded that his speedometer had not been calibrated in over three years.
(Majority Opinion at 754 n. 3.) Similarly, without any justification the majority, casts doubt on the factual basis for the district judge’s finding that the stop and arrest were lawful: “As the Suburban approached, Nettles claims to have observed that the driver was not wearing a seat belt and that the' Suburban appeared to be exceeding the speed limit.” (Emphasis added.) In what is *757perhaps the most telling example of the majority’s disregard for the findings of the district court, the majority states without explanation that “the legality of the arrest remains to be determined.” (Majority Opinion at 756 n. 16.)
The district court’s findings in this ease clearly warrants the deference which we are required to give them under our Rules. It is evident from the length of the suppression hearing (almost two days), and the comprehensiveness of the district court’s memorandum opinion (48 pages), that the district judge’s decision was not a hip shot made without full and adequate consideration of the record. Indeed, the district judge viewed the witnesses at the suppression hearing and, after assessing “their demeanor, forthrightness, candor or lack thereof, the conflicts and apparent conflicts in their testimony,” made the following findings:
I conclude and find that on November 9, 1996, at 5:40 p.m., defendant Castro was exceeding the posted speed limit, was not wearing a seat belt, and that Vicencio, the front seat passenger, was not wearing a seat belt. I find the stop was lawful, the arrest of Castro and Vicencio were lawful, that Mrs. Gomez was not under arrest until after the discovery of the cocaine in Castro’s vehicle.
In questioning these findings, the majority makes no attempt to show that they are “clearly erroneous,” or otherwise unworthy of deference. Overlooked as well are two Texas eases that squarely hold that drivers and passengers are subject to arrest for seat-belt offenses. Valencia v. State, 820 S.W.2d 397, 399 (Tex.App.—Houston [14th Dist.] 1991, writ ref'd); Madison v. State, 922 S.W.2d 610, 612 (Tex.App.—Texarkana 1996, writ ref'd).
I. The Stop & Arrest
Throughout its opinion, the majority places a great deal of emphasis on the events that preceded the stop and arrest of the defendants.
Castro and Gomez were the focus of a massive effort by numerous federal and local drug enforcement agents to uncover evidence of illegal drug activity. The agents conducting the surveillance of Castro and Gomez followed them first through the City of Houston and, finally, through several Texas counties. At no time did either Castro or Gomez do anything that conceivably could have served as the basis for .finding probable cause of a drug violation .... If these numerous federal and state law enforcement agents had, or believed that they had, probable cause to arrest, it defies all logic and reason to believe they would not have done so during the early surveillance or at some time in the 100-plus miles of trailing through several Texas counties.
Instead, the agents orchestrated a routine traffic stop, contacting a local deputy sheriff and instructing him to “create his own probable cause.” The deputy sheriff did as instructed and, while the agents stood by and watched, ostensibly arrested Castro and Vicencio for a seat belt violation.
In so doing, the majority implicitly suggests that the lawfulness of the stop and arrest are somehow dependent on the motives of the federal agents and Deputy Nettles. However, the Supreme Court has made clear that the subjective intentions of police officers “play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, — U.S. —, —, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). Consequently, the suspicions of the federal officers who followed the Suburban, and the subjective beliefs of Deputy Nettles, have no bearing on the lawfulness of the stop and arrest. Absent compelling evidence to the contrary (which is not present in this case), we are bound by the district judge’s findings that the stop and arrest were lawful under the Fourth Amendment.
II. The Impoundment of the Suburban
Given that the Suburban was lawfully stopped, with Castro and Vicencio lawfully under arrest at the side of the highway, the issue becomes what, if anything, transpired after the stop and arrest that violated the Fourth Amendment. The majority states that “[t]he admissibility of the cocaine hinges on the validity of taking possession of the *758Suburban for purposes of an inventory Search.” (Majority Opinion at 755.) Assuming arguendo this to be true, the record in this case does not demonstrate that the defendants carried their burden of showing that the impoundment of the Suburban was pretextual. See United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir.), cert. denied, 508 U.S. 944, 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993) (holding that the proponent of a motion to suppress has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of the Fourth Amendment).
In Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), the Supreme Court addressed the discretionary power of the police to impound a suspect’s car pursuant to the inventory search exception. The Supreme Court explained that:
Nothing ... prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Here, the discretion afforded the [ ] police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather that impounding it.
Id. at 375, 107 S.Ct. at 743.
In the present case, the majority places great weight on the fact that the federal agents who trailed the Suburban were suspicious of illicit drug activity, but did not have probable cause to stop the vehicle themselves. The majority seems particularly concerned with the fact that the federal agents advised Deputy Nettles that he would have to “develop” his own probable cause.
But the critical issue is not whether the facts of this case give rise to a vague notion that the suspicions of the féderal agents influenced Deputy Nettles’ decision to stop and arrest the defendants. As discussed earlier, pretext cannot -be used to challenge the lawfulness of a stop or arrest that is otherwise supported by probable cause. The question for decision, as framed by the majority, is whether the decision to impound the Suburban was pretextual, or made in bad faith. As to that precise inquiry, the majority opinion is conspicuously silent.
Nowhere in the majority opinion is there mention of evidence that the impoundment of the Suburban violated “standardized criteria” of the Polk County Sheriffs Department. Also absent is any mention as to who directed Officer Reeves to drive the vehicle to the impound lot, or why that decision was made. Indeed, there is nothing to indicate whether this issue was even raised in the district court. Nevertheless, the majority leaps to the conclusion that the impoundment was pretextual without any specific evidence to that effect.
III. The Sniff & Search
Once we accept that the stop and arrest were lawful, and that there is insufficient evidence to reasonably question the legality of the impoundment, the next fact finding by the district judge becomes critical to a proper resolution of this case:
There was no search or entry made into Castro’s vehicle until Trooper Pitts’ narcotics dog alerted on the rear and side door of the Suburban, and that the search was lawful, both as to the inventory requirement and that probable cause existed before Castro’s vehicle was searched.
This finding is important because our Court has clearly held that a drug-sniffing dog’s sniff does not constitute a search under the Fourth Amendment. United States v. Seals, 987 F.2d 1102, 1106 (5th Cir.), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993). Thus, no constitutional violation occurred in this ease when the deputy sheriff and DPS officer decided to “smell test” the exterior of the Suburban. Furthermore, our Court has held that a drug-sniffing dog’s alert to the possible presence of narcotics constitutes sufficient probable cause to suspect that a vehicle contains contraband to permit a warrantless search. United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1284, 134 L.Ed.2d 229 (1996). Therefore, once the drug-sniffing dog alerted in our case, the police had probable cause to believe that the Suburban contained drugs and, therefore, had sufficient cause to search the vehicle *759without a warrant under the automobile exception. United States v. Zucco, 71 F.3d 188, 191-92 (5th Cir.1995), cert. denied, — U.S. —, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996).
Accordingly, the critical issue in this case is not “the validity of taking possession of the Suburban for purposes of an inventory search” as the majority frames it; but whether Castro’s and Gomez’s Fourth Amendment rights were violated when (1) the deputy sheriff used the drug-sniffing dog to sniff the exterior of the vehicle, or (2) the officers searched the Suburban on the dog’s alert. Clearly, both questions must be answered in the negative.
It is important to note that the search that produced the 900 pounds of cocaine was based upon probable cause resulting from the alert of the drug-sniffing dog. That search was not an “inventory search” and, therefore, the majority’s extended discussion of what is, or is not, an appropriate inventory search is not determinative of the critical issue in this ease. Surely, if Trooper Pitts and his dog had been able to come to the scene of the highway stop, and had the dog alerted there to the presence of drugs, the validity of the search and seizure would be unquestionable. Likewise, if Officer Nettles had decided to conduct an inventory search of the Suburban on the side of the highway, which he certainly would have been authorized to do, that search also would have revealed the contraband. But the side of a heavily trafficked highway is not a safe or appropriate place to conduct an inventory search of any vehicle. Officer Nettles’ decision to take the Suburban into custody by moving it to the Polk County sheriffs compound before performing the inventory search was a reasonable exercise of police discretion. This is especially true given the fact that the Suburban was a rental car that obviously belonged to another party, and contained a substantial amount of luggage and cargo that would have to be removed to be properly inventoried.
IV. The Nonresident Violator Compact
Finally, I must take issue with the majority’s discussion of the Nonresident Violator Compact (“NVC”). The NVC issue was not raised in the suppression hearing before the district court.. Castro and Gomez raised the applicability of the NVC to their arrests for the first time on appeal. Therefore, any error resulting from the district court’s failure to apply the NVC must be reviewed for plain error only. See Fed.R.Crim.P. 52(b).
The NVC, which was adopted by the Texas Legislature in 1977, has never been cited by any Texas court; nor by any court from the States of Louisiana or Mississippi that have passed similar NVC statutes; nor by any United States District Court in the States of Texas, Louisiana or Mississippi; nor by any decision of this Court. Consequently, there are no published decisions of any court construing the NVC as limiting the authority of a state police officer to make an arrest of a nonresident. That was true at the time of trial, and is equally true now, as the case is pending before us on appeal. Under my reading of the NVC, I would conclude that there was no error with regard to the seat-belt violation arrests. Even assuming, however, that such arrests were error, it is impossible to say that such error was clear at the time of the suppression hearing or at the time of this appeal.
The majority, however, makes' no attempt to satisfy the elements of our plain error rule and professes in footnote 5 that it does not “now answer” the question as to the applicability of the NVC. But in footnote 16 the majority clearly indicates that the legality of the arrest in this ease “remains to be determined.” In effect the majority is implying that there may be a problem with the validity of the arrest in this case. As I indicated earlier, however, the Texas law is very clear that a citizen of Texas may be arrested for not complying with the seatbelt law. See Valencia and Madison, supra, at 753-754. And no ease exists which interprets the NVC as requiring that a non-resident be given different treatment.
For the foregoing reasons, I would affirm the district court’s decision to deny Castro’s and Gomez’s motion to suppress the evidence seized in the Suburban.