Resendiz v. Miller

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-30593
Summary Calendar

NAHU RESENDIZ; EVARISTO LANDA COVARRUBIAS, individually and on
behalf of Jessie Landa Covarrubias,
Plaintiffs-Appellants,

VERSUS

KEVIN MILLER, Individually & in his official capacity as officer
of the Sulphur Police Department; BILLY CRADDOCK, Individually & in
his official capacity as officer of the Sulphur Police Department;
T.J. ANDRUS, Individually & in his official capacity as Chief of
Police of the Sulphur Police Department; POLICE DEPT CITY OF
SULPHUR; CITY OF SULPHUR,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Louisiana

February 25, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:

Nahu Resendiz and Evaristo Landa Covarrubias filed suit

pursuant to 42 U.S.C. § 1983 (1994) alleging that the defendants

violated their Fourth Amendment rights by arresting them without

probable cause and without a warrant. The district court granted

1
the defendants’ motion for summary judgment on the basis of

qualified immunity after determining that the arrest was based on

probable cause. We affirm.

We review the grant of a motion for summary judgment de novo,

using the same criteria applied by the district court. See United

States v. 1988 Oldsmobile Supreme, 983 F.2d 670, 673 (5th Cir.

1993). Summary judgment is required when the evidence, viewed in

the light most favorable to the nonmoving party, presents no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. See Ellert v. University of Texas at

Dallas, 52 F.3d 543 (5th Cir. 1995).

A warrantless arrest must be based on “probable cause.”

Probable cause exists when the totality of facts and circumstances

within a police officer’s knowledge at the moment of arrest are

sufficient for a reasonable person to conclude that the suspect had

committed or was committing an offense. See United States v.

Wadley, 59 f.3d 510, 512 (5th Cir. 1995). The presence of probable

cause is a mixed question of fact and law. See id. Because there

is substantial agreement between the parties concerning the facts

of this case, we focus on the ultimate determination of whether

there was probable cause for the arrest, which is a question of law

that we review de novo. See id.

The record reveals that the totality of the circumstances

known to the officers at the time of arrest of Resendiz and

2
Covarrubias is as follows. The appellants were traveling in a new

vehicle registered the day before in a state in which neither man

lived. The owner of the vehicle did not have a driver’s license.

Both men were carrying considerable amounts of currency (over

$11,000 in all), much of it stuffed into Resendiz’s shoes. A drug

sniffing canine alerted twice to the shoes and the cash.

A drug-sniffing canine alert is sufficient, standing alone, to

support probable cause for a search. See United States v.

Williams, 69 F.3d 27, 28 (1995).1 Although Williams involved a

search rather than an arrest, we found the reasoning in Williams

instructive in determining that a signal from electronic device

used to track bait money taken during a bank robbery constituted a

sufficient basis for probable cause for a warrantless arrest. See

United States v. Levine, 80 F.3d 129, 134 (5th Cir. 1996). In

addition to the canine alert,2 the officers in this case properly

considered the large amounts of cash in the appellants’ possession

as well as the vehicle registration information in deciding to

1
Williams has been mistakenly cited for the proposition that a
dog alert alone is “sufficient to support probable cause for a
warrantless arrest.” United States v. Levine, 80 F.3d 129, 133
(5th Cir. 1996)(emphasis added). Apparently a clerical error, this
statement was not the holding of either Williams or Levine.
2
The Fifth Circuit has not had the occasion to decide whether a
drug dog alert alone is sufficient to constitute probable cause to
arrest the person associated with the item that prompted the alert.
See, e.g., United States v. Mendez, 27 F.3d 126, 130 n.5 (5th Cir.
1994). Because other factors supported the probable cause
determination in this case, we do not reach the question.

3
arrest the appellants. See, e.g., United States v. Kye Soo Lee,

962 F.2d 430, 436 n.2d (5th Cir. 1992)(officers had probable cause

to arrest driver and passenger based on, inter alia, registration

of vehicle in state other than point of origin or destination of

either occupant and their possession of an unusually large amount

of cash). We therefore conclude that the totality of facts and

circumstances known to the officers at the time of the arrest in

this case was sufficient to establish probable cause.

Accordingly, appellants have failed to establish a violation

of their Fourth Amendment rights and appellees are entitled to

qualified immunity. See Kerr v. Lyford, 171 F.3d 330, 338 (5th

Cir. 1999). Based on the foregoing, we affirm the judgment of the

district court.

AFFIRMED.

4