United States v. Williams

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                         __________________

                            No. 95-40296
                          Summary Calendar
                         __________________


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FRANK EDWARD WILLIAMS,

                                      Defendant-Appellant.



                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Eastern District of Texas
                       - - - - - - - - - -
                         November 6, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:

     Frank Edward Williams appeals from the district court's

judgment of conviction, after entry of a conditional guilty plea,

for conspiring to possess with intent to distribute cocaine base.

He argues that the district court erred by denying his motion to

suppress, by increasing his base offense level pursuant to

U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during a drug-

trafficking offense, by failing to reduce his base offense level

under § 3B1.2 for minor/minimal participant status, and that

§ 2D1.1 is violative of the Fourteenth Amendment as racially

discriminatory.   Finding that the district court committed no

error and that Williams' contentions are unavailing, we affirm.
     One point is worth some discussion.      Williams' sole

challenge to the propriety of the district court's denial of his

motion to suppress is whether a dog sniff can "establish probable

cause in a warrantless search without showing evidence of the

dog's training and reliability."       The following facts, as found

by the district court, are uncontested and bear on this

challenge.    A vehicle driven by codefendant Frank Edward Williams

was stopped for a traffic violation by DPS Trooper Washington and

his partner.   Codefendant Danyell Deoncore Waters was a

passenger.    After initiating background checks on the car and its

occupants, Washington observed what he thought were metallic

shavings, commonly used in the consumption of crack, on the front

floorboard.    He then obtained consent (as found by the district

court and not challenged on appeal) and noticed during a search

of the trunk that apparently the rear seat had been removed.

Suspicions aroused by these and other circumstances (including

dealer tags on a seven-year-old car and a patchy paint job of

questionable quality), Washington called for a canine unit; the

canine alerted after sniffing around the right rear quarter

panel.   The officers then searched the quarter panel and found

crack and a firearm.     Williams and Waters were arrested.

     Williams filed a motion to suppress in the district court

contesting the search and seizure of the automobile he was

driving which yielded cocaine base.       After a hearing, the

district court denied the motion to suppress, holding that the

traffic stop was legal, the length of the investigatory stop was


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not improper, the search of the car's trunk was consensual, and

that the "dog sniff" was based on a "reasonable, articulable

suspicion.

     The district court specifically held that "probable cause

for a search [of the car's trunk] did not exist" before the dog

sniff.   Williams argued, in the district court, that "the

training and reliability of a drug dog prior to reliance on a

sniff test [is required] to justify a warrantless search."      The

district court, noting that this court had not addressed the

precise issue, found the argument foreclosed by United States v.

Daniel, 982 F.2d 146, 151-52 & n. 7 (5th Cir. 1993), because

under Daniel, "the necessity of establishing a drug dog's

reliability in an application for a search warrant . . . was not

necessary."

     Williams pleaded guilty pursuant to a written plea agreement

to conspiring to possess with intent to distribute cocaine base,

reserving the right to appeal the denial of the motion to

suppress.

     Williams urges this court to follow United States v. Diaz,

25 F.3d 392, 393-94 (6th Cir. 1992), which held that the training

and reliability of a dog must be established when a dog sniff is

used to establish probable cause to search.

     The "standard of review for a motion to suppress based on

live testimony the suppression hearing is to accept the trial

court's factual findings unless clearly erroneous or influenced

by an incorrect view of the law."    United States v. Alvarez, 6


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F.3d 287, 289 (5th Cir. 1993), cert. denied, 114 S. Ct. 1384

(1994).    The trial court's conclusions of law are reviewed de

novo.    Id.

       Although there is no authority directly on point, the

district court's determination was not error.    The fact that the

dog alerted provided probable cause to search.    See United States

v. Seals, 987 F.2d 1102, 1107 (5th Cir.), cert. denied, 114 S.

Ct. 155 (1993).    Further, Daniel appears controlling.   Daniel

held that "Daniel's theory that an affidavit must show how

reliable a drug-detecting dog has been in the past" is without

jurisprudential support in this circuit.    Daniel, 982 F.2d 152

n.7.    Because a showing of the dog's reliability is unnecessary

with regard to obtaining a search warrant, a fortiori, a showing

of the dog's reliability is not required if probable cause is

developed on site as a result of a dog sniff of a vehicle.     But

see Diaz, 25 F.3d at 394 (holding that "to support a

determination of probable cause, the training and reliability of

the dog must be established.").

       Williams's judgment of conviction and sentence are AFFIRMED.




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