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No. 06-4172
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00269-WLO)
Submitted:
January 4, 2007
Decided:
February 2, 2007
Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.
PER CURIAM:
After
the
district
court
denied
his
motion
to
suppress
For the
to
suppress
evidence
and,
accordingly,
affirm
his
convictions.
I.
The facts of this case are undisputed.
On May 9, 2005,
substances.
approximately
forty-four
pounds
and
was
labeled
books,
and
The
arrived with his drug detection dog Cody, and Cody sniffed three
separate lineups of packages that included the suspicious package
and packages known not to contain controlled substances. Each time
Cody alerted to the presence of controlled substances in the
suspicious package.
On the basis of Codys positive alerts, Detective T.D. Parker
applied for and obtained a search warrant to search the package for
controlled substances.
warrant
affidavit
also
described
Codys
training
and
The Cabarrus
County Sheriffs office seized the items, which were all new and
unopened in their original boxes.
On June 27, 2005, Parker received information about two more
suspicious packages located at the UPS office in Concord, North
Carolina.
been dropped off for shipment by Joe Wu, 903 Lilly Green Court,
Concord, NC.
on
one
of
the
packages.
Based
on
Codys
alert,
package
and
stated
that
Degrace
received
information,
(J.A. at 12.)
(J.A.
(J.A. at 13.)
search, all of the items were new and unopened in their original
boxes.
well.
The officers transported the seized items to the Sheriffs
Office, where Detective Carl Gadd inspected them.
During his
card
computer.
Credit
number
ending
in
9746
was
used
to
purchase
the
Union,
fraudulently.
and
determined
that
the
card
had
been
used
was embossed with the name Tom E. Russo, and the individual who
used the credit card provided a counterfeit identification card in
the same name.
credit card number, a Mr. Roberts from Virginia, and confirmed that
the card information had been stolen and used for unauthorized
transactions.
County detectives executed the warrant and searched the Lilly Green
Court residence.
approximately
$3,800
in
cash;
several
computers;
Prior to
Hensley
Drug dog sniffs of the Lexus sedan and the Lilly Green
residence resulted in positive alerts for the presence of
controlled substances. While no illegal drugs were found in either
the sedan or the residence, both Wu and Hensley admitted that they
used controlled substances and Hensley admitted that she stored
drugs on occasion in the sedan and the residence.
evidence obtained from the May 9 and June 27 searches of the UPS
packages and the June 28 search of his home.
officers lacked probable cause for both the May 9 and June 27
searches
because
the
Government
had
not
demonstrated
Codys
under Franks v. Delaware, 438 U.S. 154 (1978) on the ground that
the warrant affidavits for the May 9 and June 27 searches contained
knowing or reckless falsity that misled the magistrate; Wu claimed
that the affidavits greatly overstated Codys accuracy in drug
sniffs.
probable cause existed for both the May 9 and June 27 searches.
The
court
also
held
that
Wu
had
not
made
the
substantial
the
guilty
(J.A. at 195.)
district
courts
plea
both
to
rulings,
counts
of
Wu
the
entered
indictment,
Wu timely
II.
On appeal, Wu argues that the district court erred in denying
his motion to suppress because (1) the
May 9 and June 27 searches did not establish probable cause for the
searches and (2) the searches were also unconstitutional because
the officer-affiants made representations in the warrant affidavits
that were knowingly false or indicated a reckless disregard for the
truth.
A.
In considering a district courts ruling on a motion to
suppress evidence, we review questions of law de novo and findings
of historical fact and reasonable inferences drawn from those
findings for clear error.
699 (1996); United States v. Moreland, 437 F.3d 424, 429 (4th Cir.
2006).
United
does not demand any showing that such a belief be correct or more
likely true than false.
It is a practical,
10
United
States v. Robinson, 707 F.2d 811, 815 (4th Cir. 1983); see also
United States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994)(When the
dog alerted positive for the presence of drugs, the officer was
given probable cause for the search that followed.).
Of course,
Our sister
States
v.
Kennedy,
131
F.3d
1371,
1376-77
See, e.g.,
(10th
Cir.
11
in
narcotics
investigations
is
enough
to
establish
probable cause); United States v. Klein, 626 F.2d 22, 27 (7th Cir.
1980)(holding that a statement that a dog graduated from training
class and has proven reliable in detecting drugs on prior occasions
is sufficient to support probable cause).
Assuming
that
evidence
of
drug
dogs
training
and
Aside from
some
detail
Codys
training
and
certification
as
drug-
detection dog, including describing how Trooper Barger and Cody had
completed 240 hours of instruction from March 2004 through May 2004
and noting that Barger and Cody had completed one re-certification
session
on
ability.
We
January
14,
2005
to
confirm
narcotics
detection
(J.A. at 23.)
believe
that
this
evidence
of
Codys
training
and
Probable
12
positive
alerts
established
to
fair
the
packages
probability
in
that
both
the
searches
packages
clearly
contained
While
we
believe
that
this
factual
finding
was
existed
for
the
searches
given
the
evidence
of
Codys
13
other
evidence
relating
to
his
accuracy
goes
only
to
the
That Cody
Cody
would
still
have
been
correct
six
times
and
14
concerning
the
stolen
goods4
found
during
the
May
search,
15
knowledge at the time of the June 27 search that the items seized
in the May 9 search had been stolen only further solidified the
probable cause finding.
B.
In his final argument, Wu contends that the May 9 and June 27
searches
were
constitutionally
tainted
because
the
officers
16
A defendant is entitled to a
Even
Id. at 171-72.
We agree with the district court that Wu did not make the
requisite substantial preliminary showing to justify a Franks
hearing.
The
statement
that
Cody
has
been
accurate
in
an
given
Codys
67%
(J.A. at 195.)
accuracy
in
his
previous
field
training
and
certification,
17
along
with
describing
his
III.
Because we hold that probable cause existed for both the May
9 and June 27 searches of the UPS packages, we affirm the district
courts denial of Wus motion to suppress.
Accordingly, we affirm
his convictions.
AFFIRMED
18