CA5: 45 minute empty-handed search after dog alert didn’t dissipate the probable cause

Defendant was stopped for a traffic offense, but the officers had been briefed on defendant by the DEA. (The pre-Jones GPS monitoring of defendant’s car for 73 days is valid under Davis.) He wouldn’t make eye contact, his hands were shaking, and his story didn’t make sense both as to where he was going but also as to what he was doing because it was directly contrary to what the DEA had already told the officer. A dog alert after that led to a search of the car for 45 minutes which didn’t find anything. Based on all they knew, that did not dissipate the probable cause. United States v. Berry, 2016 U.S. App. LEXIS 21500 (5th Cir. Dec. 1, 2016):

Although Berry argues that the length of the stop was unreasonable because the first forty-five minutes of the search did not recover evidence of wrongdoing, he fails to present any cases to support a finding that the length of a search alone would dissipate probable cause. In fact, this Court has rejected that very argument at least once before. See, e.g., United States v. Hernandez, 518 F. App’x 270 (5th Cir. 2013) (per curiam). In Hernandez, the defendant argued that probable cause dissipated after officers searched his vehicle for approximately three hours. Id. at 271. In rejecting that argument, this Court noted that the defendant cited no “case law suggesting that an unsuccessful three- to four-hour search would itself dissipate existing probable cause” and held there was sufficient probable cause to continue searching the vehicle based on a “wiretap investigation, [defendant] and his passenger’s answers to police questions, and the two dog alerts.” Id. Likewise, here the length of the search alone did not dissipate probable cause where probable cause was based on a combination of the following: (1) a briefing from the DEA; (2) Berry’s suspicious behavior and answers to the troopers’ questions; and (3) Niko’s initial alerts and indications around the car.

Moreover, “[i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686 (1985). Under the circumstances present in this case, the officers involved acted diligently and do not appear to have extended the search any longer than was necessary. There were at most only two officers searching the vehicle at any time, and the majority of the first forty-five minutes of the search were spent meticulously going through the plethora of objects in the truck bed. Given the nature of the object for which officers were searching—illegal narcotics—and the fact that probable cause permits officers to search “every part of a vehicle which may conceal the object of the search,” United States v. Zucco, 71 F.3d 188, 191-92 (5th Cir. 1995), probable cause did not dissipate in the first forty-five minutes. Thus, extension of the search past that period did not violate Berry’s Fourth Amendment rights, and we conclude the district court properly denied Berry’s motion to suppress on these grounds.