United States v. Ashley Masterson , 450 F. App'x 348 ( 2011 )

Case: 10-40829 Document: 00511655724 Page: 1 Date Filed: 11/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2011
No. 10-40829
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ASHLEY NICOLE MASTERSON,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:09-CR-2887-1
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Ashley Nicole Masterson was convicted of conspiracy to possess with intent
to distribute less than 50 kilograms of marijuana and possession with intent to
distribute less than 50 kilograms of marijuana. See 21 U.S.C. §§ 841, 846. She
appeals from the district court’s denial of her motion to suppress the marijuana
found in the truck she was driving.
Masterson drove a green 1997 GMC pickup truck to the United States
Border Patrol checkpoint located on Interstate Highway 35, north of Laredo,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-40829 Document: 00511655724 Page: 2 Date Filed: 11/04/2011
No. 10-40829
Texas. During the primary inspection, a border patrol canine named Bono-A
alerted to the truck for the possible presence of narcotics. Masterson was
referred to secondary inspection, and the dog pinpointed the source of the odor
at the truck’s gas tank. A fiber optic scope revealed 47.5 kilograms of marijuana
inside the gas tank. A later search revealed another 28 kilograms of marijuana
in the spare tire.
Masterson argues that the Border Patrol’s secondary inspection of the
truck and the prolonged detention were not based on reasonable suspicion or
probable cause, as required by the Fourth Amendment. According to Masterson,
Border Patrol Agent Francisco Garza was unable to articulate how he
determined that Bono-A had alerted, and he was therefore unable to show
probable cause or reasonable suspicion for the search. In essence, she argues
that there was no alert because Agent Garza could not identify any specific
behavior that constitutes an alert.
Agent Garza first encountered Masterson when she was at the checkpoint,
south of the border. He testified at the suppression hearing that when she drove
to the primary inspection booth, Bono-A “got in the middle.” The wind was
blowing from north to south, he said, and Bono-A “got an odor” and “started
following the vehicle, alerting.” Agent Garza testified that he was familiar with
the way Bono-A alerts, explaining that Bono-A displays a “change in behavior,
increased respiration,” and wags his tail and perks up his ears.
The district court found this testimony credible and found that Agent
Garza credibly interpreted Bono-A’s behavior as an alert. The testimony of
Masterson’s dog handling expert, Jerry Potter, was deemed irrelevant because
alerting behavior is particular to the dog. In other words, each dog alerts in a
different way, and the dog’s behavior must be interpreted by his handler.
When a dog alerts to the possibility of narcotics hidden in the vehicle,
probable cause to search the vehicle for contraband is established. United States
v. Williams, 69 F.3d 27, 28 (5th Cir. 1995). Viewed in the light most favorable
2
Case: 10-40829 Document: 00511655724 Page: 3 Date Filed: 11/04/2011
No. 10-40829
to the Government, and giving due deference to the district court’s assessment
of the suppression hearing testimony, the evidence in the record does not show
clear error in the district court’s findings that Bono-A alerted. See United States
v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010); United States v. Levine, 80 F.3d
129, 132 (5th Cir. 1996). Given that the alert established probable cause for the
search of the gas tank, Masterson has not shown that the district court
committed error in finding that the search was constitutional. See United States
v. Taylor, 482 F.3d 315, 317 (5th Cir. 2007). Accordingly, the decision of the
district court is AFFIRMED.
3