United States v. Cedric Age , 447 F. App'x 470 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5135
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CEDRIC MONTRELLE AGE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:09-cr-00078-BEL-2)
Submitted: September 23, 2011 Decided: September 29, 2011
Before WILKINSON, KEENAN and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicholas J. Vitek, VITEK LAW LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Sean B.
O’Connell, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cedric Montrelle Age appeals from his conviction for
interstate transportation of stolen firearms. Age entered a
conditional guilty plea, reserving the right to challenge on
appeal the denial of his motion to suppress. On appeal, Age
contends that his motion should have been granted because the
district court failed to analyze the reliability of the drug dog
that alerted on the car and, without a determination of the
reliability, probable cause for the search was lacking. We
affirm.
The Supreme Court has repeatedly held that a drug dog
sniff is not a search under the Fourth Amendment and a reliable
dog alert provides probable cause that illegal drugs are
present. Illinois v. Caballes, 543 U.S. 405, 409-10 (2005).
Moreover, we have rejected a requirement that “dog alert
testimony must satisfy the requirements for expert scientific
testimony . . . [because] the dog’s alert . . . would serve not
as actual evidence of drugs, but simply to establish probable
cause to obtain a warrant to search for such substantive
evidence.” United States v. Allen, 159 F.3d 832, 839-40 (4th
Cir. 1998).
Assuming, without deciding, that we would require
specific evidence of a dog’s reliability before permitting his
alert to provide probable cause, we find sufficient evidence in
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this case. The Government provided evidence regarding the dog’s
detailed training and continuing certification. Moreover, the
officer testified that he had worked with the dog for years, and
the dog’s alerts were 80-90% correct. 1 Hence, the district
court’s implicit finding that the dog was reliable was not
clearly erroneous.
Moreover, the dog’s alert was not the only evidence
that established probable cause. In addition to the dog’s
positive indication, there was the following: the smell of
marijuana emanating from the car, the conflicting information
given by the car’s occupants on the ownership of the car and the
destination, the fact that Age did not know his female
companion, Age’s physical reaction to being asked to exit the
car, a passenger’s response to questioning regarding contraband,
and the cigars and air fresheners in the car. 2 Based on the
totality of the circumstances, there was clear probable cause to
1
Probable cause is “a fair probability that contraband or
evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). Because probable
cause does not require certainty, a low percentage of false
positives is not fatal to the finding that a drug detection dog
is properly trained and certified. United States v. Scott, 610
F.3d 1009, 1014 (8th Cir. 2010), cert. denied, 131 S. Ct. 964(2011).
2
Based on his training and experience, the arresting
officer testified regarding these circumstances and their
indication of criminal behavior.
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search the vehicle. See United States v. Donnelly, 475 F.3d
946, 955 (8th Cir. 2007) (holding that a 54% accuracy rating for
a drug dog, Baron, did not undermine the existence of probable
cause, “taking into account the totality of the circumstances
present at the scene . . . , [the defendant’s] behavior and
condition, Baron’s history and pedigree, and Baron’s positive
indication of drugs within the vehicle”).
Accordingly, we hold that the district court properly
found that the search was a lawful search and the evidence found
therein was not subject to suppression. As such, we affirm
Age’s conviction. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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