United States v. Stevenson ( 2000 )

No. 99-40783
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40783
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HERMAN STEVENSON, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:98-CR-86-1
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April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
James Herman Stevenson, Jr., appeals from his conviction for
conspiracy to possess with the intent to distribute cocaine base,
possession with the intent to distribute cocaine base, and
carrying a firearm in relation to drug trafficking. He argues
that the warrantless search of the automobile was not supported
by probable cause because the police officers did not have
reasonable suspicion to employ a drug-detecting canine.
Stevenson did not file a motion to suppress in the district
court; instead he objected to the admission of the evidence
*
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this opinion should not be published and is not precedent except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.
No. 99-40783
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seized following the search of the automobile. Because, however,
he did not make the specific argument in the district court
concerning the propriety of the use of the canine, review of the
issue is for plain error. See United States v. Spires, 79 F.3d
464, 465 (5th Cir. 1996); see United States v. Knowles, 29 F.3d
947, 950-51 (5th Cir. 1994)(alleged constitutional error in
criminal conviction reviewed for plain error). To demonstrate
plain error, Stevenson must show clear or obvious error that
affects his substantial rights; if he does, this court has
discretion to correct a forfeited error that seriously affects
the fairness, integrity, or public reputation of judicial
proceedings but is not required to do so. See United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc).
A dog’s "sniff" of a vehicle is not a search, United States
v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993), and does not
implicate the Fourth Amendment. United States v. Mendez, 27 F.3d
126, 129 n.4 (5th Cir. 1994). A dog alert alone can provide the
probable cause necessary to support a warrantless search of a
vehicle under the automobile exception to the warrant
requirement. See United States v. Williams, 69 F.3d 27, 28 (5th
Cir. 1995), citing Seals, 987 F.2d at 1107. Stevenson cannot
show that it was plain error for the district court to admit the
evidence the officers seized from the automobile.
Stevenson’s appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2.