Petition for Writ of Certiorari — Benancio Castaneda, Petitioner v. United States

Supreme Court briefOct 18, 2023

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No. _______________

IN THE

SUPREME COURT OF THE UNITED STATES

___________

BENANCIO CASTANEDA,

v.

UNITED STATES OF AMERICA

___________

Petitioner

Respondent

On Petition for Writ of Certiorari

To The United States Court of Appeals for the Fifth Circuit

___________

BRIAN D. POE

Counsel of Record

THE BRYCE BUILDING

909 THROCKMORTON STREET

FORT WORTH, TEXAS 76102

TELEPHONE: 817-870-2022

FACSIMILE: 817-977-6501

EMAIL: BPOE@BPOELAW.COM

TEXAS BAR NO. 24056908

ATTORNEY FOR APPELLANT/DEFENDANT

QUESTIONS PRESENTED FOR REVIEW

Question 1:

Narcotics agents were surveilling a house based on unidentified

“concerned citizen” calls of a high volume of short-stay traffic. Without

corroborating the anonymous tips, agents followed the first vehicle they

witnessed leaving the house, and an officer ultimately stopped the

vehicle for a traffic violation. Upon completion of the reason for the stop,

the officers delayed the detention to wait for a drug dog.

The question presented is whether the Fifth Circuit erred by holding

reasonable suspicion existed for the continued detention based on the

narcotics agents’ initial surveillance and on evidence that the driver was

nervous, corrected himself when stating his previous location, did not

reveal that he had stopped at the surveilled house, and had a prior

license suspension for failure to complete a drug-education program.

Question 2:

The canine sniff went beyond an open-air sniff when the dog put its nose

in the interior of the vehicle upon the canine handler’s prompting. At

the suppression hearing, the canine handler testified that the dog first

alerted under the front of the car before intruding into the vehicle.

The question presented is whether the Fifth Circuit erred by viewing

the one-minute sniff/search in piecemeal to uphold the intrusion and by

deferring to the handler’s testimony when his own testimony, the

videotape, and other evidence cast grave doubts on its reliability.

Question 3:

The defendant stipulated to the facts to support his conviction, accepting

responsibility for the offense, and the Government and the probation

department agreed he was entitled to a reduction for acceptance of

responsibility.

The question presented is whether the district court erred by denying

appellant’s request for a two-level reduction for acceptance of

responsibility because he, at one point and for ten days, changed his

mind and requested a jury trial.

ii

PARTIES

Benancio Castaneda is the petitioner, who was the defendant-appellant below.

The United States of America is the respondent, who was the plaintiff-appellee below.

TABLE OF CONTENTS

Questions Presented for Review ................................................................................... ii

Parties ........................................................................................................................... iii

Index to Appendices ...................................................................................................... iv

Petition for a Writ of Certiorari .................................................................................... 5

Opinions Below .............................................................................................................. 5

Jurisdictional Statement ............................................................................................... 5

Federal Constitutional Provisions, Rules, and Sentencing Guidelines Involved ....... 5

Statement of the Case ................................................................................................... 6

A.

Factual Background ......................................................................................... 6

B.

Procedural Background .................................................................................... 9

C.

The Appeal ...................................................................................................... 11

Reasons for Granting the Petition .............................................................................. 13

I.

THE FIFTH CIRCUIT ERRED BY HOLDING THE CONTINUED DETENTION TO AWAIT THE

DOG SNIFF WAS SUPPORTED BY REASONABLE SUSPICION. ............................................... 13

II. THE FIFTH CIRCUIT ERRED BY UPHOLDING THE CANINE’S SEARCH OF THE INTERIOR

OF THE VEHICLE. ............................................................................................................ 17

III.

THE FIFTH CIRCUIT INCORRECTLY CONCLUDED THAT THE DISTRICT COURT’S

DENIAL OF AN ACCEPTANCE-OF-RESPONSIBILITY REDUCTION WAS “NOT WITHOUT

FOUNDATION.” ............................................................................................................... 21

Conclusion .................................................................................................................... 23

iii

INDEX TO APPENDICES

Appendix A Judgment and Opinion of the United States Court of Appeals for the

Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas

Appendix C Memorandum Opinion and Order Denying Motion to Suppress Evidence

of the United States District Court for the Northern District of Texas

TABLE OF AUTHORITIES

Cases

Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375 (2000) ................................................. 14

Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013) ............................................. 17

Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834 (2005) ...................................... 18, 20

Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673 (2000) ............................... 13, 14, 16

Kansas v. Glover, 140 S. Ct. 1183 (2020) .................................................................... 13

Prado Navarette v. California, 572 U. S. 393, 134 S. Ct. 1683 (2014) ....................... 13

Rodriguez v. United States, 575 U.S. 348, 135 S. Ct. 1609 (2015) ............................. 13

Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868 (1968) ........................................................ 13

U.S. v. Gibbs, 421 F.3d 352 (5th Cir. 2005) ................................................................ 18

U.S. v. Jones, 234 F.3d 234 (5th Cir. 2000) ................................................................ 15

U.S. v. Lee, 73 F.3d 1034 (10th Cir. 1996) .................................................................. 15

United States v. Cortez, 449 U. S. 411, 101 S. Ct. 690, (1981) ................................... 13

United States v. Giacomel, 153 F.3d 257 (5th Cir. 1998) ........................................... 18

United States v. Hernandez, 820 Fed. Appx. 302 (5th.Cir. Sept. 9, 2020)................... 5

United States v. Lord, 915 F.3d 1009 (5th Cir. 2019) ................................................ 21

United States v. Macias, 658 F.3d 509 (5th Cir. 2011)............................................... 16

United States v. Monsivais, 848 F.3d 353 (5th Cir. 2017).......................................... 16

United States v. Portillo-Aguirre, 311 F.3d 647 (5th Cir. 2002) ................................ 16

United States v. Shen, 749 Fed. Appx. 256 (5th Cir. 2018) ........................................ 18

United States v. Spears, 636 Fed. Appx. 893 (5th Cir. 2016) ..................................... 16

United States v. Washington, 340 F.3d 222 (5th Cir. 2003) ....................................... 22

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 5

Other Authorities

U.S.S.G. § 3E1.1................................................................................................. 9, 10, 21

iv

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Benancio Castaneda, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The unpublished opinion of the United States Court of Appeals for the Fifth

Circuit is captioned as United States v. Castaneda, No. 22-10844, 2023 U.S. App.

LEXIS 19154, (5th Cir. July 26, 2023), and is provided in the Appendices to the

Petition. Appx. A. The judgment of conviction and sentence was entered by the

district court on August 25, 2022, and this judgment is included in the Appendices as

well. Appx. B.

JURISDICTIONAL STATEMENT

The Fifth Circuit affirmed the district court’s judgment on July 26, 2023. Appx.

A. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

FEDERAL CONSTITUTIONAL PROVISIONS, RULES, AND SENTENCING GUIDELINES

INVOLVED

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

5

USSG §3E1.1 provides:

Acceptance of Responsibility

(a) If the defendant clearly demonstrates acceptance of responsibility

for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the

offense level determined prior to the operation of subsection (a) is level

16 or greater, and upon motion of the government stating that the

defendant has assisted authorities in the investigation or prosecution of

his own misconduct by timely notifying authorities of his intention to

enter a plea of guilty, thereby permitting the government to avoid

preparing for trial and permitting the government and the court to

allocate their resources efficiently, decrease the offense level by 1

additional level.

STATEMENT OF THE CASE

A.

Factual Background

In September 2020, the Taylor County Sheriff’s Department received a call

from a concerned citizen that a house in Abilene, Texas had a high volume of traffic

that only stayed for a short period of time. ROA.51. The caller was concerned that

illegal drugs were being sold from the residence. ROA.51. Narcotics officers conducted

surveillance on the residence but did not see anything to substantiate the caller’s

concern. ROA.273–75, 293.

The following month, the sheriff’s department received another anonymous tip

of the same sort, and Agents Brandon Adames and Marvin Patterson again conducted

surveillance. ROA.51, 275. A vehicle pulled up, and the male driver and female

passenger went inside the house. ROA.51, 275–76. The man carried a lunchbox. Less

6

than ten minutes later, the two exited the residence; the male again carried a

lunchbox. ROA.51, 276.

Agents Patterson and Adames followed the vehicle. ROA.51. The paper tag on

the car was not properly secured and was “flapping”; the officers could see a metal

license plate underneath the paper tag. ROA.51. They radioed to Deputy Dwight

Montgomery, who performed a traffic stop. ROA.51–52. One of the narcotics officers

called for a K-9 unit. ROA.267–68.

The male driver—identified as Castaneda—told Deputy Montgomery that he

did not have a valid driver’s license. ROA.54, 303. Castaneda said he was coming from

his friend’s house on Sayles, but corrected himself and said he actually met his friend

at the Cash Saver. ROA 430 (Ex 1 @ 13:53). According to Deputy Montgomery’s

testimony from the suppression hearing, Castaneda was “pretty visibly nervous,

jittery,” and did not make eye contact. ROA.305.

Deputy Montgomery returned to his unit to check license and registration with

dispatch, and Agent Patterson informed him that the K-9 unit was on its way. ROA

430 (Ex 1 @ 13:58:24). Approximately eight minutes into the stop, dispatch confirmed

that Castaneda’s license was invalid and advised that neither he nor the passenger

had any warrants. ROA.54, 430 (Ex 1 @ 14:02:23). Dispatch also advised that

Castaneda’s driver’s license had been suspended for failure to complete a required

drug-education program.

Nine and a half minutes into the stop, Deputy Montgomery got out of his

vehicle and asked Castaneda and the female passenger some questions to complete

7

the field-interview form. Appx. C, p. 6. Deputy Montgomery returned to his vehicle

and put his clipboard inside the vehicle; he did not write a citation at that time, but

instead he walked back to the passenger side of Castaneda’s vehicle and engaged in

small talk with him and the passenger. Appx. C, p. 6. In fact, at the suppression

hearing, Deputy Montgomery agreed that he and the other officers were “lingering

around” at that point. ROA.328.

When the female passenger asked what they were waiting on, Deputy

Montgomery said they were waiting on the canine unit to arrive. Appx. C, p. 6. He

testified at the suppression hearing that he had not decided whether or not to cite

Castaneda for driving without a license, and that writing a citation was not “a timesensitive thing” because “they weren’t going to be able to drive away from the scene.”

ROA.313–14. He said they would either have to call a tow truck or a friend to drive

the vehicle, but he agreed that he did not do either. ROA.328–29.

Approximately thirteen minutes into the stop, Agent Adames asked Deputy

Montgomery if he was going to write a ticket. ROA.430 (Ex 1 @ 14:06:28). Deputy

Montgomery testified at the suppression hearing that this is what prompted him to

go ahead and write the ticket. ROA.329. He called dispatch to again ask the expiration

of the vehicle registration because he did not write it down the first time. Appx. C, p.

6. He received that information, for the second time, twenty minutes after the stop.

ROA.430 (Ex 1 @ 14:13:38).

The canine unit arrived approximately twenty-one minutes into the stop.

ROA.430 (Ex 2 @ 14:15). The handler, Deputy Waddle, started at the front of the

8

vehicle and walked the dog from the front to the back of the driver’s side twice, for

approximately one minute in total. ROA.340, 430 (Ex 2 @ 14:14–14:16). Deputy

Waddle testified that the dog pulled hard under the front of the vehicle and wanted

to go back under it. ROA.342. Both times he passed the dog by the driver’s door,

Deputy Waddle raised his hand in a high command, and the dog jumped up onto the

door frame, sticking its nose inside the open driver’s side window. A subsequent

search of the vehicle revealed narcotics.

B.

Procedural Background

Castaneda filed a motion to suppress the search of his vehicle. After a hearing,

the district court denied the motion with a written Memorandum Opinion and Order

Denying Motion to Suppress Evidence. Appx. C, p. 8.

Castaneda initially signed a Bench Trial Stipulation, but at the bench trial, he

said he desired a jury trial. ROA.74, 381–85. The district court set the case for a jury

trial for the following month, but ten days later, Castaneda changed his mind and

filed a second motion for a nonjury trial, which the district court granted. ROA.208,

391–92, 399. Castaneda signed a second Bench Trial Stipulation, stipulating to the

facts necessary for conviction, while expressly reserving his right to appeal the

adverse suppression ruling. ROA.208, 212, 400–03.

The PSR assigned a base offense level of 30, and also assigned a two-level

reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), for a total

offense level 28. ROA.441. The PSR stated that Castaneda "has clearly demonstrated

9

acceptance of responsibility for the offense." ROA.441. The PSR also stated that the

Government would not be moving for the additional one-level reduction pursuant to

U.S.S.G. § 3E1.1(b). ROA.441.

Castaneda filed four objections to the PSR, and all were either accepted by the

Government or granted by the court. ROA.414–15, 459–67. At the sentencing

hearing, the Government not only did not oppose the two-level reduction for

acceptance of responsibility, but also requested the additional one-level reduction of

U.S.S.G. § 3E1.1(b). ROA.419. However, the district court refused to apply the

acceptance-of-responsibility reduction and denied the Government’s motion.

ROA.468. The court reasoned that Castaneda’s behavior in requesting a bench trial,

changing his mind on the day of the trial, and then changing his mind again was

behavior not consistent with acceptance of responsibility and evidence of

gamesmanship. ROA.417, 419–20. The court also said that the timeliness of the

stipulation—four days prior to trial—warrants denial of the reduction. ROA.417.

The district court adjudged Castaneda guilty of conspiracy to distribute and

possess with intent to distribute 50 grams or more of methamphetamine and

possession with intent to distribute 50 grams or more of methamphetamine. Appx. B,

p. 1. The district court determined a total offense level of 30 and criminal history

category of V, yielding a guideline range of 151–188 months’ imprisonment. ROA.420.

The court sentenced Castaneda to 180 months in prison for each count, to run

concurrently, and ordered that each sentence be followed by a five-year term of

10

supervised release, to run concurrently. ROA.232, 426–27. The court ordered a special

assessment of $100 per count but did not impose a fine. ROA.236, 427.

C.

The Appeal

Castaneda argued on appeal that the district court erred by denying his motion

to suppress the search of his vehicle. He argued that the officer intentionally delayed

writing a citation and concluding the stop for the sole purpose of waiting for the

canine unit to arrive, and that the continued detention was not supported by

reasonable suspicion of criminal activity. He further argued that the dog sniff

unlawfully went beyond an open-air sniff.

Castaneda also argued that the district court erred by refusing to grant the

two-level reduction for acceptance of responsibility and by denying the Government’s

motion for an additional one-level reduction for acceptance of responsibility. He

argued that he clearly demonstrated acceptance of responsibility for the offenses by

entering a bench trial stipulation to the facts necessary for his convictions.

The Fifth Circuit rejected these claims. The Court did not address whether the

traffic stop was impermissibly delayed to await a canine sniff and held that the

continued detention was justified based on reasonable suspicion. Appx. A, p. 3. The

Court reasoned:

Deputy Montgomery knew that narcotics agents had been surveilling

Castaneda after seeing him leave a house they had been monitoring.

Moreover, during the traffic stop, Castaneda gave inconsistent and

untruthful stories about where he had been coming from. In addition,

Castaneda’s driver’s license was invalid, and his driver’s license had

been suspended due to his failure to complete a drug-education program.

11

Castaneda also was “pretty visibly nervous, jittery,” avoided eye contact,

and “couldn’t sit still.”

Agent Marvin Patterson testified that, just prior to the traffic stop, he

and another narcotics agent were conducting surveillance on a house

where neighbors had complained about short-stay traffic consistent with

drug trafficking. Agent Patterson testified that he observed Castaneda

enter that house carrying a lunchbox and leave with that lunchbox after

less than 10 minutes, and that small containers like the lunchbox can

be used to carry narcotics. Agent Patterson’s knowledge can be imputed

to Deputy Montgomery because they were in communication with each

other, and Agent Patterson participated in the traffic stop in

coordination with Deputy Montgomery. Viewing the evidence in the

aggregate and in the light most favorable to the Government, the district

court did not err in concluding that the officers had developed

reasonable suspicion of additional criminal activity that justified

extending the stop to wait for the canine unit.

Id. at 2–3 (internal citations omitted).

The Court also refused to address whether the canine handler impermissibly

prompted the canine to unlawfully search the interior of the vehicle through the

rolled-down window. Id. at 3. In doing so, the Court relied on the canine handler’s

testimony that the dog had already alerted to the front driver’s-side wheel when it

climbed under the vehicle. Id. at 3–4.

As for the requested acceptance-of-responsibility sentencing reduction, the

Court held that the denial “was not ‘without foundation’” due to Castaneda’s actions.

Id. at 4.

12

REASONS FOR GRANTING THE PETITION

THE FIFTH CIRCUIT ERRED BY HOLDING THE CONTINUED DETENTION TO

AWAIT THE DOG SNIFF WAS SUPPORTED BY REASONABLE SUSPICION.

I.

A dog sniff is not fairly characterized as part of a police officer's mission during

a traffic stop and must be supported by reasonable suspicion. Rodriguez v. United

States, 575 U.S. 348, 349, 135 S. Ct. 1609 (2015). The Fifth Circuit incorrectly

determined that reasonable suspicion existed here to justify the continued detention

to await the dog stiff. The Fifth Circuit’s opinion on this important and recurring

Fourth Amendment question about “judgments and inferences” that law enforcement

officers make every day allows a seizure based on a mere hunch, rather than the

requisite reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673

(2000).

As this Court has explained, reasonable suspicion requires “‘a particularized

and objective basis for suspecting the particular person stopped of criminal activity.’”

Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020) (quoting United States v. Cortez, 449

U. S. 411, 417–418, 101 S. Ct. 690 (1981), and citing Terry v. Ohio, 392 U. S. 1, 21–

22, 88 S. Ct. 1868 (1968)). The standard for reasonable suspicion is less demanding

than probable cause or a preponderance of the evidence, but it requires more than a

“mere hunch.” Id. (citations omitted). Reasonable suspicion “depends on the factual

and practical consideration of everyday life on which reasonable and prudent men,

not legal technicians, act.” Id. (quoting Prado Navarette v. California, 572 U. S. 393,

397, 134 S. Ct. 1683 (2014)). The standard allows for “commonsense judgments and

13

inferences about human behavior” to be made by reasonable and prudent officers. Id.

(quoting Wardlow, 528 U. S. at 125, 120 S. Ct. 673).

The circumstances relied upon by the Fifth Circuit for reasonable suspicion

here fail to satisfy that standard. As for Deputy Montgomery’s knowledge that

narcotics officers saw Castaneda leaving a house they were monitoring, that

surveillance was based only on calls from one or two unidentified “concerned citizens”

about the amount of traffic at the residence. Appx. A, p. 2; ROA.381. The narcotics

agents had conducted surveillance on the residence at least twice following the

anonymous tips and saw nothing to corroborate them; in fact, Castaneda’s vehicle

was the first one the officers saw visit the residence. ROA.51, 275–76.

As Florida v. J.L. explains, “[u]nlike a tip from a known informant whose

reputation can be assessed and who can be held responsible if her allegations turn

out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant's

basis of knowledge or veracity.’” 529 U.S. 266, 120 S. Ct. 1375 (2000) (internal

citations omitted). An anonymous tip that is suitably corroborated may sometimes

exhibit "sufficient indicia of reliability to provide reasonable suspicion,” id., but such

is not the case here. Without some corroboration, the narcotics surveillance does

nothing to support a finding of reasonable suspicion that Castaneda was in possession

of drugs.

The Fifth Circuit also relied on the officer’s testimony about Castaneda’s

apparent “inconsistent and untruthful stories about where he had been coming from.”

Appx. A, p. 2–3. Deputy Montgomery testified that Castaneda lied when he said he

14

had been at a Cash Saver store and that he changed his story about his prior location.

ROA.334–35. But the officers knew only that Castaneda had not stopped at a Cash

Saver during the five or six miles that the officers had followed him. ROA.266, 304.

They did not know where Castaneda had been prior to his brief stop at the house

under surveillance, and his answer does not establish that he “lied” about where he

had been. Further, the “inconsistency” relied upon by the Fifth Circuit was simply

that Castaneda immediately corrected himself—without any further questioning

from the officer or any delay—when asked where he had been; he initially said he had

been at his friend’s house on Sayles and then said, “Well, actually I met him at the

Cash Saver.” ROA 430 (Ex 1 @ 13:53). This is not the type of inconsistent statement

that supports reasonable suspicion of possession of drugs.

The Fifth Circuit also relied on the officer’s knowledge that Castaneda’s license

had at some point been suspended for failing to complete a drug-education program.

Appx. A, p. 3. But the officer did not know why or when Castaneda was ordered to

complete this program, or any other information about the license suspension.

Further, knowledge of a person’s prior criminal involvement (certainly, the failure to

complete a drug-education program) is insufficient to give rise to reasonable suspicion

that he is currently in possession of drugs. See, e.g., U.S. v. Jones, 234 F.3d 234, 241

(5th Cir. 2000) (noting that officer’s knowledge that defendant had prior arrest for

crack cocaine did not amount to reasonable suspicion); U.S. v. Lee, 73 F.3d 1034, 1040

(10th Cir. 1996) (holding that knowledge of defendants’ extensive criminal histories

was insufficient to support reasonable suspicion).

15

What remains is the officer’s testimony that Castaneda was nervous and

jittery, “couldn’t sit still,” and avoided eye contact. Appx. A, p. 3. Nervous, evasive

behavior is a pertinent factor in determining reasonable suspicion, see Wardlow, 528

U.S. at 124, 120 S. Ct. 673, but nervousness alone is insufficient to create reasonable

suspicion of criminal activity. And as the Fifth Circuit has repeatedly stated, the

court often gives “little or no weight to an officer's conclusional statement that a

suspect appeared nervous." United States v. Monsivais, 848 F.3d 353, 359 (5th Cir.

2017) (quoting United States v. Portillo-Aguirre, 311 F.3d 647, 656 n.49 (5th Cir.

2002)); see United States v. Macias, 658 F.3d 509, 520 (5th Cir. 2011) (holding that

defendant’s “extreme nervousness” was insufficient to support the extended

detention).

Finally, the Fifth Circuit’s opinion is in conflict with its own opinion in a very

similar case, United States v. Spears, 636 Fed. Appx. 893 (5th Cir. 2016). In an

unpublished opinion, the Fifth Circuit held that officers lacked reasonable suspicion

that an individual possessed drugs when an officer witnessed the individual leave a

house linked to drug activity and the officer testified that, upon stopping the

individual, he “appeared nervous, was not giving straight answers, was evasive in

responding to questions, and was very non-compliant.” Id. According to the Fifth

Circuit in Spears, the officer only had reasonable suspicion for a traffic violation and

his “subsequent actions must have been reasonably related in scope to [the] traffic

violation.” Id. at 901.

16

In the present case, the officers at best had a “hunch”—based on anonymous,

unverified tips—that the house they were surveilling was being used for illegal

activity. Despite multiple surveillances of the residence, officers had been

unsuccessful in corroborating the tips. The information officers learned during the

stop—Castaneda’s nervousness, his invalid driver’s license, his correcting himself

about where he had been, and the officers’ knowledge that he had not stopped at the

Cash Saver in the five or six miles that they followed him—does not support

reasonable suspicion that he was in possession of drugs. There are no additional

articulable facts that would justify reasonable suspicion outside of the traffic

violations. Yet, Deputy Montgomery prolonged the traffic stop because in his words,

“We are waiting on the dog to get here.” ROA.430 (Ex 1 @ 14:05:43).

Because the stop violated the Fourth Amendment, the Fifth Circuit should

have reversed the district court’s ruling on Castaneda’s motion to suppress.

II.

THE FIFTH CIRCUIT ERRED BY UPHOLDING THE CANINE’S SEARCH OF THE

INTERIOR OF THE VEHICLE.

When the Government obtains information “‘by physically intruding’” on an

individual or his effects, a Fourth Amendment search has “undoubtedly occurred.”

Florida v. Jardines, 569 U.S. 1, 5, 133 S. Ct. 1409 (2013) (citations omitted). In the

context of a drug dog sniff of a vehicle, Illinois v. Caballes holds that such action,

when “performed on the exterior of [an individual’s] car while he was lawfully seized

for a traffic violation” does not implicate legitimate privacy interests. 543 U.S. 405,

17

409, 125 S. Ct. 834 (2005) (internal citation omitted). But the interior of an

individual’s vehicle is undoubtedly protected by the Fourth Amendment. When an

officer facilitates, encourages, or prompts a drug dog to enter a vehicle, the Fourth

Amendment is implicated. See United States v. Shen, 749 Fed. Appx. 256, 262 (5th

Cir. 2018).

In this case, a Fourth Amendment search occurred when the canine handler

twice prompted the canine to put its nose in the open driver’s window during an openair sniff that lasted approximately one minute. However, the Fifth Circuit

circumvented the Fourth Amendment protections by relying on the canine handler’s

testimony that the drug dog alerted prior to the handler directing the dog to jump up

on the open driver’s window. See Appx. A, pp. 3–4. This case presents an ideal vehicle

for this Court to provide guidance on this important issue of canine sniffs. Rather

than reviewing the handler and drug dog’s actions in piecemeal, plucking out those

that do not implicate constitutional privacy interests from those that do, courts

should view the canine sniff as a singular event that either does, or does not, implicate

the Fourth Amendment.

Review is also warranted due to the Fifth Circuit’s blind application of the wellworn rule that deference must be given to the district court’s credibility

determination. Such deference must still be “supported by the record,” U.S. v. Gibbs,

421 F.3d 352, 357 (5th Cir. 2005) (citing United States v. Giacomel, 153 F.3d 257, 258

(5th Cir. 1998)), and here, the evidence casts grave doubts on that determination.

18

Initially, Officer Waddle did not describe the dog’s actions under the vehicle as

an alert. He testified that he started at the front of the vehicle and that the dog went

up under the front of the car and pulled. ROA. 343. Officer Waddle said this indicated

that “she’s in the odor of narcotics” and that she was trying to source. ROA.343. He

said sourcing meant the dog was “trying to figure out what’s in there, you know, odorwise.” ROA.342. He said his dog uses active alerts—a scratch, a bite, or a bark, and

passive alerts—sitting down, looking at him, turning, or freezing. ROA.352.

Critically, however, he did not identify the dog’s actions as either a passive or active

alert; he simply said the dog pulled and went under the car to source. Upon further

questioning, he described the act of going up under the vehicle as an alert, and when

district court asked if it was an active or passive alert, Officer Waddle said—for the

first time—that he could hear the dog scratching. ROA.357–58. When the court asked

why he continued the search after that initial alert, Officer Waddle said he was trying

to source where the odor was the strongest; he said, “[I]f it’s really, really strong in

the engine and then I call the alert, I say she alerts, you know, here.” ROA.358.

Not only does Officer Waddle’s own testimony show the unreliability of his

testimony about the “first alert,” but the video of the stop does not corroborate his

testimony. The video shows that after starting at the front driver’s side of the vehicle,

no more than ten seconds pass before Officer Waddle directs the dog into the open

window by raising his hand at the window. ROA.430 (Ex 2 @ 14:14). On the second

pass, while at the front of the vehicle, the dog became distracted by a puppy the

female passenger was holding, and Officer Waddle had to redirect the dog; upon

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redirection, mere seconds pass before Officer Waddle again encourages the dog to

breach the open window. ROA.346, 430 (Ex 2 @ 14:14–14:16). Even if a piecemeal

review of the dog’s actions during this one-minute search was proper, the timing of

the dog’s actions on the video cannot support that it alerted prior to breaking the

plane into the vehicle’s interior.

Finally, no drugs were found in the engine, under the hood, or in the vicinity

of where Officer Waddle said the dog first alerted, casting further doubt on Officer

Waddle’s testimony that the dog immediately and initially alerted on the front

driver’s side.

As Justice Souter cautioned in his dissent in Caballes, “[t]he infallible dog . . .

is a creature of legal fiction.” 543 U.S. at 411, 125 S. Ct. 834 (Souter, J., dissenting).

“[T]heir supposed infallibility is belied by judicial opinions describing well-trained

animals sniffing and alerting with less than perfect accuracy, whether owing to errors

by their handlers, the limitations of the dogs themselves, or even the pervasive

contamination of currency by cocaine.” Id. (collecting cases). Adding to the fallibility

of canine sniffs in this case is the court’s reliance on the handler’s uncorroborated and

contradicted testimony as to the exact moment when the dog “alerted” in a search

that undoubtedly went beyond an open-air sniff.

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III.

THE FIFTH CIRCUIT INCORRECTLY CONCLUDED THAT THE DISTRICT COURT’S

DENIAL OF AN ACCEPTANCE-OF-RESPONSIBILITY REDUCTION WAS “NOT

WITHOUT FOUNDATION.”

When, as here, a defendant demonstrates acceptance of responsibility for his

offense,” his offense level should be adjusted downward by two levels. U.S.S.G. §

3E1.1(a). And when, as here, the defendant qualifies under subsection (a) and his

offense level prior to application of that subsection is 16 or greater, a further one-level

reduction may be applied upon the government's motion “stating that the defendant

. . . timely notif[ied] authorities of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently.” U.S.S.G. § 3E1.1(b).

The failure to depart downward for acceptance of responsibility constitutes reversible

error when that decision is made without any foundation. See United States v. Lord,

915 F.3d 1009, 1017 (5th Cir. 2019); United States v. Patino-Cardenas, 85 F.3d 1133

(5th Cir. 1996).

Castaneda stipulated to the facts to support his convictions, fully admitting to

the conduct comprising the offenses, well in advance of trial. The Government and

the probation department both agreed that he was entitled to a two-level reduction

for acceptance of responsibility. ROA.419, 441. That he at one point (and for only ten

days) changed his mind and requested a jury trial does not change this fact. The

record shows that when he briefly requested a jury trial, he was confused about what

the trial court was asking, concerned that the court would bind him to his waiver of

a jury trial, and frustrated at the procedural process. It does not support that he was

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acting in a manner inconsistent with acceptance of responsibility. The Government

filed a few documents in those ten days but never indicated that those ten days caused

it to prepare for trial or allocate its resources inefficiently. See U.S.S.G. § 3E1.1(b).

To the contrary, that the Government moved for a subsection (b) reduction indicates

that it did not.

Even if Castaneda had remained steadfast in his desire for a jury trial, nothing

in the record shows whether he wanted a jury trial to put the Government to its

burden or for some other reason that does not relate to his factual guilt. See United

States v. Washington, 340 F.3d 222, 228 (5th Cir. 2003) (explaining that the

Guidelines allow acceptance of responsibility when a defendant denies legal guilt,

rather than factual guilt). As the Guideline comments note, a defendant may still

accept responsibility even though he exercises his constitutional right to a trial.

U.S.S.G. §3E1.1, comment. n. 2.

Because the district court lacked foundation to refuse to apply the acceptanceof-responsibility adjustment and to deny the Government’s motion for an additional

subsection (b) reduction, the Fifth Circuit should have reversed and remanded for

resentencing on this issue.

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CONCLUSION

Petitioner respectfully prays that this Honorable Court grant certiorari and

ultimately reverse the judgment below, so that the case may be remanded to the

district court for a new trial. Petitioner prays alternatively for such relief as to which

he may be justly entitled.

Respectfully submitted this 18th day of October, 2023.

/s/ Brian D. Poe

Brian D. Poe

The Bryce Building

909 Throckmorton Street

Fort Worth, Texas 76102

Telephone: 817-870-2022

Facsimile: 817-977-6501

Email: bpoe@bpoelaw.com

Texas Bar No. 24056908

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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