United States v. Keller
In United States v. Keller, 123 F.4th 264 (5th Cir. 2024), the Fifth Circuit affirmed the district court’s decision to deny Keller’s motion to suppress evidence that Border Patrol agents found while searching his vehicle.
Background: Keller drove up to a permanent immigration checkpoint in Texas, where he was met by a Border Patrol agent and his canine partner. The dog was “taking a free air sniff of the passing cars,” and it alerted to Keller’s vehicle. According to testimony at a suppression hearing, the dog alerted by taking a “power stance” with its ears straight up, but the dog did not sit, which was its trained method of signaling an alert.
Based on the dog’s alert, the agent referred Keller’s vehicle for a secondary inspection. Once Keller moved to secondary, the dog placed its paws on the vehicle’s bumper. Then the agents opened the trunk and found an undocumented person concealed beneath luggage.
Keller moved to suppress the evidence on a number of grounds, each of which failed in the district court and on appeal.
Holding 1: Keller argued that two actions—the dog’s “free air sniff” and its placing its paws on the vehicle’s bumper—were unconstitutional searches of his vehicle, but he had not raised those arguments in the district court. It was not plain error for the district court to fail to identify either as a search. For decades, courts have held that a trained canine’s sniff is not a Fourth Amendment search. See United States v. Place, 462 U.S. 696, 707 (1983); Illinois v. Caballes, 543 U.S. 405, 409 (2005). And a “mere physical touching” is not a Fourth Amendment search unless “conjoined with an attempt to find something or obtain information.” United States v. Richmond, 915 F.3d 352, 357 (5th Cir. 2019) (internal quotation marks and citation omitted).
Holding 2: The district court did not err by concluding that agents had probable cause to search Keller’s vehicle after the canine alerted during the “free air sniff” and again “indicated” in the secondary inspection area. Given those two acts, the totality of the circumstances provided agents with probable cause to search the vehicle.
Clarifying the Law: Recognizing “changing terminology” in its case law, the Fifth Circuit used a footnote to clarify the legal standard applicable to canine alerts:
A trained and certified dog performing its trained behavior is sufficient by itself to create probable cause for a search. A trained and certified dog exhibiting a distinct behavior that is innate or instinctive but not trained may create probable cause in combination with other evidence or testimony supporting the government’s burden of proof.