Case: 12-15792   Date Filed: 03/24/2014   Page: 1 of 14


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15792
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:12-cr-00055-SDM-EAJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

THOMAS LYNNE TREJO,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (March 24, 2014)

                   ON PETITION FOR REHEARING

Before HULL, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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      Based on the appellant’s petition for rehearing, we vacate our prior opinion

and replace it with this one, which revises only footnote 6.

      Thomas Lynne Trejo appeals his convictions for conspiracy to possess with

intent to distribute fifty grams or more of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851, and knowingly and intentionally

possessing with intent to distribute fifty grams or more of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 18 U.S.C. § 2. On

appeal, Trejo argues that the district court erred in denying his motion to suppress

contraband discovered during a warrantless search of his vehicle and the fruits of

that search. Specifically, Trejo challenges the district court’s finding that a

positive alert from a law-enforcement canine trained in narcotics detection

provided sufficient probable cause to justify the search. After careful review, we

affirm.

                                           I.

      On January 6, 2012, a detective from the Polk County Sherriff’s Office

contacted Florida Highway Patrol Trooper Jason Lemery to request that Lemery be

on the lookout (BOLO) for a white Chevy Tahoe with Florida license tag ADCT27

traveling southbound on Interstate 75. The Polk County detective informed

Lemery that the vehicle was suspected of transporting narcotics. Based on this

call, Lemery understood that he was to look for probable cause to stop the Tahoe,


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and to enlist the services of a law-enforcement canine trained in narcotics detection

during any resulting stop to determine if the vehicle in fact contained narcotics.

          Lemery situated his patrol car along Interstate 75 and waited for the Tahoe’s

arrival, receiving updates on the vehicle’s location as it approached. That

afternoon, the Tahoe passed in front of Lemery’s patrol car. Lemery initiated a

traffic stop, maintaining that the Tahoe was traveling too closely to the vehicle in

front of it and that the windows were unlawfully tinted. 1 Trejo was driving the

vehicle with his eventual co-defendant, Juaquin Ramirez, as his passenger.

          Just a few minutes after Lemery initiated the traffic stop, Florida Highway

Patrol Trooper Michael Jordan arrived with a drug-detection canine named Barny.

Barny is trained to detect the presence of several narcotics, including

methamphetamine. When Barny detects narcotics, he normally “alerts” his

handler, Jordan, to the presence of the narcotic odor by aggressively pawing and

scratching at the location.

          Jordan and Barny conducted an exterior sniff test of the Tahoe during the

traffic stop. During the test, Barny alerted to the seams of both the driver’s side

and passenger’s side front doors. Based on Barny’s alerts suggesting the presence

of narcotics, Lemery and Jordan searched the vehicle’s interior without a warrant.

The search revealed about four pounds of methamphetamine concealed inside and


1
    Trejo does not challenge the legality of the initial stop on appeal.
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underneath the center console. Based upon this evidence, Trejo and Ramirez were

charged with knowingly and intentionally possessing, and conspiracy to possess

with the intent to distribute, fifty grams or more of methamphetamine.

       Trejo filed a motion to suppress the contraband seized during the warrantless

search of his vehicle, as well as any admissions made or evidence deriving from

that search. Trejo argued that Barny’s positive alert, standing alone, did not

provide the probable cause necessary to justify the search.

       At a suppression hearing to address Trejo’s motion,2 the government

presented evidence regarding Barny’s training and certifications to support the

reliability of his field alerts. Trooper Jordan began working with Barny in 2009,

although Barny had some prior training as a drug detection dog. When Barny and

Jordan began working together, the pair completed their first joint training and

certification course, which required eighty hours of training over two weeks. The

program was administered by Florida Highway Patrol Trooper Michael VanLeer 3

and resulted in a certification issued by Florida’s Department of Highway Safety

and Motor Vehicles Highway Patrol Academy. The standards for the initial



2
  Because the district court conducted a hearing focusing on Barny’s alert, at which Trejo had an
opportunity to present evidence and challenge the reliability and sufficiency of the alert, we do
not understand Trejo’s appeal to allege procedural error. Cf. Florida v. Harris, 568 U.S. ___, 

, 1058 (2013) (describing the procedure for probable cause hearings and providing
guidelines for district courts weighing evidence presented in this context).
3
  VanLeer was certified as a trainer by the International Forensic Research Institute and the
National Forensic Science Technology Center.
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certification course were governed by Florida regulations. See Fla. Admin. Code r.

11B-27.013.

      After this initial joint certification, Jordan and Barny re-certified annually.

The re-certifications that Jordan and Barny completed required the pair to pass

annual exams, which were again administered by VanLeer in a manner consistent

with the “standards and guidelines set forth by the Florida Highway Patrol.” Barny

and Jordan had passed their most recent re-certification examination on September

21, 2011, just a few months before the January 6, 2012 traffic stop.

      The pair also trained weekly. The weekly training format was similar to the

initial and annual certification examinations—trainers would hide narcotics in

various places and order the canines to find and alert their handlers if they detected

a narcotics odor. In total, Jordan estimated that Barny participated in over eight

hundred training sessions. And in those training sessions, Barny never falsely

alerted to the presence of a narcotic odor when, in fact, no narcotics had ever been

present. Only three times did Barny fail to identify a narcotic odor in training

when an odor should have prompted an alert.

      Trejo countered the government’s offer of proof of Barny’s reliability not by

challenging the adequacy of Barny’s training, but by arguing that his real world

search record was so poor that, even with the training, a positive alert in the field

could not provide probable cause to conduct a warrantless search. Barny’s real


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world search records revealed that he had been called upon to conduct 311 sniff

searches. On 303 of these calls, Barny alerted to the presence of narcotics. Of

these 303 alerts, officers identified residue but no measurable contraband 107

times. In addition, on 71 occasions officers could not even find any residue. Trejo

argued that this amounted to at least a 23.5% false alert rate in real world

situations, and at worst a false alert rate of around 58%. This high error rate in the

field, Trejo argued, rendered the officers’ reliance on Barny’s positive alert to

supply probable cause unconstitutional.

      The district court denied Trejo’s motion to suppress, adopting the

conclusions set forth in the magistrate judge’s Report and Recommendation. The

magistrate judge concluded that the “preponderance of the evidence supports the

conclusion that canine Barny is reliable.” The magistrate judge questioned Trejo’s

characterizations of Barny’s error rate in the field, noting that Trejo faults Barny,

who is trained to alert to narcotics odor, for alerting to residue (which gives off an

odor). As a result, the magistrate judge concluded that the 23.5% field error rate—

the rate at which Barny alerted but neither residue nor contraband was found—“is

likely a better barometer of Barny’s reliability in the field.” Even if the 58% field

error rate were accepted, the magistrate judge noted that probable cause to search a

vehicle requires only a “fair probability” that contraband will be found. Beyond

that, the magistrate judge noted, “the training of a dog alone may be sufficient


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proof of reliability.” The magistrate judge thus concluded that “Barny’s alert gave

officers probable cause to search the Chevy Tahoe pursuant to the automobile

exception.”

       Trejo was convicted at a bench trial based on stipulated facts, and now

appeals his conviction and the denial of his motion to suppress.

                                              II.

       The propriety of a district court’s denial of a motion to suppress is a mixed

question of law and fact. United States v. Virden, 

, 1321 (11th Cir.

2007). We review the factual findings for clear error and the application of the law

to the facts de novo. 

the facts in the light most favorable to the

government here because it prevailed in the district court. See 

Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. Const. amend. IV. A warrantless search is

per se unreasonable unless it falls into one of the exceptions to the warrant

requirement. United States v. Sokolow, 

, 325 (5th Cir. 1971).4 One

such exception is the automobile exception, which permits warrantless searches of

a vehicle when there is probable cause to believe it contains contraband or


4
 In Bonner v. City of Prichard, 

(11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. 

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evidence of a crime. 

–22. An alert from a narcotics

detection canine establishes probable cause if “all the facts surrounding a dog’s

alert, viewed through the lens of common sense, would make a reasonably prudent

person think that a search would reveal contraband or evidence of a crime.”

. This analysis requires courts to examine the totality of

the circumstances surrounding the canine’s alert, instead of applying “rigid rules,

bright-line tests, and mechanistic inquiries.” 

      This Court has “long recognized that probable cause arises when a drug-

trained canine alerts to drugs.” United States v. Tamari, 

, 1265 (11th

Cir. 2006) (quotation marks omitted). Before finding probable cause, we generally

require that the dog’s alert be reliable, and have recognized that “training of a dog

alone is sufficient proof of reliability.” United States v. Sentovich, 

,

838 n.8 (11th Cir. 1982); see also United States v. Dunkley, 

, 527

(11th Cir. 1990) (citing 

n.8, with approval).

      On appeal, Trejo argues that the Supreme Court’s recent decision in Florida

v. Harris, 

, raises the requirements for the government’s reliability

showing. Trejo asserts that, in light of Harris, this Court must vacate and remand

for the district court to consider in the first instance (1) whether the organizations

that trained and certified Barny were “bona fide” and (2) whether Barny’s training

program utilized double-blind precautions to prevent the certification of canines


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who respond to a handler’s cues as opposed to the odor of narcotics alone.5 Trejo

also argues that the district court erred when it found Barny’s alert reliable despite

his error rate in the field.

       Trejo’s argument, however, reads too much into Harris. In Harris, the

Supreme Court considered how a court should decide whether a drug detection

dog’s alert during a traffic stop provides probable cause to search a vehicle. 

In Harris, the U.S. Supreme Court reviewed a Florida Supreme Court ruling

that the Fourth Amendment requires the government to offer evidence from a

checklist of items, emphasizing the need for evidence of not only the canine’s

training and certification but also evidence of performance in the field, including

false alerts. 

The Supreme Court rejected this approach as too

formulaic for the totality-of-the-circumstances probable cause inquiry, noting that

“a finding of a drug-detection dog’s reliability cannot depend on the State’s

satisfaction of multiple, independent evidentiary requirements.” 

       The U.S. Supreme Court criticized the Florida Supreme Court’s over-

reliance on field data in particular, noting that those records “may markedly

overstate a dog’s real false positives.” 

“The better measure of a

dog’s reliability,” the Supreme Court concluded, “comes away from the field, in
5
  Trejo argues that, even if we do not find that the Federal Constitution requires double blind
testing protocols, we must certify the question to the Florida Supreme Court to determine
whether the State Constitution would impose such a requirement. We consider this argument
waived, however, because he did not argue it until filing his brief with this Court. See Fed. R.
Crim. P. 59(a); United States v. Brown, 

, 1352 n.9 (2006).
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controlled testing environments.” 

For that reason, the Supreme Court

concluded that

      evidence of a dog’s satisfactory performance in a certification or
      training program can itself provide sufficient reason to trust his alert.
      If a bona fide organization has certified a dog after testing his
      reliability in a controlled setting, a court can presume (subject to any
      conflicting evidence offered) that the dog’s alert provides probable
      cause to search. The same is true, even in the absence of formal
      certification, if the dog has recently and successfully completed a
      training program that evaluated his proficiency in locating drugs.

The Supreme Court went on to note that “[i]f the State has produced

proof from controlled settings that a dog performs reliably in detecting drugs, and

the defendant has not contested that showing, then the court should find probable

cause. If, in contrast, the defendant has challenged the State’s case (by disputing

the reliability of the dog overall or of a particular alert), then the court should

weigh the competing evidence.” 

      Harris does not unsettle this Court’s jurisprudence that an alert from a canine

trained in narcotics detection can establish probable cause. See 

n.8. Rather, it recognizes, consistent with Sentovich, that a court may

“presume” that a dog’s alert provides probable cause to search under certain

circumstances, such as when the canine is certified by a “bona fide” organization

or “has recently and successfully completed a training program.” Harris, 133 S.

Ct. at 1057. By no means does Harris impose a categorical requirement, as Trejo

suggests, that the district court make a factual finding that the canine is certified by

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a “bona fide” organization before finding that the dog’s record in controlled

settings supports a finding of reliability. See 

Indeed, imposing a

categorical evidentiary requirement like this would contradict the flexible and

commonsense totality-of-the-circumstances inquiry Harris demands. See 

training that Trooper Jordan and his canine Barny completed is

sufficient to support a presumption that Barny’s alert was reliable absent credible

evidence to the contrary. Indeed, Jordan and Barny’s training is quite similar to

the training programs the Supreme Court considered in Harris. In Harris, the

certification and training program for the initial certification was offered by state

police departments and the refresher course was offered by “a private company

that specializes in testing and certifying” narcotics detection dogs. 

The Supreme Court discussed both of these programs with approval. 

Here, the original certification course was offered by the Florida Highway Patrol

and run by one of the State Troopers. And although Trejo questions the legitimacy

of the organizations under whose standards Jordan and Barny were annually

recertified, the recertification course was taught by the very same instructor who

offered the initial course. That the district court did not declare the certifying

organizations—the Florida Highway Patrol, the International Forensic Research

Institute, and the National Forensic Science Technology Center—to be “bona fide”

in so many words makes no difference. And even if the certifying organizations


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were not “bona fide” within the meaning of Harris, the evidence clearly established

that Barny and Jordan had “recently and successfully completed a training

program,” and so the presumption of reliability was permissible absent a timely

challenge to the adequacy of the training program.

      On that point, Trejo, like the defendant in Harris, “declined to challenge in

the trial court any aspect of [the canine’s] training.” 

To be sure, he

now “raise[s] questions about that training’s adequacy—for example, whether the

programs . . . used enough blind testing,” and asks us to remand for a

determination of whether the program used double-blind testing protocols. 

“never voiced those doubts in the trial court, and cannot do so for the first

time here.” Id.; see also United States v. Garcia-Sandobal, 

, 1283

(11th Cir. 2013) (noting that a party’s failure to file a specific written objection to a

proposed finding in a magistrate judge’s Report and Recommendation waives the

party’s right to review of that finding). As Trejo’s case came to the trial court,

Barny had successfully completed drug-detection courses each year for the three

years leading up to the search of Trejo’s vehicle and maintained his proficiency

through weekly training courses. Such a training record, viewed alone and




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unchallenged before the trial court, is sufficient to establish a drug detection dog’s

reliability. See 

. 6

       Trejo’s cross-examination focusing on Barny’s field performance failed to

rebut the government’s case for Barny’s reliability. Cf. 

Supreme Court

noted in Harris, records of a dog’s field performance in most cases have “relatively

limited import.” 

Because of the risk that field data “may markedly

overstate a dog’s real false positives,” a dog’s performance in controlled testing

environments—where Barny’s performance was exceptional and nearly flawless—

is a better measure of a canine’s reliability than field performance. 

As a result, even considering the proffered field error rate, the positive alert from a

drug detection dog with an excellent training record, coupled with the BOLO

indicating that Trejo’s Tahoe was suspected of transporting narcotics, established a

“fair probability” that drugs would be found in the vehicle. This is all that

probable cause requires. See 

.



6
  Trejo also suggests that Jordan may have “cued” Barny to alert regardless of whether he
detected an odor, which might undermine the case for probable cause. See 

–58 (“And even assuming a dog is generally reliable, circumstances surrounding a
particular alert may undermine the case for probable cause—if, say, the officer cued the dog
(consciously or not) . . . .”). However, Trejo did not argue to the district court that Jordan
improperly cued Barny during the search of Trejo’s automobile with sufficient clarity to preserve
it. See, e.g., United States v. Ramirez-Flores, ___ F.3d ___, 

, at *3 (Feb. 21,
2014). For this reason, we would review this issue—if it is entitled to review at all in light of its
omission from Trejo’s objections to the magistrate judge’s Report and Recommendations, Fed.
R. Crim. P. 59(b)(2)—only for plain error. Given our precedent and the evidence presented at
the suppression hearing, the district court did not commit plain error when it found that Barny’s
alert in this case was sufficiently reliable to provide probable cause.
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                                               III.

      For these reasons, we do not agree with Trejo’s argument that we must

remand to the district court to make a factual finding that the organizations issuing

Barny’s certifications were “bona fide” or that the training programs utilized

double-blind training protocols. Neither do we agree that Barny’s field error rate

undermines the conclusion that his alerts are reliable indicia of the presence of

narcotics sufficient to support probable cause. We therefore AFFIRM.




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