Drug dog’s failure to fully alert during sniff-test does not negate probable cause for search where remaining circumstances support such finding
SEARCH & SEIZURE United States v. Munoz-Nava, No. 06-2247, ___ F.3d ___ (10th Cir. May 6, 2008)(New Mexico). Government appeal of district court’s below guidelines range sentence and defendant’s cross appeal of district court’s denial of suppression motion where defendant was convicted for possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). HELD: (1) Drug dog’s failure to fully alert during sniff-test of defendant’s boots does not negate probable cause when other circumstances support such finding. Dog’s pre-alert behavior changes may be considered as one piece in totality of circumstances analysis (i.e., unusual weight of boots, bulge, lack of wear, fresh glue, and similarities to boots used by smugglers and seized in same area by same DEA agent). (2) District court did not abuse its discretion in deviating downward from guidelines sentencing range. District court’s reliance on defendant’s extraordinary family circumstances and exemplary conduct during pretrial release to determine that he was unlikely to reoffend and that he was sufficiently deterred from future criminal activity was supported by record. Sentencing judge has greater familiarity with case and defendant than Court of Appeals or Sentencing Commission. District court is therefore in superior position to find facts and judge their import under 18 U.S.C. § 3553(a) in an individual case. Accordingly, Court of Appeals must give due deference to district court's § 3553(a) sentencing determinations. Read the opinion here. |
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