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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-40296
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK EDWARD WILLIAMS,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
- - - - - - - - - -
November 6, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:
Frank Edward Williams appeals from the district court's
judgment of conviction, after entry of a conditional guilty plea,
for conspiring to possess with intent to distribute cocaine base.
He argues that the district court erred by denying his motion to
suppress, by increasing his base offense level pursuant to
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during a drug-
trafficking offense, by failing to reduce his base offense level
under § 3B1.2 for minor/minimal participant status, and that
§ 2D1.1 is violative of the Fourteenth Amendment as racially
discriminatory. Finding that the district court committed no
error and that Williams' contentions are unavailing, we affirm.

One point is worth some discussion. Williams' sole
challenge to the propriety of the district court's denial of his
motion to suppress is whether a dog sniff can "establish probable
cause in a warrantless search without showing evidence of the
dog's training and reliability." The following facts, as found
by the district court, are uncontested and bear on this
challenge. A vehicle driven by codefendant Frank Edward Williams
was stopped for a traffic violation by DPS Trooper Washington and
his partner. Codefendant Danyell Deoncore Waters was a
passenger. After initiating background checks on the car and its
occupants, Washington observed what he thought were metallic
shavings, commonly used in the consumption of crack, on the front
floorboard. He then obtained consent (as found by the district
court and not challenged on appeal) and noticed during a search
of the trunk that apparently the rear seat had been removed.
Suspicions aroused by these and other circumstances (including
dealer tags on a seven-year-old car and a patchy paint job of
questionable quality), Washington called for a canine unit; the
canine alerted after sniffing around the right rear quarter
panel. The officers then searched the quarter panel and found
crack and a firearm. Williams and Waters were arrested.
Williams filed a motion to suppress in the district court
contesting the search and seizure of the automobile he was
driving which yielded cocaine base. After a hearing, the
district court denied the motion to suppress, holding that the
traffic stop was legal, the length of the investigatory stop was
2

not improper, the search of the car's trunk was consensual, and
that the "dog sniff" was based on a "reasonable, articulable
suspicion.
The district court specifically held that "probable cause
for a search [of the car's trunk] did not exist" before the dog
sniff. Williams argued, in the district court, that "the
training and reliability of a drug dog prior to reliance on a
sniff test [is required] to justify a warrantless search." The
district court, noting that this court had not addressed the
precise issue, found the argument foreclosed by United States v.
Daniel, 982 F.2d 146, 151-52 & n. 7 (5th Cir. 1993), because
under Daniel, "the necessity of establishing a drug dog's
reliability in an application for a search warrant . . . was not
necessary."
Williams pleaded guilty pursuant to a written plea agreement
to conspiring to possess with intent to distribute cocaine base,
reserving the right to appeal the denial of the motion to
suppress.
Williams urges this court to follow United States v. Diaz,
25 F.3d 392, 393-94 (6th Cir. 1992), which held that the training
and reliability of a dog must be established when a dog sniff is
used to establish probable cause to search.
The "standard of review for a motion to suppress based on
live testimony the suppression hearing is to accept the trial
court's factual findings unless clearly erroneous or influenced
by an incorrect view of the law." United States v. Alvarez, 6
3

F.3d 287, 289 (5th Cir. 1993), cert. denied, 114 S. Ct. 1384
(1994). The trial court's conclusions of law are reviewed de
novo. Id.
Although there is no authority directly on point, the
district court's determination was not error. The fact that the
dog alerted provided probable cause to search. See United States
v. Seals, 987 F.2d 1102, 1107 (5th Cir.), cert. denied, 114 S.
Ct. 155 (1993). Further, Daniel appears controlling. Daniel
held that "Daniel's theory that an affidavit must show how
reliable a drug-detecting dog has been in the past" is without
jurisprudential support in this circuit. Daniel, 982 F.2d 152
n.7. Because a showing of the dog's reliability is unnecessary
with regard to obtaining a search warrant, a fortiori, a showing
of the dog's reliability is not required if probable cause is
developed on site as a result of a dog sniff of a vehicle. But
see Diaz, 25 F.3d at 394 (holding that "to support a
determination of probable cause, the training and reliability of
the dog must be established.").
Williams's judgment of conviction and sentence are AFFIRMED.
4