United States v. Francisco Salazar, Jr. , 598 F. App'x 490 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50388
Plaintiff - Appellee, D.C. No. 3:12-cr-04584-DMS-1
v.
MEMORANDUM*
FRANCISCO SALAZAR, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted November 19, 2014
Pasadena, California
Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.
Francisco Salazar, Jr. appeals the decision of the district court that denied his
motion to suppress evidence obtained by a warrantless download of electronic data
from his cellular phone incident to his arrest, and from a canine inspection of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
automobile on September 19, 2012. We have jurisdiction under 28 U.S.C. §§ 1291
& 1294(1). We find for the appellant and reverse the order of the district court.
The district court denied Salazar’s motion to suppress without the benefit of
Riley v. California, 134 S. Ct. 2473 (2014), in which the Supreme Court held that
the search of a cellular phone incident to arrest, absent exigency, requires a
probable cause warrant. The evidentiary record may be sparse and unclear as to
how the warrantless cellular phone search affected Salazar’s guilty plea, but the
law as to this issue is substantial and clear. See Riley, 134 S. Ct. at 2493; see also
United States v. Camou, No. 12-50598, 2014 WL 6980135 (9th Cir. Dec. 11,
2014). The district court’s failure to suppress the evidence obtained from the
unlawful search must be reversed.
The district court also lacked the benefit of United States v. Thomas, 726
F.3d 1086, 1096-97 (9th Cir. 2013), cert. denied, 134 S. Ct. 2154 (2014), where
this court concluded that redacted canine training records were inadequate to
demonstrate a canine’s reliability for a probable cause finding to justify a
subsequent search.
The issue regarding the canine reliability determination in this case is not
whether a mathematical review of numerical scores on submitted forms
demonstrate that the dog in this case, Charley, is a good dog, or that Beny-A, the
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dog in Thomas, may have been a bad dog, as the dissent’s analysis indicates. The
issue is whether the government fulfilled its duties to provide Salazar with a fair
hearing before the district court. See Florida v. Harris, 133 S. Ct. 1050, 1055-
1058 (2013).
The government has long been on notice that a defendant in a case such as
this one is entitled to canine training records and that their disclosure is mandatory.
United States v. Cedano-Arellano, 332 F.3d 568, 573 (9th Cir. 2003); see also
United States v. Cortez–Rocha, 394 F.3d 1115, 1118 n. 1 (9th Cir. 2005). These
types of records are “crucial to [a defendant’s] ability to assess the dog’s reliability,
a very important issue in his defense, and to conduct an effective cross-
examination of the dog’s handler.” Cedano-Arellano, 332 F.3d at 571 (emphasis
added).
The government submitted the unredacted canine training records to this
panel on appeal. Under Cedano-Arellano this is insufficient to cure the error. Id.
at 573. It is at the district court, where the facts are determined, testimony is
subject to searching cross-examination, and the evidentiary record is compiled, that
unredacted canine records must, at a minimum, be presented to the judge in camera
for review and considered in light of the specific facts at issue in the trial. Id.
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We would deprive the district court of its proper function were we to allow
the government to successfully circumvent the usual rules of criminal procedure,
Fed. R. Crim. P. 16, and the requirements of Ninth Circuit precedent, Thomas, 726
F.3d at 1096-97, by introducing mandatory unredacted training records only when
a case is on appeal. “[A] probable-cause hearing focusing on a dog’s alert should
proceed much like any other. The court should allow the parties to make their best
case, consistent with the usual rules of criminal procedure. And the court should
then evaluate the proffered evidence to decide what all the circumstances
demonstrate. If . . . 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, 133 S. Ct. at 1058 (emphasis added).
“The question . . . is whether 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.” Id. The lens of
common sense used in answering this question should only on rare occasion be
darkened by the government’s redacting pen.
In this case, the defendant challenged the canine’s reliability and points to
specific instances where the unredacted canine training records, along with
effective cross-examination, may have “changed the ultimate determination that
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the agents had [probable cause] to support their search[.]” Cedano-Arellano, 332
F.3d at 574.
We therefore reverse and remand to the district court for further proceedings
in light of intervening case law.
Per the Conditional Plea Agreement between Salazar and the government
filed May 21, 2013, and Fed. R. Crim. P. 11(a)(2), Salazar is permitted to withdraw
his plea of guilty to 21 U.S.C. §§ 841(a)(1) and 846. See United States v. Mejia,
69 F.3d 309 (9th Cir. 1995).
REVERSED AND REMANDED.
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FILED
United States v. Salazar, No. 13-50388 JAN 16 2015
MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. In my view, reversal is unwarranted because any error
was harmless.
A. Charley’s Training Records
Even if the unredacted training records for Charley (the dog) had been
available, they would not have changed the district court’s finding that Charley
was reliable. In United States v. Cedano-Arellano, a dog sniff case with similar
facts, we found that “while defense counsel should have been given access to the
requested documents, there was nothing in those documents that would have
changed the ultimate determination that the agents” had reasonable suspicion to
search the vehicle. 332 F.3d 568, 574 (9th Cir. 2003). The same conclusion
applies with equal force here.
The government produced records that revealed Charley’s scores, which
were nearly all passing marks. It redacted the comments on Charley’s performance
and how the training was conducted. On appeal, we have the benefit of the
unredacted records and can readily see that the redacted comments are
overwhelmingly positive. If anything, the redacted comments strengthen the
district court’s finding that Charley was reliable.1
The facts here contrast sharply with those in United States v. Thomas, where
we reversed a denial of a motion to suppress because of the district court’s reliance
on redacted training records. 726 F.3d 1086 (9th Cir. 2013). In Thomas, we did
not have the unredacted records, and thus we “[could not] say that there is ‘nothing
in those documents that would have changed the ultimate determination that the
agents had [probable cause] to support their search.’” Id. at 1097 (first alteration
added, second alteration in original) (quoting Cedano-Arellano, 332 F.3d at 574).
Moreover, Beny-A, the dog in Thomas, is no Charley. Among other
differences, Beny-A and his handler received failing scores on every single
performance record in various categories, and received failing scores around 6
percent of the time. See Excerpts of Record of Appellant at 216-31, United States
v. Thomas, 726 F.3d 1086 (9th Cir. 2013) (No. 11-10451), ECF No. 42. The
1
The majority states that the relevant question is not Charley’s reliability,
but the government’s responsibility to provide Salazar with a fair hearing. But to
the extent that this is a discovery issue, it bears mention that defense counsel did
not object below to the redactions. As we explained in United States v. Henderson,
when the government withholds discovery information based on a claim of
privilege, “a district court must hold an in camera hearing whenever the defendant
makes a minimal threshold showing that disclosure would be relevant.” 241 F.3d
638, 645 (9th Cir. 2000) (quoting United States v. Spires, 3 F.3d 1234, 1238 (9th
Cir. 1993)) (internal quotation marks omitted). By failing to object or request an in
camera review, Salazar failed to make such a showing. Moreover, Salazar’s failure
to object arguably limits us to plain error review, as the government argues. In any
event, even under harmless error review, Salazar’s claim fails.
government in Thomas also conceded that the redacted comments likely would
include “critiques of the team’s competence as well as discussions about areas for
improvement.” Thomas, 726 F.3d at 1097. Charley, on the other hand, received
failing scores less than one-half of one percent of the time, and the redacted
comments on his records are overwhelmingly positive. The redacted comments
here—nearly all along the lines of “Great job! Team works very well together” and
“Canine has a great nose and strong alert”—generally praise Charley’s
performance. The redactions do not undermine the probable cause analysis, and
any error in redacting the records is therefore harmless. See Florida v. Harris, 133
S. Ct. 1050, 1057 (2013) (observing that “evidence of a dog’s satisfactory
performance in a certification or training program can itself provide sufficient
reason to trust his alert”).
B. The Cell Phone Records
Any error in the district court’s failure to suppress the cell phone records
was harmless. Salazar pleaded guilty to being a member of a drug conspiracy, a
charge that was amply supported by other evidence. To find guilt of conspiracy,
the government need only prove “an agreement to accomplish an illegal purpose.”
United States v. Jackson, 167 F.3d 1280, 1285 (9th Cir. 1999). Here, evidence that
Salazar agreed to smuggle drugs is ample: the narcotics were found in the car that
3
Salazar owned, directly under his seat, and he appeared to be feigning sleep
throughout the entire stop (including at secondary inspection), a practice which the
attending Border Patrol agent identified as often used to avoid inspection. Given
the strength of this evidence, any error in admitting the cell phone records is
therefore harmless. See Fed. R. Crim. P. 52(a).
Salazar suggests that we follow the Tenth Circuit’s approach in United
States v. Benard, 680 F.3d 1206 (10th Cir. 2012). Under Benard, harmless error is
applied to the question of “whether there is a reasonable possibility that the error
contributed to the plea,” which is a difficult task because “a defendant’s decision to
plead guilty may be based on any factor inside or outside the record.” Id. at 1213
(quoting People v. Grant, 380 N.E.2d 257, 264 (N.Y. 1978)) (internal quotation
marks omitted).
We have not adopted this approach in the conditional plea context. See, e.g.,
Cedano-Arellano, 332 F.3d at 573-74 (applying harmless error analysis to an
appellant's conditional guilty plea when the existence of other evidence would not
have changed the outcome of a motion to suppress); United States v. Davis, 530
F.3d 1069, 1083-84 (9th Cir. 2008) (same). Even accepting Salazar’s suggestion,
however, there is little evidence to suggest that he might not have pleaded guilty
had the cell phone records been suppressed. Suppression of the cell phone records
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was mentioned nearly as an afterthought during the suppression hearing, and
nothing suggests that their content (which remains unknown) would have played a
significant role in the government’s case.
Salazar raises a number of additional arguments, none of which is
persuasive. Therefore, I would affirm.
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