United States v. Gary Colldock ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10333
Plaintiff-Appellee, D.C. No.
4:16-cr-01254-JAS-LCK-1
v.
GARY STEVEN COLLDOCK, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted September 16, 2020**
San Francisco, California
Before: WATFORD, FRIEDLAND, and MILLER, Circuit Judges.
Gary Colldock appeals the district court’s denial of his motion to suppress
evidence obtained following the execution of a search warrant that authorized GPS
tracking of his car. He argues that the warrant was not supported by probable
cause. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
“A search warrant is supported by probable cause if the issuing judge finds
that, ‘given all the circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.’” United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). When deciding whether to
suppress evidence obtained following execution of a warrant, courts assess whether
the issuing judge “‘had a substantial basis for . . . conclud[ing] that probable cause
existed,’” and give “great deference” to the issuing judge’s probable cause
determination, overturning it only for clear error. United States v. Krupa, 658 F.3d
1174, 1177 (9th Cir. 2011) (alterations in original) (quoting Gates, 462 U.S. at
238-39).
Generally, “[w]e review a district court’s rulings on motions to suppress and
the validity of search warrants de novo.” Underwood, 725 F.3d at 1081. The
Government here contends, however, that the district court’s ruling on the validity
of the warrant is “arguably” reviewable only for plain error, because Colldock did
not file any objections to the magistrate judge’s Report and Recommendation,
which the district court adopted. We need not resolve any dispute over the
standard of review because Colldock’s challenge fails even under de novo review.
Here, there was a substantial basis for concluding that probable cause
existed—that is, to find a fair probability that, by tracking the location of
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Colldock’s car, law enforcement would find evidence that Colldock had engaged
in drug trafficking. As the affidavit in support of the warrant application
explained, a federal agent obtained methamphetamine by mail on four separate
occasions, between May and August 2015, through orders placed with a vendor
identified as “DrWhite” on the dark web marketplace Agora. And the affidavit
demonstrated a fair probability that Colldock was the Agora vendor using the name
“DrWhite.”
Specifically, the affidavit explained that agents inferred from a
“verif[ication]” feature on Agora as well as their own intelligence about the way
vendors operate on dark web marketplaces that Agora’s “DrWhite” was probably
the same person who had, approximately two years earlier, used the name
“DrWhite” on the dark web marketplace Silk Road to provide a “cash-in-mail
service for bitcoin” (similar to a service offered by Agora’s “DrWhite”). Agents
linked the Silk Road “DrWhite” to Colldock based on messages that Silk Road’s
“DrWhite” had sent to customers requesting that funds be sent by mail to “Gary
C.” at Colldock’s then-address, as well as messages referencing a financial account
number associated with an individual with Colldock’s full name, date of birth, and
the same address as was on Colldock’s car registration. The identification of
Colldock as Agora’s “DrWhite” was also consistent with the fact that the four
packages of methamphetamine that had been ordered from Agora’s “DrWhite”
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were sent by mail with return addresses near the city in which Colldock lived at
that time. This evidence reasonably supports the inference that, by tracking the car
that was registered to Colldock and that he had been observed driving near the time
of the Agora transactions at issue, officers would uncover evidence of drug
trafficking.
Colldock argues that the information linking him to Agora’s “DrWhite” was
“stale” because of the two-year gap between the messages associated with Silk
Road’s “DrWhite” and the Agora activity that more immediately preceded the
warrant application. We disagree. The affidavit identified sufficient reasons to
conclude that the activity by Agora’s “DrWhite”—which occurred over the course
of a few months preceding the warrant application, with the most recent sale of
methamphetamine having occurred less than one month before the warrant
application was submitted—could probably be attributed to the same person who
had controlled the Silk Road “DrWhite” account approximately two years earlier.
Colldock also contests the affidavit’s statement that law enforcement had,
before seeking a GPS tracking warrant, “exhausted its investigative techniques.”
Colldock has failed to show, however, that this statement is material to the
assessment of whether there was probable cause to track Colldock’s location. To
the extent Colldock intends to suggest either that there was an exhaustion
requirement distinct from the probable cause requirement, or that he is entitled to
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relief based on a false statement in the affidavit, we deem any such challenges
forfeited for failure to develop these points in Colldock’s appellate briefs. See AE
ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 638 (9th Cir. 2012)
(explaining that we ordinarily do not consider issues not “specifically and
distinctly” argued in an opening brief (quoting United States v. Ullah, 976 F.2d
509, 514 (9th Cir. 1992)).1
AFFIRMED.
1
Because we hold that there was a substantial basis to conclude that the
warrant was supported by probable cause, we need not address whether the good-
faith exception to the exclusionary rule would apply here. See United States v.
Leon, 468 U.S. 897, 924-25 (1984) (explaining that courts may “exercise an
informed discretion” in selecting the most appropriate ground for decision when
the good-faith exception is raised).
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