Argued and Submitted April 18, 2013 —San Francisco, California
Appeal from the United States District Court for the District of Arizona D.C. No. 4:10-cr-00628-CKJ-GEE-1 Cindy K. Jorgenson, District Judge, Presiding
Brian I. Rademacher, Assistant Federal Public Defender, District of Arizona, Tucson, Arizona, argued the cause and filed the briefs for the appellant. With him on the briefs were Jon M. Sands, Federal Public Defender, and Richard W. Raynor, Assistant Federal Public Defender, District of Arizona.
Bruce M. Ferg, Assistant United States Attorney, District of Arizona, Tucson, Arizona, argued the cause and filed a brief for the appellee. With him on the brief were John S. Leonardo, United States Attorney, and Christina M. Cabanillas, Appellate Chief, District of Arizona.
Before: Alfred T. Goodwin, Diarmuid F. O'Scannlain, and N. Randy Smith, Circuit Judges.
Reversing the denial of a suppression motion and vacating a conviction, the panel considered the demands of the Speedy Trial Act in the case of a superseding indictment, and explored the emerging parameters for the constitutional use of drug-detection dogs.
The panel held that charges in a superseding indictment not required to be joined with the original charges come with a new seventy-day clock under the Speedy Trial Act, and that the conspiracy count introduced in the superseding indictment in this case was not required to be joined with the count in the original indictment charging possession with intent to distribute marijuana.
Because in accord with then-binding precedent marijuana seized from a tool box attached to the bed of the defendant's truck was not subject to exclusion on the basis of an unconstitutional trespass or physical intrusion, the panel did not decide whether agents violated or implicated the Fourth Amendment by directing the drug-detection dog to jump up and put his paws and nose on the toolbox.
The panel reversed the denial of the suppression motion and vacated the conviction because the government's failure to turn over a full complement of dog-history discovery was error, and that error was not harmless.
Rejecting an alternative basis for invalidating the search, the panel explained that evidence from a trained and reliable handler about alert behavior recognized in his dog can, depending on the facts and circumstances, be the basis for probable cause.
This criminal appeal raises two issues of first impression. We are called upon to consider the demands of the Speedy Trial Act in the case of a superseding indictment as well as to explore the emerging parameters for the constitutional use of drug-detection dogs.
In the early afternoon on February 28, 2010, Jonathan Thomas approached a highway checkpoint in southern Arizona manned by the United States Border Patrol. He was driving a silver pick-up truck with a large black toolbox attached to the bed. Border Patrol Agent Christopher LeBlanc had a partner that day: "Beny-A, " his drug-detection dog, who was trained in the detection of concealed humans and controlled substances. LeBlanc was stationed about fifteen feet in front of a "primary inspection" area. As Thomas's truck passed, Beny-A started to demonstrate what LeBlanc described as "alert behavior." The dog's tail and ears went up, his posture and breathing pattern changed, and he started "air-scenting."
Based on those responses, agents directed Thomas to secondary inspection where he and his three young children exited the truck. Starting at the tailgate, LeBlanc walked Beny-A counterclockwise around the truck. As they encountered areas of interest, LeBlanc signaled Beny-A to go there. The dog was "in odor" throughout, meaning he was very animated and excited. Near the gas tank on the passenger side the dog exhibited more alert behavior. Beny-A is trained to perform what is known in the trade as an "indication" when he discovers contraband: he "rock[s] back into a sit."
When the team came upon the toolbox, LeBlanc cast his hand low-to-high. In response, Beny-A jumped up and placed his paws on the vehicle and pressed his nose against Thomas's toolbox. LeBlanc testified that the dog then tried to sit, but that he did not allow him to complete that trained indication. Next, LeBlanc returned Beny-A to his kennel, obtained Thomas's keys, and searched the locked toolbox. Inside was a blanket and, underneath, bundles of marijuana weighing about 150 pounds. Thomas was arrested, advised of his Miranda rights, and transported to the Tucson Border Patrol station. During interviews with the Border Patrol, Thomas said he had knowingly transported the marijuana but under duress.
Thomas was indicted on a single count of Possession with Intent to Distribute Marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C), on March 24, 2010. On May 18, 2011, a superseding indictment issued. In addition to renewing the possession offense, the superseding indictment added a charge: Conspiracy to Possess with Intent to Distribute Marijuana, 21 U.S.C. § 846.
Invoking the Speedy Trial Act, 18 U.S.C. §§ 3161, et seq., Thomas sought to have both counts in the superseding indictment dismissed. The court noted that 454 calendar days had elapsed since the original single-count indictment. Of that time, seventy-six days were non-excludable. Because that period exceeded the seventy-day "clock" under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), the district court entered a dismissal of the possession charge without prejudice. However, the court kept the conspiracy count alive, reasoning that under the Act the government could avail itself of a second seventy-day clock, triggered by the superseding indictment.
Before trial Thomas also filed a motion to suppress evidence of the marijuana obtained at the checkpoint. Thomas, Agent LeBlanc, and K9 Coordinator Paul Dubois testified about the circumstances surrounding the February 2010 search. Thomas pursued two arguments. He claimed that the search of the toolbox had violated the Fourth Amendment because the drug dog's failure to indicate meant probable cause had not been established. And during the suppression hearing, Thomas also objected to receiving heavily redacted training- and performance-evaluation records on Beny-A and his handler. After deciding that these limited disclosures satisfied the government's discovery obligation under ...