United States v. Jonathan Thomas
2013 WL 4017239, 2013 U.S. App. LEXIS 16413, 726 F.3d 1086 (2013)
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Rule of Law:
Under Federal Rule of Criminal Procedure 16, the government must disclose a drug-detection dog's complete, unredacted training and performance records when its alert forms the basis for probable cause, as such records are crucial for the defendant to meaningfully challenge the dog's reliability.
Facts:
- On February 28, 2010, Jonathan Thomas was driving his pick-up truck, which had a large toolbox in its bed, when he approached a U.S. Border Patrol checkpoint in Arizona.
- As Thomas's truck passed a preliminary area, Border Patrol Agent Christopher LeBlanc's drug-detection dog, Beny-A, exhibited 'alert behavior' such as tail and ears going up and changes in posture and breathing.
- Agents directed Thomas to a secondary inspection area, where he and his three children exited the vehicle.
- LeBlanc walked Beny-A around the truck, and the dog continued to show alert behavior, particularly near the gas tank and a large toolbox attached to the truck's bed.
- At the toolbox, LeBlanc prompted Beny-A, who jumped up, placed his paws on the vehicle, and pressed his nose against the toolbox.
- Agent LeBlanc testified that the dog attempted to perform its final trained 'indication' of rocking back into a sit, but he did not allow the dog to complete the action.
- LeBlanc then obtained Thomas's keys, opened the locked toolbox, and discovered approximately 150 pounds of marijuana hidden under a blanket.
- Following his arrest, Thomas stated he had knowingly transported the marijuana but claimed he was acting under duress.
Procedural Posture:
- Thomas was indicted in U.S. District Court on one count of Possession with Intent to Distribute Marijuana.
- Over a year later, a superseding indictment was issued, renewing the possession count and adding a new count of Conspiracy to Possess with Intent to Distribute Marijuana.
- Thomas filed a motion to dismiss both counts, arguing a violation of the Speedy Trial Act.
- The district court granted the motion as to the original possession count but denied it for the new conspiracy count, holding that the new charge started its own 70-day clock.
- Thomas filed a motion to suppress the marijuana evidence, arguing lack of probable cause and challenging the government's production of heavily redacted records of the drug dog's performance.
- The district court denied the motion to suppress.
- Following a jury trial on the conspiracy count, Thomas was found guilty.
- Thomas, as appellant, appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does the government violate a defendant's discovery rights under Federal Rule of Criminal Procedure 16 when it provides heavily redacted training and performance records for a drug-detection dog whose alert is the basis for probable cause to search?
Opinions:
Majority - O'Scannlain, Circuit Judge
Yes. The government's failure to provide complete dog-history discovery was a prejudicial error. Federal Rule of Criminal Procedure 16 and precedent such as United States v. Cedano-Arellano and Florida v. Harris establish that a defendant has a right to challenge a drug-detection dog's reliability. This right is meaningless unless the defense has access to complete records, including handler's logs, training materials, score sheets, and certification records. Here, the government's heavy redaction of Beny-A's records, which concealed critiques and training methodologies, impermissibly hamstrung the defense's ability to conduct an effective cross-examination and challenge the basis for probable cause. This error was not harmless, as the court cannot know if the concealed information would have undermined the dog's reliability. The court also held that a dog's alert behavior can establish probable cause even without a final trained indication, and that even if the dog's physical contact with the truck constituted a search under United States v. Jones, the exclusionary rule would not apply due to the good-faith exception, as agents were relying on then-binding precedent that authorized such sniffs.
Analysis:
This decision solidifies the Ninth Circuit's commitment to robust discovery rights for defendants challenging searches based on drug-dog alerts, reinforcing its holding in Cedano-Arellano. It clarifies that the government cannot use redactions or unsubstantiated claims of privilege to shield a dog's performance history from scrutiny. The court's application of the Davis v. U.S. good-faith exception pragmatically limits the retroactive effect of the Supreme Court's trespass-based Fourth Amendment analysis from U.S. v. Jones. This case provides a comprehensive framework for lower courts analyzing drug-dog searches, distinguishing between the substantive Fourth Amendment question, the applicability of the exclusionary rule, and the flexible, totality-of-the-circumstances standard for probable cause.
