UNITED STATES OF AMERICA v. NATHAN RUSSELL CATES
No. 22-8038
United States Court of Appeals for the Tenth Circuit
July 10, 2023
PUBLISH
Timothy J. Forwood, Assistant United States Attorney (Nicholas Vassallo, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Wyoming, Cheyenne, Wyoming, appearing for the Appellee.
Before BACHARACH, KELLY, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
Defendant Nathan Russell Cates appeals the denial of his motion to suppress evidence following his entry of a conditional guilty plea. Exercising jurisdiction pursuant to
Cates moved to suppress the evidence that was seized during the search of his vehicle. Additionally, Cates raised several motions seeking access to documents related to his suppression motion—namely, records bearing on the certification, training, and performance of the drug-detection dog in this case. After the district court denied these motions, Cates pleaded guilty to Count 1 of the indictment. Under the terms of his conditional plea agreement, Cates reserved the right to appeal the district court‘s denial of his motion to suppress.
On appeal, Cates contends that (1) the district court erred in holding that the duration of the traffic stop was reasonable under the Fourth Amendment because law enforcement unreasonably prolonged the stop to arrange for a dog sniff of the vehicle, and (2) the district court erred in denying his motion to compel discovery regarding the drug-detection dog‘s reliability. We reject Cates‘s arguments and affirm the district court‘s denial of Cates‘s motion to suppress.
I
A. Factual Background
On May 11, 2021, WHP Troopers Scott Neilson and Andrew Jackson were conducting a drug interdiction detail in Laramie County, Wyoming. Both troopers, in
Trooper Neilson pulled out from the median and attempted to catch up to the SUV to see if he could run the license plate and observe any traffic violations. When Trooper Neilson caught up to the SUV, the driver turned off at an exit ramp. At the bottom of the exit ramp, the SUV turned onto a street with a speed limit of 45 mph. Trooper Neilson believed the SUV was speeding and activated his radar, which confirmed that the vehicle‘s speed was 50 mph. Trooper Neilson activated his lights, and the driver pulled over into a parking lot. The stop occurred at 6:39:32 p.m.
Trooper Neilson approached the SUV‘s front passenger window, where he observed Cates in the driver‘s seat. Trooper Neilson informed Cates that he had stopped him for speeding, and he asked for Cates‘s driver‘s license, registration, and proof of insurance. Cates provided his driver‘s license and stated that the SUV was a rental vehicle. After Trooper Neilson asked for the rental information, Cates said that the rental contract might be on his phone. From prior experience, Trooper Neilson knew that locating rental agreements on a phone was often time consuming, so he asked Cates to join him in his patrol car while Cates searched for the rental agreement. Trooper Neilson also told Cates that he would just issue him a warning
During this conversation, Trooper Neilson noticed a refueling canister for butane lighters on the passenger seat of the vehicle. Trooper Neilson knew that such cannisters were used to heat methamphetamine into vapors to smoke. Trooper Neilson also noticed that the back seats of the SUV were folded down and that several duffel bags were in the cargo area of the vehicle. Additionally, Trooper Neilson observed that Cates‘s hand was trembling while he tried to operate his phone and that Cates failed to make “decent eye contact.” Id. at 29–30.
As Trooper Neilson walked back to his patrol car, he radioed Trooper Jackson and requested that Trooper Jackson respond to his location. Trooper Neilson waited by the driver‘s side of his patrol car for Cates to exit the SUV and walk to the patrol car. When Cates arrived at the patrol car, Trooper Neilson asked him to sit in the passenger seat. Both men entered the car at 6:40:45 p.m.
In the patrol car, Trooper Neilson sent a text message to Trooper Jackson, asking him to run his canine around the exterior of Cates‘s SUV. Trooper Neilson then began to run Cates‘s driver‘s license on the computer in his patrol car. Trooper Neilson simultaneously conversed with Cates about his travel plans. Cates stated that he had been at his mother‘s house in California for approximately four days and that he was on his way home to Iowa.
Trooper Neilson informed Cates that he was running his driver‘s license, and he asked if Cates‘s license was clear and valid. Cates‘s license check indicated that
Just prior to Trooper Neilson requesting a check of Cates‘s criminal history, Trooper Jackson arrived with his canine partner, May, at 6:42:30 p.m. When Trooper Jackson arrived, he and May walked past Trooper Neilson‘s patrol car and went directly to Cates‘s SUV. Trooper Neilson continued completing his paperwork, and Cates continued searching for his rental agreement. When Trooper Jackson walked up to Cates‘s SUV, he immediately deployed May around its exterior to conduct an open-air sniff for narcotics. May alerted twice to the presence of controlled substances—first, at the driver‘s side door (6:43:25 p.m.), and second, at the passenger‘s side door (6:44:14 p.m.).
At 6:44:50 p.m., Trooper Jackson walked to Trooper Neilson‘s patrol vehicle and informed Trooper Neilson that May had alerted to both sides of Cates‘s SUV. At that point, Trooper Neilson had not yet completed the warning for Cates, and he had
Shortly after May alerted, Cates showed Trooper Neilson an email on his phone indicating that he had reserved a vehicle from Budget Car Rental. The email did not contain the rental agreement, however, and it did not confirm any details regarding the rental vehicle—such as the authorized renter, where the vehicle was rented from, the date when the vehicle was rented, or when the vehicle was due to be returned.
Thereafter, Trooper Neilson searched the SUV. He found forty-eight pounds of methamphetamine and thirty pounds of marijuana. Trooper Neilson then placed Cates under arrest.
B. Procedural History
On September 22, 2021, a federal grand jury returned an indictment charging Cates with (1) one count of possession with intent to distribute 500 grams or more of a mixture or substance containing a detectible amount of methamphetamine (Count 1), and (2) one count of possession with intent to distribute tetrahydrocannabinol (Count 2).
1. The Motion to Suppress and Rule 17(c) Motion for a Subpoena
Cates filed a motion to suppress the evidence discovered from the search and seizure of his person and his rental vehicle. In his motion to suppress, and as relevant here, Cates argued that (1) Trooper Neilson impermissibly extended the duration of the traffic stop by messaging Trooper Jackson to arrange the dog sniff
In his suppression motion, Cates noted that the defense had twice requested that the government disclose WHP‘s Standard Operating Procedures and May‘s training and deployment records in discovery. Cates asserted that, in response, the government produced a one-page canine narcotics certification bearing the same date as Cates‘s arrest, without any information about whether the certification was issued before or after the open-air sniff search of Cates‘s vehicle.
Proceeding under
- Trooper Jackson‘s application to apply as a canine handler (WHP Policy and Procedure 09-08, #2.1).
- Narcotic Detection Canine May‘s monthly “Canine Deployment Record (P-57)” for the months spanning May 2020 to June 2021 (WHP Policy and Procedure 09-08, #3.3.1).
- Narcotic Detection Canine May‘s monthly “Canine Proficiency Training Record (P-58)” for the months spanning May 2020 to June 2021 (WHP Policy and Procedure 09-08, #3.3.2).
- Narcotic Detection Canine May‘s monthly training record for the months spanning May 2020 to June 2021 (WHP Policy and Procedure
09-08, #8.1). - Narcotic Detection Canine May‘s annual “Internal or External Certification” for each year in which WHP has employed May. (WHP Policy and Procedure 09-08, #8.2).
- Any WHP discipline records for May or any discipline records maintained by WHP for May.
Supp. ROA at 5–7.
The district court denied Cates‘s motion to subpoena the records. As an initial matter, the district court stated that the subpoena was improperly filed ex parte, as Cates‘s suppression motion already put the government on notice that Cates was challenging the reliability of May‘s alert. Next, the district court turned to the issue of document production, and it noted that Cates‘s motion did not establish whether any of the documents sought existed. Additionally, the district court stated:
It is impermissible at this time – both as a matter of procedure and the substantive law regarding reliability of canine drug detections – to request prehearing production of these documents. “Rule 17(c) is ‘not intended to provide an additional means of discovery,’ but ‘to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials.‘” United States v. Bartkowicz, No. 10-CR-118-PAB, 2010 WL 3733552, at *1 (D. Colo. Sept. 17, 2010) (quoting Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951)).
Id. at 17.
The district court also determined that Cates could not show that the requested materials were “relevant and necessary until the government puts on its evidence at the suppression hearing.” Id. at 18. Specifically, the district court cited Florida v. Harris, 568 U.S. 237 (2013), for the proposition that, although “criminal defendants
2. The Suppression Hearing and Ruling
At the subsequent hearing on Cates‘s suppression motion, Troopers Neilson and Jackson testified to the facts as described above. The government also introduced dashcam videos of the traffic stop and the open-air canine sniff into evidence.
The government reviewed the training that both Trooper Jackson and May completed prior to May‘s certification. May was purchased in 2015 from a company that provided May‘s initial instruction, which included training her to detect marijuana, cocaine, methamphetamine, and heroin. After May‘s initial training, Trooper Jackson and May completed approximately two and a half weeks of further training together.
Trooper Jackson testified that he and May have to be certified every year. He noted that they had been recertified by the California Narcotics Canine Association
Trooper Jackson provided an overview of his certification test with May on the morning of May 11, 2021. In the first test, they had seven minutes to search three vehicles to find the drugs. May found the substances in each vehicle (marijuana and heroin) and passed. In the second test, they entered a building with four rooms. Three of those rooms contained drugs or drug odors (methamphetamine, cocaine, and heroin), with the remaining room containing no drugs or drug odors. Trooper Jackson and May passed without any false alerts.
Trooper Jackson also testified that WHP conducts an internal assessment each year, the most recent of which occurred in the fall of 2020. Trooper Jackson and May passed that assessment as well, and they were compliant with WHP‘s internal requirements.
On cross examination, defense counsel inquired further into Trooper Jackson and May‘s training and certification. Trooper Jackson stated that as part of WHP‘s requirements, he and May are required to complete sixteen hours of proficiency training each month. This proficiency training includes interior and open-air
During this cross examination, defense counsel attempted to obtain Trooper Jackson‘s reports as Jencks statements under
[T]he bigger issue is whether defense counsel has made the threshold showing that -- through witness testimony or tendered evidence or certification or lack of certification or lack of training that there‘s a question about the validity or the reliability of certification.
And it is my conclusion that threshold showing has not been established to warrant producing additional supporting documentation. And so I‘ll deny the motion under 26.2, which was previously denied, and the alternative request for a motion to compel.
Id. at 115–16. At the conclusion of the evidence, the district court stated that it was inclined to deny the suppression motion.
While Trooper Neilson could have just issued a warning for speeding, no law requires him to do so without running routine inquiries. The Court finds nothing unreasonable in Trooper Neilson‘s ordinary actions and questions, especially those related to determining whether Mr. Cates had the legal right to operate the vehicle and had the required insurance documentation. During the full extent of the stop, Mr. Cates was unable to produce any rental agreement or insurance documentation – thus Mr. Cates prolonged the stop, not Trooper Neilson. Because of this, the mission of the traffic stop did not finish prior to the canine alert, and Trooper Neilson was reasonably diligent in his pursuit of ordinary tasks related to the traffic stop.
ROA, Vol. I at 60 (citation omitted).
Next, the district court turned its attention to the issue of the drug-detection dog‘s reliability. The district court determined that the dog‘s alert provided the troopers with probable cause to search Cates‘s SUV because the dog was trained and certified to identify the odor of narcotics. Additionally, the district court addressed Cates‘s mid-hearing request for May‘s training and certification records. The district court concluded that production of May‘s training and performance records was not warranted because Cates failed to cast doubt on her reliability, generally, or her alert to Cates‘s vehicle, specifically.
On cross-examination, Defendant did not elicit any testimony that would cast doubt on the reliability of the CNCA training and certification for May and Trooper Jackson. Defendant questioned Trooper Jackson regarding the internal training that WHP requires of canine handlers with their dogs, and Trooper Jackson testified that he does conduct the required training with May. He confirmed that if a
dog alerts to blanks1 during such training, it would be documented in training logs. But Trooper Jackson did not testify that May had alerted to blanks in training. Accordingly, the Court again concludes that Defendant did not raise any doubt regarding the reliability of May‘s training or her alerts in this instance to warrant production of further documentation regarding May‘s training or performance.
Id. at 61–62.
3. The Plea Agreement and Sentencing
On February 14, 2022, the parties filed a conditional plea agreement pursuant to
Cates was sentenced to 180 months’ imprisonment, to be followed by five years of supervised release. Cates timely filed his notice of appeal.
II
A. Trooper Neilson Did Not Prolong the Traffic Stop in Violation of the Fourth Amendment
In his first issue on appeal, Cates argues that law enforcement prolonged the traffic stop in violation of the Fourth Amendment by conducting an unrelated criminal inquiry. For the reasons outlined below, we disagree.
When reviewing a district court‘s denial of a motion to suppress, “we view the evidence in the light most favorable to the government and accept the [district] court‘s factual findings unless clearly erroneous.” United States v. Smith, 531 F.3d 1261, 1265 (10th Cir. 2008). Further, “[w]e defer to all reasonable inferences made by law enforcement officers in light of their knowledge and professional experience distinguishing between innocent and suspicious actions.” United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015). “Ultimate determinations of reasonableness concerning Fourth Amendment issues and other questions of law, however, are reviewed de novo.” Smith, 531 F.3d at 1265 (citation omitted).
2. Legal Background
The Fourth Amendment protects individuals “against unreasonable searches and seizures.”
Actions related to a traffic stop‘s “mission” include those steps necessary to issue a ticket or warning, and “ordinary inquiries incident to the traffic stop,” such as
A traffic stop becomes unlawful, therefore, “when an officer (1) diverts from the traffic-based mission of the stop to investigate ordinary criminal conduct, (2) in a way that ‘prolongs’ (i.e., adds time to) the stop, and (3) the investigative detour is unsupported by any independent reasonable suspicion.” United States v. Frazier, 30 F.4th 1165, 1173 (10th Cir. 2022). “Even de minimis delays caused by unrelated inquiries violate the Fourth Amendment.” Mayville, 955 F.3d at 830 (citing Rodriguez, 575 U.S. at 355–57).
3. Analysis
Cates does not contend that he was illegally stopped, but rather that Trooper Neilson impermissibly prolonged the traffic stop in violation of the Fourth Amendment. Cates argues that Trooper Neilson “diverted from the traffic-based mission of the stop, and thereby extended its duration, in his efforts to arrange for a
Trooper Neilson‘s actions leading up to his sending the text message were within the confines of the Fourth Amendment. He was entitled to (1) check Cates‘s driver‘s license, registration, and proof of insurance (or, in this case, the rental agreement), see Rodriguez, 575 U.S. at 355 (“[A]n officer‘s mission” during a traffic stop includes “checking the driver‘s license . . . and inspecting the automobile‘s registration and proof of insurance.”); and (2) ask Cates identifying questions and inquire about his travel plans, see Cortez, 965 F.3d at 838 (“An officer may also inquire about the driver‘s travel plans and the identity of the individuals in the vehicle.”). Then, because Trooper Neilson knew from prior experience that it might take a while for Cates to locate the rental agreement on his phone, he asked Cates to come to his patrol car to continue searching while Trooper Neilson completed the warning paperwork. As Trooper Neilson walked back to his patrol car, and before Cates joined him there, he radioed for Trooper Jackson to respond to his location. The parties do not challenge the legality of the events up to this point.
Right after Trooper Neilson and Cates entered the patrol car, Trooper Neilson sent a text message to Trooper Jackson requesting that he deploy his canine around
As we held in Mayville, “[b]ecause the dog sniff and alert were contemporaneous with the troopers’ reasonably diligent pursuit of the stop‘s mission, the subsequent search of [the d]efendant‘s vehicle and discovery of evidence did not violate his Fourth Amendment rights.” Mayville, 955 F.3d at 833. Although we can imagine other situations in which an officer‘s decision to arrange for an open-air dog sniff would unreasonably prolong a traffic stop, this case is not one of them. All in all, it took approximately three minutes from the start of the traffic stop until Trooper Jackson arrived onsite with May. And, critically, during this time, Trooper Neilson continued executing the tasks incident to a traffic stop, such as running Cates‘s license and checking for any outstanding warrants. We conclude Trooper Neilson
Cates‘s arguments to the contrary are unconvincing. First, Cates attempts to analogize his case to our recent decision in Frazier, in which we held that an officer conducted an investigative detour that prolonged the traffic stop in violation of the Fourth Amendment. 30 F.4th at 1173. Frazier is distinguishable. There, the driver was unable to produce a rental agreement for his rental vehicle, but he promptly provided the rental vehicle‘s registration information and a phone number for the rental company. Id. at 1170–71. Once the trooper returned to his patrol vehicle with this information, however, he did not proceed to issue a citation or attempt to contact the car rental company. Id. at 1171. Instead, the trooper spent three minutes attempting to arrange for an open-air sniff of the defendant‘s rental vehicle. Id. at 1171. During this time, the trooper unsuccessfully tried to contact a canine handler through multiple instant messages and a radio call; when the canine handler failed to respond, the trooper finally requested that a dispatcher locate the canine handler and send him to the scene. Id. We observed that “each minute that the trooper spent arranging the dog sniff was time the citation-related tasks went unaddressed,” and the trooper‘s “actions necessarily prolonged the stop.” Id. at 1173. Accordingly, we concluded that “the trooper‘s efforts to arrange for a dog sniff diverted from the traffic-based mission of the stop and thereby extended its duration.” Id.
Here, by contrast, Trooper Neilson contacted Trooper Jackson first by radio while he was walking to his patrol vehicle and was still waiting for Cates to join him.
Second, Cates argues that the district court misapplied Rodriguez when it “blessed” Trooper Neilson‘s “diversion” from the mission of the stop “because [Cates] was unable to find his rental paperwork at any point during the stop, including prior to and during the dog sniff.” Aplt. Br. at 15. According to Cates, “[t]he fact that [Cates] was unable to find his rental paperwork did not relieve
Contrary to Cates’s arguments, the district court properly applied Rodriguez and concluded that Trooper Neilson stayed on task by diligently pursuing the mission of the traffic stop. Trooper Neilson’s actions were unlike those of the officer in Rodriguez, who conducted an open-air dog sniff search after he had fully completed a traffic stop and issued the driver a written warning for the traffic offense. 575 U.S. at 352. There, seven or eight minutes had elapsed from the time the officer issued the warning until the canine alerted. Id. The Supreme Court held that law enforcement cannot “routinely . . . extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.” Id. at 353. The Court observed that “[i]f an officer can complete traffic-based inquiries expeditiously, then that is the amount of time reasonably required to complete the stop’s mission,” and “a traffic stop prolonged beyond that point is unlawful.” Id. at 357 (internal quotation marks, citation, and brackets omitted). Here, by contrast, in the three minutes that elapsed from the start of the traffic stop to Trooper Jackson’s arrival with May, Trooper Neilson was diligently engaged in routine tasks incident to the traffic stop. See id. at 355 (noting that inquiries such as “inspecting the automobile’s registration and proof of insurance” are “ordinary inquiries incident to the traffic stop.” (internal quotation marks, citations, and brackets omitted)).
We conclude that Trooper Neilson’s text message did not illegally extend the duration of the traffic stop.
In his second issue on appeal, Cates argues that the district court erroneously denied his motion to compel discovery of May’s training, certification, and field-performance records. In response, the government asserts this issue is not properly before this court because Cates has both forfeited and waived this argument. The government argues that Cates forfeited this issue because he failed to preserve any alleged discovery violation before the district court. Additionally, the government asserts that, even if Cates did not forfeit the issue, he waived it by pleading guilty pursuant to a conditional plea agreement that limits any appeal to the denial of his motion to suppress. The government further contends that if the issue is addressed, the district court did not abuse its discretion in denying production of May’s historical canine records. We agree with Cates that he neither forfeited nor waived this issue
1. Forfeiture: Cates Preserved the Discovery Issue by Bringing It to the Court’s Attention at the Suppression Hearing
To preserve an issue for appeal, a party must “alert the district court to the issue and seek a ruling.” GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1206 (10th Cir. 2022) (citation and brackets omitted). “[A] party does not preserve an issue merely by . . . presenting it to the district court in a vague and ambiguous manner, or by making a fleeting contention before the district court.” Id. (internal quotation marks, citation, and brackets omitted). However, a party need not “use any particular language or even . . . wait until the court issues its ruling” to properly preserve an
Here, Cates preserved the discovery issue by bringing it to the district court’s attention at the suppression hearing. Cates sought production of May’s records on two separate and independent grounds: (1) as a testifying witness’s prior statements under
[A]s the trooper testified, these were electronically signed records and statements he made regarding the performance of May. They do fall under
Rule 26.2 .And in the alternative, if the Court determines they are not, we ask that they be produced under a motion to compel the [g]overnment, as they are subject to discovery, and discovery denial in pursuit of a motion to suppress is not harmless error, Your Honor. And that was established in a different circuit in United States v. Thomas, 726 F.3d 1086, at page 1096. And that’s a Ninth Circuit case from 2013.
So I stand on initially our motion under
Rule 26.2 , but we also believe it is a motion -- an alternative motion to compel at this point, as we have established these records do exist and they are relevant.
ROA, Vol. III at 115. Moreover, the district court explicitly denied Cates’s oral motion to compel discovery, both at the suppression hearing and in its written order on the motion to suppress. Id. at 116 (“I’ll deny the motion under 26.2, which was previously denied, and the alternative request for a motion to compel.” (emphasis added)); ROA, Vol. I at 62 (“Accordingly, the Court again concludes that Defendant did not raise any doubt regarding the reliability of May’s training or her alerts in this
The government also argues that Cates’s request for discovery that he raised at the suppression hearing was not “sufficiently definite, specific, detailed and nonconjectural.” Aple. Br. at 25 (quoting United States v. White, 584 F.3d 935, 949 (10th Cir. 2009)). We disagree. At the suppression hearing, defense counsel argued that these records were relevant and subject to discovery. Additionally, defense counsel noted that he had established that these records exist, as the district court had previously denied Cates’s
2. Waiver: The Plea Agreement Reserved Cates’s Right to Appeal the Discovery Issue
The government also contends that Cates waived his right to appeal the discovery issue in his plea agreement. This argument also fails.
In determining whether to enforce an appeal waiver, this court considers: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam).
Here, only the scope of the waiver is at issue. We “strictly construe” the waiver and read any ambiguities “against the [g]overnment and in favor of a defendant’s appellate rights.” Id. (citation and brackets omitted). “In determining a waiver’s scope, . . . the text of the plea agreement is our guide.” United States v. Anderson, 374 F.3d 955, 957 (10th Cir. 2004) (citation omitted).
Cates entered a conditional plea reserving his right to appeal the district court’s order denying his motion to suppress. Specifically, the appeal waiver includes the following exception in subsection (a): “The Defendant may raise a claim as expressly provided for in paragraph 8 above.” ROA, Vol. II at 15. Paragraph 8, entitled “Conditional Plea,” provides, in relevant part, that “[t]he Defendant reserves the right to appeal the adverse determination of his motion to suppress. (Docs. 23 (motion) & Doc. 34 (order)),” and that “[i]f the Defendant prevails on the specific issues raised in his motion to suppress (Doc. 23), the Defendant will be allowed to withdraw his plea of guilty under this agreement.” Id. at 13.
In his motion to suppress, Cates argued that the “canine ‘alert’ did not provide probable cause to search the vehicle” because the limited discovery provided by the government failed to establish that May was properly certified and well trained at the
The district court’s order denying the motion to suppress, therefore, explicitly addressed the discovery argument that Cates now advances on appeal—namely, that the district court erred by requiring Cates to first cast “doubt” on May’s reliability before compelling the government to produce her records, which Cates contends were material to his defense under
C. The District Court Did Not Err by Denying Cates’s Motion to Compel Discovery of the Historical Canine Records
Cates argues that he was entitled to May’s historical canine records under
1. Standard of Review
“We generally review for an abuse of discretion the district court’s denial of a discovery request for documentary evidence.” United States v. Moya, 5 F.4th 1168, 1193 (10th Cir. 2021); see United States v. Bowers, 847 F.3d 1280, 1291 (10th Cir. 2017) (noting that the abuse-of-discretion standard applies to the denial of a motion for discovery under
2. Analysis
Under
Cates seeks May’s historical canine records in an attempt to prove that she was unqualified, and, therefore, that her alert failed to provide the officers with probable cause to search Cates’s vehicle. The district court denied all of Cates’s requests for the historical canine records. Specifically, the district court concluded that Cates was
We agree with the district court that Cates is not entitled, as a matter of course, to historical dog records. Thus, the central issue before us is whether a defendant is required to make a prima facie showing of materiality before the government may be compelled to turn over historical canine records. Our settled law counsels in the affirmative: “The defendant bears the burden to make a prima facie showing of materiality” in order to be successful under
a. Harris does not alter our Rule 16 analysis.
We provide only a brief review of Harris. There, the Florida Supreme Court had adopted a rule that a drug-detection dog’s alert could never establish probable cause if the government failed to produce “evidence of the dog’s performance history,” including records showing “how often the dog has alerted in the field without illegal contraband having been found.” Harris, 568 U.S. at 243 (quoting Harris v. State, 71 So. 3d 756, 769 (Fla. 2011)). The Supreme Court reversed and rejected Florida’s “inflexible checklist” of “evidentiary requirements,” which, the Court noted, was at odds with the totality-of-the-circumstances analysis that governs
Although the district court cited Harris when denying Cates further discovery of May’s training and performance records, we must not lose sight of the fact that Harris is a probable-cause case, not a
Certainly, a defendant “must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross examining the testifying officer or by introducing his own fact or expert witnesses.” Id. at 247. But, as will be discussed in the following section, this requirement adds nothing new to the materiality
Cates would have us rely on his reading of post-Harris cases to import some special rule for the discovery of dog records. In particular, Cates points to decisions from the Second and Ninth Circuits, which have cited to Harris when discussing whether the government was required to produce a dog’s field-performance, training, and certification records. See United States v. Foreste, 780 F.3d 518, 527–29 (2d Cir. 2015); United States v. Thomas, 726 F.3d 1086, 1096–97 (9th Cir. 2013). We are unpersuaded by Cates’s arguments.
In Foreste, the district court denied a defendant’s request for a drug-detection dog’s field-performance records based on the court’s view that such records were “not controlled instances” and therefore did not “tell you anything,” i.e., that the records were irrelevant. Id. at 529 (citation omitted). On appeal, the Second Circuit held that the district court’s denial of the defendant’s request for field-performance records was based on an “erroneous view of the law,” and thus constituted an abuse of discretion. Id. The Second Circuit reasoned that Harris “counsels caution, but it does not dictate an about-face from [the Second Circuit’s] long-standing position that a canine’s field performance is relevant to the probable cause inquiry.” Id.
Unlike the district court in Foreste, here the district court did not make sweeping generalizations regarding whether May’s field-performance records were
Similarly, in Thomas, the district court denied the defendant’s motion to suppress, based, in part, on the court’s conclusion that the government had satisfied its discovery obligation under
The Ninth Circuit agreed, and it concluded that the defendant’s legal position “was hamstrung by the fact that the certification records had been so redacted.” Id. The Ninth Circuit explained that, pursuant to prior precedent in that circuit, the government must provide the following information when a defendant “requests dog-history discovery to pursue a motion to suppress“: the handler’s log, training
By contrast, here the government has provided May’s most recent CNCA certification in full, without any redactions. May’s certification indicates that she satisfactorily completed her assessment—unlike the dog in Thomas, there is no indication that May’s performance was “marginal” in any manner. Id. Moreover, whereas Ninth Circuit precedent requires disclosure of a specific set of historical canine records, we have not implemented any predetermined requirements in our circuit. Further, it would be questionable if such requirements would pass muster after the Supreme Court’s ruling in Harris, which eschews rigid disclosure requirements. Here, the government demonstrated that May was properly certified on the day of the open-air sniff and that she had performed satisfactorily in her certification assessment. Because Cates failed to place in question the government’s showing, the district court did not err in rejecting Cates’s request for additional training records.
In order to successfully compel discovery under
Turning to the substance of Cates’s attempted showing of materiality, the district court did not abuse its discretion in determining that Cates failed to meet his burden. The government provided “evidence of [May’s] satisfactory performance in a certification or training program,” which, in turn, “provide[d] sufficient reason to trust h[er] alert.” Harris, 568 U.S. at 246. In particular, the government provided both testimony and documentary evidence that May, and her trainer, Trooper Jackson, were properly certified at the time of Cates’s traffic stop.
Trooper Jackson testified that May successfully completed her certification test without any false alerts and was issued a “Narcotic Certification” by the CNCA
III
For the foregoing reasons, we AFFIRM the district court’s denial of Cates’s motion to suppress.