United States v. Jonathan Thomas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-10451
Plaintiff-Appellee,
D.C. No.
v. 4:10-cr-00628-
CKJ-GEE-1
JONATHAN MICHAEL THOMAS,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted
April 18, 2013—San Francisco, California

Filed August 8, 2013

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain,
and N. Randy Smith, Circuit Judges.

Opinion by Judge O’Scannlain
2 UNITED STATES V . THOMAS

SUMMARY*

Criminal Law

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.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V . THOMAS 3

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.

COUNSEL

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.

OPINION

O’SCANNLAIN, Circuit Judge:

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.
4 UNITED STATES V . THOMAS

I

A

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.1 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.”

1
The parties dispute whether Thomas left his vehicle voluntarily and
whether he consented to an ensuing search. At the suppression hearing,
Thomas testified to telling the agent “no” when asked “for permission to
search the toolbox.”
 UNITED STATES V . THOMAS 5

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.

B

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.

1

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
6 UNITED STATES V . THOMAS

prejudice.2 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.

2

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 Federal Rule of Criminal Procedure 16, the
district judge ruled that the government had met its burden of
establishing probable cause. Thomas’s motion to suppress
was denied.

3

The case proceeded to trial. Thomas took the stand in his
defense. Having been unsuccessful in excluding the
marijuana, Thomas argued the legal excuse of duress. He did
not deny having knowingly possessed the drugs, nor did he
contest entering into a conspiracy to distribute them. Instead,
he argued that he had been an unwilling courier. Thomas

2
That offense was not recharged.
 UNITED STATES V . THOMAS 7

testified that a Hispanic man with a gun had lured him into
the desert under false pretenses and threatened to harm him
and his family unless he transported the marijuana. After a
two-day trial, the jury returned a guilty verdict as to
conspiracy—the only count remaining in the superseding
indictment. The court sentenced him to thirty months of
incarceration, followed by thirty-six months of supervised
release. Thomas timely appealed.

II

A

First, we consider Thomas’s claim that the Speedy Trial
Act required the district court to dismiss both counts of the
superseding indictment—not simply the possession offense
that traced to the original one-count indictment. What
distinguishes a superseding indictment from a reindictment is
that the former is issued without the original charge first
being dismissed. See United States v. Hoslett, 998 F.2d 648,
657 n.11 (9th Cir. 1993). Although the issue Thomas raises
is one of first impression, other circuits have confronted it,
and there is some prior guidance in our case law as to when
a subsequent indictment triggers a new speedy-trial period.

B

The Speedy Trial Act has three “clocks” that are relevant
to this statutory interpretation issue. For the most part, the
Act is designed to expedite the trial in that: (i) it
“establish[es] a thirty-day limit for filing an indictment after
an arrest,” United States v. Wilson, 690 F.2d 1267, 1276 (9th
Cir. 1982) (citing 18 U.S.C. § 3161(b)), and—central to this
case—(ii) it demands that a defendant have the opportunity
8 UNITED STATES V . THOMAS

to be tried within seventy days of indictment. 18 U.S.C.
§ 3161(c)(1). Conversely, to safeguard against the risk of
undue haste, section 3161(c)(2) prevents the government
from insisting that the trial begin “less than thirty days from
the date on which the defendant first appears.

1

We begin by considering the subsection creating the
seventy-day clock:

[i]n any case in which a plea of not guilty is
entered, the trial of a defendant charged in an
information or indictment with the
commission of an offense shall commence
within seventy days from the filing date (and
making public) of the information or
indictment, or from the date the defendant has
appeared . . . whichever date last occurs.

18 U.S.C. § 3161(c)(1) (emphasis added). The most
straightforward reading is that such provision applies to the
superseding indictment here. Under that view, the issuance
of the new indictment triggered a new seventy-day period in
which to bring Thomas to trial. Since the jury was empaneled
just over one month after the filing of the superseding
indictment, there would be no violation of the Speedy Trial
Act.

Matters are not quite so simple, however. We previously
have acknowledged that the Act does not expressly provide
for superseding indictments. See United States v.
Karsseboom, 881 F.2d 604, 606 (9th Cir. 1989). Instead, the
Act speaks directly as to reindictments only. On that score,
 UNITED STATES V . THOMAS 9

section 3161(d)(1) provides that when the defendant secures
a dismissal “both the 30-day trial preparation period and the
70-day speedy trial time period start over.” Karsseboom,
881 F.2d at 606. We have also held that when the defendant
is reindicted after a sua sponte dismissal by the court, the
seventy-day clock is reset. United States v. Feldman,
788 F.2d 544, 549 (9th Cir. 1986).

Thomas argues this new-clock rule, which applies to these
reindictment scenarios, has no application to indictments that
are superseding. In Karsseboom, we held that some
superseding indictments do not restart the original speedy-
trial clock. 881 F.2d at 607 (“When a superseding indictment
merely corrects technical errors but charges again the same
offenses the 70-day clock continues and does not begin anew
unless the original indictment in its entirety has been
previously dismissed.”). However, that case left open
whether in a situation such as this, where the new indictment
introduces different charges, the seventy-day clock starts
running anew.3

To resolve this problem (to which section 3161(c)(1) does
not provide a plain answer), we think it useful to consider
other aspects of the Speedy Trial Act. See Dada v. Mukasey,
554 U.S. 1, 16 (2008) (“In reading a statute we must not look

3
See, e.g., United States v. King, 483 F.3d 969, 972 (9th Cir. 2007)
(characterizing Karsseboom as holding that “the filing of a superseding
indictment will not automatically reset the [Speedy Trial Act] clock where
the new indictment does not charge a new crime, but only corrects a defect
in the original indictment”); United States v. Alvarez-Perez, 629 F.3d
1053, 1058 (9th Cir. 2010) (citing Karsseboom for the proposition that a
“superseding indictment charging [the] same offenses does not restart [the
Speedy Trial Act] clock”).
10 UNITED STATES V . THOMAS

merely to a particular clause but consider in connection with
it the whole statute.” (internal quotation marks omitted)).

Somewhat analogous to the government obtaining a
superseding indictment is the government’s choice to have an
indictment dismissed and recharged. See United States v.
Kelly, 45 F.3d 45, 48 (2d Cir. 1995). In that circumstance,
although the initial seventy-day clock still applies, section
3161(h)(5) slows its march by providing that, as “for the
same offense, or any offense required to be joined with that
offense, any period of delay from the date the charge was
dismissed to the date the time limitation would commence to
run as to the subsequent charge” should be excluded from the
applicable speedy-trial clock. See United States v. Magana-
Olvera, 917 F.2d 401, 405 (9th Cir. 1990). This language
suggests one of two possibilities for the case at hand. Either
separate and distinct charges brought by superseding
indictment—which are not “required to be joined”—are
meant to be governed by the most demanding timing
requirements (both ineligible for exclusion and subject to the
initial clock) or, alternatively, they stand on their own and are
subject to a new timing period under section 3161(c)(1).4

The latter conception is the better interpretation. We
believe the Fifth Circuit’s discussion in United States v.
Alford, 142 F.3d 825 (5th Cir. 1998), to be instructive. As
that court recognized, “as to charges that the government is

4
W e recognize that applying this lesson to superseding indictments
requires an inferential step since section 3161(h)(5), by its literal terms,
concerns only reindictments. Yet, we are not alone in understanding that
section to shed some light on how the Act operates with respect to
superseding indictments. See, e.g., United States v. Roman, 822 F.2d 261,
264–65 (2d Cir. 1987).
 UNITED STATES V . THOMAS 11

not required to join with the offenses charged in the original
indictment, the government may obtain a fresh speedy trial
clock by simply waiting until completion of the prosecution
for the charges contained in the original indictment and
beginning a new prosecution on the additional charges.” Id.
at 829. To interpret the Speedy Trial Act as Thomas urges,
would often relegate the government to that protracted and
inefficient procedure at no clear benefit to the defendant who
would have to endure trials seriatim. Like the Fifth Circuit,
we perceive “no logical basis for concluding that” is what the
Act requires. Id. We thus hold 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. See United States v. Rocha-Leon, 187 F.3d 1157, 1159
n.3 (9th Cir. 1999) (explaining that the “interpretation that ‘is
consistent with the language of the statute and avoids absurd
results’ is [to be] preferred” (quoting United States v. Alfeche,
942 F.2d 697, 698-99 (9th Cir.1991)).

This conclusion is in line with various out-of-circuit
authorities. See, e.g., United States v. Hale, 685 F.3d 522,
537 (5th Cir. 2012) (“[T]he original indictment started one
speedy trial clock for the original two charges, and the
superseding indictment started a second speedy trial clock for
the four new charges.”); Alford, 142 F.3d at 829–30 (same);
United States v. Lattany, 982 F.2d 866, 872 n.7 (3d Cir. 1992)
(concluding that when a superseding indictment “charges a
new offense that did not have to be joined with the original
charges, then the subsequent filing commences a new,
independent speedy trial period”); United States v. Marshall,
935 F.2d 1298, 1302 n.7 (D.C. Cir. 1991) (“If, conversely, the
charge in the second count was not one required to be joined
with the charges in the first indictment, then the speedy trial
clock for that count did not begin to run until [the date the
12 UNITED STATES V . THOMAS

superseding indictment was filed].”); cf. United States v.
Roman, 822 F.2d 261, 265 (2d Cir. 1987) (implicitly
accepting “that a new 70-day clock begins to run when the
superseding indictment contains a completely new charge”).

2

We now apply today’s holding to Thomas’s case. The
government had a new seventy-day clock under the Act so
long as the conspiracy count introduced in the superseding
indictment was not “required to be joined.”

Other courts of appeals have taken that concept as
referring to the “joinder required by the Double Jeopardy
Clause of the Constitution” and neither party urges a different
understanding here. United States v. Novak, 715 F.2d 810,
817 (3d Cir. 1983), overruling on other grounds recognized
in United States v. Felton, 811 F.2d 190, 195 (3d Cir. 1987);
see also Alford, 142 F.3d at 829; Marshall, 935 F.2d at 1302.
As the district court recognized, it is clear that double
jeopardy does not require the government to prosecute
Thomas for the conspiracy offense in the same trial as for
possession with intent to distribute. See United States v.
Felix, 503 U.S. 378, 391–92 (1992) (conspiracy to commit
drug offense distinct from substantive offense).

We conclude that Thomas’s prosecution for Conspiracy
to Possess with Intent to Distribute Marijuana complied with
the Speedy Trial Act because trial commenced within seventy
days of the superseding indictment.
 UNITED STATES V . THOMAS 13

III

Because the district court was correct not to dismiss the
conspiracy count, we turn to Thomas’s other pretrial
challenge: his argument that the evidence of marijuana should
have been suppressed pursuant to the Fourth Amendment and
the exclusionary rule. Contained within that argument are
three separate assertions.

To begin with, for the first time on appeal, Thomas
contends that agents invaded a constitutionally protected area
by directing the drug detection dog to “jump[] up and put his
paws and nose on the toobox in the truckbed, and stay[] like
that, refusing to move.” This argument is based on the
watershed Supreme Court opinion in United States v. Jones,
132 S. Ct. 945, 950–51 & n.3 (2012), as well as on a very
recent application of the principle announced in Jones to the
use of a drug dog within the curtilage of a home. See Florida
v. Jardines, 133 S. Ct. 1409, 1414 (2013).5

Second, Thomas argues that even if the dog’s touching
did not violate the Fourth Amendment in a way compelling
suppression, the government failed to disclose adequate
evidence of Beny-A’s and his handler’s proficiency and
experience to justify the search of his toolbox.

5
The government argues that T homas’s failure to raise this theory of
violation in his motion to suppress means that the argument is now
waived. Although he did not argue it in the district court, he could not
have been expected to since the Supreme Court had not yet handed down
Jones. Our court will review an issue raised for the first time on appeal
“when a change in law raises a new [purely legal] issue while an appeal
is pending,” and it is not inequitable to take it up. Native Ecosys. Council
v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012).
14 UNITED STATES V . THOMAS

Third, Thomas claims that even if the complete records
about the drug dog establish Beny-A’s reliability, his failure
to indicate by sitting means that the border patrol agents
lacked probable cause to search.

A

1

The government claims that it is frivolous for Thomas to
contend that the dog’s contact with his truck was a Fourth
Amendment search. After Jones and Jardines, his argument
cannot be so easily dismissed.

Before those cases, relying on a concurrence by Justice
Harlan from Katz v. United States, 389 U.S. 347 (1967),
courts typically “said that a violation occurs when
government officers violate a person’s ‘reasonable
expectation of privacy.’” Jones, 132 S. Ct. at 950 (citation
omitted). Jones changed the jurisprudential landscape by
holding that this was not the exclusive rubric. Id. at 950, 953.
Rather, we were to understand “the Katz reasonable-
expectation-of-privacy test [as having] been added to, not
substituted for, the common-law trespassory test.” Id. at 952;
see also id. at 954–55 (Sotomayor, J., concurring).

Case law now directs that if “‘the Government obtains
information by physically intruding’ on persons, houses,
papers, or effects, ‘a “search” within the original meaning of
the Fourth Amendment’ has ‘undoubtedly occurred.’”
Jardines, 133 S. Ct. at 1414 (quoting Jones, 132 S. Ct. at 950
n.3). Applying this principle, the Jones Court held that a de
minimis physical intrusion with respect to the exterior of a
car (installing a GPS-tracking device) was a search subject to
 UNITED STATES V . THOMAS 15

the Fourth Amendment’s requirement of reasonableness.
132 S. Ct. at 949, 954. And this past term, the Supreme Court
held that the use of “a trained police dog to explore the area
around the home in hopes of discovering incriminating
evidence” implicated the Jones principle. Jardines,
133 S. Ct. at 1416. It did so because using the dog in that
fashion exceeded the terms of the property-law license to
“approach the home by the front path, knock promptly, wait
briefly to be received, and then (absent invitation to linger
longer) leave.” Id. at 1415.

“It is beyond dispute that a vehicle is an ‘effect’ as that
term is used in the [Fourth] Amendment.” Jones, 132 S. Ct.
at 949 (citing United States v. Chadwick, 433 U.S. 1, 12
(1977)). Thus, it is conceivable that by directing the drug dog
to touch the truck and toolbox in order to gather sensory
information about what was inside, the border patrol agent
committed an unconstitutional trespass or physical intrusion.6

6
The government does not contend that any search nonetheless would
have been reasonable, and thus not a Fourth Amendment violation. It has
claimed, though, that the contact does not trigger the Amendment because
it falls short of constituting a trespass to chattel. This is not the case to
decide whether the elements of a particular tort of trespass or the concept
of a “physical entry or intrusion” should guide the inquiry. Although
Jones characterized the Court’s jurisprudence “until the latter half of the
20th Century” as “tied to common-law trespass,” 132 S. Ct. at 949, we
note that Jardines speaks only in terms of an intrusion. Furthermore, pre-
Katz decisions sometimes turned on “the reality of an actual intrusion into
a constitutionally protected area” rather than “the technicality of a
trespass.” Silverman v. United States, 365 U.S. 505, 512 (1961); see also
Orin S. Kerr, The Curious History of Fourth Amendment Searches,
2012 S. Ct. Rev. (forthcoming 2013).
16 UNITED STATES V . THOMAS

2

a

Yet we need not decide whether it violated or even
implicated the Fourth Amendment when agents directed the
dog to touch Thomas’s vehicle because, as the government
correctly observes, not every constitutional violation leads to
application of the exclusionary rule—a “judicially created
remedy” the only purpose of which “is to deter future Fourth
Amendment violations.” Davis v. United States, 131 S. Ct.
2419, 2426–27 (2011) (“Exclusion is not a personal
constitutional right, nor is it designed to redress the injury
occasioned by an unconstitutional search.” (internal quotation
marks omitted)). As a result of the exclusionary rule’s
limited aims, the Supreme Court has instructed us not to
apply it to “suppress the truth and set the criminal loose in the
community without punishment” if the evidence was
“obtained during a search conducted in reasonable reliance on
binding precedent.” Id. at 2427, 2429.7 This maxim aptly has
been dubbed “the ‘faith-in-caselaw’ exception to the
exclusionary rule.” Caleb Mason, New Police Surveillance
Technologies and the Good-Faith Exception: Warrantless
GPS Tracker Evidence After United States v. Jones, 13 Nev.
L.J. 60, 66 (2012).

7
T he scenario in Davis was that at the time officers performed their
search in Alabama, governing Eleventh Circuit precedent deemed their
actions constitutional. Davis’s motion to suppress had been denied in the
district court on the basis of that circuit precedent, but while on direct
appeal, the Supreme Court shifted doctrinal course by announcing a new,
more defendant-friendly version of the search-incident-to-arrest doctrine
in Arizona v. Gant, 556 U.S. 332 (2009). See Davis, 131 S. Ct. at
2425–26. Under Gant, the Eleventh Circuit recognized that Davis’s
Fourth Amendment rights had, in fact, been violated. Id. at 2426.
 UNITED STATES V . THOMAS 17

Applying this exception in United States v. Pineda-
Moreno, 688 F.3d 1087 (9th Cir. 2012), we determined that
the defendant could not rely on Jones to obtain suppression
of evidence derived from a GPS tracker on his car because
that precedent had not been on the books when the tracker
was installed, and because agents had acted “in objectively
reasonable reliance on then-binding precedent.” Id. at 1090.
So too here. In reaching such conclusion, we do not answer
the broad question of whether officers were on notice before
Jones that physical intrusions or trespassory behavior counted
as searches under the Fourth Amendment.8 That is because

8
The agents in Jones labored under the misconception that the
“reasonable expectation of privacy” test exclusively marked the
Amendment’s boundaries. See 132 S. Ct. at 950. Cases fostering that
impression were ubiquitous. See, e.g., New York v. Class, 475 U.S. 106,
112 (1986) (“[T]he State’s intrusion into a particular area, whether in an
automobile or elsewhere, cannot result in a Fourth Amendment violation
unless the area is one in which there is a constitutionally protected
reasonable expectation of privacy.” (internal marks omitted)); United
States v. Knotts, 460 U.S. 276, 280 (1983) (explaining that with Katz “the
Court overruled Olmstead saying that the Fourth Amendment’s reach
‘cannot turn upon the presence or absence of a physical intrusion into any
given enclosure.’” (citation omitted)); United States v. McIver, 186 F.3d
1119, 1126 (9th Cir. 1999) (explaining that “[t]he law of trespass” outlaws
intrusions “that the Fourth Amendment would not proscribe. For trespass
law extends to instances where the exercise of the right to exclude
vindicates no legitimate privacy interest” (alteration in original)); United
States v. Head, 783 F.2d 1422, 1427 (9th Cir. 1986) (concluding that
deputies’ physical touching of a car’s exterior had not constituted a
search); People v. Stillwell, 129 Cal. Rptr. 3d 233, 240 (Cal. Ct. App.
2011) (rejecting defendants’ claim that drug dog exceeded Fourth
Amendment limits “by placing his front paws on the” body of the car in
several places because “no reasonable expectation of privacy was
violated”); see Jones, 132 S. Ct. at 958 (Alito, J., concurring in the
judgment) (claiming the majority’s holding had “little if any support in
current Fourth Amendment case law”); but cf. Lavan v. City of Los
Angeles, 693 F.3d 1022, 1028 (9th Cir. 2012) (suggesting that a 1992
18 UNITED STATES V . THOMAS

authoritative guidance from the Supreme Court allowed the
particular actions of Beny-A and LeBlanc. In Illinois v.
Caballes, 543 U.S. 405 (2005), the Court held that “the use of
a well-trained narcotics-detection dog” on a motor vehicle did
“not rise to the level of a constitutionally cognizable
infringement.” Id. at 409; see also id. at 410 (“A dog sniff
conducted during a . . . lawful traffic stop that reveals no
information other than the location of a substance that no
individual has any right to possess does not violate the Fourth
Amendment.”).9 In City of Indianapolis v. Edmond, 531 U.S.
32 (2000), it was explained that “an exterior sniff of an
automobile” is permissible, in part, because it “does not
require entry into the car.” Id. at 40. Holding that “the
canine sniff is sui generis,” the Court earlier had held that
utilizing a drug-detection dog to examine luggage is not “a
search requiring probable cause.” United State v. Place,
462 U.S. 696, 706–07 (1983).

b

Thomas asserts that it would have been objectively
unreasonable for Agent LeBlanc to perceive these drug-dog
cases from the Supreme Court as blessing his use of Beny-A
to find the marijuana stowed in the toolbox of the pick-up.
Caballes and Edmond are insufficient in his view, because
they approved of officers walking “the drug dog around the

Supreme Court precedent “clarified that the Fourth Amendment protects
possessory and liberty interests even when privacy rights are not
implicated”).

9
See also Muehler v. Mena, 544 U.S. 93, 101 (2005) (explaining that
Caballes “held that a dog sniff performed during a traffic stop does not
violate the Fourth Amendment”).
 UNITED STATES V . THOMAS 19

car in public space, not to intrude in trespass on the vehicle.”
At oral argument, though, counsel for Thomas admitted that
those cases “didn’t say that”—in the sense that neither
authority so much as hinted that officers were to avoid
contact between the dog’s nose and paws and the vehicle’s
exterior.

This is significant for two reasons. First, it closely
parallels what the Supreme Court confronted in Davis when
it withheld exclusion on the basis of faith in precedent.
There, the Court addressed its prior holding that an officer
who had lawfully arrested “the occupant of an automobile . . .
may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile.” New York v.
Belton, 453 U.S. 454, 460 (1981). As the Supreme Court
would later acknowledge, Belton’s recitation of the facts did
mention that the car’s occupant had not been handcuffed or
otherwise secured at the time of the search. See Arizona v.
Gant, 129 S. Ct. 1710, 1717 (2009). Nonetheless, the Court
strongly suggested that it was reasonable to understand Belton
as authorizing a search even after the occupant “had been
subdued by police.” Davis, 131 S. Ct. at 2424.10 Even farther
afield, the key precedent on using a drug-detection dog on a
vehicle did not even recount whether the dog had made
physical contact during the search it validated. See Caballes,
543 U.S. at 406–10.

10
Although the precise precedential reliance in Davis was on Eleventh
Circuit case law, the majority also explained that “[f]or years, Belton was
widely understood to have set down [the] simple, bright-line rule” just
described. 131 S. Ct. at 2424; see also Thornton v. United States,
541 U.S. 615, 628 (2004) (Scalia, J., concurring in the judgment)
(collecting cases authorizing incident-to-arrest searches after the suspect
was secured, including one from this circuit).
20 UNITED STATES V . THOMAS

Second, the absence of a previously expressed limit along
the lines of Jones/Jardines matters because there can be no
exclusion “when binding appellate precedent specifically
authorizes a particular police practice.” Davis, 131 S. Ct. at
2429. It is beyond dispute that as of February 2010, when
Agent LeBlanc acted, Supreme Court precedent specifically
authorized law enforcement to use a drug-detection dog to
seek out illegal narcotics on a validly detained vehicle. See
Caballes, 543 U.S. at 409. When affairs are such, “well-
trained officers will and should use that tool to fulfill their
crime-detection and public-safety responsibilities.” Davis,
131 S. Ct. at 2429. “Police practices trigger the harsh
sanction of exclusion only when they are deliberate enough
to yield meaningful deterrence, and culpable enough to be
worth the price paid by the justice system.” Id. at 2428
(alterations and internal quotation marks omitted).

Because LeBlanc acted in accord with then-binding
precedent, the marijuana seized is not subject to exclusion on
the basis of an unconstitutional trespass or physical intrusion.

B

Separate from the dog’s touching, Thomas’s second and
third arguments for reversing the denial of the motion to
suppress identify the agents’ opening and investigating of the
toolbox as the unconstitutional search.

At fixed Border Patrol checkpoints within the nation’s
interior, the government can send a motorist for a brief
secondary inspection upon “a minimal showing of suspicion,”
but then (as is the case with an ordinary traffic stop) it needs
probable cause or consent in order to search the vehicle. See
United States v. Taylor, 934 F.2d 218, 220–21 (9th Cir.
 UNITED STATES V . THOMAS 21

1991).11 While he acknowledges that an alert by a reliable
drug-detection dog establishes probable cause, Thomas
challenges Beny-A’s reliability and questions whether the
behavior the dog exhibited was a probable-cause-generating
“alert.”

1

With respect to reliability, Thomas claims it was improper
for the government to have supplied heavily redacted records
concerning Beny-A and LeBlanc’s training and experience in
narcotics detection.

a

Such records show that LeBlanc and Beny-A had attended
yearly certification programs from the Border Patrol and were
up-to-date at the time of the search. Biweekly logs, called
green sheets, were also produced. The team’s performance
during eight-hour-controlled evaluations was scored on a
scale of one to six—the higher the score, the worse the
performance. At least one record analyzed at the suppression
hearing revealed marginal performance in “search skills.”
The team received a 3.50. Had it been one-tenth of a point

11
Although Thomas challenged the secondary referral below, he does
not renew that challenge on appeal. The government agrees that probable
cause is the standard, while also preserving the argument it made below
that Thomas consented to the search yielding the marijuana. Neither the
magistrate nor the district court reached the consent issue. It is “the
government’s burden to prove that [any] consent was freely and
voluntarily given.” United States v. Patayan Soriano, 361 F.3d 494, 501
(9th Cir. 2004). On remand, the district court is free to take up the issue
of consent in the first instance. See, e.g., United States v. Brewer,
947 F.2d 404, 411 (9th Cir. 1991).
22 UNITED STATES V . THOMAS

higher it would have been “a failing score.” The redactions
obscure comments on nearly every page of the records. As to
what is beneath the blacked-out paragraphs, the defendant,
district judge, this court, and even the Border Patrol’s
custodian of records are entirely in the dark.

In United States v. Cedano-Arellano, 332 F.3d 568 (9th
Cir. 2003), we held that when a defendant requests dog-
history discovery to pursue a motion to suppress, Federal
Rule of Criminal Procedure 16 compels the government to
disclose the “handler’s log,” as well as “training records and
score sheets, certification records, and training standards and
manuals” pertaining to the dog. Id. at 570–71. These
materials were held to be “crucial to [the 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” at the suppression hearing. Id. at 571. These
disclosures are “mandatory” when the government seeks to
rely on a dog alert as the evidentiary basis for its search. See
United States v. Cortez-Rocha, 394 F.3d 1115, 1118 n.1 (9th
Cir. 2005).

A unanimous Supreme Court echoed this in another
recent dog-sniff case. See Florida v. Harris, 133 S. Ct. 1050,
1057 (2013). Harris explained that a defendant must be
afforded the opportunity to challenge “evidence of a dog’s
reliability, whether by cross-examining the testifying officer
or by introducing his own fact or expert witnesses.” Id. “The
defendant, for example, may contest the adequacy of a
certification or training program, perhaps asserting that its
standards are too lax or its methods faulty. So too, the
 UNITED STATES V . THOMAS 23

defendant may examine how the dog (or handler) performed
in the assessments made in those settings.” Id.12

In flat contravention of the principle at the heart of Harris
and Cedano-Arellano, Thomas’s counsel was hamstrung by
the fact that the certification records had been so redacted.13
The K9 Coordinator for the Border Patrol conceded during
the suppression hearing that the redactions contained, in part,
information about “the training methodology and the
techniques used to train the K9s and evaluate the K9s.” He
also said that if the redactions were lifted, he would expect to
see critiques of the team’s competence as well as discussions
about areas for improvement.

b

The government makes several arguments why Cedano-
Arellano does not apply here. None is availing. First, it
argues that because Thomas did not contest that he
transported the marijuana—but rather raised the affirmative
defense of duress at trial—the discovery was not “material”
to his particular “defense.” Fed. R. Crim. P. 16(a)(1)(E)(i).

12
The Court went on to confirm that “a probable-cause hearing focusing
on a dog’s alert” should proceed according to “the usual rules of criminal
procedure.” Id. at 1058.

13
Clarifications about the substantive contours of the Fourth
Amendment— here the way probable cause applies to drug-dogs’
searches— apply “to all cases that are not yet final.” United States v.
Gonzalez, 598 F.3d 1095, 1097 (9th Cir. 2010). That includes Thomas’s
appeal since it was pending on direct review when Harris came down.
The latest guidance on the exclusionary rule did not displace this long-
standing principle. See Davis, 131 S. Ct. at 2429–32; id. at 2436–37
(Breyer, J., dissenting).
24 UNITED STATES V . THOMAS

In Cedano-Arellano, however, the defendant did not contest
his guilt at all; he entered a conditional guilty plea that
reserved only his suppression challenge. 332 F.3d at 570.
What is more, Cedano-Arellano explicitly considered
subsection (a)(1)(E) when announcing its rule that dog-
history discovery ought to be allowed when requested. Id. at
571. As a three-judge panel, we are not free to interpret this
rule of criminal procedure afresh. See United States v. Lee,
704 F.3d 785, 790 n.2 (9th Cir. 2012).

Second, the government cites law-enforcement privilege.
But, neither the magistrate, nor the district court, relied on
that doctrine as a justification for withholding the records.
Furthermore, our caselaw calls for an in camera evaluation by
the trial court of the government’s claim to privilege if the
defendant goes beyond “mere suspicion” that the undisclosed
evidence will be helpful in his criminal case. United States
v. Henderson, 241 F.3d 638, 645 (9th Cir. 2001). As we have
nothing but a bare assertion of sensitivity and because there
has been no in camera review, we cannot approve of the
limited disclosure on this ground.

As a final refuge, the government appeals to the harmless
error doctrine. We are persuaded that admission of the
marijuana evidence affected Thomas’s substantial rights at
trial so as not to be harmless beyond a reasonable doubt. See,
e.g., United States v. Alvarez, 358 F.3d 1194, 1204 n.3. (9th
Cir. 2004); United States v. Stoddard, 111 F.3d 1450, 1458
n.11 (9th Cir. 1997). Thus, the only question is whether the
redacted passages would have undermined the reliability of
Beny-A so as to defeat probable cause. Unlike in Cedano-
Arellano, because we have not been afforded access to the
complete records, we cannot say that there is “nothing in
those documents that would have changed the ultimate
 UNITED STATES V . THOMAS 25

determination that the agents had [probable cause] to support
their search.” 332 F.3d at 574. The error was thus not
harmless under Federal Rule of Criminal Procedure 52(a).

2

Because it is squarely presented for our review and it will
arise again upon remand, we also take up Thomas’s claim
that whether or not the disclosure was adequate, Beny-A’s
behavior could not give rise to probable cause. His
contention is that even assuming Beny-A and LeBlanc were
a reliable duo, because the dog never completed his trained
indication—the sitting discussed earlier—his behavior was an
insufficient basis for searching the toolbox. Thomas says that
the “alert” behavior described by Agent LeBlanc (both at his
pre-primary post and during the secondary inspection)
consists of “untrained” responses that a dog might exhibit at
any time, which fall short of probable cause as a matter of
law.

Faced with a similar argument, our sister circuit declined
to adopt a rule “which would require the dog to give a final
indication before probable cause is established.” United
States v. Parada, 577 F.3d 1275, 1281–82 (10th Cir. 2009);
see also id. at 1275 (upholding as sufficient, the dog’s “rapid
deep breathing, body stiffening, and upbreaking from the
search pattern . . . around a vehicle”). Its rationale was on the
mark: probable cause is measured in reasonable expectations,
not certainties. Id.; see also United States v. Cervantes,
703 F.3d 1135, 1139 (9th Cir. 2012) (“An officer will have
probable cause to search if there is a fair probability that
contraband or evidence of a crime will be found in a
particular place, based on the totality of the circumstances.”
(internal quotation marks omitted)). Evidence from a trained
26 UNITED STATES V . THOMAS

and reliable handler about alert behavior he recognized in his
dog can be the basis for probable cause. Whether a particular
dog displays enough signaling behavior will depend on the
facts and circumstances of each case.

The Supreme Court’s Harris decision confirms the
correctness of this view. 133 S. Ct. at 1055 (“We have
rejected rigid rules, bright-line tests, and mechanistic
inquiries in favor of a more flexible, all-things-considered
approach.”). In rejecting Florida’s evidentiary checklist for
a drug dog’s reliability, the Court explained that “[a] gap as
to any one matter . . . should not sink the State’s case,”
because that is “the antithesis of a totality-of-the-
circumstances analysis.” Id. at 1056.

Thomas’s alternative basis for invalidating the search
therefore fails.

IV

Because the government’s failure to turn over a full
complement of dog-history discovery was an error that was
not harmless, we reverse the district court’s denial of the
motion to suppress and vacate Thomas’s conviction. On
remand, the district court must decide whether the
government can establish the dog’s reliability in light of an
adequate record,14 or alternatively, whether it can establish
that Thomas freely consented to Agent LeBlanc’s search. If
either probable cause or consent is shown, then the court may

14
It will be for the district court in the first instance to determine
whether “on remand, a protective order or an in camera hearing is
necessary to accommodate any law enforcement confidentiality concerns.”
United States v. Budziak, 697 F.3d 1105, 1113 (9th Cir. 2012).
 UNITED STATES V . THOMAS 27

reinstate the conviction.15 See, e.g., United States v. Bernal-
Obeso, 989 F.2d 331, 337 (9th Cir. 1993). If not, a new trial
without evidence of the marijuana will be appropriate.

VACATED, REVERSED and REMANDED.

15
W e reject Thomas’s trial and sentencing challenges. It was within the
district court’s discretion to permit the government to impeach Thomas
about his prior misdemeanor conviction. See, e.g., United States v.
Antonakeas, 255 F.3d 714, 724–25 (9th Cir. 2001); United States v.
Castillo, 181 F.3d 1129, 1132–34 (9th Cir. 1999). And, the district court’s
decision not to depart downward based on his post-traumatic stress
disorder or military service did not render his sentence substantively
unreasonable. See United States v. Ressam, 679 F.3d 1069, 1087–88 (9th
Cir. 2012) (en banc); United States v. Tankersley, 537 F.3d 1100, 1114
(9th Cir. 2008).