United States v. Roman Contreras , 700 F. App'x 669 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10539
Plaintiff-Appellee, D.C. No.
1:15-cr-00242-DKW-1
v.
ROMAN GABRIEL CONTRERAS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted October 10, 2017
Honolulu, Hawaii
Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.
Roman Gabriel Contreras (“Contreras”) appeals his conviction for
attempting to possess 500 grams or more of a mixture or substance containing a
detectable amount of methamphetamine with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court did not err in denying Contreras’s motion to suppress
evidence found in his checked luggage at Kauai’s Lihue Airport. See United States
v. Rodgers, 656 F.3d 1023, 1026 (9th Cir. 2011).
Under the totality of the circumstances, the U.S. Drug Enforcement
Administration (“DEA”) agents had reasonable suspicion to stop Contreras at the
airport. See United States v. Arvizu, 534 U.S. 266, 273 (2002). The DEA and the
Kauai Police Department received two anonymous tips about Contreras trafficking
methamphetamine. One tipster accurately foretold Contreras’s flight from Los
Angeles to Kauai, and offered a precise description of the bag in which the tipster
thought the drugs were being carried (a black handbag “not made of leather”).
Officers watched Contreras walk past the baggage claim area with such a carry-on
bag even though he traveled with two checked bags, all while repeatedly looking
over his shoulder. Contreras then brought the carry-on bag toward the black tow
truck described by the other tipster as Contreras’s drug-selling vehicle.
Anonymous tips such as these are sufficiently reliable to support reasonable
suspicion when they are detailed, predict the suspect’s future movements, and are
verified firsthand by police. United States v. Morales, 252 F.3d 1070, 1076-77
(9th Cir. 2001).
The officers then conducted a reasonable investigatory stop of Contreras to
confirm or dispel whether he was carrying methamphetamine in his carry-on bag.
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See United States v. Christian, 356 F.3d 1103, 1105 (9th Cir. 2004). DEA Special
Agent Jones asked Contreras to walk with him 15 to 20 feet and sit down in
another public area so a narcotics dog could sniff his bag. The entire encounter—
from initial questioning to the dog’s sniff—lasted five to six minutes. The district
court did not clearly err in finding that “Jones did not touch Contreras, except to
assist him with removing his carry-on bag, which had become entangled with an
article of Contreras’[s] clothing.” See Rodgers, 656 F.3d at 1026. Despite his
claim to the contrary, Contreras was not arrested prior to the dog’s alert.
Once the dog alerted to Contreras’s carry-on bag, the officers had probable
cause to arrest Contreras. See Maryland v. Pringle, 540 U.S. 366, 370 (2003). The
dog’s alert was reliable because “all the facts surrounding [it], viewed through the
lens of common sense, would make a reasonably prudent person think that a search
would reveal contraband or evidence of a crime.” Florida v. Harris, 568 U.S. 237,
248 (2013). The government provided extensive records of the dog and his
handler’s narcotics detection certifications and training. Such evidence “can itself
provide sufficient reason to trust [the dog’s] alert” and creates a presumption of
reliability. Id. at 246-47. Defense counsel had a meaningful opportunity to call the
dog’s handler as a witness, which comports with the Supreme Court’s guidance
that defendants be allowed to challenge the dog’s reliability. Id. at 247. Nothing
except speculation supports Contreras’s claim that Jones touching the carry-on
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before the dog sniff “possibly contaminated [the bag].” And, the dog’s 0-for-2
performance on Contreras’s luggage does not show that the dog was unreliable
under the circumstances because we ought not over-read episodic misses in the
field, and we “do not evaluate probable cause in hindsight, based on what a search
does or does not turn up.” Id. at 249.
The magistrate judge did not clearly err in finding probable cause to issue a
warrant for all of Contreras’s luggage. See United States v. Grant, 682 F.3d 827,
832 (9th Cir. 2012). A magistrate judge need only “answer the commonsense,
practical question whether there is probable cause to believe that contraband or
evidence is located in a particular place before issuing a search warrant.” United
States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc) (internal quotation
marks omitted). Here, there was probable cause. The government’s affidavit in
support of the warrant provided, among other things, information about the two
tips, the dog’s alert, and the dog’s certifications and training records.
AFFIRMED.
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