United States v. Marisol Perez-Almonte , 487 F. App'x 328 ( 2012 )

FILED
NOT FOR PUBLICATION JUN 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30041
Plaintiff - Appellee, D.C. No. 2:10-cr-00055-RSL-5
v.
MEMORANDUM *
MARISOL PEREZ-ALMONTE,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted June 7, 2012
Seattle, Washington
Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge.**
Defendant Marisol Perez-Almonte appeals her conviction for conspiracy to
distribute cocaine, challenging the district court’s denial of her suppression and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
discovery motions. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
First, Perez argues that the district court erred in denying her motion to
suppress. We review de novo the denial of a motion to suppress, United States v.
Jones, 286 F.3d 1146, 1150 (9th Cir. 2002), and review a district court’s factual
findings for clear error. United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th
Cir. 2007). We may affirm on any ground supported by the record. See United
States v. Miller, 822 F.2d 828, 833 (9th Cir. 1987).
All parties agree that a positive alert from a drug-detection dog, on its own,
provides probable cause to search a vehicle so long as the drug dog is “well
trained” or, put another way, its “reliability” has been established. See United
States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir. 1993).
The district court did not clearly err in finding Cookie, the troopers’ drug-
detection dog, reliable. Trooper Costanzo testified at length as to Cookie’s training
and certification, as well as to her field performance. Perez’s only substantive
criticism of Cookie’s certification and training process is that she was not trained
for false alerts and handler cueing. Perez had access to Cookie’s training and
certification documents, see United States v. Cedano-Arellano, 332 F.3d 568, 571
(9th Cir. 2003); United States v. Nava, 363 F.3d 942, 943 n.1 (9th Cir. 2004), and,
2
even accepting that Costanzo conducted no false positive training or blind training,
Costanzo testified that Cookie’s alerts failed to uncover drugs only 5% of the time.
With a 95% drug recovery rate, it was not clearly erroneous to find Cookie reliable.
Moreover, in addition to Cookie’s alert, the troopers smelled an
“overwhelming” scent of air freshener emanating from the car, Ramirez provided
the troopers with inconsistent travel plans, and Perez “frantic[ally]” communicated
in Spanish to Ramirez when Costanzo questioned her about drugs in the Tahoe.
These facts, taken together with Cookie’s alert, established probable cause to
search the Tahoe.
Finally, under the “collective knowledge doctrine,” the DEA’s knowledge of
Perez and Ramirez’s suspicious activities is properly considered in the probable
cause analysis. See United States v. Ramirez, 473 F.3d 1026, 1032, 1036-37 (9th
Cir. 2007). The DEA knew that: (1) in a previous investigation, an informant had
reported that his “boss,” later identified as Ramirez, drove a tan truck that had a
secret compartment in its seat for drugs; (2) Ramirez met with an informant before
and after a drug transaction with an undercover officer; (3) Ramirez was seen
driving to the same spot where another cocaine distributor (and informant) drove to
meet his supplier; and (4) Ramirez and Perez drove the Tahoe from Washington to
California, met briefly with a man at a hotel, and were seen leaving the hotel with
3
packages in hand traveling back to Washington. Together, these factors establish
probable cause to search for drugs in the Tahoe.1
Second, Perez challenges the district court’s denial of Criminal Justice Act
funds to retain a drug dog expert, which she claims she needed to evaluate
Cookie’s reliability. A district court’s denial of funds to retain an expert under the
CJA, 18 U.S.C. § 3006A(e)(1), is reviewed for abuse of discretion. United States
v. Nelson, 137 F.3d 1094, 1101 n.2 (9th Cir. 1998). It is an abuse of discretion to
deny a request for expert funding where (1) reasonably competent counsel would
have required the assistance of the requested expert for a paying client, and (2) the
defendant was prejudiced by the lack of expert assistance. United States v.
Rodriguez-Lara, 421 F.3d 932, 940 (9th Cir. 2005). Prejudice must be shown by
clear and convincing evidence. Id.1
The United States Supreme Court recently granted certiorari in a case in
which the Florida Supreme Court held that the reliability of a drug dog is subject to
a “totality of the circumstances analysis” and that “evidence that [a] dog has been
trained and certified to detect narcotics, standing alone, is not sufficient to establish
the dog's reliability for purposes of determining probable cause.” Florida v.
Harris, 71 So. 3d 756, 759 (Fla. 2011), cert. granted 132 S. Ct. 1796 (2012). This
case, however, is distinguishable from Harris because of the multitude of facts
known by the DEA and the troopers that established probable cause, even if
Cookie’s reliability cannot be established solely from her training, certification,
and Costanzo’s testimony regarding her field performance.
4
The district court did not abuse its discretion in denying CJA funding for a
drug dog expert. The only way Perez could have been prejudiced by a lack of
expert assistance is if the expert could have convinced the court that Cookie’s
certification and training were faulty. But the district court allowed for the
possibility that Cookie’s reliability was not perfect, that she sometimes had false
alerts, or that she alerted to residual odors. Nowhere does Perez explain how her
expert’s testimony as to Cookie’s certification and training would have led to a
different reliability determination. Because Perez failed to demonstrate through
specific facts how a drug-dog expert would have been helpful in assessing
Cookie’s reliability vis-à-vis her certification and training, the district court did not
abuse its discretion in denying funds.
Lastly, Perez argues that the district court abused its discretion by quashing
her subpoena against the Oregon state police for all incident reports that Cookie
was involved in and by refusing her request for Costanzo’s logbook. A district
court’s discovery rulings are reviewed for an abuse of discretion. See United
States v. Mitchell, 502 F.3d 931, 964 (9th Cir. 2007).
The district court did not abuse its discretion in quashing the subpoena and
finding that the request for all police incident reports related to Cookie was
overbroad and onerous given the limited relevance that this dog's performance
5
history would have to its relevance in light of the fact that Perez cross-examined
Costanzo about Cookie's field performance. See United States v. Reed, 726 F.2d
570, 576-77 (9th Cir. 1984).
As for Perez’s request for Costanzo’s logbook, that was conditioned on the
grant of CJA funding, which was properly denied.
Accordingly, we AFFIRM Perez’s conviction.
6