United States v. Loren Dodds

FILED
NOT FOR PUBLICATION
SEP 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-30190
14-30254
Plaintiff-Appellee,
D.C. No. 3:13-cr-00060-SLG-1
v.
LOREN KENT DODDS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted August 4, 2016
Anchorage, Alaska
Before: FISHER, PAEZ and HURWITZ, Circuit Judges.
Loren Kent Dodds appeals his conviction for possessing and manufacturing
with intent to distribute more than 100 marijuana plants in violation of 21 U.S.C.
§ 841(a)(1) & (b)(1)(B) and the district court’s order awarding restitution. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm Dodds’ conviction and
vacate the restitution order.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
The district court properly denied Dodds’ motion to suppress evidence
derived from four search warrants. Dodds argues the February 2 warrant should
have been suppressed for two reasons. First, he contends Trooper Cooper’s
unrecorded oral affidavit did not comply with the Fourth Amendment’s oath or
affirmation requirement. But even if Dodds were correct, suppression was not
required because Cooper’s reliance on the warrant was “objectively reasonable.”
United States v. Leon, 468 U.S. 897, 922-24 (1984) (establishing good faith
exception to the exclusionary rule). Contrary to Dodds’ suggestion, the magistrate
did not “wholly abandon[] his judicial role in the manner condemned in Lo-Ji
Sales, Inc. v. New York,” id. at 923, by failing to make a contemporaneous
recording of Cooper’s oral affidavit. The magistrate’s conduct in Lo-Ji,
“allow[ing] himself to become a member, if not the leader, of the search party,”
442 U.S. 319, 327 (1979), bears no relation to the facts here. Furthermore, there is
no evidence Cooper knew or should have known of the magistrate’s procedural
error before he conducted the search.
Second, Dodds argues that Cooper’s oral affidavit failed to establish
probable cause because the observations made on his property must be excised.
We disagree. Cooper’s observation of a strong odor of marijuana was not, as
2
Dodds contends, “accomplished through an unlicensed physical intrusion.”
Florida v. Jardines, 133 S. Ct. 1409, 1415 (2013). Cooper smelled the odor while
attempting to conduct a knock-and-talk; “a police officer not armed with a warrant
may approach a home and knock, precisely because that is ‘no more than any
private citizen might do.’” Id. at 1416 (quoting Kentucky v. King, 563 U.S. 452,
469 (2011)). Even disregarding other observations made on Dodds’ property that
Dodds argues were the fruit of an illegal search, the strong odor combined with the
report of an identified informant and Cooper’s independent corroboration of
certain details in that report suffice to establish probable cause. Dodds’ assertion
that Cooper’s affidavit was “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable,” Leon, 468 U.S. at 923, is
without merit.
Because the good faith exception applies, we do not decide whether the
Fourth Amendment requires a contemporaneous recording of the oath or
affirmation supporting issuance of a warrant. We also do not reach Dodds’
argument, raised for the first time on appeal, that suppression of the February 2
warrant was required because “the record does not show, and the district court did
not find, that Trooper Cooper read the warrant itself to the judge.” “The failure to
raise a particular ground in support of a motion to suppress constitutes a waiver of
3
that challenge.” United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001).
Dodds’ motion for judicial notice in support of this argument is denied as moot.
Dodds’ challenges to three subsequently issued warrants depend upon his
contention that evidence collected in reliance on the February 2 warrant must be
suppressed. Therefore, those challenges also fail.
2
The district court did not abuse its discretion by admitting testimony linking
Dodds to the purchase of firearms. The court properly concluded this testimony
provided necessary context on the role of a cooperating witness and her
relationship to Dodds, and that its probative value was not substantially
outweighed by unfair prejudice under Federal Rule of Evidence 403. Furthermore,
any error was harmless given the overwhelming evidence of guilt, including the
discovery of over 600 marijuana plants and cultivating equipment in Dodds’ home.
See United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004) (“[W]e will only
reverse if an erroneous evidentiary ruling ‘more likely than not affected the
verdict.’” (quoting United States v. Angwin, 271 F.3d 786, 798 (9th Cir. 2001))).
3
In accordance with the parties’ stipulation, we vacate the district court’s
order of restitution in favor of Matanuska Electric Association, Inc. The district
4
court exceeded its authority under 18 U.S.C. § 3663 to order restitution for “acts of
related conduct for which the defendant was not convicted” because Dodds was not
convicted of a crime involving “a scheme, conspiracy, or pattern of criminal
activity as an element of the offense.” United States v. Lawrence, 189 F.3d 838,
846 (9th Cir. 1999).
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
Dodds’ motion for judicial notice, filed December 9, 2015, is DENIED.
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