United States v. Bernardo Bon

FILED
NOT FOR PUBLICATION
SEP 27 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50403
Plaintiff-Appellee, D.C. No.
2:13-cr-00608-JAK-28
v.
BERNARDO BON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted September 2, 2016**
Pasadena, California
Before: TASHIMA, WARDLAW, and BYBEE, Circuit Judges.
Defendant Bernardo Bon asks us to overturn his drug-related convictions on
the ground that the district court failed to suppress evidence obtained during an
allegedly unlawful search. Bon contends that the warrant authorizing officers to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
search his home was invalid for lack of probable cause and for failure to comply
with California Penal Code § 1526. Bon also argues that the district court erred in
denying his request for an evidentiary hearing. We have jurisdiction pursuant to
28 U.S.C. § 1291, and affirm.
1. Probable cause exists when the judge issuing the warrant finds that, “given
all the circumstances set forth in the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “[T]he duty of a reviewing
court is simply to ensure that the magistrate had a ‘substantial basis for ...
conclud[ing]’ that probable cause existed.” Id. at 238–39 (second alteration in
original) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). This is a
totality of the circumstances test. See id. at 238; United States v. Bridges, 344 F.3d
1010, 1014–15 (9th Cir. 2003).
The magistrate judge here had a substantial basis for issuing the warrant.
The Drug Enforcement Administration (“DEA”) had been investigating a drug-
trafficking operation that used PVC pipes to transport drugs. The DEA intercepted
several telephone calls suggesting that a drug deal associated with the operation
would take place at a local Home Depot. DEA Special Agent Nguyen relayed this
information to Detective Richardson of the Los Angeles County Sheriff’s
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Department. Detective Richardson established surveillance at the Home Depot and
observed Karla Sauceda, whom the DEA had identified as a drug courier for the
operation, wait for an hour for two men in a silver car to arrive. Sauceda entered
the Home Depot with one of the men, returning with a PVC pipe. The two men
then removed a large black bag from Sauceda’s vehicle and left the Home Depot,
followed by Detective Richardson. While en route, one of the men rolled down his
window and began looking around as if to see if they were being followed. The
men eventually arrived at Bon’s residence, where aerial surveillance observed the
driver transport the large black bag to a garage. Under the totality of these
circumstances, the magistrate judge had a substantial basis for issuing the search
warrant.1
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Bon faults the warrant application for not outlining Agent Nguyen’s
training and experience. Because the intercepted telephone conversations included
coded language, Bon suggests that it was necessary to include Agent Nguyen’s
training and experience in the warrant to establish his ability to interpret the code.
Bon ignores that Detective Richardson independently corroborated Agent
Nguyen’s interpretation by observing the suspicious exchange at the Home Depot.
Cf. Gates, 462 U.S. at 242 (“Our decisions applying the
totality-of-the-circumstances analysis outlined above have consistently recognized
the value of corroboration of details of an informant’s tip by independent police
work.”) As the district court noted, “That Sauceda appeared at the places
Richardson expected to see her and when he expected to see her, supports the
inference that [Agent Nguyen] understood what the calls meant.”
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Bon’s additional contention that a pre-warrant protective sweep of his
residence was illegal is irrelevant. “The mere inclusion of tainted evidence in an
affidavit does not, by itself, taint the warrant or the evidence seized pursuant to the
warrant. A reviewing court should excise the tainted evidence and determine
whether the remaining, untainted evidence would provide a neutral magistrate with
probable cause to issue a warrant.” United States v. Vasey, 834 F.2d 782, 788 (9th
Cir. 1987). Here, there was a substantial basis for concluding that probable cause
existed without considering any evidence obtained during the protective sweep.
2. Although Detective Richardson failed to record his warrant application as
required by California Penal Code § 1526, “evidence will only be excluded in
federal court when it violates federal protections, such as those contained in the
Fourth Amendment, and not in cases where it is tainted solely under state law.”
United States v. Cormier, 220 F.3d 1103, 1111 (9th Cir. 2000). California’s
recording requirement for telephonic warrant applications has no federal
constitutional counterpart. Accordingly, failure to comply with California’s
recording requirement does not require suppression.
3. We will review “for an abuse of discretion a court’s decision whether to
conduct an evidentiary hearing on a motion to suppress.” United States v. Howell,
231 F.3d 615, 620 (9th Cir. 2000). A defendant is not entitled to an evidentiary
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hearing when his contentions are merely conjectural. United States v. DiCesare,
765 F.2d 890, 896 (9th Cir. 1985). Bon’s only argument for an evidentiary hearing
is a purely conjectural assertion that the government is hiding a relevant document
and offering a fabricated one in its place. The district court did not abuse its
discretion in denying Bon’s request for an evidentiary hearing.
AFFIRMED.
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