- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 08-08-2013
- Case #: 11-10451
- Judge(s)/Court Below: Circuit Judge O'Scannlain for the Court; Circuit Judges Goodwin and N.R. Smith
- Full Text Opinion
Jonathon Thomas was indicted on a count of Possession with Intent to Distribute Marijuana after a drug detection dog exhibited signs of alert behavior, leading to a search and discovery of 150 pounds of marijuana. A superseding indictment added a charge: Conspiracy to Possess with Intent to Distribute Marijuana. Thomas sought to have both counts in the superseding indictment dismissed under the Speedy Trial Act, 18 U.S.C. § 3161 (the "Act"). The district court dismissed the possession charge without prejudice because of exceeding the seventy-day “clock.” Before trial Thomas filed a motion to suppress pursuant to the Fourth Amendment and the exclusionary rule, but the district court denied the motion and ruled that the government met its burden of establishing probable cause. Thomas argued duress, but was found guilty as to the remaining conspiracy count. The Ninth Circuit held that under the Act, the issuance of a new indictment not required to be joined with the original charges, triggers a new seventy-day period in which to bring the defendant to trial, and Thomas’ prosecution for Conspiracy to Possess with Intent to Distribute complied with the Act. Thomas argued that the dog touching his truck bed and toolbox violated the Fourth Amendment, the government failed to disclose adequate evidence of the dog and handler’s proficiency to justify searching his toolbox and the dog’s failure to indicate by sitting means that the agents lacked probable cause to search. The panel held that depending on circumstances, evidence from a trained and reliable handler about alert behavior can be the basis for probable cause. Because the government failed to turn over full dog-history discovery, the panel reversed the denial of the motion to suppress and vacated Thomas’s conviction. The district court must determine the dog was reliable or Thomas consented to the search to reinstate the conviction. VACATED, REVERSED and REMANDED.