United States District Court, D. South Dakota, Central Division
July 15, 2015
UNITED STATES OF AMERICA, Plaintiff,
BRANDON JERAYE TREJO, Defendant
Brandon Jeraye Trejo, Defendant: Randall B. Turner, LEAD
ATTORNEY, Federal Public Defender's Office, Pierre, SD.
USA, Plaintiff: Jay P. Miller, LEAD ATTORNEY, U.S.
Attorney's Office, Pierre Office, Pierre, SD.
AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
A. LANGE, UNITED STATES DISTRICT JUDGE.
highway patrol trooper stopped a vehicle for speeding and
found methamphetamine in a duffel bag located therein.
Defendant Brandon Trejo, a passenger in the vehicle, was
arrested and charged with possession with intent to
distribute a controlled substance. Trejo moved to suppress
the methamphetamine, alleging violations
of the Fourth Amendment. The magistrate judge recommended
denying Trejo's motion to suppress and Trejo has now
filed objections to that recommendation. For the reasons
explained below, this Court adopts the Report and
Recommendation in part but remands certain issues to the
magistrate judge for a hearing.
November 14, 2014, at approximately 7:14 p.m., Trooper Brian
Biehl of the South Dakota Highway Patrol stopped a GMC Denali
with Colorado license plates for speeding on U.S. Highway 18.
T. 20-21, 56-57; Ex. 1 at 7:14:00. There were five occupants
in the Denali: Abraham Garsia, the driver; Trejo, the
front-seat passenger; Jennifer Hernandez and an infant child,
the middle-row passengers; and a young boy, the far rear-row
passenger. T. 23-24.
Biehl approached the vehicle and asked Garsia for his
driver's license. T. 62; Ex. 1 at 7:14:20-35. Garsia said
that he did not have a driver's license or any
identification and that he was driving because his wife,
Hernandez, was caring for the infant. T. 62; Ex. 1 at
7:14:36-52. Garsia then accompanied Trooper Biehl to the
patrol car, where Trooper Biehl attempted to run a license
check on Garsia. T. 63-64; Ex. 1 at 7:15:05-7:15:30. While
doing so, Trooper Biehl asked where the occupants were
traveling from, what they had done, where Garsia lived, and
what he did for a living. T. 70; Ex. 1 at 7:15:38-7:16:18.
Garsia explained that he and the occupants had been in
Minnesota visiting friends and family who had purchased a new
house, that they had been gone for a week, and that they were
returning to Denver, where Garsia lived and owned a
barbershop with five employees. T. 70; Ex. 1 at
7:15:39-7:20:35. Garsia also informed Trooper Biehl that he
and his wife owned the Denali. T. 25; Ex. 1 at
7:19:57-7:20:05. A license plate check confirmed that
Hernandez was the registered owner of the Denali. T. 24.
Trooper Biehl ran at least two checks on his computer, he was
unable to find any record of Garsia having a driver's
license or state identification card. T. 64-65. Trooper Biehl
returned to the Denali to see whether Hernandez and Trejo had
driver's licenses. T. 67; Ex. 1 at 7:21:58. When asked by
Trooper Biehl about their travel itinerary, Hernandez and
Trejo explained that they had been at the Mall of America and
that they had stayed in a hotel while in Minnesota. Ex. 1 at
the patrol car, Trooper Biehl ran computer checks on Trejo
and Hernandez and talked more with Garsia about the trip, his
friends in Minnesota and their new house, and Trejo's
occupation. Ex. 1 at 7:22:57-7:27:50. Garsia said that he
thought Trejo worked at a painting company and that their
friends' new house in Minnesota was nice. Ex. 1 at
7:22:57-7:27:50. Trooper Biehl informed Garsia that he still
could not find any information on Garsia in his computer
search and confirmed that he was spelling Garsia's name
correctly. Ex. 1 at 7:26:35-7:27:30. Trooper Biehl suspected
that Garsia was lying about his identify to avoid being
arrested on an outstanding warrant. T. 66-67.
Biehl went back to the Denali, returned the driver's
licenses to Trejo and Hernandez, and spoke with them again.
T. 71; Ex. 1 at 7:27:55-7:28:50. Trejo said that he worked at
a body shop, and both he and Hernandez said that they did not
know anybody in Minnesota. T. 71; Ex. 1 at 7:27:57-7:28:50.
Biehl returned to the patrol car where he questioned Garsia
further. Ex. 1 at 7:29:10-7:32:00. Garsia said that he and
Hernandez had visited friends at their
new house while Trejo spent time with his own friends. T. 72;
Ex. 1 at 7:29:10-7:30:50. Trooper Biehl could see
Garsia's carotid artery pounding in his neck and believed
Garsia to be excessively anxious. T. 73. Trooper Biehl
informed Garsia that there were significant differences
between Garsia's story and what Hernandez and Trejo were
saying. Ex. 1 at 7:30:50-7:31:00. He told Garsia that he was
a drug dog handler and asked Garsia whether he would find any
drugs or large amounts of cash in the Denali. Ex. 1 at
7:31:00-7:32:00. Garsia denied having any drugs in the Denali
but admitted that Hernandez had approximately $5,000 in her
wallet that they had brought for the trip. T. 74; Ex. 1 at
7:31:00-7:32:00. The amount of cash and Garsia's travel
route concerned Trooper Biehl. T. 74-75. Trooper Biehl
testified at the suppression hearing that he sees large
amounts of drugs transported on U.S. Highway 18, that
Colorado is a " source" state for drugs, and that
Minneapolis is a " destination" city for drugs. T.
75. Trooper Biehl suspected that the $5,000 were drug
proceeds. T. 76.
Biehl went back to the Denali again and questioned Hernandez
about the cash she had in her purse. T. 76; Ex. 1 at
7:32:45-7:34:26. Hernandez looked in her purse and said that
she had approximately $2,000, but Trooper Biehl could tell
that the actual amount was substantially more. T. 76-77; Ex.
1 at 7:32:45-7:34:26. Hernandez also said that although
Garsia used to own a barber shop, he had sold it and now
worked for someone. Ex. 7:32:45-7:34:26. Trejo reaffirmed
that he did not know anyone in Minnesota and that he, Garsia,
and Hernandez had been at the Mall of America. T. 71; Ex. 1
at 7:33:00-7:33:22, 7:35:00-7:35:25.
Biehl returned to the patrol car and asked Garsia for consent
to search the Denali. T. 77; Ex. 1 at 7:34:50-7:34:59. After
Garsia refused, Trooper Biehl recounted the travelers'
inconsistent stories and informed Garsia that he was going to
deploy his drug dog, Zara. T. 77-78; Ex. 1 at
7:34:50-7:36:56. He stated that if Zara did not indicate to
the Denali, the only remaining issue was to identify Garsia
in the computer system. T. 69, 78; Ex. 1 at 7:36:20-7:36:31.
alerted to the Denali's rear door by increasing her
breathing and making a slight head check; she then indicated
twice to the Denali's rear passenger door by sitting and
staring at it. T. 78-80, 98-99; Ex. 1 at 7:36:58-7:37:44.
Trooper Biehl returned Zara to the patrol car and announced
that he was going to search the Denali once another officer
arrived. Ex. 1 at 7:37:50-7:39:50. While waiting, Garsia gave
Trooper Biehl a different spelling of his last name than he
had given before. Ex.1 at 7:47:04-7:50:00. Trooper Biehl was
able to find at least some information about Garsia in the
computer system using the new spelling. T. 89-90; Ex.1 at
deputy sheriff arrived at approximately 7:55 p.m., after
which Trejo, Hernandez, and the two children were transferred
to the deputy's patrol car. Ex. 1 at 7:55:00-7:58:25.
Trooper Biehl then searched the Denali, finding approximately
$12,000 in Hernandez's purse and a duffel bag that
contained a pound of methamphetamine and several documents
bearing Trejo's name. T. 81, 100; Ex. 1 at
7:58:20-8:04:35, 8:07:35-8:07:45, 8:14:12-8:14:22,
8:23:50-8:24:20, 8:30:28-8:30:32, 8:31:18-8:31:23,
8:34:30-8:35:00, 8:37:20-8:37:27. Upon learning that Trooper
Biehl had discovered methamphetamine in the duffel bag,
Garsia stated multiple times that the bag belonged to Trejo.
Ex. 1 at 8:07:20-8:08:13, 8:09:05-8:09:11; 8:14:12-8:14:40,
8:15:50-8:16:23, 8:17:40-8:17:55, 8:40:40-8:40:50. Trejo was
handcuffed, placed under
arrest for possession of a controlled substance, and read his
rights under Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694(1966). Ex. 1 at 8:09:25-8:09:53.
jury indicted Trejo for possession with intent to distribute
a controlled substance. Doc. 14. Trejo moved to suppress the
drugs and cash seized from the Denali and to produce complete
records of Zara's field performance, standard training,
and certifications. Docs. 30, 31. He argued that he was
illegally detained to permit a canine sniff and that there
was no probable cause to search the Denali because Zara was
unreliable. The government resisted Trejo's motion,
arguing that Trooper Biehl had reasonable suspicion to extend
the traffic stop and that Trejo, as a passenger, did not have
standing to challenge either the search of the
Denali or the seizure of evidence therein. Doc. 32. The
government objected to Trejo's request for Zara's
field-performance and standard-training records, Doc. 32 at
12, but did provide Trejo with Zara's 2011 certification
and her certifications and accompanying score sheets from
2012, 2013, and 2014. T. 6, 10-11.
magistrate judge held an evidentiary hearing on Trejo's
motion to suppress. Before offering any evidence, the
government moved for a ruling that Trejo lacked standing to
challenge the length of his detention and the search of the
Denali. T. 13-20. Trejo objected, arguing, among other
things, that he had standing--that is, a legitimate
expectation of privacy--to challenge the search of the duffle
bag containing the methamphetamine. T. 14-15, 19. The
magistrate judge denied the government's request because
he had yet to hear any evidence. T. 18-19. The government
then called Trooper Biehl, elicited testimony that Hernandez
and Garsia owned the Denali, and renewed its motion for a
ruling on the standing issue. T. 20-25. Trejo declined to
cross-examine Trooper Biehl on his testimony about ownership
of the Denali but asserted that the magistrate judge should
hear more evidence " regarding what was searched inside
the vehicle" before ruling. T. 25-26. Relying on this
Court's decision in United States v. Salgado, No.
CR 12-30088-0L-02-RAL, 2013 WL 1348264 (D.S.D. Apr. 1,
2013), aff'd, 761 F.3d 861 (8th Cir. 2014), the
magistrate judge ruled that Trejo had standing to challenge
his detention but not
the search of the Denali or the bags found therein. T. 26-28,
38, 40; see also T. 101. This prompted the government to
argue that evidence of Zara's reliability was no longer
necessary, T. 30-39, but the magistrate judge initially
disagreed. T. 32, 41, 54
Biehl resumed the stand and testified about Zara's
training and certifications as a drug dog. T. 42-52. The
government introduced the certification records provided to
Trejo, T. 47-48, and asked the magistrate judge to take
judicial notice of its report and recommendation in the
Salgado case. T. 52-53. Salgado was relevant, the government
argued, because it also involved a challenge to Zara's
reliability. T. 7. The magistrate judge took judicial notice
of its report and recommendation and this Court's
decision in Salgado before announcing that it was modifying
its prior ruling that the government needed to put on
evidence of Zara's reliability. T. 53-54. Having had
further time to review the decision in Salgado, the
magistrate judge concluded that Trejo's lack of a
sufficient privacy interest in the vehicle to challenge the
search made evidence of Zara's reliability unnecessary.
that Trejo lacked standing to challenge the search of the
Denali, the government objected to several of the questions
Trejo asked Trooper Biehl on cross-examination. The
magistrate judge sustained the government's objection to
Trejo's questions about Zara's reliability and
granted the government's motion to strike " any and
all prior testimony given by [Trooper Biehl] that refers or
relates to the certification records and matters being
offered to prove the reliability of Zara, the drug detection
dog." T. 82-85. Trejo's counsel made an offer of
proof on Zara's reliability, saying that the records from
Zara's most recent certification raised serious questions
about her ability to detect methamphetamine and arguing that
Trejo was entitled to receive Zara's standard-training
and field records. T. 86-89. The magistrate judge also
sustained the government's objections to Trejo asking
Trooper Biehl if the duffel bag with the methamphetamine was
closed and whether it contained legal papers bearing
Trejo's name. T. 101. Trejo argued that he had standing
to challenge the search of the bag and made an offer of proof
that, if allowed to question Trooper Biehl further, Trooper
Biehl would testify that the duffel bag had been closed, that
it contained court documents bearing Trejo's name, and
that Trooper Biehl had arrested Trejo because he believed
that Trejo owned the bag and had control over it. T. 101-02.
The magistrate judge adhered to his ruling, explaining that
the search of the duffel bag still related to the search of
the Denali, which Trejo did not have standing to challenge.
magistrate judge issued a Report and Recommendation
recommending that Trejo's motion be denied. Doc. 38.
Trejo now objects, arguing that the magistrate judge made
erroneous factual findings, that he has standing to challenge
the search of the duffel bag, and that he should have
received Zara's training and field records as well as
been allowed to cross-examine Trooper Biehl about her
Court reviews a report and recommendation pursuant to the
statutory standards found in 28 U.S.C. § 636(b)(1),
which provides in relevant part that " [a] judge of the
[district] court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). Having conducted a de novo review, this
Court overrules Trejo's factual objections but remands
the case to the magistrate judge to determine whether Trejo
had a legitimate expectation of privacy in the duffel bag
within the Denali and to hear evidence on Zara's
reliability if necessary.
objects to the factual findings underlying the magistrate
judge's conclusion that Trooper Biehl had a reasonable
suspicion to detain Trejo for the dog sniff. Rather than
specifying which factual findings he disagrees with, Trejo
argues that the video of the traffic stop demonstrates that
Trooper Biehl's " suspicions" were "
unfounded as a factual matter." Doc. 45 at 2. The
magistrate judge concluded that the following facts, taken as
a whole, provided Trooper Biehl with reasonable suspicion
that Trejo, Hernandez, and Garsia were engaged in illegal
drug activity: 1) Trejo, Hernandez, and Garsia were on the
return leg of a round trip from Denver, a " source"
state for drugs, to Minneapolis, a drug "
destination" city; 2) they were traveling on U.S.
Highway 18, a highway that in Trooper Biehl's experience
is used to transport significant quantities of drugs; 3)
Hernandez was carrying a large amount of cash; 4) Garsia
appeared unusually nervous and provided Trooper Biehl with an
incorrect spelling of his last name; and 5) Garsia, Trejo,
and Hernandez provided information that was inconsistent in
many respects. Doc. 38 at 13-16. As detailed in the "
Facts" section of this Opinion and Order, the testimony
of Trooper Biehl and the video of the traffic stop provide
ample support for the factual findings underlying the
magistrate judge's conclusion that Trooper Biehl had
reasonable suspicion to justify deploying Zara. Trejo's
objection to the contrary is overruled.
objects also to the magistrate judge's finding that Zara
alerted to the Denali's rear door and indicated twice to
the Denali's rear passenger door. Trooper Biehl testified
that Zara alerts to the odor of drugs by changing her
breathing pattern or checking her head and that she indicates
to the odor of drugs by sitting down. T. 44, 80. The video of
the traffic stop shows that Zara sat down twice beside the
Denali's rear passenger door, Ex. 1 at 7:37:20-7:37:34,
and Trooper Biehl testified that Zara was indicating by doing
so. T. 79-80, 97-99. Although it is more difficult to see on
the video whether Zara alerted to the Denali's rear door,
Ex. 1 at 7:37:05-7:37:25, Trooper Biehl testified that Zara
alerted by increasing her breathing and making a head check.
T. 78, 97. The magistrate judge, who witnessed Trooper Biehl
testify, evidently found this testimony credible. Trejo's
objection to the finding that Zara alerted and indicated is
Standing to Challenge Search of the Duffel Bag
objects to the magistrate judge's ruling that he lacked
standing to challenge the search of the duffel bag. Fourth
Amendment rights are personal and may not be asserted
vicariously. Rakas v, Illinois, 439 U.S. 128, 133-34, 99
S.Ct. 421, 58 L.Ed.2d 387 (1978). Accordingly, a defendant
challenging the constitutionality of a search under the
Fourth Amendment must establish that he himself had " a
legitimate expectation of privacy in the invaded place."
Id. at 143. To meet this burden, the defendant must
show that he exhibited a subjective expectation of privacy in
the object searched and that this expectation is objectively
reasonable. United States v. Bearden, 780 F.3d 887,
892 (8th Cir. 2015). When a defendant testifies at a
suppression hearing in an attempt to demonstrate a legitimate
expectation of privacy, this testimony cannot be used as
evidence of his guilt at trial. Simmons v. United
States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247
the magistrate judge concluded that Trejo, as a passenger in
a vehicle that he did not own, lacked standing to challenge
the search of the vehicle and the duffel bag found therein.
T. 26-28, 38, 40, 101; Doc. 38 at 7. In reaching this
conclusion, the magistrate judge relied on this Court's
decision in Salgado and the Eighth Circuit's decisions
in United States v. Crippen, 627 F.3d 1056 (8th Cir.
2010), United States v. Spotted Elk, 548 F.3d 641
(8th Cir. 2008), United States v. Barragan, 379 F.3d
524 (8th Cir. 2004), and United States v. Green, 275
F.3d 694 (8th Cir. 2001). T. 26-28; Doc. 38 at 7. These
cases, however, differ from Trejo's situation in one
significant respect; unlike Trejo, the defendants in Salgado,
Crippen, Spotted Elk, Barragan, and Green did not contend
that they possessed a legitimate expectation of privacy in an
object located in the vehicles in which they were passengers.
When a passenger in a vehicle has a legitimate expectation of
privacy in a bag located therein, he may challenge a search
of that bag even though he lacks standing to challenge a
search of the vehicle. Bond v. United States, 529
U.S. 334, 336-39, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000)
(holding that a bus passenger has a legitimate expectation of
privacy in his luggage located within the bus); United
States v. Barber, 777 F.3d 1303, 1305 (11th Cir. 2015)
(concluding that passenger " had standing to challenge
the search of his bag, even if he lacked standing to contest
the search of the car" ); United States v.
Iraheta, 764 F.3d 455, 461-62 (5th Cir. 2014) (finding
that passengers in the car had standing to challenge search
of their luggage); United States v. Edwards, 632
F.3d 633, 641-42 (10th Cir. 2001) (holding that although
defendant lacked standing to challenge the search of a rental
car, he had standing to challenge the search of his luggage
located in the car's trunk); United States v.
Macklin, 902 F.2d 1320, 1330-31 (8th Cir. 1990)
(explaining that defendant who lacked standing to challenge
search of a third-party's car could still have a
legitimate expectation of privacy in luggage located within
the car); see also Arkansas v. Sanders, 442 U.S.
753, 761 n.8, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (finding
that there was " no question" of defendant's
standing to challenge the search of a suitcase located in the
trunk of a taxi cab where the defendant conceded that the
suitcase was his), abrogated on other grounds by
California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114
L.Ed.2d 619 (1991). In other words, a passenger does not lose
a legitimate expectation of privacy in his or her bag simply
by placing it in the vehicle of another.
question here is whether Trejo has demonstrated that he had a
legitimate expectation of privacy in the duffel bag. Several
factors are relevant when determining whether a defendant had
a legitimate expectation of privacy in an object, including
ownership, possession or control, historical use of the
object, whether the object contained the defendant's
personal belongings, the ability to regulate access to the
object, and all of the circumstances surrounding the search.
United States v. Parada, 577 F.3d 1275, 1280 (10th
Cir. 2009); United States v. Pierson, 219 F.3d 803,
806 (8th Cir. 2000). Courts have found that a passenger had a
legitimate expectation of privacy in bags located in a
third-party's vehicle when the passenger placed his
closed bags that contained his personal belongings in the
of a third-party's car, Edwards, 632 F.3d at
642, when a passenger placed his opaque bag directly above
his seat on a bus, Bond, 529 U.S. at 338-39, and when the
passenger was the bailee of a suitcase that the bailor had
placed in the trunk of a taxi cab, United States v.
Perea, 986 F.2d 633, 641-42 (2nd Cir. 1993).
Trejo did not testify at the suppression hearing, his counsel
made an offer of proof that Trooper Biehl would testify that
the duffel bag was closed, that it contained court documents
bearing Trejo's name, and that Trooper Biehl arrested
Trejo because he believed that Trejo owned the bag and had
control over it. T. 101-02. The magistrate judge, apparently
relying on Trooper Biehl's statements on the video of the
traffic stop, found that the duffel bag contained several
documents bearing Trejo's name, and the government has
not objected to this finding. The video also shows Trooper
Biehl telling Garsia that the bag containing the
methamphetamine was " gray and purple,"
Ex. 1 at 8:08:00-8:08:12, and Garsia stating multiple times
that the bag belonged to Trejo. Ex. 1 at 8:07:20-8:08:13,
8:09:05-8:09:11; 8:14:12-8:14:40, 8:15:50-8:16:23,
that Trooper Biehl would testify as Trejo's counsel says,
this information, along with the statements on the video from
Trooper Biehl and Garsia and the fact that the bag contained
papers bearing Trejo's name, could be sufficient to
establish that Trejo, as the owner of a closed and opaque bag
within the vehicle, had a legitimate expectation of privacy
in the bag. See United States v. Freire, 710 F.2d
1515, 1518-19 (11th Cir. 1983); United States v.
DiGiorgio, No. 4:08CR3019, 2008 WL 2718370, at *9-10 (D.
Neb. July 11, 2008). In Freire, for instance, the Eleventh
Circuit rejected the argument that the defendant needed to
testify at the suppression hearing to establish that he had a
legitimate expectation of privacy in a briefcase found in a
third-party's car. 710 F.2d at 1519. It held instead that
testimony from a passenger in the car that the defendant
owned the briefcase and gave it to the passenger for
safekeeping was sufficient to demonstrate that the defendant
had a legitimate expectation of privacy in the briefcase.
Id. Similarly, the district court in DiGiorgio
concluded that the defendant, who was a passenger in a car,
had demonstrated that he had a legitimate expectation of
privacy in a duffel bag located in the car's trunk where
the bag contained receipts bearing the defendant's name,
a police officer testified that the car's driver had told
him that both the driver and the defendant had bags in the
car, and the driver could be heard on a recording of the stop
stating that the bag belonged to the defendant. 2008 WL
2718370, at *9-10.
existence of a " legitimate expectation of privacy"
to a piece of luggage within a vehicle necessarily involves a
case-by-case determination. For example, the Third
Circuit in United States v. Shabazz, 533 Fed.Appx. 158
(3rd Cir.), cert. denied, 134 S.Ct. 832, 187 L.Ed.2d 692
(2013), held that a police officer's testimony that he
saw the defendant leave a house with bags and place them in
the trunk of a third-party's car was insufficient to
establish standing where the defendant did not claim
ownership in the bags at the time of the arrest and did not
present any evidence at the suppression hearing that the bags
or the contents therein were his. Id. at 162.
Likewise, the Eighth Circuit in United States v.
Payne, 119 F.3d 637 (8th Cir. 1997), held that the
defendant did not have standing
to contest the search of a suitcase found in the trunk of a
third-party's car in which the defendant was not a
passenger. Id. at 642. Although the evidence showed
that the defendant had transported the suitcase to an
apartment complex before returning and giving it to the third
party, the Eighth Circuit found that this " temporary
possession" was insufficient to establish a legitimate
expectation of privacy in the bag. Id. In reaching
this conclusion, the Eighth Circuit noted that the defendant
had not presented any evidence that he owned the suitcase,
had historical use of it, had the ability regulate access to
it (the suitcase was only zipped shut and had no lock), or
that the suitcase had identification tags indicating that the
bag belonged to the defendant. Id. Trejo's
claims involving the duffel bag seem to be more analogous to
the facts in Freire and DiGiorgio than those in Shabazz or
Payne. But more testimony about the duffel bag and
Trejo's interests in it is necessary to resolve this
issue of whether Trejo had a legitimate expectation of
privacy interest to contest the search of the duffel bag is
remanded to the magistrate judge to hear more testimony
concerning the bag and search of the bag, including the
bag's appearance, contents, and location, Garsia's
statements that Trejo owned the bag, and any other testimony
that may be relevant to this issue.
magistrate judge ruled that because Trejo lacked standing to
contest the search of the Denali, he was not entitled to
receive records of Zara's field performance and
certifications or to attack the probable cause for the search
based on Zara's unreliability. Doc. 38 at 8. Trejo
objects to these conclusions, arguing that because he has a
legitimate expectation of privacy in the duffel bag, he is
entitled to 1) complete records of Zara's field
performance, standard training, and certifications, and 2)
cross-examine Trooper Biehl about Zara's reliability.
The Fourth Amendment protects against unreasonable searches,
that is, searches that are neither authorized by a warrant
nor within one of the specific exceptions to the warrant
requirement." United States v.
Barraza-Maldonado, 732 F.3d 865, 867 (8th Cir. 2013). If
Trejo establishes that he had a reasonable expectation of
privacy in the duffel bag, the government must demonstrate
that Trooper Biehl's warrantless search of the bag falls
within one of the exceptions to the warrant requirement.
United States v. Kennedy, 427 F.3d 1136, 1140 (8th
Cir. 2005). In its brief and at the hearing, the government
suggested that Zara's indication provided probable cause
to search the Denali. T. 33; Doc. 32 at 13. An "
indication by a properly trained and reliable drug dog
provides probable cause for . . . the search of a
vehicle." United States v. Winters, 600 F.3d
963, 967 (8th Cir. 2010). Under the automobile exception to
the warrant requirement, an officer with probable cause to
search a vehicle may search any item within that vehicle that
is capable of containing the object of the search, regardless
of whether the item belongs to the driver, passenger, or
someone else. Wyoming v. Houghton, 526 U.S. 295,
307, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).
that Trejo establishes a legitimate expectation of privacy in
the duffel bag, he is entitled to challenge the basis for the
search of the bag, including whether Zara was reliable enough
to provide probable cause. See Edwards, 632 F.3d at 644-45
(considering whether there was probable cause to search
rental car containing defendant's luggage where the
defendant did not have standing to challenge the search of
the car but did have standing to challenge the search of his
luggage); Wayne R. LaFave, Search and Seizure § 11.3(c)
(5th ed. 2014) (" If a person has goods on the premises
of someone else under circumstances where there is an
expectation of privacy in those effects, it does not follow
that this person has an expectation of privacy in the
premises of the same degree and dimensions as that
of the individual in possession of the premises. When these
stored goods are found and seized in a police search,
certainly the bailor should be able to complain about such
defects as the lack of a warrant or the lack of probable
cause regarding the search which led to the seizure." ).
being able to challenge Zara's reliability does not
guarantee Trejo access to all of Zara's records. See
Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61
(2013). In Harris, the Supreme Court set forth the framework
courts should use to assess whether a drug dog's alert to
a vehicle provides probable cause to search. The relevant
inquiry is " whether all the facts surrounding a
dog's alert, 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. A sniff is up
to snuff when it meets that test." Id. at 1058.
The Supreme Court in Harris rejected the notion that the
government must introduce field-performance records to
establish that a dog's alert provided probable cause, id.
at 1056, concluding instead that " a dog's
satisfactory performance in a certification or training
program can itself provide sufficient reason to trust his
alert." Id. at 1057. Although acknowledging
that a drug dog's performance in the field " may
sometimes be relevant," id. at 1057, the Supreme Court
expressed doubt about the significance of field performance
Errors may abound in such records. If a dog on patrol fails
to alert to a car containing drugs, the mistake usually will
go undetected because the officer will not initiate a search.
Field data thus may not capture a dog's false negatives.
Conversely (and more relevant here), if the dog alerts to a
car in which the officer finds no narcotics, the dog may not
have made a mistake at all. The dog may have detected
substances that were too well hidden or present in quantities
too small for the officer to locate. Or. the dog may have
smelled the residual odor of drugs previously in the vehicle
or on the driver's person. Field data thus may markedly
overstate a dog's real false positives. By contrast,
those inaccuracies--in either direction--do not taint records
of a dog's performance in standard training and
certification settings. There, the designers of an assessment
know where drugs are hidden and where they are not--and so
where a dog should alert and where he should not. The better
measure of a dog's reliability thus comes away from the
field, in controlled testing environments.
Id. at 1056-57 (footnote omitted). For these reasons
the Supreme Court explained, field-performance records will
have " relatively limited import" in most cases.
Id. at 1056.
the Harris decision, this Court in Salgado held that a
defendant who had received Zara's certification records
was not entitled to her field-performance or
standard-training records. Salgado, 2013 WL 1348264,
at *7-8. In denying the defendant's request for
Zara's field-performance records, this Court explained
that Harris established that a dog's certifications and
training records are the better measure of the dog's
reliability. [WL] at 8. Furthermore, although the Supreme
Court in Harris held that a defendant must be allowed to
challenge a dog's reliability--for example by
cross-examining the officer, introducing fact or expert
the adequacy of a certification or training program,
questioning the dog's performance during the relevant
stop, and cross-examining the officer about the dog's
field history--the Supreme Court never suggested that a
defendant must receive the dog's field-performance
records. Salgado, 2013 WL 1348264, at *8. With
respect to the standard-training records, this Court held
that defendants are not necessarily entitled to such records
under the totality-of-the-circumstances test set forth in
Harris. Salgado, 2013 WL 1348264, at *8. The
defendant in Salgado appealed the denial of his request for
the field-performance records but not the denial of his
request for the standard-training records. See
Appellant's Brief, United States v. Salgado, 761
F.3d 861 (8th Cir. 2014) (No. 13-2480). The Eighth Circuit
affirmed, holding that the evidence of Zara's training
and certification established her reliability and that this
Court did not abuse its discretion by denying the
defendant's request for Zara's field-performance
records. Salgado, 761 F.3d at 867.
record stands now, there is no evidence of Zara's
reliability in this case; the magistrate judge struck the
certification records and Trooper Biehl's testimony about
Zara's reliability and did not allow cross-examination on
these issues. T. 82-85. Should Trejo establish a legitimate
expectation of privacy in the bag, he is entitled to
Zara's certification records, the accompanying score
sheets, and to cross-examine Trooper Biehl about any
testimony he gives concerning Zara's reliability.
government also should provide Trejo with Zara's recent
standard-training records. To be sure, as this Court
acknowledged in Salgado, Harris does not necessarily require
the government to supply the defendant with such records.
Despite not receiving Zara's standard-training records,
the defendant in Salgado had a sufficient opportunity to
challenge Zara's reliability when he received her
certification records and was able to cross-examine Trooper
Biehl. 2013 WL 1348264, at *8. The better practice, however,
is for the government, if relying on a drug dog's
indication to establish probable cause, to provide defendants
with the dog's recent standard-training records as well
as the certification before the suppression hearing. Like the
certification procedure, a drug dog's standard training
occurs in a controlled testing environment where the
dog's performance can be accurately assessed; records
from a dog's certification and standard training are thus
the " better measure" of a dog's reliability.
Harris, 133 S.Ct. at 1057. Indeed, evidence of
" a dog's satisfactory performance in a
certification or training program can itself provide
sufficient reason to trust his alert." Id.
Because a drug dog's recent standard-training records are
relevant to the dog's continuing reliability to detect
drugs, defendants should have access to these records.
the government need not provide Trejo with Zara's
field-performance records at this time. Trejo, citing
United States v. Foreste, 780 F.3d 518 (2nd Cir.
2015), argues that he must receive Zara's
field-performance records to cross-examine Trooper Biehl
effectively. The district court in Foreste had denied a
defendant's request for a drug dog's
field-performance records based on the court's view that
such records were " not controlled instances" and
therefore did not " tell you anything." 780 F.3d at
529. The Second Circuit, concluding that field-performance
records remain relevant after Harris, held that the district
court's denial of the request for field-performance
records was based on an " erroneous view of the
law" and thus constituted an abuse of
discretion. Foreste, 780 F.3d at 529.
Notwithstanding the Second Circuit decision in Foreste, the
Salgado decision establishes that, at least within the Eighth
Circuit, defendants are not automatically entitled to such
" minimally probative" field-performance records
for the purpose of cross-examining a dog's handler. 761
F.3d at 867. Trejo has failed to adequately explain why he is
entitled to field-performance records in this case, where he
would be receiving more records of Zara's performance in
a controlled environment than did the defendant in Salgado.
If there are peculiar circumstances to justify discovery of
Zara's field-performance records, the magistrate judge
may order the government to produce them. However, on this
record and in light of Harris and Salgado, there does not
appear to be such peculiar circumstances here.
reasons stated above, it is hereby
that this case is remanded to the magistrate judge to
determine whether Trejo has a legitimate expectation of
privacy in the duffel bag and to hear evidence concerning
Zara's reliability if in fact Trejo has such an interest.
It is further
that the government provide Trejo with records of Zara's
recent standard training and her certifications and the
accompanying score sheets. It is finally
that Trejo's other objections to the Report and
Recommendation are overruled.
The Supreme Court in Rakas v.
Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387
(1978) abandoned reliance on traditional standing doctrines
to determine whether a defendant could challenge a search.
Id. at 138-140; see also United States v.
Green, 275 F.3d 694, 698 n.3 (8th Cir. 2001) ("
Technically, the concept of 'standing' has not had a
place in Fourth Amendment jurisprudence . . . since the
Supreme Court in [Rakas] indicated that matters of standing
in the context of searches and seizures actually involved
substantive Fourth Amendment law." (quoting United
States v. Sanchez, 943 F.2d 110, 113 n.1 (1st Cir.
1991))). After Rakas, the appropriate inquiry is whether the
defendant " possessed a 'legitimate expectation of
privacy' in the area searched." Rawlings v.
Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d
633 (1980); see also United States v. Morales, 737
F.2d 761, 763 (8th Cir. 1984). Nevertheless, courts have
continued to use the term " standing" to refer to a
defendant's ability to challenge a search. This can be
misleading because unlike Article III standing, the concept
of Fourth Amendment standing is not jurisdictional and can be
bypassed in favor of a decision on the merits. See
Steagald v. United States, 451 U.S. 204, 208-11, 101
S.Ct. 1642, 68 L.Ed.2d 38 (1981); United States v.
Ewing, 638 F.3d 1226, 1230 (9th Cir. 2011); United
States v. Ned, 637 F.3d 562, 566 n.1 (5th Cir. 2011)
(per curiam); United States v. Johnson, 584 F.3d
995, 999 n.3 (10th Cir. 2009); United States v.
Macklin, 902 F.2d 1320, 1331 n.12 (8th Cir. 1990);
Morales, 737 F.2d at 763-64; United States v.
Foster, 763 F.Supp.2d 1086, 1087-90 (D. Minn.
Several courts have held that such
testimony may be used for impeachment purposes, however.
United States v. Jaswal, 47 F.3d 539, 543-44 (2nd
Cir. 1995) (per curiam); United States v.
Beltran-Gutierrez, 19 F.3d 1287, 1289-91 (9th Cir.
1994); United States v. Quesada-Rosadal, 685 F.2d
1281, 1283 (11th Cir. 1982).
person would not have a reasonable expectation in a
transparent bag, and a gray and purple bag presumably is not