                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 16 2015

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 13-50388

               Plaintiff - Appellee,               D.C. No. 3:12-cr-04584-DMS-1

  v.
                                                   MEMORANDUM*
FRANCISCO SALAZAR, Jr.,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                     Argued and Submitted November 19, 2014
                               Pasadena, California

Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.

       Francisco Salazar, Jr. appeals the decision of the district court that denied his

motion to suppress evidence obtained by a warrantless download of electronic data

from his cellular phone incident to his arrest, and from a canine inspection of his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
automobile on September 19, 2012. We have jurisdiction under 28 U.S.C. §§ 1291

& 1294(1). We find for the appellant and reverse the order of the district court.

      The district court denied Salazar’s motion to suppress without the benefit of

Riley v. California, 134 S. Ct. 2473 (2014), in which the Supreme Court held that

the search of a cellular phone incident to arrest, absent exigency, requires a

probable cause warrant. The evidentiary record may be sparse and unclear as to

how the warrantless cellular phone search affected Salazar’s guilty plea, but the

law as to this issue is substantial and clear. See Riley, 134 S. Ct. at 2493; see also

United States v. Camou, No. 12-50598, 2014 WL 6980135 (9th Cir. Dec. 11,

2014). The district court’s failure to suppress the evidence obtained from the

unlawful search must be reversed.

      The district court also lacked the benefit of United States v. Thomas, 726

F.3d 1086, 1096-97 (9th Cir. 2013), cert. denied, 134 S. Ct. 2154 (2014), where

this court concluded that redacted canine training records were inadequate to

demonstrate a canine’s reliability for a probable cause finding to justify a

subsequent search.

      The issue regarding the canine reliability determination in this case is not

whether a mathematical review of numerical scores on submitted forms

demonstrate that the dog in this case, Charley, is a good dog, or that Beny-A, the


                                           2
dog in Thomas, may have been a bad dog, as the dissent’s analysis indicates. The

issue is whether the government fulfilled its duties to provide Salazar with a fair

hearing before the district court. See Florida v. Harris, 133 S. Ct. 1050, 1055-

1058 (2013).

      The government has long been on notice that a defendant in a case such as

this one is entitled to canine training records and that their disclosure is mandatory.

United States v. Cedano-Arellano, 332 F.3d 568, 573 (9th Cir. 2003); see also

United States v. Cortez–Rocha, 394 F.3d 1115, 1118 n. 1 (9th Cir. 2005). These

types of records are “crucial to [a defendant’s] ability to assess the dog’s reliability,

a very important issue in his defense, and to conduct an effective cross-

examination of the dog’s handler.” Cedano-Arellano, 332 F.3d at 571 (emphasis

added).

      The government submitted the unredacted canine training records to this

panel on appeal. Under Cedano-Arellano this is insufficient to cure the error. Id.

at 573. It is at the district court, where the facts are determined, testimony is

subject to searching cross-examination, and the evidentiary record is compiled, that

unredacted canine records must, at a minimum, be presented to the judge in camera

for review and considered in light of the specific facts at issue in the trial. Id.




                                            3
      We would deprive the district court of its proper function were we to allow

the government to successfully circumvent the usual rules of criminal procedure,

Fed. R. Crim. P. 16, and the requirements of Ninth Circuit precedent, Thomas, 726

F.3d at 1096-97, by introducing mandatory unredacted training records only when

a case is on appeal. “[A] probable-cause hearing focusing on a dog’s alert should

proceed much like any other. The court should allow the parties to make their best

case, consistent with the usual rules of criminal procedure. And the court should

then evaluate the proffered evidence to decide what all the circumstances

demonstrate. If . . . the defendant has challenged the State’s case (by disputing the

reliability of the dog overall or of a particular alert), then the court should weigh

the competing evidence.” Harris, 133 S. Ct. at 1058 (emphasis added).

      “The question . . . 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.” Id. The lens of

common sense used in answering this question should only on rare occasion be

darkened by the government’s redacting pen.

      In this case, the defendant challenged the canine’s reliability and points to

specific instances where the unredacted canine training records, along with

effective cross-examination, may have “changed the ultimate determination that


                                           4
the agents had [probable cause] to support their search[.]” Cedano-Arellano, 332

F.3d at 574.

      We therefore reverse and remand to the district court for further proceedings

in light of intervening case law.

      Per the Conditional Plea Agreement between Salazar and the government

filed May 21, 2013, and Fed. R. Crim. P. 11(a)(2), Salazar is permitted to withdraw

his plea of guilty to 21 U.S.C. §§ 841(a)(1) and 846. See United States v. Mejia,

69 F.3d 309 (9th Cir. 1995).

      REVERSED AND REMANDED.




                                         5
                                                                           FILED
United States v. Salazar, No. 13-50388                                      JAN 16 2015

                                                                        MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, dissenting:                                       U.S. COURT OF APPEALS



      I respectfully dissent. In my view, reversal is unwarranted because any error

was harmless.

      A. Charley’s Training Records

      Even if the unredacted training records for Charley (the dog) had been

available, they would not have changed the district court’s finding that Charley

was reliable. In United States v. Cedano-Arellano, a dog sniff case with similar

facts, we found that “while defense counsel should have been given access to the

requested documents, there was nothing in those documents that would have

changed the ultimate determination that the agents” had reasonable suspicion to

search the vehicle. 332 F.3d 568, 574 (9th Cir. 2003). The same conclusion

applies with equal force here.

      The government produced records that revealed Charley’s scores, which

were nearly all passing marks. It redacted the comments on Charley’s performance

and how the training was conducted. On appeal, we have the benefit of the

unredacted records and can readily see that the redacted comments are

overwhelmingly positive. If anything, the redacted comments strengthen the
district court’s finding that Charley was reliable.1

      The facts here contrast sharply with those in United States v. Thomas, where

we reversed a denial of a motion to suppress because of the district court’s reliance

on redacted training records. 726 F.3d 1086 (9th Cir. 2013). In Thomas, we did

not have the unredacted records, and thus we “[could not] say that there is ‘nothing

in those documents that would have changed the ultimate determination that the

agents had [probable cause] to support their search.’” Id. at 1097 (first alteration

added, second alteration in original) (quoting Cedano-Arellano, 332 F.3d at 574).

      Moreover, Beny-A, the dog in Thomas, is no Charley. Among other

differences, Beny-A and his handler received failing scores on every single

performance record in various categories, and received failing scores around 6

percent of the time. See Excerpts of Record of Appellant at 216-31, United States

v. Thomas, 726 F.3d 1086 (9th Cir. 2013) (No. 11-10451), ECF No. 42. The


      1
        The majority states that the relevant question is not Charley’s reliability,
but the government’s responsibility to provide Salazar with a fair hearing. But to
the extent that this is a discovery issue, it bears mention that defense counsel did
not object below to the redactions. As we explained in United States v. Henderson,
when the government withholds discovery information based on a claim of
privilege, “a district court must hold an in camera hearing whenever the defendant
makes a minimal threshold showing that disclosure would be relevant.” 241 F.3d
638, 645 (9th Cir. 2000) (quoting United States v. Spires, 3 F.3d 1234, 1238 (9th
Cir. 1993)) (internal quotation marks omitted). By failing to object or request an in
camera review, Salazar failed to make such a showing. Moreover, Salazar’s failure
to object arguably limits us to plain error review, as the government argues. In any
event, even under harmless error review, Salazar’s claim fails.
government in Thomas also conceded that the redacted comments likely would

include “critiques of the team’s competence as well as discussions about areas for

improvement.” Thomas, 726 F.3d at 1097. Charley, on the other hand, received

failing scores less than one-half of one percent of the time, and the redacted

comments on his records are overwhelmingly positive. The redacted comments

here—nearly all along the lines of “Great job! Team works very well together” and

“Canine has a great nose and strong alert”—generally praise Charley’s

performance. The redactions do not undermine the probable cause analysis, and

any error in redacting the records is therefore harmless. See Florida v. Harris, 133

S. Ct. 1050, 1057 (2013) (observing that “evidence of a dog’s satisfactory

performance in a certification or training program can itself provide sufficient

reason to trust his alert”).

       B. The Cell Phone Records

       Any error in the district court’s failure to suppress the cell phone records

was harmless. Salazar pleaded guilty to being a member of a drug conspiracy, a

charge that was amply supported by other evidence. To find guilt of conspiracy,

the government need only prove “an agreement to accomplish an illegal purpose.”

United States v. Jackson, 167 F.3d 1280, 1285 (9th Cir. 1999). Here, evidence that

Salazar agreed to smuggle drugs is ample: the narcotics were found in the car that

                                           3
Salazar owned, directly under his seat, and he appeared to be feigning sleep

throughout the entire stop (including at secondary inspection), a practice which the

attending Border Patrol agent identified as often used to avoid inspection. Given

the strength of this evidence, any error in admitting the cell phone records is

therefore harmless. See Fed. R. Crim. P. 52(a).

      Salazar suggests that we follow the Tenth Circuit’s approach in United

States v. Benard, 680 F.3d 1206 (10th Cir. 2012). Under Benard, harmless error is

applied to the question of “whether there is a reasonable possibility that the error

contributed to the plea,” which is a difficult task because “a defendant’s decision to

plead guilty may be based on any factor inside or outside the record.” Id. at 1213

(quoting People v. Grant, 380 N.E.2d 257, 264 (N.Y. 1978)) (internal quotation

marks omitted).

      We have not adopted this approach in the conditional plea context. See, e.g.,

Cedano-Arellano, 332 F.3d at 573-74 (applying harmless error analysis to an

appellant's conditional guilty plea when the existence of other evidence would not

have changed the outcome of a motion to suppress); United States v. Davis, 530

F.3d 1069, 1083-84 (9th Cir. 2008) (same). Even accepting Salazar’s suggestion,

however, there is little evidence to suggest that he might not have pleaded guilty

had the cell phone records been suppressed. Suppression of the cell phone records

                                           4
was mentioned nearly as an afterthought during the suppression hearing, and

nothing suggests that their content (which remains unknown) would have played a

significant role in the government’s case.

      Salazar raises a number of additional arguments, none of which is

persuasive. Therefore, I would affirm.




                                             5
