                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 5 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10389

                Plaintiff-Appellant,            D.C. No.
                                                4:17-cr-01301-JAS-BGM-1
 v.

IRIS RODRIGUEZ,                                 MEMORANDUM*

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                    James Alan Soto, District Judge, Presiding

                      Argued and Submitted October 2, 2019
                            San Francisco, California

Before: FERNANDEZ and PAEZ, Circuit Judges, and CHOE-GROVES,** Judge.

      Iris Rodriguez was seized and searched at an interior immigration

checkpoint in Arizona. That search resulted in the discovery of methamphetamine

for which Rodriguez was later indicted. Rodriguez moved to suppress the

methamphetamine on the ground that she did not voluntarily consent to the search.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
The district court referred the motion to a magistrate judge for a Report and

Recommendation (“R&R”). At the evidentiary hearing on her motion, Rodriguez

and Border Patrol Agent Vanessa Salcedo testified. Agent Salcedo interviewed

and searched Rodriguez. In his R&R, the magistrate judge credited Agent

Salcedo’s testimony over Rodriguez’s and recommended that the district court

deny the motion.

      The district court, however, declined to follow the magistrate judge’s

recommendation and granted Rodriguez’s motion. The government then filed an

interlocutory appeal of the district court’s order under 18 U.S.C. § 3731. On

appeal, the government raises two arguments: (1) the court procedurally erred

when in failed to hold a de novo evidentiary hearing before implicitly rejecting the

magistrate judge’s credibility findings; and (2) the district court applied the wrong

legal standard for assessing the voluntariness of Rodriguez’s consent to the search.

We agree with the government’s first argument and therefore do not address the

second.

      The Due Process Clause prevents a district court from rejecting a magistrate

judge’s credibility determinations that favor the defendant unless the court first

conducts a de novo evidentiary hearing. United States v. Ridgway, 300 F.3d 1153,

1156–57 (9th Cir. 2002). But, because the government has no due process rights,

the Constitution does not mandate a “symmetrical” rule for cases where the district


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court rejects a magistrate judge’s credibility findings favorable to the government.

United States v. Thoms, 684 F.3d 893, 902 (9th Cir. 2012). Instead, we have

invoked our “supervisory authority” to adopt a “narrower rule” specifying that a

district court abuses its discretion when it rejects a magistrate judge’s credibility

findings that favor the government, unless those findings had no legally sufficient

evidentiary basis. Id. at 903. Because the magistrate judge made credibility

determinations in the government’s favor, our analysis is guided by Thoms.

      Here, the district court made at least one factual finding inconsistent with the

magistrate judge’s credibility findings. The magistrate judge found that Agent

Salcedo credibly testified that she twice obtained Rodriguez’s consent before

conducting the search of her person.

      The district court, however, found Agent Salcedo’s characterization of her

interaction with Rodriguez “to be a strained reading of the interaction” and

declined to characterize the exchange “as unequivocal consent.” The district

court’s characterization of the exchange constituted an implicit rejection of the

magistrate judge’s crediting of Agent Salcedo’s testimony. Although the district

court could have reasonably rejected Agent Salcedo’s testimony, it could have

done so only after conducting an evidentiary hearing of its own. Id. at 896. In

failing to hold a hearing, we agree with the government that the district court

procedurally erred.


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      For the above reasons, the district court’s suppression order is vacated and

the matter is remanded for further consideration. “That consideration on remand,

we presume, will include a de novo hearing before the district judge, but we leave

it to the district court to determine the scope of that hearing.” Id. at 906.

      VACATED AND REMANDED.




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