                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            AUG 09 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10049

              Plaintiff - Appellee,              D.C. No. 1:13-cr-00565-HG-1

 v.
                                                 MEMORANDUM*
ADOLFO GUZMAN, Jr.,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    Helen W. Gillmor, District Judge, Presiding

                        Argued and Submitted June 14, 2016
                                Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN, and MURGUIA, Circuit
Judges.

      Adolfo Guzman, Jr. entered a conditional plea agreement and pleaded guilty

to an indictment charging him with drug trafficking offenses under 21 U.S.C. §§

841(a)(1), 841(b)(1)(A) and 846. On appeal, he claims that the district court erred

in denying his motion to suppress trafficking evidence recovered from the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
residence of co-defendant Antonio Perez, Jr. pursuant to a search warrant. We

have jurisdiction under 18 U.S.C. § 1291 and, on de novo review, affirm the

conviction under the good faith exception to the exclusionary rule.1 United States

v. Fries, 781 F.3d 1137, 1146 (9th Cir. 2015); United States v. Crews, 502 F.3d

1130, 1136 (9th Cir. 2007).

      Under the good faith exception, law enforcement officers may execute a

warrant they reasonably believe to be lawful even if the warrant is later found to be

technically defective. United States v. Leon, 468 U.S. 897, 920–21 (1984). A

search conducted pursuant to a warrant will normally fall within the exception

unless one of the following four circumstances exist: (1) the issuing magistrate was

knowingly misled; (2) the issuing magistrate wholly abandoned his or her judicial

role; (3) the application is so lacking in indicia of probable cause as to render

reliance upon it unreasonable; or (4) the warrant is so facially deficient that

reliance upon it is unreasonable. Id. at 923.

      Guzman challenges the search based on circumstances two and three. As to

the second circumstance, Guzman contends that the magistrate abandoned his

judicial role by deferring to the assertion that the traveler mentioned in the warrant



      1
         We offer no opinion on whether the challenged warrant application
establishes probable cause.

                                           2
affidavit was, in fact, a known drug courier traveling from San Diego to Honolulu.

Unlike the judge in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), who erred

in conducting his own independent investigation of items to be seized pursuant to

the warrant before him, the magistrate in this case evaluated the facts and made a

detached and neutral decision to issue the warrant based on the totality of the facts

presented in the affidavit alone, see Crews, 502 F.3d at 1138.

      Regarding the third circumstance, Guzman contends that the warrant

affidavit is so bare bones that reliance on it was unreasonable. “The test for

reasonable reliance is whether the affidavit was sufficient to ‘create disagreement

among thoughtful and competent judges as to the existence of probable cause.’”

United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (quoting Leon, 468 U.S.

at 926). The affidavit here meets this test. The document contains the following

information presenting a “colorable showing of probable cause,” id. at 140: On

May 31, 2013 (the date of the warrant application), law enforcement agents in San

Diego alerted agents in Honolulu that an individual under investigation was

onboard a flight from San Diego to Honolulu. The San Diego agents provided the

Hawaii agents with a description and photo identification of the individual, who

Hawaii agents identified upon his arrival in Honolulu at approximately 1:20 p.m.

Agents secretly followed the individual to his hotel where they observed an


                                          3
encounter between the individual and Perez, who was carrying a backpack that

appeared to be empty at the beginning of the encounter but appeared full when the

two parted ways. Agents then followed Perez to an apartment building and, with

the help of the resident manager, determined that Perez lived in unit #601. They

knocked on the door of the unit. Perez opened the door and a strong odor of

marijuana from the apartment caught the agents’ attention, as well as a bong

observed in plain view. The agents inquired whether others were inside the

apartment, but Perez lied, stating that no one else was present. Agents continued to

ask in a loud voice until Guzman and another male emerged from the apartment.

The three were identified and detained, and the apartment secured pending a

warrant to search the residence for controlled substances and other indicia of drug

trafficking. Given these allegations, application of the good faith exception was

proper. See Crews, 502 F.3d at 1137.

      AFFIRMED.




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