                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-10283

                Plaintiff-Appellee,             D.C. No.
                                                1:18-cr-00139-DKW-1
 v.

STEVEN BIHAG,                                   MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                            for the District of Hawaii
                 Derrick Kahala Watson, District Judge, Presiding

                              Submitted July 7, 2020**
                                 Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

      Steven Bihag was charged with possessing and intending to distribute

methamphetamine in violation of 21 U.S.C. § 841. After the district court denied

Bihag’s suppression motion, Bihag entered a conditional guilty plea, which

preserved his right to appeal the suppression ruling. Bihag has now appealed that


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
suppression ruling. We affirm.

      1. We hold that Bihag was not seized during his initial encounter with

police because a reasonable person would have felt free to leave. See United States

v. Washington, 490 F.3d 765, 769 (9th Cir. 2007). The officers approached Bihag

in a public space, were in plain clothes, and did not display any weapons. See id.

at 771 (explaining that “whether the encounter occurred in a public or non-public

setting” and “whether weapons were displayed” are “factors to consider in

determining if a person was seized”). Officer Dayle Morita told Bihag around

“three or four times” that Bihag was free to leave. The district court also found

that there were several feet of space between Morita and another officer, and that

Bihag “could have . . . walked away just as the officers invited him to do”—and

neither of those findings is clearly erroneous. Likewise, nothing in the record

indicates that the officer standing near the terminal entrance was blocking that

entrance. Cf. United States v. Crapser, 472 F.3d 1141, 1146 (9th Cir. 2007)

(concluding that there was no seizure when “there were four officers present,” in

part because the officers “did not block Defendant” or “affirmatively assert

authority over” Defendant’s movements).

      Bihag highlights that Officer Morita asked who had packed Bihag’s

backpack and whether the backpack contained drugs or other contraband, and that

Morita stated that he believed Bihag was not answering questions truthfully. But


                                          2
Morita’s exchange with Bihag did not escalate the encounter into a seizure. See

United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1503, 1505 (9th Cir. 1988)

(describing an officer asking an individual “if he was transporting narcotics,” and

concluding there was no seizure at that point in time); United States v. Erwin, 803

F.2d 1505, 1507-08 (9th Cir. 1986) (concluding there was no seizure when officers

told defendant “they were conducting a narcotics investigation,” questioned the

defendant about drugs, and pointed out holes in the defendant’s story). Bihag

further emphasizes that Morita stated that he believed Bihag was carrying drugs.

See Morgan v. Woessner, 997 F.2d 1244, 1253 n.5 (9th Cir. 1993) (holding that a

person may be seized if an officer makes “statements which intimate[] that an

investigation [is] focus[ed] on” that person). But Morita testified that he made that

statement right before Bihag’s backpack was detained, and Bihag does not dispute

that police had reasonable suspicion of criminal activity when they detained his

backpack. Morita’s statement therefore does not help Bihag establish that there

was any earlier seizure that violated the Fourth Amendment.

      2. We hold that the search warrant for Bihag’s backpack was supported by

probable cause. “Even assuming arguendo under the first step of the Franks

analysis” that there were misleading statements or omissions in Corporal Jaret

Fernandez’s affidavit, “we conclude under the [Franks] second step that the

affidavit nonetheless established probable cause.” United States v. Elliott, 322


                                          3
F.3d 710, 715 (9th Cir. 2003). Fernandez’s affidavit described narcotics dog

Mervin’s three certifications and stated that Mervin “passed certification standards

in a controlled environment.” “If a bona fide organization has certified a dog after

testing his reliability in a controlled setting, a court can presume (subject to any

conflicting evidence offered) that the dog’s alert provides probable cause to

search.” Florida v. Harris, 568 U.S. 237, 246-47 (2013). Here, none of the

“conflicting evidence offered” provides a basis for concluding that Mervin’s alert

was insufficient to establish probable cause. Id.

      Bihag argues that Mervin was “trained to locate and detect contaminated

items instead of actual drugs,” so Mervin’s alert “amounts to nothing more than a

hunch that the item he alerted on might contain drugs.” Bihag’s contention is

foreclosed by Harris. There, the Supreme Court explained that a dog’s alert can

establish probable cause even if there is a “chance” that the dog’s alert was

prompted by an odor, not an actual controlled substance. Id. at 246 n.2; see also

United States v. Gadson, 763 F.3d 1189, 1202 (9th Cir. 2014). Thus, under Harris,

the fact that Mervin’s training might have led Mervin to alert to odors does not

prevent Mervin’s alerts from establishing probable cause.

      Bihag additionally emphasizes that “Mervin is not allowed to fail during




                                           4
training.”1 Although Bihag is correct that the nature of Mervin’s training means

that the training log does not “attest to [Mervin’s] accuracy in locating and

detecting drugs,” Bihag does not provide any explanation of how Mervin’s training

actually undercuts the reliability of Mervin’s alerts.

      Finally, Bihag highlights that Mervin had twelve false positive alerts over

six months. But Harris made clear that “[f]ield data . . . may markedly overstate a

dog’s real false positives.” 568 U.S. at 246. Even assuming that Mervin’s field

data accurately reflects his performance, from what we are able to discern from the

record, Mervin’s performance is passable enough that his alerts indicate a

“reasonable expectation[],” even if not a “certaint[y],” that narcotics will be found,

United States v. Thomas, 726 F.3d 1086, 1098 (9th Cir. 2013)—particularly in

light of other indicators of Mervin’s reliability, see Harris, 568 U.S. at 245

(cautioning that “[a] gap as to any one matter . . . should not sink the State’s case,”

as “[t]hat is the antithesis of a totality-of-the-circumstances analysis”).

      AFFIRMED.




      1
        Bihag also states that Mervin “is not allowed to fail” during certification,
but Fernandez’s testimony at the Franks hearing belies that assertion.

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