United States v. Francisco Salazar, Jr.

dissenting:

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 *493 strengthen the district court’s finding that Charley was reliable. 1

The.-.facts here contrast sharply with those in United…

MEMORANDUM *

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 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, - U.S. -, 134 S.Ct. 2473 , 189 L.Ed.2d 430 (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, 773 F.3d 932 (9th Cir.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…

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NOT FOR PUBLICATION JAN 16 2015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…