United States v. Thomas, No. 11-10451 (9th Cir. 2013)
Annotate this CaseDefendant was indicted for possession with intent to distribute marijuana on March 24, 2010. On May 18, 2011, a superseding indictment issued adding a charge of conspiracy to possess with intent to distribute marijuana. Defendant was found guilty of the conspiracy charge and subsequently appealed, raising claims concerning the Speedy Trial Act, 18 U.S.C. 3161 et seq., and the use of a drug-detection dog. The court held that charges in a superseding indictment not required to be joined with the original charges come with a new seventy-day clock under the Act. In this instance, defendant's prosecution for the conspiracy charge complied with the Act because trial commenced within seventy days of the superseding indictment. The court concluded, however, that the government's failure to turn over a full complement of dog-history discovery was an error that was not harmless. Therefore, the court reversed the district court's denial of defendant's motion to suppress and vacated defendant's conviction.
Court Description: Criminal Law. Reversing the denial of a suppression motion and vacating a conviction, the panel considered the demands of the Speedy Trial Act in the case of a superseding indictment, and explored the emerging parameters for the constitutional use of drug-detection dogs. The panel held that charges in a superseding indictment not required to be joined with the original charges come with a new seventy-day clock under the Speedy Trial Act, and that the conspiracy count introduced in the superseding indictment in this case was not required to be joined with the count in the original indictment charging possession with intent to distribute marijuana. Because in accord with then-binding precedent marijuana seized from a tool box attached to the bed of the defendant’s truck was not subject to exclusion on the basis of an unconstitutional trespass or physical intrusion, the panel did not decide whether agents violated or implicated the Fourth Amendment by directing the drug-detection dog to jump up and put his paws and nose on the toolbox. The panel reversed the denial of the suppression motion and vacated the conviction because the government’s failure to turn over a full complement of dog-history discovery was error, and that error was not harmless. Rejecting an alternative basis for invalidating the search, the panel explained that evidence from a trained and reliable handler about alert behavior recognized in his dog can, depending on the facts and circumstances, be the basis for probable cause.
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