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United States v. Olotoa

United States District Court, D. Hawaii

May 17, 2016




         Before the Court is Defendant Talanivalu Ygnacio Olotoa’s (“Defendant”) Motion to Suppress (“Motion”), filed on April 13, 2016. [Dkt. no. 75.] Plaintiff the United States of America (“the Government”) filed its memorandum in opposition on April 25, 2016. [Dkt. no. 83.] This matter came on for an evidentiary hearing on May 10, 2016. After careful consideration of the Motion, supporting and opposing memoranda, and the evidence presented at the hearing, Defendant’s Motion is HEREBY DENIED for the reasons set forth below.


         On March 12, 2015, Defendant was indicted for: one count of conspiracy to distribute and possess with intent to distribute fifty grams or more of methamphetamine, its salts, isomers, and salts of its isomers, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and § 846; one count of knowingly and intentionally distributing fifty grams or more of methamphetamine, its salts, isomers, and salts of its isomers, in violation of § 841(a)(1) and (b)(1)(A); and one count of knowingly and intentionally distributing hydrocodone, in violation of § 841(a)(1) and (b)(1)(C). The instant Motion challenges the canine search that alerted officials to the presence of a controlled substance within a package allegedly sent by Defendant. Specifically, Defendant seeks more information regarding whether the dog in question, “Zorro, ” was properly trained and certified, and whether or not the alert to the narcotics in the package was sufficiently reliable to establish probable cause for the subsequent search warrant issued by the magistrate judge. [Mem. in Supp. of Motion at 6.]

         On November 7, 2013, while conducting an Express Mail profiling operation at the Honolulu Mail Processing and Distribution Center, United States Postal Inspector Jensen Rodrigues (“Inspector Rodrigues”) noticed a package (“the Package”) with the following characteristics: “the areas of mailing and destination [were] known to have either received narcotics or been areas from where narcotics have been known to be shipped”; it was heavily taped on all sides; gently shaking it revealed that it was densely packed; and the sender had signed the “Waiver of Signature” section of the package label. [Exh. 2 (Application and Aff. for Search Warrant, Aff. of J.X. Rodrigues) (“Rodrigues Aff.”) at ¶¶ 6-7.[1] Moreover, Inspector Rodrigues performed a search “through known law enforcement databases and U.S. Postal Service records, ” and found that, while the return address was a legitimate business, it was not associated with the business specified on the mailing label - I.S.L., Inc.[2] [Id. at ¶ 7.d.] Pursuant to his training and experience, Inspector Rodrigues believed that these characteristics indicated that the Package may have contained a controlled substance.

         The same day, the package was “presented for external examination by State of Hawaii Department of Public Safety narcotics detector canine ‘Zorro’ at the Honolulu Domicile.” [Id. at ¶ 8.] Zorro’s handler, Deputy Sheriff Randall Silva (“Deputy Silva”), informed Inspector Rodrigues that Zorro exhibited a change in behavior consistent with detecting the odor of a controlled substance. [Id.] Thereafter, Inspector Rodrigues applied for and received a search warrant from the magistrate judge. See Exh. 2. At the hearing on the Motion, Inspector Rodrigues testified that: upon searching the Package, he found another box that contained a rice cooker; and, inside of the rice cooker, he found the contraband that gave rise to the instant criminal matter.


         “A police officer has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” Florida v. Harris, 133 S.Ct. 1050, 1055 (2013) (alterations, some citations, and internal quotation marks omitted) (citing Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion)). Moreover, “[i]n evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances, ” id. (citations omitted), and “[w]e have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-thing-considered approach, ” id. The United States Supreme Court held that,

a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question - similar to every inquiry into probable cause - is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.

Id. at 1058.


         At the hearing, Deputy Silva testified that he worked with Zorro from 2007 until Zorro’s retirement in Spring 2014. Deputy Silva told the Court that, as a team, he and Zorro had passed their most recent Canine Unit certification on August 23, 2013, including, inter alia, a test of Zorro’s ability to detect methamphetamine.[3] See Exh. 3 (Narcotics Dog Certification). In addition, Deputy Silva described the most recent certifications he and Zorro received from: American Working Dogs, [4] dated March 7, 2013, see Exh. 4; and California Narcotic Canine Association, [5] dated March 7, 2013, see Exh. 5. Like the Canine Unit certification, these certifications are good for one year from the date of issue.[6]

         Deputy Silva explained that, on the date in question, he did not see Inspector Rodrigues place the Package in the search area, and they were surrounded by hundreds of other packages and envelopes. Deputy Silva led Zorro through the area on a six-foot leash, and upon being told to “sniff, ” Zorro began to search the area. When Zorro reached the Package, he exhibited behavior to indicate the presence of a controlled substance.[7]

         Defendant submits that Zorro’s field log, see Exh. 8, shows an “error rate” of sixteen percent, which is a factor in determining whether or not the dog sniff in the instant action was reliable.[8] In Harris, however, the Supreme Court ...

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