NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30009
Plaintiff-Appellee, D.C. No. 4:19-cr-00303-BLW-1 v.
CODY J MOORE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding
Submitted October 2, 2023** Seattle, Washington
Before: WARDLAW and M. SMITH, Circuit Judges, and MATSUMOTO,*** District Judge.
Cody Moore entered a conditional guilty plea to one count of conspiracy to
distribute methamphetamine and two counts of possession with intent to distribute
* 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). *** The Honorable Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation. methamphetamine, reserving his right to appeal the district court’s denial of his
motion to suppress evidence obtained from a cell-site location information
(“CSLI”) warrant and the subsequent stop and search of his vehicle. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court correctly concluded that Detective Tuttle’s affidavit
in support of the CSLI warrant established sufficient probable cause. See United
States v. Elmore, 917 F.3d 1068, 1074 (9th Cir. 2019) (“Probable cause exists
where the totality of the circumstances indicates a fair probability that. . .evidence
of a crime will be found in a particular place.” (internal quotation marks omitted)).
The affidavit contained the statements of two confidential informants who
connected Moore to the drug-trafficking conspiracy. Although the affidavit alone
did not establish the reliability of these informants, law enforcement was able to
corroborate some of the informants’ information, and “the interlocking nature of
their stories enhanced their credibility.” United States v. Hernandez-Escarsega,
886 F.2d 1560, 1566 (9th Cir. 1989). Furthermore, Moore’s toll records showed
that he was in contact with at least three other members of the conspiracy, and the
affidavit contained significant evidence linking each of these three coconspirators
to the drug-trafficking operation. Therefore, “[a]lthough no single piece of
evidence by itself is conclusive, viewed together the ‘totality of the circumstances’
was sufficient to establish probable cause to believe that evidence of drug-related
2 activity would be found . . . ” United States v. Stanert, 762 F.2d 775, 780 (9th Cir.
1985).
2. The district court did not err by refusing to exclude evidence pursuant
to Idaho Criminal Rule 41. Rule 41(a) provides, “[i]f it does not appear that the
property or person sought is currently within the State of Idaho, the warrant may still
be issued; however, the fact the warrant is issued is not deemed as granting authority
to serve the warrant outside the territorial boundaries of the State.” I.C.R. 41(a).
However, the federal Stored Communications Act (“SCA”) authorizes the
government to execute a warrant on a provider of electronic communications if the
warrant is issued “by a court of competent jurisdiction” and, “in the case of a State
court, issued using State warrant procedures.” 18 U.S.C. § 2703(c)(1)(A). Because
the Idaho state court qualifies as “a court of competent jurisdiction,” see 18 U.S.C.
§ 2711(3)(B), and because “[Rule 41(a)] was amended to expressly authorize
warrants for property located outside the territorial boundaries of the state,” State v.
Branigh, 313 P.3d 732, 740 (Idaho 2013), Idaho’s “State warrant procedures” permit
extraterritorial CSLI warrants under the SCA. Therefore, law enforcement did not
violate Rule 41(a) by serving Moore’s CSLI warrant outside of Idaho.
Rule 41 also requires that a warrant “command the officer to search, within a
specified period of time, not to exceed 14 days.” I.C.R. 41(d)(3). The CSLI
warrant at issue here authorized law enforcement to monitor Moore’s cell-site
3 location data for 30 days. But even if we agree that this was a technical violation
of Rule 41(d)(3), “the settled ruled in the Ninth Circuit is that a purely technical
violation of [the analogous Federal Criminal] Rule 41 does not require the
suppression of evidence otherwise legally obtained.” United States v. Ritter, 752
F.2d 435, 441 (9th Cir. 1985). And the “rules that the officers violated were those
of state law alone, and . . . it is not the province of the Fourth Amendment to
enforce state law.” See Virginia v. Moore, 553 U.S. 164, 178 (2008). Therefore,
this technical violation of state Criminal Rule 41 does not rise to the level of a
Fourth Amendment constitutional violation that would warrant suppression of
evidence.
3. The district court properly concluded that Officer Gallegos had
reasonable suspicion to conduct the traffic stop of Moore’s vehicle. In Whren v.
United States, 517 U.S. 806, 813 (1996), the Supreme Court held that its precedent
“foreclose[s] any argument that the constitutional reasonableness of traffic stops
depends on the actual motivations of the individual officers involved.” Therefore,
“Whren permits an officer to conduct a pretextual traffic stop as a means to
uncover other criminal activity” so long as the officer “reasonably suspect[s] a
traffic law violation.” United States v. King, 244 F.3d 736, 738 (9th Cir. 2001).
Here, the district court credited testimony by Officer Gallegos that he
witnessed Moore commit a traffic violation by crossing the center line twice.
4 Officer Gallegos therefore had reasonable suspicion sufficient to legally stop
Moore’s vehicle even though he also suspected Moore of trafficking
methamphetamine. See Whren, 517 U.S. at 813. And even if Officer Gallegos had
not actually witnessed a traffic violation, as Moore contends, the traffic stop was
constitutional because, “[s]o long as the facts known to the officer establish
reasonable suspicion to justify an investigatory stop, the stop is lawful even if the
officer falsely cites as the basis for the stop a ground that is not supported by
reasonable suspicion.” Magallon-Lopez, 817 F.3d 671, 675 (9th Cir. 2016).
Therefore, because Officer Gallegos had reasonable suspicion to believe that
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30009
Plaintiff-Appellee, D.C. No. 4:19-cr-00303-BLW-1 v.
CODY J MOORE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding
Submitted October 2, 2023** Seattle, Washington
Before: WARDLAW and M. SMITH, Circuit Judges, and MATSUMOTO,*** District Judge.
Cody Moore entered a conditional guilty plea to one count of conspiracy to
distribute methamphetamine and two counts of possession with intent to distribute
* 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). *** The Honorable Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation. methamphetamine, reserving his right to appeal the district court’s denial of his
motion to suppress evidence obtained from a cell-site location information
(“CSLI”) warrant and the subsequent stop and search of his vehicle. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court correctly concluded that Detective Tuttle’s affidavit
in support of the CSLI warrant established sufficient probable cause. See United
States v. Elmore, 917 F.3d 1068, 1074 (9th Cir. 2019) (“Probable cause exists
where the totality of the circumstances indicates a fair probability that. . .evidence
of a crime will be found in a particular place.” (internal quotation marks omitted)).
The affidavit contained the statements of two confidential informants who
connected Moore to the drug-trafficking conspiracy. Although the affidavit alone
did not establish the reliability of these informants, law enforcement was able to
corroborate some of the informants’ information, and “the interlocking nature of
their stories enhanced their credibility.” United States v. Hernandez-Escarsega,
886 F.2d 1560, 1566 (9th Cir. 1989). Furthermore, Moore’s toll records showed
that he was in contact with at least three other members of the conspiracy, and the
affidavit contained significant evidence linking each of these three coconspirators
to the drug-trafficking operation. Therefore, “[a]lthough no single piece of
evidence by itself is conclusive, viewed together the ‘totality of the circumstances’
was sufficient to establish probable cause to believe that evidence of drug-related
2 activity would be found . . . ” United States v. Stanert, 762 F.2d 775, 780 (9th Cir.
1985).
2. The district court did not err by refusing to exclude evidence pursuant
to Idaho Criminal Rule 41. Rule 41(a) provides, “[i]f it does not appear that the
property or person sought is currently within the State of Idaho, the warrant may still
be issued; however, the fact the warrant is issued is not deemed as granting authority
to serve the warrant outside the territorial boundaries of the State.” I.C.R. 41(a).
However, the federal Stored Communications Act (“SCA”) authorizes the
government to execute a warrant on a provider of electronic communications if the
warrant is issued “by a court of competent jurisdiction” and, “in the case of a State
court, issued using State warrant procedures.” 18 U.S.C. § 2703(c)(1)(A). Because
the Idaho state court qualifies as “a court of competent jurisdiction,” see 18 U.S.C.
§ 2711(3)(B), and because “[Rule 41(a)] was amended to expressly authorize
warrants for property located outside the territorial boundaries of the state,” State v.
Branigh, 313 P.3d 732, 740 (Idaho 2013), Idaho’s “State warrant procedures” permit
extraterritorial CSLI warrants under the SCA. Therefore, law enforcement did not
violate Rule 41(a) by serving Moore’s CSLI warrant outside of Idaho.
Rule 41 also requires that a warrant “command the officer to search, within a
specified period of time, not to exceed 14 days.” I.C.R. 41(d)(3). The CSLI
warrant at issue here authorized law enforcement to monitor Moore’s cell-site
3 location data for 30 days. But even if we agree that this was a technical violation
of Rule 41(d)(3), “the settled ruled in the Ninth Circuit is that a purely technical
violation of [the analogous Federal Criminal] Rule 41 does not require the
suppression of evidence otherwise legally obtained.” United States v. Ritter, 752
F.2d 435, 441 (9th Cir. 1985). And the “rules that the officers violated were those
of state law alone, and . . . it is not the province of the Fourth Amendment to
enforce state law.” See Virginia v. Moore, 553 U.S. 164, 178 (2008). Therefore,
this technical violation of state Criminal Rule 41 does not rise to the level of a
Fourth Amendment constitutional violation that would warrant suppression of
evidence.
3. The district court properly concluded that Officer Gallegos had
reasonable suspicion to conduct the traffic stop of Moore’s vehicle. In Whren v.
United States, 517 U.S. 806, 813 (1996), the Supreme Court held that its precedent
“foreclose[s] any argument that the constitutional reasonableness of traffic stops
depends on the actual motivations of the individual officers involved.” Therefore,
“Whren permits an officer to conduct a pretextual traffic stop as a means to
uncover other criminal activity” so long as the officer “reasonably suspect[s] a
traffic law violation.” United States v. King, 244 F.3d 736, 738 (9th Cir. 2001).
Here, the district court credited testimony by Officer Gallegos that he
witnessed Moore commit a traffic violation by crossing the center line twice.
4 Officer Gallegos therefore had reasonable suspicion sufficient to legally stop
Moore’s vehicle even though he also suspected Moore of trafficking
methamphetamine. See Whren, 517 U.S. at 813. And even if Officer Gallegos had
not actually witnessed a traffic violation, as Moore contends, the traffic stop was
constitutional because, “[s]o long as the facts known to the officer establish
reasonable suspicion to justify an investigatory stop, the stop is lawful even if the
officer falsely cites as the basis for the stop a ground that is not supported by
reasonable suspicion.” Magallon-Lopez, 817 F.3d 671, 675 (9th Cir. 2016).
Therefore, because Officer Gallegos had reasonable suspicion to believe that
Moore was transporting methamphetamine based on information provided to him
during the investigative team’s briefing, Officer Gallegos had reasonable suspicion
to justify the investigatory stop even if he incorrectly cited the traffic violation as
the reason for stopping Moore’s vehicle.
4. The district court also correctly concluded that law enforcement did
not violate Moore’s Fourth Amendment rights by impermissibly extending the
scope of the traffic stop. An officer cannot prolong an ordinary traffic stop “unless
the officer had independent reasonable suspicion to support such a prolongation.”
United States v. Evans, 786 F.3d 779, 787 (9th Cir. 2015). However, because “a
police officer may as a matter of course order the driver of a lawfully stopped car
to exit his vehicle,” Maryland v. Wilson, 519 U.S. 408, 410 (1997), Officer
5 Gallegos acted lawfully by ordering Moore out of his car. And “[o]nce outside the
stopped vehicle, the driver may also be patted down for weapons if the officer
reasonably concludes that the driver might be armed and presently dangerous.”
United States v. Taylor, 60 F.4th 1233, 1240 (9th Cir. 2023) (internal citation and
quotation marks omitted). Because of Moore’s known history of firearm use and
the fact that he was suspected of trafficking methamphetamine, Officer Gallegos
had legitimate safety concerns based on the reasonable suspicion that Moore was
armed and dangerous, justifying his pat down of Moore. Therefore, because
Officer Gallegos lawfully conducted the traffic stop, ordered Moore out of the
vehicle, and conducted the pat down, he did not impermissibly extend the scope of
the stop in violation of the Fourth Amendment.
5. Nor did the district court err by concluding that law enforcement
conducted a lawful search when the police dog entered Moore’s vehicle during its
drug-detection sniff. Although law enforcement may not conduct a dog sniff of a
person’s home or its immediate surroundings without a warrant, see Florida v.
Jardines, 569 U.S. 1, 11–12 (2013), police are not required to obtain a warrant
before conducting a dog sniff of a vehicle during a lawful traffic stop, see Illinois
v. Caballes, 543 U.S. 405, 409–10 (2005). Therefore, because Officer Gallegos
lawfully stopped Moore’s vehicle, the subsequent use of a drug-detection dog to
sniff the car’s exterior was permissible. That the dog entered Moore’s vehicle
6 through an open car door does not render the dog sniff unconstitutional, because
police may “conduct a warrantless search of a vehicle if they have probable cause
to believe that it contains contraband.” United States v. Pinela-Hernandez, 262
F.3d 974, 977–78 (9th Cir. 2001). Here, the dog did not enter the vehicle until
after it had alerted to the presence of drugs on the vehicle’s exterior and after
heroin was found on one of the vehicle’s passengers during the pat down. Because
this created “a fair probability that evidence of a crime” would be found in
Moore’s vehicle, Elmore, 917 F.3d at 1074, the officers had probable cause to
search the car’s interior by the time the dog jumped inside. See United States v.
Garcia, 205 F.3d 1182, 1187 (9th Cir. 2000) (officers had probable cause to search
a vehicle subsequent to a lawful traffic stop after a dog alerted to presence of drugs
in the trunk and glove box). Therefore, the dog’s entrance into Moore’s vehicle
did not violate Moore’s Fourth Amendment rights.
AFFIRMED.