FILED NOT FOR PUBLICATION APR 19 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50297
Plaintiff-Appellee, D.C. No. 2:14-cr-00642-GW-1
v. MEMORANDUM* JORGE LOUIS SOLORIO-MENDOZA,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding
Submitted April 13, 2018** Pasadena, California
Before: SCHROEDER, CLIFTON, and M. SMITH, Circuit Judges.
Appellant Jorge Louis Solorio-Mendoza appeals the district court’s denial of
his motion to suppress and the implied denial of his motion to dismiss the
* 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). indictment. He also appeals the denial of his request for an evidentiary hearing. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We first review the denial of the motion to suppress. Orders on motions to
suppress are reviewed de novo, and the underlying factual findings are reviewed
for clear error. United States v. Zapien, 861 F.3d 971, 974 (9th Cir. 2017) (per
curiam).
Solorio-Mendoza first challenges the legality of the traffic stop. In order to
conduct a traffic stop, an officer must have “reasonable suspicion” of illegal
activity. United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006). “A
traffic violation alone is sufficient to establish reasonable suspicion.” Id. (citation
omitted). In his incident report, Deputy Leitelt stated that when he drove up beside
Solorio-Mendoza’s vehicle, Solorio-Mendoza “suddenly and aggressively applied
[his] brakes, well below the speed and flow of traffic.” By braking so aggressively,
Solorio-Mendoza caused a car directly behind him to aggressively brake to avoid a
collision. In his report, the deputy noted that Solorio-Mendoza violated section
22400 of the California Vehicle Code, which prohibits driving “upon a highway at
such a slow speed as to impede or block the normal and reasonable movement of
traffic.” Cal. Veh. Code § 22400(a). Given that Solorio-Mendoza slowed down to
2 such an extent that the car behind him was impeded, the deputy had reasonable
suspicion to conduct a traffic stop.
Solorio-Mendoza argues that Deputy Leitelt was acting as an unlawful
roving patrol, targeting Hispanics. But in Whren v. United States, the Supreme
Court held that an officer’s actual motivations for a traffic stop need not be
evaluated if there is legal basis for the stop. Whren v. United States, 517 U.S. 806,
813 (1996); see also United States v. Wallace, 213 F.3d 1216, 1219 (9th Cir.
2000). Given that there was a legal basis for the stop, we do not need to evaluate
the deputy’s subjective motivation for conducting the stop.
Solorio-Mendoza also challenges the deputy’s decision to prolong the traffic
stop so that a narcotics canine could conduct a free air sniff search. An “officer
may prolong a traffic stop if the prolongation itself is supported by independent
reasonable suspicion.” United States v. Evans, 786 F.3d 779, 788 (9th Cir. 2015).
Deputy Leitelt reported a strong smell of fabric softener, and he stated that fabric
softeners are often used to mask the smell of narcotics. He reported that Solorio-
Mendoza’s hands were trembling and his voice pitch was raising. Solorio-Mendoza
initially stated that the car belonged to “Marcos,” when it was really registered to
an “Antonio.” The deputy stated that it is common for drug traffickers to use
vehicles that do not belong to them. He also reported that the Interstate 5 highway
3 is used by drug traffickers to transport illegal narcotics. Solorio-Mendoza claimed
that he drove Marcos to the Los Angeles International Airport, but he did not know
where Marcos was going. He also did not know the name of a third individual that
had been in the car with him earlier in the day. Given the totality of these
circumstances, the deputy had reasonable suspicion to prolong the stop in order to
conduct a free air sniff search.
Solorio-Mendoza argues that this case is similar to Rodriguez v. United
States, 135 S. Ct. 1609, 1615 (2015). But Rodriguez does not add anything to the
analysis. The Court simply held that an officer may not “prolong[] the stop, absent
the reasonable suspicion ordinarily demanded to justify detaining an individual.”
Id. In Rodriguez, a magistrate judge found that a canine sniff search was not
independently supported by individualized suspicion. Id. at 1616. Here, however,
the deputy articulated a number of factors he observed after the initial stop that led
him to reasonably suspect criminal activity.
Solorio-Mendoza also challenges the reliability of the dog, Charlie, that
alerted to the narcotics found in the trunk of the car. A dog’s alert can establish
probable cause for a search if there is sufficient evidence of the dog’s reliability.
Florida v. Harris, 568 U.S. 237, 246–47 (2013). The best measure of a dog’s
reliability comes “in controlled testing environments.” Id. at 246. Indeed,
4 “evidence of a dog’s satisfactory performance in a certification or training program
can itself provide sufficient reason to trust his alert.” Id. But a formal certification
is not necessary. A dog’s alert can be trusted “even in the absence of formal
certification, if the dog has recently and successfully completed a training program
that evaluated his proficiency in locating drugs.” Id. at 247.
To get his original certification, Charlie completed a 300-hour training
course. Thereafter, he and his handler participated in four hours of training per
week. Every year since he began working, Charlie has been certified with a passing
rate of 100 percent. This background provides sufficient evidence to trust Charlie’s
alert.
We next review the denial of Solorio-Mendoza’s request for an evidentiary
hearing. Whether to hold an evidentiary hearing on a motion to suppress is
reviewed for abuse of discretion. United States v. Herrera-Rivera, 832 F.3d 1166,
1172 (9th Cir. 2016). To obtain an evidentiary hearing on a motion to suppress, a
defendant must establish contested issues of material fact. United States v. Howell,
231 F.3d 615, 620 (9th Cir. 2000). Solorio-Mendoza submitted a six-paragraph
declaration. But that declaration did not dispute any of the facts that led Deputy
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FILED NOT FOR PUBLICATION APR 19 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50297
Plaintiff-Appellee, D.C. No. 2:14-cr-00642-GW-1
v. MEMORANDUM* JORGE LOUIS SOLORIO-MENDOZA,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding
Submitted April 13, 2018** Pasadena, California
Before: SCHROEDER, CLIFTON, and M. SMITH, Circuit Judges.
Appellant Jorge Louis Solorio-Mendoza appeals the district court’s denial of
his motion to suppress and the implied denial of his motion to dismiss the
* 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). indictment. He also appeals the denial of his request for an evidentiary hearing. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We first review the denial of the motion to suppress. Orders on motions to
suppress are reviewed de novo, and the underlying factual findings are reviewed
for clear error. United States v. Zapien, 861 F.3d 971, 974 (9th Cir. 2017) (per
curiam).
Solorio-Mendoza first challenges the legality of the traffic stop. In order to
conduct a traffic stop, an officer must have “reasonable suspicion” of illegal
activity. United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006). “A
traffic violation alone is sufficient to establish reasonable suspicion.” Id. (citation
omitted). In his incident report, Deputy Leitelt stated that when he drove up beside
Solorio-Mendoza’s vehicle, Solorio-Mendoza “suddenly and aggressively applied
[his] brakes, well below the speed and flow of traffic.” By braking so aggressively,
Solorio-Mendoza caused a car directly behind him to aggressively brake to avoid a
collision. In his report, the deputy noted that Solorio-Mendoza violated section
22400 of the California Vehicle Code, which prohibits driving “upon a highway at
such a slow speed as to impede or block the normal and reasonable movement of
traffic.” Cal. Veh. Code § 22400(a). Given that Solorio-Mendoza slowed down to
2 such an extent that the car behind him was impeded, the deputy had reasonable
suspicion to conduct a traffic stop.
Solorio-Mendoza argues that Deputy Leitelt was acting as an unlawful
roving patrol, targeting Hispanics. But in Whren v. United States, the Supreme
Court held that an officer’s actual motivations for a traffic stop need not be
evaluated if there is legal basis for the stop. Whren v. United States, 517 U.S. 806,
813 (1996); see also United States v. Wallace, 213 F.3d 1216, 1219 (9th Cir.
2000). Given that there was a legal basis for the stop, we do not need to evaluate
the deputy’s subjective motivation for conducting the stop.
Solorio-Mendoza also challenges the deputy’s decision to prolong the traffic
stop so that a narcotics canine could conduct a free air sniff search. An “officer
may prolong a traffic stop if the prolongation itself is supported by independent
reasonable suspicion.” United States v. Evans, 786 F.3d 779, 788 (9th Cir. 2015).
Deputy Leitelt reported a strong smell of fabric softener, and he stated that fabric
softeners are often used to mask the smell of narcotics. He reported that Solorio-
Mendoza’s hands were trembling and his voice pitch was raising. Solorio-Mendoza
initially stated that the car belonged to “Marcos,” when it was really registered to
an “Antonio.” The deputy stated that it is common for drug traffickers to use
vehicles that do not belong to them. He also reported that the Interstate 5 highway
3 is used by drug traffickers to transport illegal narcotics. Solorio-Mendoza claimed
that he drove Marcos to the Los Angeles International Airport, but he did not know
where Marcos was going. He also did not know the name of a third individual that
had been in the car with him earlier in the day. Given the totality of these
circumstances, the deputy had reasonable suspicion to prolong the stop in order to
conduct a free air sniff search.
Solorio-Mendoza argues that this case is similar to Rodriguez v. United
States, 135 S. Ct. 1609, 1615 (2015). But Rodriguez does not add anything to the
analysis. The Court simply held that an officer may not “prolong[] the stop, absent
the reasonable suspicion ordinarily demanded to justify detaining an individual.”
Id. In Rodriguez, a magistrate judge found that a canine sniff search was not
independently supported by individualized suspicion. Id. at 1616. Here, however,
the deputy articulated a number of factors he observed after the initial stop that led
him to reasonably suspect criminal activity.
Solorio-Mendoza also challenges the reliability of the dog, Charlie, that
alerted to the narcotics found in the trunk of the car. A dog’s alert can establish
probable cause for a search if there is sufficient evidence of the dog’s reliability.
Florida v. Harris, 568 U.S. 237, 246–47 (2013). The best measure of a dog’s
reliability comes “in controlled testing environments.” Id. at 246. Indeed,
4 “evidence of a dog’s satisfactory performance in a certification or training program
can itself provide sufficient reason to trust his alert.” Id. But a formal certification
is not necessary. A dog’s alert can be trusted “even in the absence of formal
certification, if the dog has recently and successfully completed a training program
that evaluated his proficiency in locating drugs.” Id. at 247.
To get his original certification, Charlie completed a 300-hour training
course. Thereafter, he and his handler participated in four hours of training per
week. Every year since he began working, Charlie has been certified with a passing
rate of 100 percent. This background provides sufficient evidence to trust Charlie’s
alert.
We next review the denial of Solorio-Mendoza’s request for an evidentiary
hearing. Whether to hold an evidentiary hearing on a motion to suppress is
reviewed for abuse of discretion. United States v. Herrera-Rivera, 832 F.3d 1166,
1172 (9th Cir. 2016). To obtain an evidentiary hearing on a motion to suppress, a
defendant must establish contested issues of material fact. United States v. Howell,
231 F.3d 615, 620 (9th Cir. 2000). Solorio-Mendoza submitted a six-paragraph
declaration. But that declaration did not dispute any of the facts that led Deputy
Leitelt to reasonably suspect Solorio-Mendoza of criminal activity. The district
5 court therefore did not abuse its discretion in declining to hold an evidentiary
hearing.
Finally, we review Solorio-Mendoza’s motion to dismiss the indictment on
the grounds of selective prosecution.1 The standard of review is unsettled. We have
“employed both a de novo standard and a clearly erroneous standard when
reviewing a selective prosecution claim.” United States v. Culliton, 328 F.3d 1074,
1080 (9th Cir. 2003) (per curiam). We decline to resolve the conflict here because
Solorio-Mendoza’s arguments fail under either standard of review.
“In our criminal justice system, the Government retains ‘broad discretion’ as
to whom to prosecute.” Wayte v. United States, 470 U.S. 598, 607 (1985) (citations
omitted). But “the decision to prosecute may not be ‘deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary classification.’” Id.
at 608 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). Accordingly, a
defendant may move to dismiss an indictment on the grounds of selective
prosecution. See United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007).
1 The district court did not rule on Solorio-Mendoza’ motion to dismiss the indictment. The government therefore argues that Solorio-Mendoza waived his motion by failing to renew it. But Solorio-Mendoza is asserting a constitutional right. See United States v. Armstrong, 517 U.S. 456, 463 (1996). And the government has not provided clear and convincing evidence that the purported waiver was voluntary, knowing, and intelligent. See Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (en banc). 6 “A selective-prosecution claim is not a defense on the merits to the criminal
charge itself, but an independent assertion that the prosecutor has brought the
charge for reasons forbidden by the Constitution.” Armstrong, 517 U.S. at 463. To
“establish a prima facie case of selective prosecution, a defendant must show both
(1) that others similarly situated have not been prosecuted, and (2) that the
prosecution is based on an impermissible motive.” United States v. Davis, 36 F.3d
1424, 1432 (9th Cir. 1994) (citation omitted).
Solorio-Mendoza asserts that Deputy Leitelt is more likely to pull over
Hispanic drivers than non-Hispanic drivers. The Supreme Court addressed a
similar claim in Armstrong, where a defendant showed that the Office of the
Federal Public Defender represented 24 defendants in 1991 accused of crimes
related to cocaine base (crack). Armstrong, 517 U.S. at 459. Every one of the 24
defendants was black. Id. But the selective prosecution claim failed because the
defendant did not identify individuals who were not black and could have been
prosecuted for the same offenses. Id. at 470.
Solorio-Mendoza seeks to establish his case by citing the percentage of
purportedly Hispanic drivers for whom the deputy requested a WANT-9. But it
cannot be enough to simply refer to population statistics. In Armstrong, 100
percent of the defendants charged were black. That percentage obviously differed
7 from the percentage of black residents in the state (California). If the implied
percentage difference was not enough in Armstrong, it cannot be enough here.
Solorio-Mendoza needs to identify actual individuals who were of a different race
and were treated differently by Deputy Leitelt.
Accordingly, Solorio-Mendoza has not established a prima-facie case of
selective prosecution. See Davis, 36 F.3d at 1432. Nor has he established a basis to
obtain discovery because he was required to present “specific facts, not mere
allegations” establishing a colorable basis for his claim. United States v. Bourgeois,
964 F.2d 935, 939 (9th Cir. 1992) (denying discovery because defendant made no
attempt to show that the government declined to prosecute similarly situated
defendants of another race).
AFFIRMED.