United States v. Lisa Cano

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2021
• Docket: 19-50240
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 31 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50240

Plaintiff-Appellee, D.C. No. 5:18-cr-00066-JGB-1 v.

LISA MARIE CANO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted August 6, 2021 Pasadena, California

Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges. Partial Concurrence and Partial Dissent by Judge PAEZ

Lisa Cano appeals her conviction for one count of use of unauthorized access

devices in violation of 18 U.S.C. § 1029(a)(2). We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

1. The inevitable discovery doctrine “permits the government to rely on

evidence that ultimately would have been discovered absent a constitutional

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. violation.” United States v. Ruckes, 586 F.3d 713, 718 (9th Cir. 2009). The

government bears the burden of proving inevitable discovery by a preponderance of

the evidence. United States v. Reilly, 224 F.3d 986, 994 (9th Cir. 2000). “[T]his

circuit does not require that the evidence be obtained from a previously initiated,

independent investigation. The government can meet its burden by establishing that,

by following routine procedures, the police would inevitably have uncovered the

evidence.” United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989)

(cleaned up). We review a district court’s application of the doctrine for clear error.

Reilly, 224 F.3d at 994.

2. The district court did not clearly err in finding that law enforcement would

inevitably have identified the victim and learned of fraudulent purchases made with

her credit cards even in the absence of the unlawful motel room search. “[A]s long

as reasonable minds can reach differing conclusions after interpretation of the facts

before the district court, the district court’s findings [in applying the inevitable

discovery doctrine] should remain undisturbed.” United States v. Harris, 731 F.

App’x 718, 719 (9th Cir. 2018). Law enforcement had legally seized a list of

addresses from a Tacoma stolen by Cano. One of those addresses matched the

address on the victim’s driver’s license. Other items found alongside the receipt in

the Tacoma—including an embossing machine, forged credit cards, and a blank

driver’s license—gave law enforcement probable cause to suspect fraud. The responsible deputy actively investigated leads based on items found in the Tacoma.

For example, after finding a receipt from a storage facility in that vehicle, the deputy

immediately visited the facility to speak with an employee and reviewed the

facility’s records. The deputy responded immediately when the employee reported

that Cano had returned to the facility the following day. This evidence of the

officer’s active pursuit of legally-obtained leads distinguishes this case from

Ramirez-Sandoval, where there were no facts in the record from which the district

court could reasonably infer the likely course of the future investigation absent the

illegal search. See 872 F.2d at 1399–40.

3. The district court did not err by not dismissing the indictment based on Fourth

Amendment violations and alleged misconduct by law enforcement. Dismissal is a

“drastic” and “disfavored” remedy. United States v. Jacobs, 855 F.2d 652, 655 (9th

Cir. 1988). Although serious, the police conduct at issue was not “so grossly

shocking and so outrageous as to violate the universal sense of justice” to require

dismissal on due process grounds. United States v. O’Connor, 737 F.2d 814, 817

(9th Cir. 1984) (cleaned up). Dismissal under the court’s supervisory powers was

not merited because any Fourth Amendment violations were adequately remedied

by the government’s dismissal of several counts of the indictment and the exclusion

of evidence from the unlawful motel room search. See United States v. Barrera-

Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991). 4. Nor was dismissal warranted based on the government’s failure to disclose at

a suppression hearing the investigating deputy’s admission that he had searched the

motel room. Details regarding the search were disclosed prior to trial and evidence

from the motel search was suppressed. See United States v. Sears, Roebuck & Co.,

719 F.2d 1386, 1391–92 (9th Cir. 1983); United States v. Owen, 580 F.2d 365, 367–

68 (9th Cir. 1978).

AFFIRMED. FILED United States v. Lisa Cano, No. 19-50240 AUG 31 2021 MOLLY C. DWYER, CLERK Paez, J., concurring in part and dissenting in part: U.S. COURT OF APPEALS

The majority implicitly assumes that because a police officer actively

pursued some investigative leads, he would have necessarily, or inevitably,

pursued all other leads. In my view, neither the record evidence nor our case law

supports such a conclusion. Because I would reverse the district court’s denial of

Cano’s final suppression motion, I respectfully dissent from that part of the

majority’s disposition. 1

Our court’s inevitable discovery case law recognizes two related lines of

precedent that should guide our review of the district court’s inevitable discovery

ruling, both of which the majority disregards. First, when we have concluded that

the exception properly applies, we invariably have relied on specific testimony

from police officers concerning their potential actions absent the unlawful search.

See, e.g., United States v. Ruckes, 586 F.3d 713, 719 (9th Cir. 2009) (relying on a

state trooper’s “testimony at the suppression hearing” that “informed Judge

Burgess” of standard police procedures); United States v. Lang, 149 F.3d 1044,

1048 (9th Cir. 1998) (relying on an agent’s credible testimony “that he had been

trained to conduct searches of vehicles” and “had discovered narcotics hidden in

1 I concur in the majority’s affirmance of the district court’s denial of Cano’s motion to dismiss the indictment. Page 1 of 6 [an] engine compartment” during numerous prior searches); Siripongs v. Calderon,

35 F.3d 1308, 1321 (9th Cir. 1994) (relying on “supplemental declarations

submitted to the district court” stating that the vehicle owner’s identity was “easily

obtainable” through the DMV and “the officers would have sought this

information”); United States v. Martinez-Gallegos, 807 F.2d 868, 870 (9th Cir.

1987) (per curiam) (relying on agents’ testimony “at the suppression hearing” that

their “next step, indeed the only step available to them, would have been to consult

[the defendant’s] ‘A’ file”).

Relatedly, when we have refused to apply the exception, we have

highlighted the government’s failure to demonstrate that discovery of the tainted

evidence was truly inevitable. See, e.g., United States v. Young, 573 F.3d 711, 723

(9th Cir. 2009) (“[N]othing more than speculation . . . support the discovery of the

challenged evidence outside the improper search by Officer Koniaris.”); United

States v. Lopez-Soto, 205 F.3d 1101, 1107 (9th Cir. 2000) (“[T]he government

provided no evidence of what Officer Hill would have done if he had not stopped

Lopez-Soto when he did . . . .”).

This case falls into the latter category, as there is no record evidence

concerning the officer’s potential actions absent the unlawful search of Cano’s

motel room. The primary investigating officer lawfully searched a Toyota

Tacoma, which uncovered receipts, an embossing machine, forged credit cards,

Page 2 of 6 and other evidence of fraud. The search also uncovered documents and scraps of

paper containing a total of twenty-five addresses. Some addresses were connected

to particular names. Although the victim-witness’s name did not appear on the

documents, three addresses were connected to her identity.

The government argues that, absent the illegal search of Cano’s motel room,

the officer would have identified the victim-witness by investigating every name

and address on the documents. I am not persuaded. Although the documents

suggest there were numerous victims of Cano’s fraudulent activities, the officer

completed his investigation without ever consulting the lists. In other words,

although the officer discovered one victim’s identity through other means, nothing

prevented him from following up on the numerous addresses and names listed on

the documents. He took no such action. Not only is there no evidence supporting

the government’s argument that the officer would inevitably have investigated all

the addresses—the record suggests the opposite is true.

Further, during an earlier suppression hearing, the district court concluded

that the investigating officer’s testimony was not credible. Without any evidence

concerning the officer’s intended actions, it is unreasonable to assume that the

officer’s inevitable next step would have been to investigate the addresses, or that

the addresses would inevitably have led to the victim-witness.

Page 3 of 6 To be sure, the evidence in the Tacoma suggested someone was committing

fraud. And the officer in question investigated one of the receipts found in the

Tacoma. But the investigation of the one receipt does not establish that the officer

planned to follow-up on the documents containing addresses, nor that the officer

intended to investigate all twenty-five addresses, only three of which were

connected to the victim-witness. Because “the government provided no evidence

of what [the investigating officer] would have done” absent his illegal search, the

district court erred in denying Cano’s motion. See Lopez-Soto, 205 F.3d at 1107.

Second, we have held that the government can meet its burden by

establishing that an officer would inevitably have discovered the evidence “by

following routine procedures.” United States v. Ramirez-Sandoval, 872 F.2d 1392,

1399 (9th Cir. 1989). Critically, our cases explain that this language has a specific

meaning: When a particular procedure is the next “inevitable step,” or “the only

available procedural step,” in an investigation, we can reasonably conclude that

such action would inevitably have occurred. Id. at 1400; see also United States v.

Reilly, 224 F.3d 986, 994 (9th Cir. 2000) (describing “the next and only step

available”). In the context of this case, the majority applies “routine procedures”

to encompass all general police investigations. That interpretation is untenable.

When we first used the phrase “routine procedures” in Ramirez-Sandoval,

we looked to Martinez-Gallegos and Andrade for guidance. 872 F.2d at 1399. We

Page 4 of 6 explained that “routine procedures” referred to (1) testimony from federal agents

stating that “the only step available to them” would have been to consult the

defendant’s “A” file to gather further information, Martinez-Gallegos, 807 F.2d at

870, and (2) evidence that a routine booking search would have followed a

defendant’s arrest and “inevitably resulted in discovery of the [contraband],”

United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986). See also Reilly,

224 F.3d at 994-95 (conducting the same analysis). Thus, the term “routine

procedures,” on which the majority relies to affirm, refers specifically to well-

established police actions that are so consistently applied as to be considered

“routine.”

The majority’s assumption that the officer in this case would have closely

investigated all potential leads finds no support in our case law. Neither the

government nor the majority identify a “routine” procedure that the officer would

inevitably have pursued. There were numerous steps available to the investigating

officer after his search of the Tacoma, only some of which involved the list of

addresses that he found. There is no record evidence establishing that the officer

thought the addresses were significant, planned to run a search of the addresses, or

believed that running a search of the addresses would have led to identifying

potential victims. See Ramirez-Sandoval, 872 F.2d at 1400.

Page 5 of 6 The majority’s application of the inevitable discovery exception—that it

applies when a court can “reasonably infer the likely course of the future

investigation”—mistakes the exception for the rule. See id. (holding that the

exception does not apply when “it is equally plausible” that such investigative

steps would not have occurred). The inevitable discovery exception applies in

circumstances “where, based on the historical facts, inevitability is demonstrated in

such a compelling way that operation of the exclusionary rule is a mechanical and

entirely unrealistic bar.” United States v. Boatwright, 822 F.2d 862, 864 (9th Cir.

1987) (Kennedy, J.). This case does not meet that standard. I would reverse the

district court’s ruling, vacate Cano’s conviction, and remand. 2

2 The government’s alternative arguments—that the independent source doctrine and attenuation doctrine are applicable—are similarly meritless. Page 6 of 6