USA v. Conner

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
NATHAN CONNER,
Defendant.
Case No. 3:20-cr-00002-JMK
ORDER
Before the Court at Docket 38 is Defendant Nathan Conner’s Motion to
Suppress Evidence Obtained in Violation of the Fourth Amendment (the “Motion to
Suppress”). The Government filed a response in opposition at Docket 46. The Court held
an evidentiary hearing from November 9–10, 2021, at the conclusion of which the Court
requested supplemental briefing from the parties.1 	Subsequently, Mr. Conner filed
Supplemental Briefing in Support of Dismissal with Prejudice, Suppression of Evidence,
And/Or Exclusion of Alaska State Trooper K9 Evidence and Witnesses at Docket 77. The
Government filed a response in opposition at Docket 78. 	For the following reasons, the
Court GRANTS Mr. Conner’s Motion to Suppress. 	It further GRANTS Mr. Conner’s
1 See Dockets 73, 74.
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request to exclude the testimony and statements of Alaska State Trooper Woodruff and
related K-9 evidence.
I. 	PROCEDURAL AND FACTUAL BACKGROUND
On June 14, 2019, around 8 p.m., Kenai Police Department Officer Trevor
Miller was driving westbound on the Kenai Spur Highway and observed Mr. Conner enter
the highway from Swires Road in a 1997 Chevrolet pickup truck.2 Officer Miller testified
that Mr. Conner failed to signal two turns: 	first, after Mr. Conner left his residence at
1803 Brannigan Circle and turned onto the Kenai Spur Highway (“the highway”), and,
second, as Mr. Conner changed lanes on the highway.3 	As Mr. Conner signaled a right
turn off of the highway, Officer Miller activated his overhead lights, dash cam, and body
cameras.4 Mr. Conner maintains that he properly signaled his turn onto the highway, while
making the lane change, and in turning off the highway.5
Dash cam footage shows that Officer Miller slowly followed Mr. Conner
through a residential neighborhood for approximately 50 seconds, until Mr. Conner pulled
into a driveway at 714 Linwood Lane.6 Officer Miller approached Mr. Conner’s driver’s
side door with his firearm drawn and asked Mr. Conner if he had any weapons.7
Mr. Conner stated that he had a BB gun in the driver’s door pocket and, in response to
further 	questioning, 	confirmed 	he 	did 	not 	have 	a 	valid 	Alaska 	driver’s 	license.8
2 Docket 38 at 2.
3 Docket 46 at 3.
4 Docket 38-1 at 2.
5 Docket 38 at 2.
6 Id. at 3.
7 Docket 46 at 3.
8 Docket 38 at 4.
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Officer Miller ordered Mr. Conner out of the vehicle and conducted a pat-down search for
weapons.9 	Officer Miller found $113 of rolled up cash on Mr. Conner, but no weapons,
and arrested him for driving while his license was revoked, failing to stop at the direction
of a police officer, and for violating conditions of release imposed for a pending state
criminal case.10 	Officer Miller placed him in the back of a patrol vehicle belonging to
another officer that arrived on the scene.11
Officer Miller testified that several houses near where Mr. Conner had
stopped were known to law enforcement as places of reported drug activity.12 	While
processing the scene, Officer Miller stated he observed a cell phone in Mr. Conner’s truck
display two text messages which stated, “Also have 20 perks they’re not mine 8 a piece,”
and “Like to see you if can help.”13 	Those text messages were received from different
numbers.14 	Based on these observations, he requested Alaska State Trooper Jason
Woodruff and K-9 Donna perform a drug detection sniff of the vehicle.15 	During the
subsequent 	drug 	detection 	sniff, 	K-9 	Donna 	“alerted” 	to 	the 	passenger 	side 	bed
approaching the cab of the truck and to the upper portion of the toolbox towards the
passenger side seam of the cab for the presence of the odor of drugs.16
9 Id.
10 Id.
11 Id.; Docket 46 at 4.
12 Docket 38 at 5.
13 Docket 46 at 4.
14 Evidentiary Hearing Exhibit D–16.
15 Docket 38 at 5.
16 Id. at 4.
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Mr. Conner’s vehicle was impounded and Officer Miller applied for a search
warrant, alleging there was probable cause to believe that the pickup contained evidence
of the Alaska state crimes of Misconduct Involving Weapons and Misconduct Involving
Controlled Substances.17 In an affidavit attached to the search warrant, Trooper Woodruff
stated he observed tinfoil pieces, a butane torch, and a lockbox in the vehicle prior to
conducting the K-9 sniff.18 The search warrant was granted, and Officer Miller discovered
in the vehicle: (1) $700 in cash rolled up in a rubber band, located on the floorboard near
the driver’s seat; (2) various quantities of alleged heroin, methamphetamine, marijuana,
and pills inside a closed and locked container near the center console; (3) alleged marijuana
and a “drug ledger” inside a closed and locked backpack in the back seat; (4) a Colt 1911
.45 pistol and ammunition inside a separate closed backpack on the back seat; and (5) two
cell phones.19
On August 31, 2020, through counsel, Mr. Conner requested from the
Government “AST Woodruff and K-9 Donna’s handler’s log, training records and score
sheets, 	certification 	records, 	and 	training 	standards 	and 	manuals 	pertaining 	to 	K-
9 Donna.”20 It appears from the record before the Court that the Government attempted to
obtain the records from the state law enforcement agency but ultimately was unsuccessful.
On April 7, 2021, Mr. Conner requested, and the Court granted, a subpoena
pursuant to Federal Rule of Criminal Procedure 17(c) requesting the “handler’s log as well
17 Id. at 6.
18 Docket 38-8 at 3.
19 Docket 38 at 7.
20 Docket 77-1 at 2.
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as all training records and score sheets, certification records, and training standards and
manuals pertaining to Alaska State Trooper [] Jason Woodruff and K-9 Donna.”21 	The
subpoena contained an April 30, 2021 deadline for production.22 In response, Mr. Conner
received log sheets, score sheets, and certification records dating from May 19, 2019 to
June 14, 2019.23 Because Trooper Woodruff indicated in his affidavit accompanying the
search warrant request that K-9 Donna had been certified since June 14, 2018, counsel for
Mr. Conner emailed the Government asking why the remaining certifications were not
produced.24 	On August 5, 2021, Alaska State Trooper Sergeant D. Andrey Cooper
responded to the Government, who forwarded the response to Mr. Conner, as follows:
Without seeing the original order my response might not cover
what it needs to. 	After Florida v. Harris, AST only held
records for dogs through the certification year. In this case it
appears that Donna was certified for two months and thus two
months of records were provided. 	Prior to Harris we would
list and count every training search on the K9 affidavit
through the dogs [sic] career. 	Again, we stopped doing this
as a program and only hold records now from certification to
certification.25
When the records still were not turned over to Mr. Conner, this Court issued two additional
orders, on July 20, 2021, and September 3, 2021, demanding compliance with the
subpoena.26
21 Docket 40 (quotation marks omitted).
22 Docket 77-6 at 2.
23 Docket 77 at 6.
24 Docket 77-10 at 3–4.
25 Id. at 7.
26 See Dockets 59, 63.
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At the evidentiary hearing held from November 9–10, 2021, the Government
called Trooper Woodruff, Officer Miller, and Lead Canine Instructor Sergeant Brian Zeisel
to testify. The Court reviewed footage from the body cam and dash cam that documented
a portion of the encounter between Officer Miller and Mr. Conner. Among other exhibits,
Defendant introduced Trooper Woodruff’s K-9 Handler’s log, photos from the vehicle
search, and an unopened cigarette box.27
In response to questioning by Mr. Conner’s defense counsel, Sergeant Zeisel
testified that the Alaska State Troopers are in possession of K-9 Donna’s complete training
records and that the Alaska State Trooper K-9 Training Program has a written curriculum
and 	written 	standards for certification 	beyond 	what 	was provided in 	discovery to
Mr. Conner. After learning that the records existed and were withheld in violation of the
Rule 17(c) subpoena, Mr. Conner made an oral motion to dismiss his indictment with
prejudice, citing a violation of his due process rights. 	This Court declined to dismiss the
indictment entirely, but agreed that excluding all evidence related to K-9 Donna’s drug
detection sniff was proper.
After the hearing, Mr. Conner filed supplemental briefing alleging that the
Alaska State Troopers’ refusal to provide the records relating to K-9 Donna’s certification
and training in defiance of a federal subpoena resulted in a miscarriage of justice.28 	To
remedy a myriad of constitutional violations, Mr. Conner requests that this Court exercise
27 Docket 75.
28 Docket 77 at 13.
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its supervisory power to issue an Order dismissing the indictment with prejudice.29 In the
alternative, Mr. Conner requests that the Court exclude Trooper Woodruff’s testimony and
all evidence related to K-9 Donna.
II. 	DISCUSSION
Mr. Conner first moves this Court to suppress all evidence obtained from the
search of his 1997 Chevrolet truck, including the alleged drugs, gun, and associated
ammunition.30 He alleges two violations of his Fourth Amendment rights, specifically that:
(1) Officer Miller conducted an unreasonable seizure of his vehicle unsupported by
reasonable suspicion that Mr. Conner had committed any criminal offense or traffic
violation; and (2) the vehicle search was unreasonable because it was based on an
unreliable dog sniff and a warrant otherwise unsupported by probable cause to believe that
evidence of any criminal offense would be found inside.31 	The Court finds that the
investigatory stop was an unreasonable seizure and Mr. Conner’s Motion to Suppress
should be granted.
Mr. Conner’s oral motion and supplemental briefing moves the Court to
dismiss his indictment entirely based on several other constitutional violations stemming
from the Alaska State Troopers’ failure to comply with a federal subpoena for K-9
records.32 	The Court declines to dismiss Mr. Conner’s indictment, but finds that
suppressing Trooper Woodruff’s testimony is an appropriate remedy for the Alaska State
29 Id. at 14.
30 Docket 38 at 1.
31 Id. at 1–2.
32 Docket 77 at 13.
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Troopers’ failure to comply with the Court’s subpoena and subsequent Orders and is
justified by the Court’s inherent supervisory powers.
A. 	Motion to Suppress
The first issue before the Court is whether Officer Miller had reasonable
suspicion 	to 	conduct 	an 	investigatory 	stop. 	The 	Fourth 	Amendment 	prohibits
“unreasonable searches and seizures by the Government, and its protections extend to brief
investigatory stops of persons or vehicles that fall short of traditional arrest.”33 	A police
officer may conduct a traffic stop if they have “reasonable suspicion” to believe that a
motorist has committed a traffic violation or is otherwise engaged in criminal activity.34
To have reasonable suspicion, “the police officer must be able to point to specific,
articulable facts which, together with rational inferences from those facts, reasonably
warrant [the] intrusion.”35 A police officer may rely on training and experience in drawing
inferences from the facts they observe, but only if the inferences are “grounded in objective
facts and . . . capable of rational explanation.”36 The Court must look to the “totality of the
circumstances” to determine whether the officer has such “particularized and objective
basis for suspecting legal wrongdoing.”37
Here, the Government argues the traffic stop was supported by reasonable
suspicion because Mr. Conner committed several traffic violations: first by failing to signal
33 United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks omitted).
34 See United States v. Lopez-Soto, 205 F.3d 1101, 1104–05 (9th Cir. 2000) (discussing Whren v.
United States, 517 U.S. 806 (1996)).
35 Terry v. Ohio, 392 U.S. 1, 21 (1968).
36 United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996).
37 United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks omitted).
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two turns, and later by failing to stop after Officer Miller activated his lights. Mr. Conner
alleges in his declaration that he signaled both turns and pulled over as soon as was
practicable, and therefore violated no traffic laws warranting an investigatory stop.38
The dash cam footage recorded by Officer Miller does not begin recording
until after the first two alleged traffic violations had already occurred and his lights were
activated, so it provides no conclusive evidence as to whether Mr. Conner failed to signal.
However, 	the dash cam does record Officer Miller’s pursuit of Mr. 	Conner after
Mr. Conner signals his exit off the Kenai Highway. 	The footage shows Officer Miller
slowly following Mr. Conner on a single lane road with no shoulder. In the incident report,
Officer Miller alleges that Mr. Conner sharply turned before stopping, forcing him to slam
on his brakes to avoid colliding with the truck.39 	In the search warrant affidavit for the
truck, Officer Miller stated that Mr. Conner was arrested for “felony Failure to Stop at the
Direction of a Police Officer,” which necessarily requires a motorist also commit the
offense of reckless driving by “creating a substantial and unjustifiable risk of harm to a
person or property. . . .”40 It does not appear from the dash cam footage that Mr. Conner
drove in a reckless manner, and he certainly did not create a substantial risk of harm to a
person or property. 	The footage shows Mr. Conner driving what appears to be less than
ten miles per hour to a clearing and then pulling over into a parking space outside of a
residence; the entire pursuit lasts less than one minute from when Officer Miller alleges
38 Docket 38-2 at 1.
39 Docket 38-1 at 2.
40 Alaska Stat. § 28.35.182(a)(1); Alaska Stat. § 28.35.400.
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activating his overhead lights. From the audio, Mr. Conner is heard calmly explaining to
Officer Miller that he did not stop immediately because there was no place to do so without
blocking traffic. 	These actions were reasonable given the narrow, residential back road.
When Officer Miller asks Mr. Conner why he did not pull over on the highway, Mr. Conner
responds he was not aware the overhead lights were activated. Mr. Connor’s explanation
appears 	reasonable, 	given 	the 	significant 	distance 	between 	Officer 	Miller’s 	and
Mr. Conner’s vehicles, and Officer Miller’s sworn statement that he did not activate his
overhead lights until Mr. Conner was already executing the turn off from the highway.
Although Mr. Conner perhaps could have stopped a few seconds sooner, Officer Miller’s
description of an excessive pursuit and Mr. Conner’s erratic driving appears grossly
exaggerated in comparison to what is visible in the dash cam footage.
The Court finds that Officer Miller’s testimony is discredited by the dash and
body cam footage because the footage conflicts with his statements made in the search
warrant application and incident report, and with his testimony at the evidentiary hearing.
The drastic disparity between Officer Miller’s description of the “pursuit” and what is
clearly evident in the dash cam footage calls into question the veracity of Officer Miller’s
testimony associated with any alleged traffic violations preceding the stop. 	The Court
therefore finds that, based on the record before it, the Government has not carried its burden
of showing that law enforcement had reasonable suspicion to conduct the stop. 	Absent
reasonable suspicion, Mr. Conner’s Fourth Amendment rights were violated. The evidence
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discovered in Mr. Conner’s truck is the fruit of an unlawful search and seizure and must be
suppressed.41
B. 	Oral Motion to Dismiss Indictment
In addition to granting his Motion to Suppress, Mr. Conner also moves this
Court to dismiss his indictment with prejudice pursuant to its supervisory powers under the
Article III of the U.S. Constitution.42 He argues that the Alaska State Troopers’ failure to
comply with a subpoena issued by this Court violates the following constitutional rights:
(1) Fourth Amendment right to be free of unreasonable searches and seizures; (2) Fifth
Amendment right to due process of law; (3) Sixth Amendment right to present a defense;
(4) Sixth Amendment right to compulsory process; (5) Sixth Amendment right to
confrontation; and (6) Sixth Amendment right to a speedy trial.43 	Mr. 	Conner’s
supplemental briefing summarily asserts these various rights have been violated, but does
not cite to case law supporting his assertions.
The Government’s opposition does not respond to Mr. Conner’s supervisory
power arguments, but instead asserts that Federal Rule of Criminal Procedure 48(b)
governs the Court’s authority to dismiss the indictment.44 	The Government then argues
that Rule 48 does not apply here because Mr. Conner has not shown prosecutorial
misconduct or prejudice.45 	The Government asserts that dismissal and suppression are
inappropriate sanctions, but concedes that the Alaska State Troopers have engaged in some
41 See Wong Sun v. United States, 371 U.S. 471, 487–88 (1963).
42 Docket 77 at 13.
43 Id.
44 Docket 78 at 2–3.
45 Id.
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misconduct, whether negligent or intentional, and suggests ordering “a show cause hearing
to determine what happened with the Troopers’ response to the defendant’s unopposed
R 17(c) subpoena” or “impos[ing] the defense expert’s cost upon the Troopers.”46
“‘[G]uided by considerations of justice,’ and in the exercise of supervisory
powers, federal courts may, within limits, formulate procedural rules not specifically
required by the Constitution or Congress.”47 However,
[t]he 	Supreme 	Court 	has 	recognized 	only 	three
legitimate bases for the exercise of the supervisory power: to
implement a remedy for the violation of a recognized statutory
or 	constitutional 	right; 	to 	preserve 	judicial 	integrity 	by
ensuring that a conviction rests on appropriate considerations
validly before a jury; and to deter future illegal conduct.48
The Ninth Circuit also has approved of a district court’s invocation of its supervisory power
to remedy violations of specific discovery orders and other “recognized rights,” and has
found that the supervisory powers of the federal courts are not necessarily limited to those
three distinct arenas.49 But such powers are not without parameters. For example, courts
“may not impose an exclusionary rule in the name of exercising their supervisory power to
remedy a nonconstitutional violation in seizing evidence to the extent the Supreme Court
limits that remedy to fourth amendment violations.”50 	Supervisory powers are exercised
46 Id. at 4–5.
47 United States v. Hastings, 461 U.S. 499, 505 (1983) (citing to McNabb v. United States, 318 U.S.
332, 341 (1943)).
48 United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991) (abrogated by United States v.
W.R. Grace, 526 F.3d 499 (9th Cir. 2008)).
49 See, e.g., United States v. Talbot, 51 F.3d 183, 187 (9th Cir. 1995) (“a district court can exclude
otherwise admissible government evidence only when a violation of ‘any constitutional provision, federal
statute, specific discovery order, or any other recognized right’ has been shown.”) (citing to United States
v. Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985)); W.R. Grace, 526 F.3d at 511 n.9 (collecting cases).
50 Gatto, 763 F.2d at 1046.
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with extreme caution, as the Court does not encroach upon its sister branches unless the
administration of an effective criminal justice system hangs in the balance.51 	As such, a
“court may not exercise any supervisory power absent ‘a clear basis in fact and law for
doing so.’”52 Under appropriate circumstances, this caution must be balanced by courts’
inherent need to “manage their cases and courtrooms effectively and to ensure obedience
to their orders.”53
As a threshold matter, the Court agrees with the Government that Rule 48 is
inapplicable in this case. Dismissal of an indictment by the court is proper under Rule 48
where unnecessary delay occurs in “bringing a defendant to trial.”54 A district court may
only 	impose 	this 	sanction 	when 	it 	satisfies 	the 	requirements 	of 	“caution” 	and
“forewarning.”55 	“The caution requirement is satisfied where the reason for dismissal is
‘prosecutorial misconduct and demonstrable prejudice or substantial [threat] thereof.’”56
Although misconduct on the part of the Alaska State Troopers has been established, as
discussed 	infra, 	neither 	party 	suggests 	that 	prosecutorial 	misconduct 	has 	been
51 Gonsalves, 691 F.2d, 1310 1319 (9th Cir. 1982) (“The judiciary therefore should use its
supervisory power to maintain its own institutional integrity, including the ability to administer an effective
criminal justice system, as well as to maintain the institutional power of all three branches of government.
The courts must not abdicate their responsibility to check the governmental excesses of the executive and
the legislature; the invocation of supervisory power may occasionally provide the necessary restraint of
these excesses.”) (internal citations omitted) (judgment vacated).
52 Gatto, 763 F.2d at 1046 (citing to United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977)).
53 W.R. Grace, 526 F.3d at 509 (citing to Aloe Vera of Am., Inc. v. United States, 376 F.3d 960,
964–65 (9th Cir. 2004) (per curiam) (internal quotations omitted)).
54 Fed. R. Crim. P. 48(b)(3).
55 United States v. Sears, Roebuck and Co., Inc., 877 F.2d 734, 738 (9th Cir. 1989).
56 Id. (internal citations and quotations omitted).
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demonstrated 	in 	this 	case.57 	Further, 	the Court 	certainly 	has 	not forewarned 	the
Government of the possibility of a Rule 48(b) dismissal, nor could it have done so, as the
Court did not know of the Alaska State Troopers’ noncompliance with the federal subpoena
until the conclusion of the evidentiary hearing.
The inapplicably of Rule 48, however, does not preclude the Court’s
consideration of exercising its supervisory powers to fashion an appropriate remedy where
there has been a violation of a court order and Constitutional safeguards. At the evidentiary
hearing, it was conclusively established that the Alaska State Troopers were in possession
of numerous additional responsive documents—so voluminous, in fact, that they could not
be electronically transferred58—requested in Mr. Conner’s Rule 17(c) subpoena regarding
K-9 Donna’s training records and certifications, as well as Trooper Woodruff’s handler
records. 	In an email exchange between the Alaska State Trooper Sergeant Cooper and
Mr. Conner’s defense counsel in August 2021, Sergeant Cooper represented that the
Troopers “no longer held” complete K-9 training records pursuant to a 2013 Supreme Court
decision.59 It appears from the record that no effort was made to contact Sergeant Zeisel—
57 In fact, the Court explicitly acknowledges that the prosecutor in this matter admirably
endeavored to mollify these discovery issues. Nevertheless, despite those efforts, state law enforcement
failed to comply with the Court’s Rule 17 subpoena.
58 Docket 78 at 2. The Government alleges that the documents were scheduled to be physically
delivered to the Assistant United States Attorney’s Office due to their multiplicity. Id.
59 Sergeant Cooper cited to Florida v. Harris, which the Court presumes to refer to Florida v.
Harris, 568 U.S. 237 (2013). In that case, the Supreme Court found that whether an officer has probable
cause pursuant to a drug detection dog sniff depends on the totality of the circumstances, rather than “an
inflexible set of evidentiary requirements.” It is not clear how this case gives the Alaska State Troopers
carte blanche to destroy years of training records and certifications, especially when Trooper Woodruff
relied on the fact that K-9 Donna had been certified since 2018 in the search warrant application for
Mr. Conner’s vehicle.
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the individual most likely to be, and indeed in possession of responsive records—despite
being called to testify as a witness during the evidentiary hearing.
Sergeant Cooper’s August 2021 email response for why additional records
were not produced gives rise to more questions. Sergeant Cooper stated that K-9 records
are only held by the Alaska State Troopers “through the certification year,” and because
K-9 Donna was certified for two months in 2019, only the certifications from May 19,
2019–June 14, 2019, were disclosed to defense counsel.60 The drug detection dog sniff of
Mr. Conner’s vehicle was conducted on June 14, 2019; however, the subpoena was not
issued and answered until April 2021. 	If the policy articulated by Sergeant Cooper was
true, i.e., that the Troopers only retain K-9 records on a yearly basis, the Alaska State
Troopers would not have held on to any K-9 records from two years prior, much less
exactly one month of certifications leading up to the precise date of the search of
Mr. Conner’s vehicle. 	It is unclear to the Court whether Sergeant Cooper was untruthful
or simply mistaken about the agency’s policy, whether the Alaska State Troopers were
aware that additional responsive records existed and selectively suppressed or destroyed
them, or whether K-9 Donna truly was only certified for less than one month and Trooper
Woodruff falsely asserted on his affidavit for the search warrant that she had been certified
since 2018. 	At best, the Alaska State Troopers were grossly negligent in taking steps to
properly investigate and respond to the subpoena; at worst, deceptive.61 	Regardless, the
60 Docket 77 at 3.
61 Based on the testimony heard at the evidentiary hearing, the Court determined that the
recordkeeping practices of the Alaska State Troopers with regard to K-9 training and certification are
“woefully lacking.” The Government itself has admonished the Alaska State Troopers’ response to the
subpoena as either an “institutional failure or a ministerial malfunction.” Docket 78 at 2.
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Alaska State Troopers plainly violated several unambiguous orders from this Court to
comply with the subpoena.
The Court finds that the Alaska State Troopers’ willful disobedience in
turning over, by definition, relevant evidence pursuant to a Rule 17 subpoena violated
Mr. Conner’s due process rights. 	Rule 17(c) is intended to implement the compulsory
process obligation of the Sixth Amendment to the U.S. Constitution.62 The Supreme Court
has held that the Sixth Amendment’s guarantee to compulsory process is violated when a
criminal defendant is arbitrarily deprived of “testimony [that] would have been relevant
and material, and . . . vital to the defense.”63 To require production of documents prior to
trial, a moving party must necessarily show:
(1) that the documents are evidentiary and relevant; (2) that
they are not otherwise procurable reasonably in advance of trial
by exercise of due diligence; (3) that the party cannot properly
prepare for trial without such production and inspection in
advance of trial and that the failure to obtain such inspection
may tend unreasonably to delay the trial; and (4) that the
application is made in good faith and is not intended as a
general “fishing expedition.”64
Magistrate Judge Smith granted the subpoena for all handler’s logs, training
records, score sheets, certification records, and training standards and manuals pertaining
to Trooper Woodruff and K-9 Donna.65 Mr. Conner’s request for subpoena was unopposed
by the Government, and a sufficient showing was made justifying the production of K-9
Donna’s records prior to trial. By virtue of granting the request for a subpoena of the K-9
62 See California v. Trombetta, 467 U.S. 479, 485 (1984).
63 Washington v. Texas, 388 U.S. 14, 16 (1967).
64 United States v. Nixon, 418 U.S. 683, 699–700 (1974).
65 See Dockets 40, 41.
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records, Magistrate Judge Smith determined that Mr. Conner cannot properly prepare for
trial without their production. The Court sees no reason to disturb this finding, especially
absent any objection from the Government. While there also may be an unreasonable delay
in trial due to the Alaska State Troopers’ failure to identify all responsive records until
nearly eight months after the subpoena was issued,66 the most problematic consequence of
the Alaska State Troopers’ actions is Mr. Conner’s inability to secure all evidence
necessary to his defense.
Indeed, an essential element of Mr. Conner’s defense appears to be the
alleged unreliability of K-9 Donna’s alert for the presence of the odor of drugs. Mr. Conner
alleges that Officer Miller based his probable cause determination in the search warrant
application on K-9 Donna’s positive alert for the presence of the odor of drugs, and that
until Mr. Conner obtains all the “dog-history discovery to which he is entitled, it is
impossible to properly assess the foundation for the alleged reliability of the dog sniff or
to determine whether AST Woodruff made false statement or omissions as to the dog’s
training, certification, or performance in his supporting search warrant affidavit.”67 Where
Trooper Woodruff relied on K-9 Donna’s certification records dating back to June 2018 in
his search warrant affidavit, but could only produce certifications dating from May 2019
to June 2019, the Court must agree with Mr. Conner.68
66 The Supreme Court has recognized that one of the fundamental characteristics of a subpoena
duces tecum in criminal cases is to “expedite the trial by providing a time and place before trial for the
inspection of subpoenaed materials.” Nixon, 418 U.S. at 698–99 (citing to Bowman Dairy Co., 341 U.S. at
220). However, the Government has articulated other legitimate reasons for the delay in trial, principally
the COVID-19 pandemic.
67 Docket 38 at 13.
68 See United States v. Cedano-Arellano, 332 F.3d 568, 571–72 (9th Cir. 2003).
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Further, at the evidentiary hearing, Mr. Conner was able to show to a limited
extent, by virtue of possessing limited documentation, that Trooper Woodruff was not
entirely diligent in his continued training of K-9 Donna. Trooper Woodruff testified that
according to the training logs turned over to Mr. Conner, he did not meet the minimum
number of hours and criteria set forth by the Alaska State Troopers’ requirements for
proper maintenance training. Because the Court has not reviewed the documents withheld
by the Alaska State Troopers, it does not know whether they contain exculpatory
information. 	However, only a plausible showing that the evidence would have been
material and favorable is required to show a violation of due process.69 	The Court finds
that Mr. Conner has made a plausible showing that the suppressed training logs would have
revealed information discounting the reliability of K-9 Donna and Trooper Woodruff’s
statements made in the search warrant affidavit. 	The Alaska State Troopers’ deliberate
indifference to three separate orders from this Court demanding production of the K-9
records gives this Court further pause as to the reliability of this particular K-9. Although
the Court does not opine on whether the warrant would be rendered deficient absent the
dog sniff evidence, it finds that there would at least be a valid question of whether it was
supported by probable cause.70 Thus, the withheld information would have proved material
and favorable to Mr. Conner’s defense.
69 See United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982) (finding criminal defendant
must make a “plausible showing that the testimony of the deported witnesses would have been material and
favorable to his defense” in order to sanction the Government for deporting such witnesses, but that such
showing may be based upon “legal argument, rather a submission of additional facts.”).
70 Although not specifically relevant to this Court’s ruling or rationale, it may be worth noting that
other problematic aspects of the search warrant affidavit were exposed during the evidentiary hearing. In
addition to the unsubstantiated allegations of the “high-speed pursuit” and K-9 reliability, it became clear
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The circumstances of this case are analogous to those in United States v.
Roybal.71 In Roybal, the government intentionally failed to turn over witness testimony to
the defendant in violation of a discovery order, which the court found prejudiced the
defendant’s ability to prepare a defense.72 The evidence did not come within the orbit of
Brady v. Maryland or Jencks Act material,73 and the court therefore relied on its
supervisory powers to remedy the unfairness caused by the Government’s violation of a
“fair procedure.”74 	Specifically, the Ninth Circuit found that it “could not ignore the
unfairness and potential prejudice to the defendant” nor the “unfairness and discourtesy to
the trial judge who [wa]s suddenly faced with having to decide, on an incomplete record,
whether trial should continue[.]”75 As a result, the court in Roybal reversed the defendant’s
conviction and remanded the case.76 	Mr. Conner’s ability to prepare his defense is
similarly impacted by the Alaska State Troopers’ failure to comply with the subpoena,
that other items articulated in the search warrant affidavit as evidence of possible drug trafficking were less
than reliable when exposed to even a slightly rigorous examination. For example, the tin foil referenced in
the affidavit was clearly a piece of tin foil removed from a nearby pack of cigarettes as opposed to tin foil
used in the consumption of controlled substances.
71 566 F.2d 1109 (9th Cir. 1977).
72 Id. at 1110.
73 Brady v. Maryland, 373 U.S. 83 (1963), requires that the government turn over all evidence
which is exculpatory to the defendant. The Jencks Act “requires the government to produce any written
statements by a government witness that relate to the subject matter of any direct testimony by the witness.”
United States v. Wallace, 848 F.2d 1464, 1470 (9th Cir. 1988).
74 566 F.2d at 1111. Although the Ninth Circuit did not specifically cite to its supervisory powers
in the Roybal opinion, it cites to McNabb v. United States, 318 U.S. 332, 347 (1943), for the proposition
that reversal of a defendant’s conviction is an appropriate remedy where the government violates a
discovery order. In McNabb, the Supreme Court expressly approved of the ability of the federal courts to
rely on their supervisory powers to “formulate[] rules of evidence to be applied in federal criminal
prosecutions.” 318 U.S. at 341.
75 Roybal, 566 F.2d at 1111.
76 Id.
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which is a “fair procedure” implemented by this Court to ensure access to all evidence
necessary to preparation of his defense.
However, Mr. Conner’s case differs from Roybal in two critical ways. First,
a subpoena issued pursuant to Federal Rule of Criminal Procedure 17(c) “is not a discovery
tool but offers compulsory process for securing specific, identifiable evidence for trial.”77
The willful violation of a subpoena in a criminal case by law enforcement is thus more akin
to a due process violation than the violation of a discovery order. 	Second, there is no
allegation of federal prosecutorial misconduct here, only misconduct alleged on the part of
state law enforcement. 	The Court recognizes that the Ninth Circuit has been hesitant to
attribute the actions of other investigatory agencies to the government.78 However, “[t]o
the victim it matters not whether his constitutional right has been invaded by a federal agent
or by a state officer.”79 Far from simply “disagreeing with the method of law enforcement
attempted here,” the Court draws a distinction where allowing evidence of the dog sniff to
be introduced “would make the federal courts accomplices in the willful disobedience of a
Constitution they are sworn to uphold.”80 	This difference, therefore, does not affect the
outcome of the Court’s analysis.
77 See, e.g., Bowman Diary Co. v. United States, 341 U.S. 214, 219–20 (1951) (“[Crim.] Rule 17(c)
was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial
by providing a time and place before trial for the inspection of the subpoenaed materials.”).
78 See United States v. Simpson, 927 F.2d 1088, 1091 (9th Cir. 1991) (finding that an FBI
informant’s illegal conduct, because it was not encouraged by the FBI, could not be attributed to the
government and therefore the Court could not invoke its supervisory power to deter the government from
engaging in future illegal conduct because no past illegal conduct for which the government was responsible
had occurred) (abrogated by United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008)).
79 Elkins v. United States, 364 U.S. 206, 215 (9th Cir. 1960).
80 United States v. Cortina, 630 F.2d 1207, 1214 (7th Cir. 1980).
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The Court recognizes that supervisory powers cannot give “the federal
judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it (does) not
approve.”81 	And this Court is careful not to prescribe “an inflexible set of evidentiary
requirements” for law enforcement to establish the reliability of drug detection dogs.82
However, the Court is insistent that law enforcement comply with due process under the
United States Constitution. Although there is a remedy available under the Federal Rules
of Criminal Procedure for the violation of a Rule 17 subpoena, the Court finds that the
existing remedy is inadequate in this case.83 	Rule 17 directs that a court “may hold in
contempt a witness who, without adequate excuse, disobeys a subpoena issued by a federal
court in that district.”84 But holding the Alaska State Troopers in contempt of Court would
not remedy the prejudice Mr. Conner faced at the evidentiary hearing and the violation of
his due process rights. 	Barring a witness is well within the wheelhouse of sanctions the
81 United States v. Russell, 411 U.S. 423, 435 (1973).
82 Florida v. Harris, 568 U.S. 237, 248 (2013).
83 The Ninth Circuit has not approved of the District Court exercising its supervisory powers where
a remedy is prescribed by Rule. See Gatto, 763 F.2d at 1046. However, “if in the informed discretion of
the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.”
Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991); see also Cortina, 630 F.2d at 1214 (finding the “call
for the court’s supervisory power . . . at its strongest and most defensible” where a law enforcement agent
“lied in an affidavit.”).
84 Fed. R. Crim. P. 17(h).
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Court may impose in response to “willful disobedience of a court order.”85 	Further, this
sanction does not “circumvent or conflict with the Federal Rules of Criminal Procedure.”86
The Supreme Court observed in McNabb that “[t]he history of liberty has
largely been the history of observance of procedural safeguards. 	And the effective
administration of criminal justice hardly requires disregard of fair procedures imposed by
law.”87 Mindful of this sentiment, and in accordance with Mr. Conner’s constitutional right
to due process, the Court exercises its supervisory powers to exclude Trooper Woodruff’s
testimony and statements.
III. 	CONCLUSION
For 	the 	foregoing 	reasons, 	the 	Motion 	at Docket 	38 	is 	GRANTED.
Mr. Conner’s Oral Motion to Dismiss Indictment is DENIED. 	The Court FURTHER
ORDERS all evidence related to Trooper Woodruff and K-9 Donna be excluded.
IT IS SO ORDERED this 18th day of January, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
85 See Aloe Vera of America, Inc., 376 F.3d at 964–65 (“All federal courts are vested with inherent
powers enabling them to manage their cases and courtrooms effectively and to ensure obedience with their
orders . . . As a function of this power, courts can dismiss cases in their entirety, bar witnesses, award
attorney’s fees and assess fines.”) (citing to F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc.,
244 F.3d 1128, 1136 (9th Cir. 2001)); see also Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1411
(9th Cir. 1990) (“A determination that an order was disobeyed is entitled to considerable weigh because a
district judge is the best equipped to assess the circumstances of the non-compliance.”) (internal quotation
marks and citations omitted).
86 See W.R. Grace, 526 F.3d at 511.
87 McNabb v. United States, 318 U.S. 332, 347 (1943).
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