United States of America v. Jose Alberto Perez

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-1191
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jose Alberto Perez
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of North Dakota - Eastern
____________
Submitted: December 17, 2021
Filed: April 1, 2022
____________
Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.
____________
SMITH, Chief Judge.
A jury convicted Jose Alberto Perez of two federal controlled substance
offenses1 and three firearms offenses.2 Prior to trial, Perez filed a motion to suppress
1Perez was convicted of (1) conspiracy to possess with intent to distribute and
distribute a controlled substance, in violation of 18 U.S.C. § 2 and 21 U.S.C.

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evidence alleging that the police search of his car violated his constitutional rights.
The district court3 denied Perez’s motion. During trial, Perez objected to a comment
that the government made during its closing argument and moved for a mistrial. The
district court denied this motion as well. On appeal, Perez seeks reversal of the denial
of his motion to dismiss and his mistrial motion. The district court did not err as to
either ruling and we, therefore, affirm.
I. Factual Background
A. The Traffic Stop
On February 20, 2018, North Dakota Highway Patrol (NDHP) Trooper Brett
Mlynar, while parked on a median on U.S. Highway 2, spoke to a driver who pulled
up next to him. The driver reported a red sedan driving westbound in an eastbound
lane near a rest area on Highway 2. The driver also said that someone was chasing the
red sedan. Trooper Mlynar, with his drug-sniffing dog, K9 Castor, drove in the
direction of the reported red sedan. He observed a red Chevrolet Impala at a stop sign
at a rest area waiting to turn westbound onto Highway 2. Trooper Mlynar noticed the
extremely dark tint on the Impala’s windows. He believed that the Impala’s windows
were tinted darker than state law allowed. After the Impala drove past him, he
initiated a traffic stop.
§ 841(a)(1) and (b)(1)(A), and (2) possession with intent to distribute a controlled
substance, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(A).
2Perez was convicted of (1) possession of firearms in furtherance of drug
trafficking crimes, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A) and (c)(1)(B)(i);
(2) possession of a firearm made in violation of the National Firearms Act, in
violation of 18 U.S.C. § 2 and 26 U.S.C. §§ 5822, 5861(c), and 5871; and (3)
possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C.
§§ 2, 922(g)(1), and 924(a)(2).
3The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota.
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Trooper Mlynar approached the Impala and spoke with the driver, Perez. Perez
was wearing a black gaiter pulled down around his neck and a black glove on his left
hand. Trooper Mlynar measured the window tint and determined that the tint violated
state law. He asked Perez for identification, vehicle registration, and proof of
insurance. Perez said he had no ID because he left his driver’s license at a hotel in
Nebraska. He then admitted that his license was suspended. He could not provide
proof of registration or insurance and neither could his two passengers. The
passengers gave discrepant answers as to the Impala’s ownership.
Trooper Mlynar directed Perez to get out of the Impala and to come to his
patrol car. Trooper Mlynar thought he saw Perez hiding or reaching for something as
he was coming out of the Impala, so Trooper Mlynar ordered Perez to show his
hands. Perez exited the Impala without incident. While they were walking to the
patrol car, Trooper Mlynar asked Perez if he had any weapons on his person. Perez
denied having any weapons and consented to a pat-down search. Trooper Mlynar
found a knife with a four-inch blade in Perez’s front pants pocket. Afterwards,
Trooper Mlynar placed Perez in handcuffs but advised him that he was not under
arrest. Trooper Mlynar conducted a second pat-down and found multiple cell phones
and Perez’s Texas driver’s license taped to one of the phones.
Trooper Mlynar then escorted Perez to the front seat of his patrol car. Trooper
Mlynar began asking Perez questions, and Perez admitted that he had driven the
wrong way down the highway. He blamed his error on lack of familiarity with the
area. Trooper Mlynar left Perez in the patrol car and returned to the Impala to speak
with Perez’s passengers. Their accounts did not match Perez’s.
After returning to his patrol car, Trooper Mlynar received notice from the
North Dakota Department of Emergency Services’ Division of State Radio that
Perez’s Texas driver’s license was suspended and expired. He also learned that Perez
had an active, non-extraditable Colorado arrest warrant for drug charges. At that
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point, Trooper Mlynar determined that he was going to charge Perez with driving
with a suspended license.
Trooper Mlynar requested assistance from the Ramsey County Sheriff’s Office.
Trooper Mlynar told Perez that he would issue Perez a warning for the window tint
violation. Trooper Mlynar asked Perez for consent for K9 Castor to sniff the Impala’s
exterior. Perez did not consent. Trooper Mlynar testified that it was NDHP protocol
to request consent for a search prior to deploying a drug-sniffing dog, but to proceed
with the search regardless.
Soon after Trooper Mlynar called for backup, another car drove up and parked
in front of the Impala. The driver identified herself as Fran Redday. She told Trooper
Mlynar that she wanted to take the Impala and drive its passengers home and that she
would come back for her car later. She had no proof of ownership of the Impala or
proof of permission to drive it. Trooper Mlynar denied her request.
Trooper Mlynar turned his attention back to Perez and informed him that he
was under arrest for driving with a suspended license. Before moving Perez to the
back seat of the patrol car, he did a third pat-down and discovered an empty holster
tucked into the front waistband of Perez’s pants. Inside Perez’s pants pocket, Trooper
Mlynar found a handkerchief with five .45 caliber bullets inside.
Ramsey County Deputy Ted Rainesalo arrived on the scene. Trooper Mlynar
and Deputy Rainesalo directed Perez’s passengers to exit the Impala. Trooper Mlynar
deployed K9 Castor to sniff the Impala’s exterior beginning on the rear bumper on
the passenger side. He conducted an “initial free pass”—a search where the handler
does not provide the dog any direction—going toward the front of the Impala. R. Doc.
195, at 166. During the initial free pass, he recognized that K9 Castor displayed alert
behavior. He then conducted a “spin out” and began a “detailed systematic
search”—a search where the handler taps the side of the car high and low to direct the
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dog to check specific areas—on the passenger side. Id. Trooper Mlynar and the
government’s expert, NDHP Trooper Kyle Stern, testified that the initial free pass,
the spin out, and the detailed systematic search were standard practices.
K9 Castor indicated that she had picked up a scent by laying down near the
Impala’s rear wheel on the passenger side. Based on her indication, Trooper Mlynar
decided to do a physical search of the Impala. Deputy Rainesalo assisted. Between
the front passenger seat and the center console, they found 24 grams of
methamphetamine. Inside a duffle bag on the back seat, they found one gram of
marijuana, 43 empty clear plastic bags, and a laptop computer. In the center console,
they found two debit cards that did not belong to any of the Impala’s occupants. On
the floor of the back seat under a jacket, they found a short-barreled shotgun and five
shotgun shells. On the floor of the back seat on the passenger side, they found a .45
caliber handgun with a bullet in the chamber and four bullets in the magazine. They
also found multiple cell phones. The Impala’s roof appeared to have been damaged
by shotgun fire.
Trooper Mlynar contacted his supervisor, Sergeant Adam Dvorak, described
what they found in the Impala, and explained that the registered owner was not
present and that he did not know whether anyone present could take possession of the
Impala. Sergeant Dvorak advised impounding the Impala. NDHP’s impoundment
policy states, in relevant part, “If the owner does not provide for the vehicle’s
removal and the vehicle constitutes a hazard, the officer must arrange for the
vehicle’s removal and [an inventory search form] shall be completed.” R. Doc. 166-4,
at 13. During his testimony, Trooper Mlynar agreed that “leaving [the Impala] on the
roadside just posed a risk . . . that it could be taken by somebody who didn’t have
authority to take it” and that “it was probably a good idea not to leave it out in the
middle of Highway 2.” R. Doc. 195, at 117.
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After speaking with his supervisor, Trooper Mlynar called a tow truck to take
the Impala to the impound lot. Before the tow truck arrived, Trooper Mlynar
conducted “a brief inventory” search at the scene in “low light conditions.” R. Doc.
166-2, at 6. He testified that, at the time of the search, “[i]t was getting dark. The sun
was setting.” R. Doc. 195, at 114. He also testified that Perez was still in the back seat
of his patrol car, that K9 Castor was in her kennel in the back of his patrol car, and
that the tow truck was pulling up. During this first inventory search, he found no
contraband.
Trooper Mlynar completed an NDHP inventory form, listing the reason for the
hold on the Impala as “Pending Investigation.” R. Doc. 179-1. At a state court
hearing, when asked whether he was familiar with NDHP written protocols for
inventory searches, he responded “not verbatim.” R. Doc. 166-12, at 39. He testified
in front of the magistrate judge that he was “[p]retty familiar with” the written
impound procedures. R. Doc. 196, at 11. The Impala was towed to a fenced and
locked impound lot. Trooper Mlynar followed the tow truck to the lot and confirmed
that the Impala was locked before he left the lot.
Perez was arrested on state drug charges and for driving with a suspended
license and booked into the local jail. During booking, a dispatcher fielded a call from
a woman who said that she had heard that her car was involved in a traffic stop on
Highway 2. When Trooper Mlynar returned her call, the woman said she was the
daughter of the Impala’s registered owner. He then called the registered owner,
Clarine Young Bird, who lived approximately three hours from the scene of the traffic
stop. Young Bird provided the following information: she verified that she owned the
Impala; she said that her daughter had been using the Impala in Bismarck, North
Dakota; she said that she did not know Perez nor his passengers; and she said that she
had not given them permission to use the Impala. Although Young Bird’s daughter
told Trooper Mlynar that the Impala had been taken from a Bismarck parking lot,
there was no report of the Impala having been stolen.
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B. Subsequent Search of the Impala
Four days after the traffic stop, Trooper Mlynar went to the impound lot and
searched the Impala again because the first search had been rushed and he did not
want to risk anything of value not being accounted for. During this second inventory
search, he found two additional handguns, three plastic bags containing
methamphetamine, and a cell phone behind the back rest of the back seat. After he
found these items, he terminated the search and applied for a search warrant. Two
days after the impound lot search, pursuant to a warrant issued by a state court, he
searched the Impala a third time. He found more ammunition, 459 grams of
methamphetamine, drug paraphernalia, and a stun gun. The Impala was later released
to its registered owner.
II. Procedural Background
A. Motion to Suppress
In July 2018, Perez and his passengers were indicted by a federal grand jury.
In October 2019, Perez filed a motion to suppress evidence. A magistrate judge held
an evidentiary hearing in January 2020 and issued a report and recommendation in
June 2020. Based on the evidence, and relying on Rodriguez v. United States, 575
U.S. 348 (2015), the magistrate judge denied Perez’s suppression motion. The
magistrate judge concluded that no Fourth Amendment violation occurred because
the stop’s continuation for the dog sniff did not unreasonably prolong the stop given
the attendant facts, such as the lack of proof of registration, insurance, and ownership,
and Perez’s lack of candor.
As to the Impala’s impoundment and the two subsequent searches, the
magistrate judge held, “There is no evidence suggesting Trooper Mlynar did not
properly follow the [NDHP’s impound] policy’s requirements for completing an
inventory form or did not follow any other provision of the policy.” R. Doc. 209, at
37. The magistrate judge concluded that it was reasonable under the policy for
Trooper Mlynar to impound the Impala and, given the firearms and drugs found
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during the first search of the Impala, that there was probable cause to seize it under
United States v. Sims, 424 F.3d 691 (8th Cir. 2005). The magistrate judge determined
that once the Impala was impounded, the warrantless search based on NDHP’s
inventory policy was justified.
The magistrate judge held, “Trooper Mlynar permissibly concluded there was
a particularized and objective basis for suspecting Perez was ‘involved in wrongdoing
beyond committing traffic violations.’” R. Doc. 209, at 29 (quoting United States v.
Sanchez, 955 F.3d 669, 675 (8th Cir. 2020)). The magistrate judge concluded that K9
Castor’s sniff was lawful under Illinois v. Caballes, 543 U.S. 405, 409 (2005). On the
training of K9 Castor and Trooper Mlynar and K9 Castor’s reliability, the magistrate
judge held that “a preponderance of the evidence demonstrates K9 Castor’s
certification was adequate under the standards of Florida v. Harris[, 568 U.S. 237
(2013)].” R. Doc. 209, at 30.
On the search warrant for the Impala, the magistrate judge concluded that “the
warrant application did not include material misstatements of fact and/or omissions
of material facts about K9 Castor’s reliability.” Id. at 38. Lastly, the magistrate judge
held that search warrants for the electronic devices found inside the Impala and the
social media accounts for the individuals involved in the traffic stop did not lack
particularity and were not overbroad.
The district court adopted the magistrate judge’s report and recommendation
without comment.
B. Motion for a Mistrial
After the government’s closing statement, Perez requested a sidebar and made
the following arguments:
I believe that [the government] made an improper comment on [Perez’s] failure
to testify. [The government] stated that evidence showed that . . . Perez was
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selling drugs and that that was uncontroverted. Literally the only person who
could controvert that would be . . . Perez. According to Griffin v. California,
380 U.S. 609 (1965)[,] and U.S. v[.] Robinson, 485 U.S. 25 (1988), there
should be no comment by the prosecution in closing argument about the
defendant’s right to remain silent. To do so is improper[,] and I’m requesting
a mistrial.
R. Doc. 305, at 30. The district court denied the motion, ruling that:
The [c]ourt finds . . . that the argument made by the United States was not a
violation of the prohibition against mentioning the defendant’s failure to
testify. It did not approach that. It was . . . in reference to the evidence that was
heard at trial from all witnesses and presented through all witnesses and
exhibits. The objection is overruled.
Id. at 32.
III. Discussion
A. Motion to Suppress
Perez makes the following arguments regarding his motion to suppress: (1) the
Impala was impermissibly seized, (2) the Impala was illegally impounded and
searched following impoundment, (3) K9 Castor lacked the requisite accuracy and
reliability to establish probable cause for the search of the Impala conducted after her
sniff, and (4) the state court warrants were improperly issued because of omissions
in the warrant applications and because the evidence supporting the warrants was the
fruit of unlawful searches and seizures.
“A mixed standard of review applies to the denial of a motion to suppress
evidence. We review the district court’s findings of fact under the clearly erroneous
standard, and the ultimate conclusion of whether the Fourth Amendment was violated
is subject to de novo review.” United States v. Williams, 777 F.3d 1013, 1015 (8th
Cir. 2015) (internal quotation marks omitted). “This court will affirm the district
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court’s denial of a motion to suppress evidence unless it is unsupported by substantial
evidence, based on an erroneous interpretation of applicable law, or, based on the
entire record, it is clear a mistake was made.” United States v. Hogan, 539 F.3d 916,
921 (8th Cir. 2008) (internal quotation marks omitted).
1. Seizure of the Impala
Perez argues that the Impala was impermissibly seized because the traffic
infraction that formed the basis for the stop—the Impala’s illegal window
tinting—was resolved after he was arrested for driving with a suspended license. He
argues that the Impala should have been released to Redday at that point. He contends
that the magistrate judge incorrectly analyzed the continued seizure of the Impala
under the reasonable-suspicion standard and that probable cause was the correct
standard because Redday asked Trooper Mlynar to release the Impala to her. He
argues that the district court erred by adopting the magistrate judge’s analysis. We
disagree and affirm.
“An officer conducting a traffic stop who discovers information leading to
reasonable suspicion of an unrelated crime may extend the stop and broaden the
investigation.” United States v. Woods, 829 F.3d 675, 679 (8th Cir. 2016). “A delay
that ‘prolongs—i.e., adds time to—the stop,’ to conduct investigatory actions
unrelated to the purposes of the stop is impermissible unless it is supported by
reasonable suspicion.” Sanchez, 955 F.3d at 674 (quoting Rodriguez, 575 U.S. at
357).4
The magistrate judge correctly applied the reasonable-suspicion standard in
assessing whether the Impala was impermissibly seized under the totality of the
4The cases upon which Perez relies in arguing that probable cause is the correct
standard—Carroll v. United States, 267 U.S. 132 (1925), and Collins v. Virginia, 138
S. Ct. 1663 (2018)—address the automobile exception outside the context of a traffic
stop.
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circumstances. See United States v. Callison, 2 F.4th 1128, 1132 (8th Cir. 2021)
(holding that inconsistent answers to routine travel questions contributed to
reasonable suspicion); Sanchez, 955 F.3d at 675 (concluding that the fact that
someone would lend his car to unlicensed drivers, especially if one of those drivers
could not readily name the owner, contributed to reasonable suspicion). Trooper
Mlynar did not illegally seize the Impala because he justifiably extended the traffic
stop.
2. Impoundment and Second Inventory Search of the Impala
Perez argues that the Impala was unlawfully impounded because a willing
driver was available and that the impoundment did not follow NDHP’s impound
policy.
The impounding of a vehicle passes constitutional muster so long as the
decision to impound is guided by a standard policy—even a policy that
provides officers with discretion as to the proper course of action to take—and
the decision is made “on the basis of something other than suspicion of
evidence of criminal activity.”
United States v. Le, 474 F.3d 511, 514 (8th Cir. 2007) (quoting Colorado v. Bertine,
479 U.S. 367, 375 (1987)).
NDHP’s impoundment policy states, in relevant part, “If the owner does not
provide for the vehicle’s removal and the vehicle constitutes a hazard, the officer
must arrange for the vehicle’s removal and [an inventory search form] shall be
completed.” R. Doc. 166-4, at 13. We conclude that Trooper Mlynar’s decision to
impound the Impala was guided by NDHP’s policy and that the decision was made
on the basis of something other than suspicion of evidence of criminal activity.
Trooper Mlynar was permitted to conduct a second inventory search of the
Impala four days after it was impounded. The initial inventory search on the side of
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the highway while he was waiting for the tow truck was rushed. Following
impoundment, “[p]olice may conduct a warrantless search of a lawfully-impounded
vehicle even in the absence of probable cause.” United States v. Kennedy, 427 F.3d
1136, 1143 (8th Cir. 2005). “The central question in evaluating the propriety of an
inventory search is whether, in the totality of the circumstances, the search was
reasonable.” Id. “[I]nventories pursuant to standard police procedures are
reasonable.” South Dakota v. Opperman, 428 U.S. 364, 372 (1976).
The propriety of a second inventory search is an issue of first impression for
our court, but the Second Circuit addressed this issue in United States v. Williams,
930 F.3d 44 (2d Cir. 2019). The defendant in Williams had moved to suppress a
loaded firearm found during a second inventory search of a rental car that he was
driving on the day of his arrest. Id. at 50. Detectives had commenced an initial
inventory search after they brought the defendant to the local jail to process his arrest
and did not find any contraband. Id. at 51. After the defendant learned the rental car
was going to be towed to the rental agency, he became alarmed and asked for his
phone call. Id. A detective overheard him say “at a high pitch and fast pace,” which
the detective took to indicate that his “stress level was elevated,” that the individual
on the receiving end of the call needed to “‘come get this car right now’ because the
police were ‘looking to tow it.’” Id. This prompted the detectives to conduct the
second inventory search, during which they found the firearm at issue. Id. at 51–52.
The defendant in Williams principally argued that the second inventory search
was impermissible because the patrol guide in that case was silent as to the validity
of multiple inventory searches. Id. at 55. Perez makes a similar argument. The Second
Circuit rejected this argument, reasoning that every detail of search procedure need
not be governed by a standardized policy and that “[a] police department’s procedures
must simply be adequate to ‘safeguard the interests protected by the Fourth
Amendment.’” Id. (quoting United States v. Lopez, 547 F.3d 364, 371 (2d Cir. 2008)).
It held that the second inventory search did not run afoul of that principle, even if
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such a search was not specifically provided for in the patrol guide. Id. We have
similarly held “[r]equiring an officer to conduct an inventory search pursuant to
‘standardized criteria’ or an ‘established routine’ does not mean that the search must
be made in a ‘totally mechanical’ fashion.” Kennedy, 427 F.3d at 1143 (quoting
United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004)).
The Second Circuit in Williams, acknowledging that “the ultimate touchstone
of the Fourth Amendment is ‘reasonableness,’” held that it was reasonable for
detectives to conclude that the defendant’s behavior “suggested a need to go back and
check their work in connection with the inventory search that they had just
performed.” 930 F.3d at 55 (quoting Brigham City v. Stuart, 547 U.S. 398, 403
(2006)). “[W]hether a search and seizure is unreasonable within the meaning of the
Fourth Amendment depends upon the facts and circumstances of each case . . . .”
Cooper v. California, 386 U.S. 58, 59 (1967). While here there was no tip that
prompted Trooper Mlynar to conduct his second inventory search, his second search
was also reasonable given the rushed circumstances of his first search.
We conclude that Trooper Mlynar’s second inventory search was reasonable
because it was done in accordance with the general police routine of taking an
accounting of items in police custody to protect the owner’s property and also to
protect the police against disputes over unaccounted-for property.
3. Search of the Impala After K9 Castor’s Sniff
Perez argues that K9 Castor lacked the requisite accuracy and reliability set
forth in Florida v. Harris to establish probable cause for the search of the Impala
conducted after her sniff.
“We review de novo the district court’s legal determination of probable cause.”
United States v. Gonzalez, 781 F.3d 422, 429 (8th Cir. 2015).
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[T]he framework courts should use to determine whether a drug dog sniff is
reliable enough to give police officers probable cause to conduct a search . . . .
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.”
United States v. Holleman, 743 F.3d 1152, 1157 (8th Cir. 2014) (quoting Harris, 568
U.S. at 248).
Our review of the record satisfies us that the government sufficiently
established K9 Castor’s accuracy and reliability such that her alert could supply
probable cause to search.
If a bona fide organization has certified a dog after testing his reliability
in a controlled setting, a court can presume (subject to any conflicting
evidence offered) that the dog’s alert provides probable cause to search.
The same is true, 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.
Harris, 568 U.S. at 246–47. “This presumption may be overcome if a defendant can
show, either through cross-examination or introducing his own fact or expert witness,
the inadequacy of a certification or training program or that the circumstances
surrounding a canine alert undermined the case for probable cause.” Gonzalez, 781
F.3d at 429.
Perez’s arguments about K9 Castor’s certification and reliability testing and
Trooper’s Mlynar’s training and handling lack merit. Though not trained by an
outside organization, K9 Castor was certified using the same
Polizeispuerhandpruefrung (PSP)-based certification protocol that the Wyoming
Police Service Dog Association uses. She was also trained using a program that
consists of 200 hours of training and that is approved by the North Dakota Peace
Officer Standards Training Board. Lastly, the NDHP certification test requires
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handlers to score 80 percent or higher on two written tests and the dog-and-handler
team to pass a final test before initial certification. We find that K9 Castor has been
certified by a bona fide organization. K9 Castor’s reliability also passes muster
because the record shows that before her certification tests, other dogs proofed the
search area by ensuring that no other odors of controlled substances were present
beyond what the certifying official had placed there.
In addition to challenging K9 Castor’s certification, Perez argues that her sniff
was unreliable because she has previously falsely indicated the presence of drugs
during training. Her degree of accuracy, however, is higher than the accuracy rates
of other drug-sniffing dogs which have been deemed reliable. See Holleman, 743
F.3d at 1157 (affirming the denial of a motion to suppress evidence discovered as a
result of a sniff by a dog with 57 percent “in-field” accuracy); United States v.
Donnelly, 475 F.3d 946, 955 (8th Cir. 2007) (affirming the denial of a motion to
suppress evidence discovered as a result of a sniff by a dog with 54 percent in-field
accuracy). This court in Holleman also considered the results of annual
recertifications that occurred between the dog-and-handler team’s initial certification
and the search at issue. K9 Castor and Trooper Mlynar have similarly been recertified
annually, which further supports a finding of K9 Castor’s reliability.
Perez also argues that Trooper Mlynar impermissibly cued K9 Castor to lay
down by tapping the passenger side of the Impala. Trooper Stern testified that tapping
on a car is “just a way of guiding the dog to where they want that dog to search” as
part of the systematic, detailed search portion of a sniff. R. Doc. 196, at 74. We are
not convinced that K9 Castor was impermissibly cued before alerting and prompting
the search at issue. Further, Trooper Mlynar’s suspicions about Perez that developed
before K9 Castor’s sniff contributed to the circumstances which, viewed through the
lens of common sense, would lead a reasonable person to believe that a search would
reveal contraband or evidence of a crime. See Holleman, 743 F.3d at 1158; Harris,
56 U.S. at 248.
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4. State Court Search Warrants
Perez argues that the state court search warrants were improperly issued under
Franks v. Delaware, 438 U.S. 154 (1978), because they contained material omissions
and because the evidence supporting the warrants were the fruits of an
unconstitutional search and seizure.
To prevail on a Franks claim the defendant[] must show: . . . . (1) that
facts were omitted with the intent to make, or in reckless disregard of
whether they make, the affidavit misleading; and (2) that the affidavit,
if supplemented by the omitted information, could not support a finding
of probable cause.
United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001).
In determining if an affiant’s statements were made with reckless disregard for
the truth, the test is whether, after viewing all the evidence, the affiant must
have entertained serious doubts as to the truth of his statements or had obvious
reasons to doubt the accuracy of the information he reported.
United States v. McIntyre, 646 F.3d 1107, 1114 (8th Cir. 2011) (internal quotation
marks omitted). “Recklessness, however, may be ‘inferred from the fact of omission
of information from an affidavit . . . when the material omitted would have been
‘clearly critical’ to the finding of probable cause.’” Id. (alteration in original) (quoting
United States v. Mashek, 606 F.3d 922, 928 (8th Cir. 2010)).
Perez argues that the warrant applications contained material omissions
because Trooper Mlynar did not include “information regarding K9 Castor’s
reliability and his compliance with impound procedures.” Appellant’s Br. at 34. As
to the first prong of the inquiry, “[t]here is no evidence that [Trooper Mlynar] omitted
the facts with the intent to make, or in reckless disregard of whether the omissions
made, the affidavit misleading.” United States v. Wilson, 324 F. App’x 546, 548 (8th
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Cir. 2009) (unpublished per curiam). And as to the second prong of the inquiry, even
if Trooper Mlynar intentionally or recklessly omitted information about K9 Castor’s
reliability, Perez cannot show that an affidavit that includes that information could
not support a finding of probable cause. We have found that K9 Castor’s sniff was
reliable and that the search conducted as a result of her sniff was supported by
probable cause. See supra Part III.A.3. For that reason, the items found during that
search are therefore not fruits of an unconstitutional search.
We have also concluded that Trooper Mlynar complied with NDHP’s impound
procedures. See supra Part III.A.2. The items found during the search of the Impala
after impoundment are not fruits of an unconstitutional seizure.
Perez’s arguments focus on Trooper Mlynar’s omissions in his warrant
applications, but a North Dakota Bureau of Criminal Investigation Agent applied for
the warrants for the electronic devices found in the Impala; furthermore, a Bureau of
Indian Affairs Division of Drug Enforcement Special Agent applied for the warrants
for the social media accounts. To the extent that Perez argues that those warrant
applications were deficient in the same ways as the warrant application filed by
Trooper Mlynar, we reject his arguments for the same reasons.
B. Motion for a Mistrial
Perez argues that the government’s comment during its closing
statement—“Remember the evidence is clear and it’s uncontroverted. [Perez] and [his
passengers in the Impala] had come to Spirit Lake to sell meth,” R. Doc. 305, at
23—violated his right not to testify because he is the only person who could have
rebutted that statement. Appellant’s Br. at 38–39 (citing United States v. Snook, 366
F.3d 439, 444 (7th Cir. 2004) (“Comments that government evidence is unrebutted
are improper only if the defendant was the only person who could have rebutted the
evidence.”)).
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“It is well established that ‘the Fifth Amendment . . . forbids either comment
by the prosecution on the accused’s silence or instructions by the court that such
silence is evidence of guilt.’” United States v. Gardner, 396 F.3d 987, 988 (8th Cir.
2005) (alteration in original) (quoting Griffin, 380 U.S. at 615). We “review[] de novo
whether the prosecutor has unconstitutionally commented on the defendant’s failure
to testify.” Id. “When the prosecutor has neither directly commented on the
defendant’s silence, nor demonstrated an intent to draw attention to that silence, the
issue is whether ‘the jury would naturally and necessarily understand the comments
as highlighting the defendant’s failure to testify.’” Id. at 989 (quoting Herrin v.
United States, 349 F.3d 544, 546 (8th Cir. 2003)). We evaluate the prosecutor’s
comments “in the context of the entire closing arguments and the evidence introduced
at trial.” Id.
Taking into account the context of the government’s entire closing argument
and the evidence presented throughout the trial, a jury would not have naturally and
necessarily taken the government’s remark as a comment on Perez’s failure to testify.
Prior to making the remark at issue, the government had summarized the types of
firearms that were involved in the commission of the instant drug trafficking offenses
and explained that the firearms were used in furtherance of those crimes. After
making the remark, the government argued that Perez actually or constructively
possessed those firearms and explained how he used them in the scheme with his
passengers. Additionally, trial evidence included 1.5 pounds of methamphetamine,
three firearms, and the corroborating testimonies of Perez’s passengers.
A prosecutor may mention the absence of evidence contrary to guilt without
commenting on the defendant’s decision not to testify when the statements “were
simply in reference to the strength and clarity of the government’s evidence presented
at trial.” United States v. Moore, 129 F.3d 989, 993 (8th Cir. 1997), as amended on
denial of reh’g and reh’g en banc (Dec. 16, 1997); see also United States v. Emmert,
9 F.3d 699, 702–03 (8th Cir. 1993) (explaining that comments that “‘there is no
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evidence,’ ‘no testimony,’ [and] ‘no explanation’” did not manifest an intention by
the government to call attention to the defendant’s failure to testify).
“A defendant must establish that ‘a prosecutor’s comment was both improper
and prejudicial to the defendant’s substantial rights’ to obtain a new trial.” United
States v. Sandstrom, 594 F.3d 634, 661–62 (8th Cir. 2010) (quoting Gardner, 396
F.3d at 988). Not only was the government’s comment not improper, but Perez also
did not demonstrate that he suffered any prejudice from the government’s remark.
The district court instructed the jury as to the burden of proof and Perez’s right not
to testify. See United States v. Patterson, 684 F.3d 794, 798 (8th Cir. 2012) (“Any
prejudice caused by the prosecutor’s isolated comment was sufficiently cured by the
district court’s immediate statement to the jury and its final jury instructions.”). Perez
also addressed the burden of proof in his own closing argument. And the government
suggested a curative instruction, which Perez declined.
Because Perez neither established that the government’s comment was
improper nor that he was prejudiced by the comment, we affirm the district court’s
denial of his motion for a mistrial.
IV. Conclusion
Accordingly, we affirm the judgment of the district court.
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