U.S. v. Rowland, 05-10375.

Citation464 F.3d 899
Decision Date13 September 2006
Docket NumberNo. 05-10375.,05-10375.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ernest G.M. ROWLAND, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

John T. Gorman, Federal Public Defender, Mongmong, GU, for the defendant-appellant.

Karon V. Johnson, Assistant United States Attorney, Hagatna, GU, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Guam; Alex R. Munson, Chief Judge, Presiding. D.C. No. CR-03-00105-ARM.

Before BETTY B. FLETCHER, HARRY PREGERSON, and WILLIAM C. CANBY, JR., Circuit Judges.

ORDER AND OPINION

PREGERSON, Circuit Judge.

ORDER

The panel has unanimously voted to grant the petition for panel rehearing. The petition for rehearing en banc is denied as moot. The unpublished memorandum disposition of July 3, 2006, is hereby withdrawn. An opinion shall be filed concurrently with this order.

OPINION

Defendant-Appellant Ernest G.M. Rowland appeals the denial of his motion to suppress evidence and his motion for pretrial discovery related to his conviction for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). We have jurisdiction over this appeal under 28 U.S.C. § 1291 and we affirm. We hold that Guam Customs officers are statutorily authorized to stop any passenger arriving in Guam if the officer has reasonable suspicion to believe that the passenger is violating Guam's drug laws. We also conclude, that the totality of the circumstances in this case gave rise to reasonable suspicion of such a violation, and that the district court did not abuse its discretion when it denied Rowland's motion for pretrial discovery.

I. Factual and Procedural Background

In October 2003, Drug Enforcement Administration ("DEA") agents in Guam received a telephone tip that Rowland was planning to smuggle methamphetamine hydrochloride to Guam from Hawaii. The informant identified himself1 to the officers, provided Rowland's name and his approximate height and weight, and remarked that Rowland was from Hawaii and was on probation. The informant told DEA Agent Jonathan Anderson that he had contacted the DEA to "bare his soul;" it is undisputed that the informant contacted the DEA voluntarily and was not motivated by a plea offer or other favorable treatment from authorities. After receiving the tip, Agent Anderson and Agent David Taitano contacted the Hawaii Probation Department. The Probation Department confirmed that Rowland was on probation in Hawaii, provided Rowland's date of birth and his physical location, and informed the agents of Rowland's criminal history that included prior drug convictions.

About one week after receiving the tip, Agents Anderson and Taitano met with the informant for about ten minutes to discuss Rowland. In addition to that meeting, the agents spoke with the informant on the telephone about two or three other times. The informant could not tell the agents the specific date that Rowland would travel from Hawaii to Guam. The informant had no known track record of reliability on this or any other case. Agents Anderson and Taitano informed Guam Customs and Quarantine ("Guam Customs") that they were interested in Rowland; Guam Customs placed Rowland's name on a computer "watch list" at A.B. Won Pat International Airport in Guam.

On December 15, 2003, Rowland arrived at the Guam airport on a domestic flight from Honolulu, Hawaii. Although Rowland and the other passengers were not required to pass through federal immigration or customs checkpoints, they were required to execute a Guam Customs Agriculture Declaration Form. Rowland presented his form to a Guam Customs Officer, and stated that he would spend roughly one week in Guam and that he did not possess prohibited items or controlled substances.

Because Rowland's name was in the computer watch system, the Guam Customs officer referred Rowland to secondary inspection. At secondary inspection, Guam Customs Officer F.J. Quinata asked Rowland if he was carrying any prohibited items. Rowland responded that he was not. Officer Quinata searched Rowland's bag and found nothing. Officer Quinata observed, however, that Rowland "was nervous and sweating mildly during the inspection." Quinata then asked Rowland if he had any weapons or narcotics on his person. Rowland replied, "Yes, I have dope on me." Quinata conducted a strip-search and found 464 grams of methamphetamine hydrochloride in packets strapped around Rowland's waist.

On December 17, 2003, Rowland was indicted for possession with intent to distribute methamphetamine hydrochloride in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). Rowland filed a motion to suppress evidence on March 1, 2004, alleging, inter alia, that the Guam Customs officers lacked both probable cause and reasonable suspicion to believe that Rowland was engaged in criminal activity. He simultaneously filed a motion for pretrial discovery of information related to the confidential informant. In its opposition to the motions, the government argued, inter alia, that the search was a "border search" that did not require reasonable suspicion or probable cause. In his reply, Rowland contested the assertion that the customs search qualified as a border search. After a brief initial hearing on April 28, 2004, the district court ordered supplemental briefing on the border search issue. On October 5, 2004, the district court conducted a second hearing on the motions and heard testimony from DEA Agent Anderson about his contact with the confidential informant.

On November 3, 2004, the district court denied the motion to suppress. The district court did not reach the question whether the search was a "border search" that did not require reasonable suspicion or probable cause. Instead, the district court held that "the information supplied by the [informant] demonstrated sufficient indicia of reliability so as to provide the DEA with reasonable articulable suspicion justifying the issuance of the intelligence report and the custom[s] officer's subsequent stop of defendant." The court further concluded that Rowland's statement that he had dope on his body created probable cause that justified the search of his person.

On December 29, 2004, the U.S. magistrate judge in Guam denied Rowland's motion for discovery related to the confidential informant. The magistrate judge concluded that Rowland had not made "a sufficient showing to demonstrate that he is entitled to the information concerning the informant." The magistrate judge found relevant the fact that the government did not intend to use the informant or the information that he provided at trial.

Following the denial of his motions, Rowland entered into a conditional guilty plea with no written plea agreement. On May 6, 2005, he was sentenced to 292 months incarceration and 10 years of supervised release. Rowland filed this timely appeal of the denial of his motion to suppress and his motion for pretrial discovery.

II. Standard of Review

We review the denial of a motion to suppress de novo. See United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). Whether an official acted within his statutory authority is a question of law that we review de novo. See, e.g., United States v. Miller, 205 F.3d 1098, 1100 (9th Cir.2000). We also review de novo whether reasonable suspicion justified a stop. See United States v. Miguel, 368 F.3d 1150, 1153 (9th Cir.2004). The trial court's factual findings are reviewed for clear error. See United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004).

The decision whether to disclose the identity of a confidential informant is reviewed for an abuse of discretion. See United States v. Henderson, 241 F.3d 638, 646 (9th Cir.2000). Nondisclosure is an abuse of discretion only if disclosure is relevant and helpful to the defense of the accused, or essential to a fair determination of the defendant's cause. See Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

III. Statutory Authority to Make Stop

At the outset, we must determine whether Guam Customs officers have the statutory authority to stop an individual that they believe is violating Guam's drug laws. If the officers lack the statutory authority to make such a stop, our cases suggest that the evidence obtained as a result of the stop might be suppressed. See, e.g., United States v. Juda, 46 F.3d 961, 968 (9th Cir.1995) (noting that dismissal of indictment or suppression of evidence might be appropriate remedy for statutorily unauthorized search, but declining to reach the issue); United States v. Peterson, 812 F.2d 486, 492-93 (9th Cir. 1987) (noting that suppression might be proper remedy for statutorily unauthorized search, but declining to reach the issue).

"Any [Guam] Customs Officer may: (1) arrest persons who violate a prohibition contained in Article 6 of Title 9 [Guam Code Annotated] Chapter 67; [and] (2) make seizures of any controlled substance imported into Guam in violation of Article 6 of Title 9 [Guam Code Annotated] Chapter 67 ...." 5 Guam Code Ann. § 73102(1), (2). Article 6, Chapter 67 is codified at section 67.600-.608 of title 9 of the Guam Code, and pertains to "Importation and Exportation" of controlled substances. Specifically, section 67.601 of title 9 makes it unlawful "to import into Guam any controlled substance in Schedule I or II of this Act," subject to exceptions for approved medical and scientific imports. 9 Guam Code Ann. § 67.601(a). Methamphetamine is a Schedule II substance. See 9 Guam Code Ann. § 67.205 (defining Schedule II drugs as those listed in Appendix B); 9 Guam Code Ann.App. B(C)(2) ("methamphetamine"). It thus appears that Guam Customs officers are statutorily authorized to arrest persons and seize methamphetamine "imported into Guam." The question then becomes whether...

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