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9th Circuit: Drug conviction vacated and case remanded because of erroneous discovery rulings

United States v. Soto-Zuniga, — F.3d — (9th Cir. Sep. 16, 2016): Drug-bust defendant entitled to discovery relating to constitutionality of checkpoint seizure, and to government’s investigation of drug-smuggling operation

A lot has happened since 1976. Bell-bottoms have gone out of fashion, and come back again, sort of. The original members of Menudo have begun contemplating collecting retirement benefits. People without aluminum foil under their hats have begun talking about taking pictures with their telephones, and about the government watching us more or less all the time. And maybe, just maybe, the San Clemente checkpoint has become unconstitutional. At least, held the Ninth Circuit, Hector Soto-Zuniga should have been permitted to conduct discovery to find out.

The Border Patrol agents who stopped Mr. Soto-Zuniga at the San Clemente checkpoint thought he looked nervous. You know the rest: Referred to secondary, more looking nervous (including a “bounding” carotid artery), smell of marijuana, car search, drugs (in this case, methampetamine) found behind the driver’s seat. The government charged possession with intent to distribute. Mr. Soto-Zuniga filed a motion challenging the constitutionality of the checkpoint, accompanied by a motion seeking discovery of “statistics regarding the number and types of arrests and vehicle searches” conducted at the checkpoint. His point was this: Generally, a search or seizure is unreasonable and violates the Fourth Amendment unless it rests on individualized suspicion of wrongdoing. The Supreme Court has carved out an exception to this rule for “checkpoint” searches that serve “special needs, beyond the normal need for law enforcement.” In 1976 the Supreme Court held, in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), that the San Clemente checkpoint was a constitutional suspicionless seizure because it served the “special” purpose of immigration control. But Mr. Soto-Zuniga wanted to show that the checkpoint has morphed into a “general law enforcement” tool, the primary purpose of which is to detect “ordinary criminal wrongdoing” – which would render it unconstitutional. The district court denied the motion, satisfying itself with an evidentiary hearing at which a Border Patrol agent assured the court that “upwards of 90 percent of arrests” at the checkpoint were “immigration related.” The Ninth Circuit found this insufficient, noting that the district court “made its decision as if in part blindfolded, considering only one version of the evidence.” Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), Mr. Soto-Zuniga was entitled to data within the government’s possession “material to preparing the defense,” and in light of his particular Fourth Amendment defense, the discovery that he sought fit the bill.

The Ninth Circuit went on to overturn another of the district court’s discovery rulings, holding that Mr. Soto-Zuniga was also entitled to discovery of the government’s investigation into the drug-smuggling operations of his cousin’s husband, Christian Rios Campos. Mr. Soto-Zuniga’s defense was that he had given a ride to three teenagers as a favor to Mr. Rios, and these teenagers must have put the drugs in his car without his knowledge. He sought discovery into the government’s investigation into Mr. Rios’ drug-smuggling operation, hoping to identify the teenagers and possibly call them to testify. Stressing that materiality under Rule 16(a)(1)(E) is a “low threshold,” and that evidence can be material without being admissible, the Ninth Circuit overturned the district court’s denial of this discovery.

In light of these errors, the Ninth Circuit vacated Mr. Soto-Zuniga’s conviction, reversed the district court’s discovery rulings, and remanded the case with instructions to grant the discovery and conduct a new evidentiary hearing into the San Clemente checkpoint’s constitutionality. So we still don’t know whether Mr. Soto-Zuniga’s challenge to the checkpoint will succeed, but as Menudo once said: “You Got Potential.”

(Congratulations to Paul Allen Barr, Federal Defenders of San Diego)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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