NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

STEVEN BIHAG, 

Defendant-Appellant.

No. 19-10283 

D.C. No. 

1:18-cr-00139-DKW-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Hawaii

Derrick Kahala Watson, District Judge, Presiding

Submitted July 7, 2020**

Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

Steven Bihag was charged with possessing and intending to distribute 

methamphetamine in violation of 21 U.S.C. § 841. After the district court denied 

Bihag’s suppression motion, Bihag entered a conditional guilty plea, which 

preserved his right to appeal the suppression ruling. Bihag has now appealed that 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUL 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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suppression ruling. We affirm. 

1. We hold that Bihag was not seized during his initial encounter with 

police because a reasonable person would have felt free to leave. See United States 

v. Washington, 490 F.3d 765, 769 (9th Cir. 2007). The officers approached Bihag 

in a public space, were in plain clothes, and did not display any weapons. See id. 

at 771 (explaining that “whether the encounter occurred in a public or non-public 

setting” and “whether weapons were displayed” are “factors to consider in 

determining if a person was seized”). Officer Dayle Morita told Bihag around 

“three or four times” that Bihag was free to leave. The district court also found 

that there were several feet of space between Morita and another officer, and that 

Bihag “could have . . . walked away just as the officers invited him to do”—and 

neither of those findings is clearly erroneous. Likewise, nothing in the record 

indicates that the officer standing near the terminal entrance was blocking that 

entrance. Cf. United States v. Crapser, 472 F.3d 1141, 1146 (9th Cir. 2007) 

(concluding that there was no seizure when “there were four officers present,” in 

part because the officers “did not block Defendant” or “affirmatively assert 

authority over” Defendant’s movements). 

Bihag highlights that Officer Morita asked who had packed Bihag’s 

backpack and whether the backpack contained drugs or other contraband, and that 

Morita stated that he believed Bihag was not answering questions truthfully. But
3 

Morita’s exchange with Bihag did not escalate the encounter into a seizure. See 

United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1503, 1505 (9th Cir. 1988) 

(describing an officer asking an individual “if he was transporting narcotics,” and 

concluding there was no seizure at that point in time); United States v. Erwin, 803 

F.2d 1505, 1507-08 (9th Cir. 1986) (concluding there was no seizure when officers 

told defendant “they were conducting a narcotics investigation,” questioned the 

defendant about drugs, and pointed out holes in the defendant’s story). Bihag 

further emphasizes that Morita stated that he believed Bihag was carrying drugs. 

See Morgan v. Woessner, 997 F.2d 1244, 1253 n.5 (9th Cir. 1993) (holding that a

person may be seized if an officer makes “statements which intimate[] that an 

investigation [is] focus[ed] on” that person). But Morita testified that he made that 

statement right before Bihag’s backpack was detained, and Bihag does not dispute 

that police had reasonable suspicion of criminal activity when they detained his 

backpack. Morita’s statement therefore does not help Bihag establish that there 

was any earlier seizure that violated the Fourth Amendment.

2. We hold that the search warrant for Bihag’s backpack was supported by 

probable cause. “Even assuming arguendo under the first step of the Franks 

analysis” that there were misleading statements or omissions in Corporal Jaret 

Fernandez’s affidavit, “we conclude under the [Franks] second step that the 

affidavit nonetheless established probable cause.” United States v. Elliott, 322 
4 

F.3d 710, 715 (9th Cir. 2003). Fernandez’s affidavit described narcotics dog

Mervin’s three certifications and stated that Mervin “passed certification standards 

in a controlled environment.” “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.” Florida v. Harris, 568 U.S. 237, 246-47 (2013). Here, none of the 

“conflicting evidence offered” provides a basis for concluding that Mervin’s alert 

was insufficient to establish probable cause. Id.

Bihag argues that Mervin was “trained to locate and detect contaminated 

items instead of actual drugs,” so Mervin’s alert “amounts to nothing more than a 

hunch that the item he alerted on might contain drugs.” Bihag’s contention is 

foreclosed by Harris. There, the Supreme Court explained that a dog’s alert can 

establish probable cause even if there is a “chance” that the dog’s alert was

prompted by an odor, not an actual controlled substance. Id. at 246 n.2; see also

United States v. Gadson, 763 F.3d 1189, 1202 (9th Cir. 2014). Thus, under Harris,

the fact that Mervin’s training might have led Mervin to alert to odors does not 

prevent Mervin’s alerts from establishing probable cause.

Bihag additionally emphasizes that “Mervin is not allowed to fail during 
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training.”1 Although Bihag is correct that the nature of Mervin’s training means 

that the training log does not “attest to [Mervin’s] accuracy in locating and 

detecting drugs,” Bihag does not provide any explanation of how Mervin’s training 

actually undercuts the reliability of Mervin’s alerts.

Finally, Bihag highlights that Mervin had twelve false positive alerts over 

six months. But Harris made clear that “[f]ield data . . . may markedly overstate a 

dog’s real false positives.” 568 U.S. at 246. Even assuming that Mervin’s field 

data accurately reflects his performance, from what we are able to discern from the 

record, Mervin’s performance is passable enough that his alerts indicate a 

“reasonable expectation[],” even if not a “certaint[y],” that narcotics will be found,

United States v. Thomas, 726 F.3d 1086, 1098 (9th Cir. 2013)—particularly in 

light of other indicators of Mervin’s reliability, see Harris, 568 U.S. at 245 

(cautioning that “[a] gap as to any one matter . . . should not sink the State’s case,” 

as “[t]hat is the antithesis of a totality-of-the-circumstances analysis”).

AFFIRMED.

1 Bihag also states that Mervin “is not allowed to fail” during certification,

but Fernandez’s testimony at the Franks hearing belies that assertion.