FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JONATHAN MICHAEL THOMAS,

Defendant-Appellant.

No. 11-10451

D.C. No.

4:10-cr-00628-

CKJ-GEE-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

April 18, 2013—San Francisco, California

Filed August 8, 2013

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain,

and N. Randy Smith, Circuit Judges.

Opinion by Judge O’Scannlain
2 UNITED STATES V. THOMAS

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Criminal Law

Reversing the denial of a suppression motion and vacating

a conviction, the panel considered the demands of the Speedy

Trial Act in the case of a superseding indictment, and

explored the emerging parameters for the constitutional use

of drug-detection dogs.

The panel held that charges in a superseding indictment

not required to be joined with the original charges come with

a new seventy-day clock under the Speedy Trial Act, and that

the conspiracy count introduced in the superseding indictment

in this case was not required to be joined with the count in the

original indictment charging possession with intent to

distribute marijuana.

Because in accord with then-binding precedent marijuana

seized from a tool box attached to the bed of the defendant’s

truck was not subject to exclusion on the basis of an

unconstitutional trespass or physical intrusion, the panel did

not decide whether agents violated or implicated the Fourth

Amendment by directing the drug-detection dog to jump up

and put his paws and nose on the toolbox.

The panel reversed the denial of the suppression motion

and vacated the conviction because the government’s failure

to turn over a full complement of dog-history discovery was

error, and that error was not harmless.
UNITED STATES V. THOMAS 3

Rejecting an alternative basis for invalidating the search,

the panel explained that evidence from a trained and reliable

handler about alert behavior recognized in his dog can,

depending on the facts and circumstances, be the basis for

probable cause.

COUNSEL

Brian I. Rademacher, Assistant Federal Public Defender,

District of Arizona, Tucson, Arizona, argued the cause and

filed the briefs for the appellant. With him on the briefs were

Jon M. Sands, Federal Public Defender, and Richard W.

Raynor, Assistant Federal Public Defender, District of

Arizona.

Bruce M. Ferg, Assistant United States Attorney, District of

Arizona, Tucson, Arizona, argued the cause and filed a brief

for the appellee. With him on the brief were John S.

Leonardo, United States Attorney, and Christina M.

Cabanillas, Appellate Chief, District of Arizona.

OPINION

O’SCANNLAIN, Circuit Judge:

This criminal appeal raises two issues of first impression.

We are called upon to consider the demands of the Speedy

Trial Act in the case of a superseding indictment as well as to

explore the emerging parameters for the constitutional use of

drug-detection dogs.
4 UNITED STATES V. THOMAS

 The parties dispute whether Thomas left his vehicle voluntarily and 1

whether he consented to an ensuing search. At the suppression hearing,

Thomas testified to telling the agent “no” when asked “for permission to

search the toolbox.”

I

A

In the early afternoon on February 28, 2010, Jonathan

Thomas approached a highway checkpoint in southern

Arizona manned by the United States Border Patrol. He was

driving a silver pick-up truck with a large black toolbox

attached to the bed. Border Patrol Agent Christopher

LeBlanc had a partner that day: “Beny-A,” his drug-detection

dog, who was trained in the detection of concealed humans

and controlled substances. LeBlanc was stationed about

fifteen feet in front of a “primary inspection” area. As

Thomas’s truck passed, Beny-A started to demonstrate what

LeBlanc described as “alert behavior.” The dog’s tail and

ears went up, his posture and breathing pattern changed, and

he started “air-scenting.”

Based on those responses, agents directed Thomas to

secondary inspection where he and his three young children

exited the truck. Starting at the tailgate, LeBlanc walked 1

Beny-A counterclockwise around the truck. As they

encountered areas of interest, LeBlanc signaled Beny-A to go

there. The dog was “in odor” throughout, meaning he was

very animated and excited. Near the gas tank on the

passenger side the dog exhibited more alert behavior. BenyA is trained to perform what is known in the trade as an

“indication” when he discovers contraband: he “rock[s] back

into a sit.”
UNITED STATES V. THOMAS 5

When the team came upon the toolbox, LeBlanc cast his

hand low-to-high. In response, Beny-A jumped up and

placed his paws on the vehicle and pressed his nose against

Thomas’s toolbox. LeBlanc testified that the dog then tried

to sit, but that he did not allow him to complete that trained

indication. Next, LeBlanc returned Beny-A to his kennel,

obtained Thomas’s keys, and searched the locked toolbox.

Inside was a blanket and, underneath, bundles of marijuana

weighing about 150 pounds. Thomas was arrested, advised

of his Miranda rights, and transported to the Tucson Border

Patrol station. During interviews with the Border Patrol,

Thomas said he had knowingly transported the marijuana but

under duress.

B

Thomas was indicted on a single count of Possession with

Intent to Distribute Marijuana, 21 U.S.C. § 841(a)(1),

(b)(1)(C), on March 24, 2010. On May 18, 2011, a

superseding indictment issued. In addition to renewing the

possession offense, the superseding indictment added a

charge: Conspiracy to Possess with Intent to Distribute

Marijuana, 21 U.S.C. § 846.

1

Invoking the SpeedyTrial Act, 18 U.S.C. §§ 3161, et seq.,

Thomas sought to have both counts in the superseding

indictment dismissed. The court noted that 454 calendar days

had elapsed since the original single-count indictment. Of

that time, seventy-six days were non-excludable. Because

that period exceeded the seventy-day “clock” under the

Speedy Trial Act, 18 U.S.C. § 3161(c)(1), the district court

entered a dismissal of the possession charge without
6 UNITED STATES V. THOMAS

 That offense was not recharged. 2

prejudice. However, the court kept the conspiracy count 2

alive, reasoning that under the Act the government could

avail itself of a second seventy-day clock, triggered by the

superseding indictment.

2

Before trial Thomas also filed a motion to suppress

evidence of the marijuana obtained at the checkpoint.

Thomas, Agent LeBlanc, and K9 Coordinator Paul Dubois

testified about the circumstances surrounding the February

2010 search. Thomas pursued two arguments. He claimed

that the search of the toolbox had violated the Fourth

Amendment because the drug dog’s failure to indicate meant

probable cause had not been established. And during the

suppression hearing, Thomas also objected to receiving

heavily redacted training- and performance-evaluation

records on Beny-A and his handler. After deciding that these

limited disclosures satisfied the government’s discovery

obligation under Federal Rule of Criminal Procedure 16, the

district judge ruled that the government had met its burden of

establishing probable cause. Thomas’s motion to suppress

was denied.

3

The case proceeded to trial. Thomas took the stand in his

defense. Having been unsuccessful in excluding the

marijuana, Thomas argued the legal excuse of duress. He did

not deny having knowingly possessed the drugs, nor did he

contest entering into a conspiracy to distribute them. Instead,

he argued that he had been an unwilling courier. Thomas
UNITED STATES V. THOMAS 7

testified that a Hispanic man with a gun had lured him into

the desert under false pretenses and threatened to harm him

and his family unless he transported the marijuana. After a

two-day trial, the jury returned a guilty verdict as to

conspiracy—the only count remaining in the superseding

indictment. The court sentenced him to thirty months of

incarceration, followed by thirty-six months of supervised

release. Thomas timely appealed.

II

A

First, we consider Thomas’s claim that the Speedy Trial

Act required the district court to dismiss both counts of the

superseding indictment—not simply the possession offense

that traced to the original one-count indictment. What

distinguishes a superseding indictment from a reindictment is

that the former is issued without the original charge first

being dismissed. See United States v. Hoslett, 998 F.2d 648,

657 n.11 (9th Cir. 1993). Although the issue Thomas raises

is one of first impression, other circuits have confronted it,

and there is some prior guidance in our case law as to when

a subsequent indictment triggers a new speedy-trial period.

B

The Speedy Trial Act has three “clocks” that are relevant

to this statutory interpretation issue. For the most part, the

Act is designed to expedite the trial in that: (i) it

“establish[es] a thirty-day limit for filing an indictment after

an arrest,” United States v. Wilson, 690 F.2d 1267, 1276 (9th

Cir. 1982) (citing 18 U.S.C. § 3161(b)), and—central to this

case—(ii) it demands that a defendant have the opportunity
8 UNITED STATES V. THOMAS

to be tried within seventy days of indictment. 18 U.S.C.

§ 3161(c)(1). Conversely, to safeguard against the risk of

undue haste, section 3161(c)(2) prevents the government

from insisting that the trial begin “less than thirty days from

the date on which the defendant first appears.

1

We begin by considering the subsection creating the

seventy-day clock:

[i]n any case in which a plea of not guilty is

entered, the trial of a defendant charged in an

information or indictment with the

commission of an offense shall commence

within seventy days from the filing date (and

making public) of the information or

indictment, or from the date the defendant has

appeared . . . whichever date last occurs.

18 U.S.C. § 3161(c)(1) (emphasis added). The most

straightforward reading is that such provision applies to the

superseding indictment here. Under that view, the issuance

of the new indictment triggered a new seventy-day period in

which to bring Thomas to trial. Since the jurywas empaneled

just over one month after the filing of the superseding

indictment, there would be no violation of the Speedy Trial

Act.

Matters are not quite so simple, however. We previously

have acknowledged that the Act does not expressly provide

for superseding indictments. See United States v.

Karsseboom, 881 F.2d 604, 606 (9th Cir. 1989). Instead, the

Act speaks directly as to reindictments only. On that score,
UNITED STATES V. THOMAS 9

 See, e.g., United States v. King, 483 F.3d 969, 972 (9th Cir. 2007) 3

(characterizing Karsseboom as holding that “the filing of a superseding

indictment will not automatically reset the [Speedy Trial Act] clock where

the new indictment does not charge a new crime, but only corrects a defect

in the original indictment”); United States v. Alvarez-Perez, 629 F.3d

1053, 1058 (9th Cir. 2010) (citing Karsseboom for the proposition that a

“superseding indictment charging [the] same offenses does not restart [the

Speedy Trial Act] clock”).

section 3161(d)(1) provides that when the defendant secures

a dismissal “both the 30-day trial preparation period and the

70-day speedy trial time period start over.” Karsseboom,

881 F.2d at 606. We have also held that when the defendant

is reindicted after a sua sponte dismissal by the court, the

seventy-day clock is reset. United States v. Feldman,

788 F.2d 544, 549 (9th Cir. 1986).

Thomas argues this new-clock rule, which applies to these

reindictment scenarios, has no application to indictments that

are superseding. In Karsseboom, we held that some

superseding indictments do not restart the original speedytrial clock. 881 F.2d at 607 (“When a superseding indictment

merely corrects technical errors but charges again the same

offenses the 70-day clock continues and does not begin anew

unless the original indictment in its entirety has been

previously dismissed.”). However, that case left open

whether in a situation such as this, where the new indictment

introduces different charges, the seventy-day clock starts

running anew.

3

To resolve this problem (to which section 3161(c)(1) does

not provide a plain answer), we think it useful to consider

other aspects of the Speedy Trial Act. See Dada v. Mukasey,

554 U.S. 1, 16 (2008) (“In reading a statute we must not look
10 UNITED STATES V. THOMAS

 We recognize that applying this lesson to superseding indictments 4

requires an inferential step since section 3161(h)(5), by its literal terms,

concerns only reindictments. Yet, we are not alone in understanding that

section to shed some light on how the Act operates with respect to

superseding indictments. See, e.g., United States v. Roman, 822 F.2d 261,

264–65 (2d Cir. 1987).

merely to a particular clause but consider in connection with

it the whole statute.” (internal quotation marks omitted)).

Somewhat analogous to the government obtaining a

superseding indictment is the government’s choice to have an

indictment dismissed and recharged. See United States v.

Kelly, 45 F.3d 45, 48 (2d Cir. 1995). In that circumstance,

although the initial seventy-day clock still applies, section

3161(h)(5) slows its march by providing that, as “for the

same offense, or any offense required to be joined with that

offense, any period of delay from the date the charge was

dismissed to the date the time limitation would commence to

run as to the subsequent charge” should be excluded from the

applicable speedy-trial clock. See United States v. MaganaOlvera, 917 F.2d 401, 405 (9th Cir. 1990). This language

suggests one of two possibilities for the case at hand. Either

separate and distinct charges brought by superseding

indictment—which are not “required to be joined”—are

meant to be governed by the most demanding timing

requirements (both ineligible for exclusion and subject to the

initial clock) or, alternatively, they stand on their own and are

subject to a new timing period under section 3161(c)(1).4

The latter conception is the better interpretation. We

believe the Fifth Circuit’s discussion in United States v.

Alford, 142 F.3d 825 (5th Cir. 1998), to be instructive. As

that court recognized, “as to charges that the government is
UNITED STATES V. THOMAS 11

not required to join with the offenses charged in the original

indictment, the government may obtain a fresh speedy trial

clock by simply waiting until completion of the prosecution

for the charges contained in the original indictment and

beginning a new prosecution on the additional charges.” Id.

at 829. To interpret the Speedy Trial Act as Thomas urges,

would often relegate the government to that protracted and

inefficient procedure at no clear benefit to the defendant who

would have to endure trials seriatim. Like the Fifth Circuit,

we perceive “no logical basis for concluding that” is what the

Act requires. Id. We thus hold that charges in a superseding

indictment not required to be joined with the original charges

come with a new seventy-day clock under the Speedy Trial

Act. See United States v. Rocha-Leon, 187 F.3d 1157, 1159

n.3 (9th Cir. 1999) (explaining that the “interpretation that ‘is

consistent with the language of the statute and avoids absurd

results’ is [to be] preferred” (quoting United States v. Alfeche,

942 F.2d 697, 698-99 (9th Cir.1991)).

This conclusion is in line with various out-of-circuit

authorities. See, e.g., United States v. Hale, 685 F.3d 522,

537 (5th Cir. 2012) (“[T]he original indictment started one

speedy trial clock for the original two charges, and the

superseding indictment started a second speedy trial clock for

the four new charges.”); Alford, 142 F.3d at 829–30 (same);

United States v. Lattany, 982 F.2d 866, 872 n.7 (3d Cir. 1992)

(concluding that when a superseding indictment “charges a

new offense that did not have to be joined with the original

charges, then the subsequent filing commences a new,

independent speedy trial period”); United States v. Marshall,

935 F.2d 1298, 1302 n.7 (D.C. Cir. 1991) (“If, conversely, the

charge in the second count was not one required to be joined

with the charges in the first indictment, then the speedy trial

clock for that count did not begin to run until [the date the
12 UNITED STATES V. THOMAS

superseding indictment was filed].”); cf. United States v.

Roman, 822 F.2d 261, 265 (2d Cir. 1987) (implicitly

accepting “that a new 70-day clock begins to run when the

superseding indictment contains a completely new charge”).

2

We now apply today’s holding to Thomas’s case. The

government had a new seventy-day clock under the Act so

long as the conspiracy count introduced in the superseding

indictment was not “required to be joined.”

Other courts of appeals have taken that concept as

referring to the “joinder required by the Double Jeopardy

Clause of the Constitution” and neither party urges a different

understanding here. United States v. Novak, 715 F.2d 810,

817 (3d Cir. 1983), overruling on other grounds recognized

in United States v. Felton, 811 F.2d 190, 195 (3d Cir. 1987);

see also Alford, 142 F.3d at 829; Marshall, 935 F.2d at 1302.

As the district court recognized, it is clear that double

jeopardy does not require the government to prosecute

Thomas for the conspiracy offense in the same trial as for

possession with intent to distribute. See United States v.

Felix, 503 U.S. 378, 391–92 (1992) (conspiracy to commit

drug offense distinct from substantive offense).

We conclude that Thomas’s prosecution for Conspiracy

to Possess with Intent to Distribute Marijuana complied with

the Speedy Trial Act because trial commenced within seventy

days of the superseding indictment.
UNITED STATES V. THOMAS 13

 The government argues that Thomas’s failure to raise this theory of 5

violation in his motion to suppress means that the argument is now

waived. Although he did not argue it in the district court, he could not

have been expected to since the Supreme Court had not yet handed down

Jones. Our court will review an issue raised for the first time on appeal

“when a change in law raises a new [purely legal] issue while an appeal

is pending,” and it is not inequitable to take it up. Native Ecosys. Council

v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012).

III

Because the district court was correct not to dismiss the

conspiracy count, we turn to Thomas’s other pretrial

challenge: his argument that the evidence of marijuana should

have been suppressed pursuant to the Fourth Amendment and

the exclusionary rule. Contained within that argument are

three separate assertions.

To begin with, for the first time on appeal, Thomas

contends that agents invaded a constitutionally protected area

by directing the drug detection dog to “jump[] up and put his

paws and nose on the toobox in the truckbed, and stay[] like

that, refusing to move.” This argument is based on the

watershed Supreme Court opinion in United States v. Jones,

132 S. Ct. 945, 950–51 & n.3 (2012), as well as on a very

recent application of the principle announced in Jones to the

use of a drug dog within the curtilage of a home. See Florida

v. Jardines, 133 S. Ct. 1409, 1414 (2013).5

Second, Thomas argues that even if the dog’s touching

did not violate the Fourth Amendment in a way compelling

suppression, the government failed to disclose adequate

evidence of Beny-A’s and his handler’s proficiency and

experience to justify the search of his toolbox.
14 UNITED STATES V. THOMAS

Third, Thomas claims that even if the complete records

about the drug dog establish Beny-A’s reliability, his failure

to indicate by sitting means that the border patrol agents

lacked probable cause to search.

A

1

The government claims that it is frivolous for Thomas to

contend that the dog’s contact with his truck was a Fourth

Amendment search. After Jones and Jardines, his argument

cannot be so easily dismissed.

Before those cases, relying on a concurrence by Justice

Harlan from Katz v. United States, 389 U.S. 347 (1967),

courts typically “said that a violation occurs when

government officers violate a person’s ‘reasonable

expectation of privacy.’” Jones, 132 S. Ct. at 950 (citation

omitted). Jones changed the jurisprudential landscape by

holding that this was not the exclusive rubric. Id. at 950, 953.

Rather, we were to understand “the Katz reasonableexpectation-of-privacy test [as having] been added to, not

substituted for, the common-law trespassory test.” Id. at 952;

see also id. at 954–55 (Sotomayor, J., concurring).

Case law now directs that if “‘the Government obtains

information by physically intruding’ on persons, houses,

papers, or effects, ‘a “search” within the original meaning of

the Fourth Amendment’ has ‘undoubtedly occurred.’”

Jardines, 133 S. Ct. at 1414 (quoting Jones, 132 S. Ct. at 950

n.3). Applying this principle, the Jones Court held that a de

minimis physical intrusion with respect to the exterior of a

car (installing a GPS-tracking device) was a search subject to
UNITED STATES V. THOMAS 15

 The government does not contend that any search nonetheless would 6

have been reasonable, and thus not a Fourth Amendment violation. It has

claimed, though, that the contact does not trigger the Amendment because

it falls short of constituting a trespass to chattel. This is not the case to

decide whether the elements of a particular tort of trespass or the concept

of a “physical entry or intrusion” should guide the inquiry. Although

Jones characterized the Court’s jurisprudence “until the latter half of the

20th Century” as “tied to common-law trespass,” 132 S. Ct. at 949, we

note that Jardines speaks only in terms of an intrusion. Furthermore, preKatz decisions sometimes turned on “the reality of an actual intrusion into

a constitutionally protected area” rather than “the technicality of a

trespass.” Silverman v. United States, 365 U.S. 505, 512 (1961); see also

Orin S. Kerr, The Curious History of Fourth Amendment Searches,

2012 S. Ct. Rev. (forthcoming 2013).

the Fourth Amendment’s requirement of reasonableness.

132 S. Ct. at 949, 954. And this past term, the Supreme Court

held that the use of “a trained police dog to explore the area

around the home in hopes of discovering incriminating

evidence” implicated the Jones principle. Jardines,

133 S. Ct. at 1416. It did so because using the dog in that

fashion exceeded the terms of the property-law license to

“approach the home by the front path, knock promptly, wait

briefly to be received, and then (absent invitation to linger

longer) leave.” Id. at 1415.

“It is beyond dispute that a vehicle is an ‘effect’ as that

term is used in the [Fourth] Amendment.” Jones, 132 S. Ct.

at 949 (citing United States v. Chadwick, 433 U.S. 1, 12

(1977)). Thus, it is conceivable that by directing the drug dog

to touch the truck and toolbox in order to gather sensory

information about what was inside, the border patrol agent

committed an unconstitutional trespass or physical intrusion.6
16 UNITED STATES V. THOMAS

 The scenario in Davis was that at the time officers performed their 7

search in Alabama, governing Eleventh Circuit precedent deemed their

actions constitutional. Davis’s motion to suppress had been denied in the

district court on the basis of that circuit precedent, but while on direct

appeal, the Supreme Court shifted doctrinal course by announcing a new,

more defendant-friendly version of the search-incident-to-arrest doctrine

in Arizona v. Gant, 556 U.S. 332 (2009). See Davis, 131 S. Ct. at

2425–26. Under Gant, the Eleventh Circuit recognized that Davis’s

Fourth Amendment rights had, in fact, been violated. Id. at 2426.

2

a

Yet we need not decide whether it violated or even

implicated the Fourth Amendment when agents directed the

dog to touch Thomas’s vehicle because, as the government

correctly observes, not every constitutional violation leads to

application of the exclusionary rule—a “judicially created

remedy” the only purpose of which “is to deter future Fourth

Amendment violations.” Davis v. United States, 131 S. Ct.

2419, 2426–27 (2011) (“Exclusion is not a personal

constitutional right, nor is it designed to redress the injury

occasioned by an unconstitutional search.” (internal quotation

marks omitted)). As a result of the exclusionary rule’s

limited aims, the Supreme Court has instructed us not to

apply it to “suppress the truth and set the criminal loose in the

community without punishment” if the evidence was

“obtained during a search conducted in reasonable reliance on

binding precedent.” Id. at 2427, 2429. This maxim aptly has 7

been dubbed “the ‘faith-in-caselaw’ exception to the

exclusionary rule.” Caleb Mason, New Police Surveillance

Technologies and the Good-Faith Exception: Warrantless

GPS Tracker Evidence After United States v. Jones, 13 Nev.

L.J. 60, 66 (2012).
UNITED STATES V. THOMAS 17

 The agents in Jones labored under the misconception that the 8

“reasonable expectation of privacy” test exclusively marked the

Amendment’s boundaries. See 132 S. Ct. at 950. Cases fostering that

impression were ubiquitous. See, e.g., New York v. Class, 475 U.S. 106,

112 (1986) (“[T]he State’s intrusion into a particular area, whether in an

automobile or elsewhere, cannot result in a Fourth Amendment violation

unless the area is one in which there is a constitutionally protected

reasonable expectation of privacy.” (internal marks omitted)); United

States v. Knotts, 460 U.S. 276, 280 (1983) (explaining that with Katz “the

Court overruled Olmstead saying that the Fourth Amendment’s reach

‘cannot turn upon the presence or absence of a physical intrusion into any

given enclosure.’” (citation omitted)); United States v. McIver, 186 F.3d

1119, 1126 (9th Cir. 1999) (explaining that “[t]he law of trespass” outlaws

intrusions “that the Fourth Amendment would not proscribe. For trespass

law extends to instances where the exercise of the right to exclude

vindicates no legitimate privacy interest” (alteration in original)); United

States v. Head, 783 F.2d 1422, 1427 (9th Cir. 1986) (concluding that

deputies’ physical touching of a car’s exterior had not constituted a

search); People v. Stillwell, 129 Cal. Rptr. 3d 233, 240 (Cal. Ct. App.

2011) (rejecting defendants’ claim that drug dog exceeded Fourth

Amendment limits “by placing his front paws on the” body of the car in

several places because “no reasonable expectation of privacy was

violated”); see Jones, 132 S. Ct. at 958 (Alito, J., concurring in the

judgment) (claiming the majority’s holding had “little if any support in

current Fourth Amendment case law”); but cf. Lavan v. City of Los

Angeles, 693 F.3d 1022, 1028 (9th Cir. 2012) (suggesting that a 1992

Applying this exception in United States v. PinedaMoreno, 688 F.3d 1087 (9th Cir. 2012), we determined that

the defendant could not rely on Jones to obtain suppression

of evidence derived from a GPS tracker on his car because

that precedent had not been on the books when the tracker

was installed, and because agents had acted “in objectively

reasonable reliance on then-binding precedent.” Id. at 1090.

So too here. In reaching such conclusion, we do not answer

the broad question of whether officers were on notice before

Jones that physical intrusions or trespassory behavior counted

as searches under the Fourth Amendment. That is because

8
18 UNITED STATES V. THOMAS

Supreme Court precedent “clarified that the Fourth Amendment protects

possessory and liberty interests even when privacy rights are not

implicated”).

 See also Muehler v. Mena, 544 U.S. 93, 101 (2005) (explaining that 9

Caballes “held that a dog sniff performed during a traffic stop does not

violate the Fourth Amendment”).

authoritative guidance from the Supreme Court allowed the

particular actions of Beny-A and LeBlanc. In Illinois v.

Caballes, 543 U.S. 405 (2005), the Court held that “the use of

a well-trained narcotics-detection dog” on amotor vehicle did

“not rise to the level of a constitutionally cognizable

infringement.” Id. at 409; see also id. at 410 (“A dog sniff

conducted during a . . . lawful traffic stop that reveals no

information other than the location of a substance that no

individual has any right to possess does not violate the Fourth

Amendment.”). In City of Indianapolis v. Edmond, 531 U.S. 9

32 (2000), it was explained that “an exterior sniff of an

automobile” is permissible, in part, because it “does not

require entry into the car.” Id. at 40. Holding that “the

canine sniff is sui generis,” the Court earlier had held that

utilizing a drug-detection dog to examine luggage is not “a

search requiring probable cause.” United State v. Place,

462 U.S. 696, 706–07 (1983).

b

Thomas asserts that it would have been objectively

unreasonable for Agent LeBlanc to perceive these drug-dog

cases from the Supreme Court as blessing his use of Beny-A

to find the marijuana stowed in the toolbox of the pick-up.

Caballes and Edmond are insufficient in his view, because

they approved of officers walking “the drug dog around the
UNITED STATES V. THOMAS 19

 Although the precise precedential reliance in Davis was on Eleventh 10

Circuit case law, the majority also explained that “[f]or years, Belton was

widely understood to have set down [the] simple, bright-line rule” just

described. 131 S. Ct. at 2424; see also Thornton v. United States,

541 U.S. 615, 628 (2004) (Scalia, J., concurring in the judgment)

(collecting cases authorizing incident-to-arrest searches after the suspect

was secured, including one from this circuit).

car in public space, not to intrude in trespass on the vehicle.”

At oral argument, though, counsel for Thomas admitted that

those cases “didn’t say that”—in the sense that neither

authority so much as hinted that officers were to avoid

contact between the dog’s nose and paws and the vehicle’s

exterior.

This is significant for two reasons. First, it closely

parallels what the Supreme Court confronted in Davis when

it withheld exclusion on the basis of faith in precedent.

There, the Court addressed its prior holding that an officer

who had lawfully arrested “the occupant of an automobile . . .

may, as a contemporaneous incident of that arrest, search the

passenger compartment of that automobile.” New York v.

Belton, 453 U.S. 454, 460 (1981). As the Supreme Court

would later acknowledge, Belton’s recitation of the facts did

mention that the car’s occupant had not been handcuffed or

otherwise secured at the time of the search. See Arizona v.

Gant, 129 S. Ct. 1710, 1717 (2009). Nonetheless, the Court

strongly suggested that it was reasonable to understand Belton

as authorizing a search even after the occupant “had been

subdued by police.” Davis, 131 S. Ct. at 2424. Even farther 10

afield, the key precedent on using a drug-detection dog on a

vehicle did not even recount whether the dog had made

physical contact during the search it validated. See Caballes,

543 U.S. at 406–10.
20 UNITED STATES V. THOMAS

Second, the absence of a previously expressed limit along

the lines of Jones/Jardines matters because there can be no

exclusion “when binding appellate precedent specifically

authorizes a particular police practice.” Davis, 131 S. Ct. at

2429. It is beyond dispute that as of February 2010, when

Agent LeBlanc acted, Supreme Court precedent specifically

authorized law enforcement to use a drug-detection dog to

seek out illegal narcotics on a validly detained vehicle. See

Caballes, 543 U.S. at 409. When affairs are such, “welltrained officers will and should use that tool to fulfill their

crime-detection and public-safety responsibilities.” Davis,

131 S. Ct. at 2429. “Police practices trigger the harsh

sanction of exclusion only when they are deliberate enough

to yield meaningful deterrence, and culpable enough to be

worth the price paid by the justice system.” Id. at 2428

(alterations and internal quotation marks omitted).

Because LeBlanc acted in accord with then-binding

precedent, the marijuana seized is not subject to exclusion on

the basis of an unconstitutional trespass or physical intrusion.

B

Separate from the dog’s touching, Thomas’s second and

third arguments for reversing the denial of the motion to

suppress identify the agents’ opening and investigating of the

toolbox as the unconstitutional search.

At fixed Border Patrol checkpoints within the nation’s

interior, the government can send a motorist for a brief

secondary inspection upon “a minimal showing of suspicion,”

but then (as is the case with an ordinary traffic stop) it needs

probable cause or consent in order to search the vehicle. See

United States v. Taylor, 934 F.2d 218, 220–21 (9th Cir.
UNITED STATES V. THOMAS 21

 Although Thomas challenged the secondary referral below, he does 11

not renew that challenge on appeal. The government agrees that probable

cause is the standard, while also preserving the argument it made below

that Thomas consented to the search yielding the marijuana. Neither the

magistrate nor the district court reached the consent issue. It is “the

government’s burden to prove that [any] consent was freely and

voluntarily given.” United States v. Patayan Soriano, 361 F.3d 494, 501

(9th Cir. 2004). On remand, the district court is free to take up the issue

of consent in the first instance. See, e.g., United States v. Brewer,

947 F.2d 404, 411 (9th Cir. 1991).

1991). While he acknowledges that an alert by a reliable 11

drug-detection dog establishes probable cause, Thomas

challenges Beny-A’s reliability and questions whether the

behavior the dog exhibited was a probable-cause-generating

“alert.”

1

With respect to reliability, Thomas claims it was improper

for the government to have supplied heavily redacted records

concerningBeny-A and LeBlanc’s training and experience in

narcotics detection.

a

Such records show that LeBlanc and Beny-A had attended

yearly certification programs from the Border Patrol and were

up-to-date at the time of the search. Biweekly logs, called

green sheets, were also produced. The team’s performance

during eight-hour-controlled evaluations was scored on a

scale of one to six—the higher the score, the worse the

performance. At least one record analyzed at the suppression

hearing revealed marginal performance in “search skills.”

The team received a 3.50. Had it been one-tenth of a point
22 UNITED STATES V. THOMAS

higher it would have been “a failing score.” The redactions

obscure comments on nearly every page of the records. As to

what is beneath the blacked-out paragraphs, the defendant,

district judge, this court, and even the Border Patrol’s

custodian of records are entirely in the dark.

In United States v. Cedano-Arellano, 332 F.3d 568 (9th

Cir. 2003), we held that when a defendant requests doghistory discovery to pursue a motion to suppress, Federal

Rule of Criminal Procedure 16 compels the government to

disclose the “handler’s log,” as well as “training records and

score sheets, certification records, and training standards and

manuals” pertaining to the dog. Id. at 570–71. These

materials were held to be “crucial to [the defendant’s] ability

to assess the dog’s reliability, a very important issue in his

defense, and to conduct an effective cross-examination of the

dog’s handler” at the suppression hearing. Id. at 571. These

disclosures are “mandatory” when the government seeks to

rely on a dog alert as the evidentiary basis for its search. See

United States v. Cortez-Rocha, 394 F.3d 1115, 1118 n.1 (9th

Cir. 2005).

A unanimous Supreme Court echoed this in another

recent dog-sniff case. See Florida v. Harris, 133 S. Ct. 1050,

1057 (2013). Harris explained that a defendant must be

afforded the opportunity to challenge “evidence of a dog’s

reliability, whether by cross-examining the testifying officer

or by introducing his own fact or expert witnesses.” Id. “The

defendant, for example, may contest the adequacy of a

certification or training program, perhaps asserting that its

standards are too lax or its methods faulty. So too, the
UNITED STATES V. THOMAS 23

 The Court went on to confirm that “a probable-cause hearing focusing 12

on a dog’s alert” should proceed according to “the usual rules of criminal

procedure.” Id. at 1058.

Clarifications about the substantive contours of the Fourth 13

Amendment—here the way probable cause applies to drug-dogs’

searches—apply “to all cases that are not yet final.” United States v.

Gonzalez, 598 F.3d 1095, 1097 (9th Cir. 2010). That includes Thomas’s

appeal since it was pending on direct review when Harris came down.

The latest guidance on the exclusionary rule did not displace this longstanding principle. See Davis, 131 S. Ct. at 2429–32; id. at 2436–37

(Breyer, J., dissenting).

defendant may examine how the dog (or handler) performed

in the assessments made in those settings.” Id.12

In flat contravention of the principle at the heart of Harris

and Cedano-Arellano, Thomas’s counsel was hamstrung by

the fact that the certification records had been so redacted.13

The K9 Coordinator for the Border Patrol conceded during

the suppression hearing that the redactions contained, in part,

information about “the training methodology and the

techniques used to train the K9s and evaluate the K9s.” He

also said that if the redactions were lifted, he would expect to

see critiques of the team’s competence as well as discussions

about areas for improvement.

b

The government makes several arguments why CedanoArellano does not apply here. None is availing. First, it

argues that because Thomas did not contest that he

transported the marijuana—but rather raised the affirmative

defense of duress at trial—the discovery was not “material”

to his particular “defense.” Fed. R. Crim. P. 16(a)(1)(E)(i).
24 UNITED STATES V. THOMAS

In Cedano-Arellano, however, the defendant did not contest

his guilt at all; he entered a conditional guilty plea that

reserved only his suppression challenge. 332 F.3d at 570.

What is more, Cedano-Arellano explicitly considered

subsection (a)(1)(E) when announcing its rule that doghistory discovery ought to be allowed when requested. Id. at

571. As a three-judge panel, we are not free to interpret this

rule of criminal procedure afresh. See United States v. Lee,

704 F.3d 785, 790 n.2 (9th Cir. 2012).

Second, the government cites law-enforcement privilege.

But, neither the magistrate, nor the district court, relied on

that doctrine as a justification for withholding the records.

Furthermore, our caselaw calls for an in camera evaluation by

the trial court of the government’s claim to privilege if the

defendant goes beyond “mere suspicion” that the undisclosed

evidence will be helpful in his criminal case. United States

v. Henderson, 241 F.3d 638, 645 (9th Cir. 2001). As we have

nothing but a bare assertion of sensitivity and because there

has been no in camera review, we cannot approve of the

limited disclosure on this ground.

As a final refuge, the government appeals to the harmless

error doctrine. We are persuaded that admission of the

marijuana evidence affected Thomas’s substantial rights at

trial so as not to be harmless beyond a reasonable doubt. See,

e.g., United States v. Alvarez, 358 F.3d 1194, 1204 n.3. (9th

Cir. 2004); United States v. Stoddard, 111 F.3d 1450, 1458

n.11 (9th Cir. 1997). Thus, the only question is whether the

redacted passages would have undermined the reliability of

Beny-A so as to defeat probable cause. Unlike in CedanoArellano, because we have not been afforded access to the

complete records, we cannot say that there is “nothing in

those documents that would have changed the ultimate
UNITED STATES V. THOMAS 25

determination that the agents had [probable cause] to support

their search.” 332 F.3d at 574. The error was thus not

harmless under Federal Rule of Criminal Procedure 52(a).

2

Because it is squarely presented for our review and it will

arise again upon remand, we also take up Thomas’s claim

that whether or not the disclosure was adequate, Beny-A’s

behavior could not give rise to probable cause. His

contention is that even assuming Beny-A and LeBlanc were

a reliable duo, because the dog never completed his trained

indication—the sitting discussed earlier—his behavior was an

insufficient basis for searching the toolbox. Thomas says that

the “alert” behavior described by Agent LeBlanc (both at his

pre-primary post and during the secondary inspection)

consists of “untrained” responses that a dog might exhibit at

any time, which fall short of probable cause as a matter of

law.

Faced with a similar argument, our sister circuit declined

to adopt a rule “which would require the dog to give a final

indication before probable cause is established.” United

States v. Parada, 577 F.3d 1275, 1281–82 (10th Cir. 2009);

see also id. at 1275 (upholding as sufficient, the dog’s “rapid

deep breathing, body stiffening, and upbreaking from the

search pattern . . . around a vehicle”). Its rationale was on the

mark: probable cause is measured in reasonable expectations,

not certainties. Id.; see also United States v. Cervantes,

703 F.3d 1135, 1139 (9th Cir. 2012) (“An officer will have

probable cause to search if there is a fair probability that

contraband or evidence of a crime will be found in a

particular place, based on the totality of the circumstances.”

(internal quotation marks omitted)). Evidence from a trained
26 UNITED STATES V. THOMAS

 It will be for the district court in the first instance to determine 14

whether “on remand, a protective order or an in camera hearing is

necessary to accommodate any law enforcement confidentiality concerns.”

United States v. Budziak, 697 F.3d 1105, 1113 (9th Cir. 2012).

and reliable handler about alert behavior he recognized in his

dog can be the basis for probable cause. Whether a particular

dog displays enough signaling behavior will depend on the

facts and circumstances of each case.

The Supreme Court’s Harris decision confirms the

correctness of this view. 133 S. Ct. at 1055 (“We have

rejected rigid rules, bright-line tests, and mechanistic

inquiries in favor of a more flexible, all-things-considered

approach.”). In rejecting Florida’s evidentiary checklist for

a drug dog’s reliability, the Court explained that “[a] gap as

to any one matter . . . should not sink the State’s case,”

because that is “the antithesis of a totality-of-thecircumstances analysis.” Id. at 1056.

Thomas’s alternative basis for invalidating the search

therefore fails.

IV

Because the government’s failure to turn over a full

complement of dog-history discovery was an error that was

not harmless, we reverse the district court’s denial of the

motion to suppress and vacate Thomas’s conviction. On

remand, the district court must decide whether the

government can establish the dog’s reliability in light of an

adequate record, or alternatively, whether it can establish 14

that Thomas freely consented to Agent LeBlanc’s search. If

either probable cause or consent is shown, then the court may
UNITED STATES V. THOMAS 27

 We reject Thomas’s trial and sentencing challenges. It was within the 15

district court’s discretion to permit the government to impeach Thomas

about his prior misdemeanor conviction. See, e.g., United States v.

Antonakeas, 255 F.3d 714, 724–25 (9th Cir. 2001); United States v.

Castillo, 181 F.3d 1129, 1132–34 (9th Cir. 1999). And, the district court’s

decision not to depart downward based on his post-traumatic stress

disorder or military service did not render his sentence substantively

unreasonable. See United States v. Ressam, 679 F.3d 1069, 1087–88 (9th

Cir. 2012) (en banc); United States v. Tankersley, 537 F.3d 1100, 1114

(9th Cir. 2008).

reinstate the conviction. See, e.g., United States v. Bernal- 15

Obeso, 989 F.2d 331, 337 (9th Cir. 1993). If not, a new trial

without evidence of the marijuana will be appropriate.

VACATED, REVERSED and REMANDED.