NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOSHUA ABRAM DISKIN, 

Defendant-Appellant.

No. 19-30218 

D.C. No. 

1:17-cr-00060-SPW-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Susan P. Watters, District Judge, Presiding

Submitted April 16, 2021**

Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and PREGERSON,***

District Judge.

Joshua Diskin appeals the district court’s denial of his motion to suppress 

evidence found as a result of the stop and search with a warrant of a vehicle in 

* 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).

*** The Honorable Dean D. Pregerson, United States District Judge for 

the Central District of California, sitting by designation.

FILED

APR 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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which he was a passenger. The parties are familiar with the facts, so we do not 

repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court’s denial of the motion to suppress de novo and 

underlying factual findings for clear error. United States v. Evans, 786 F.3d 779, 

784 (9th Cir. 2015). Reasonable suspicion determinations are reviewed de novo

and findings of historical fact for clear error. Id. at 788. We review a magistrate’s 

issuance of a search warrant for clear error and will uphold it so long as the 

magistrate had a substantial basis for concluding probable cause existed based on 

the totality of the circumstances as set forth in the underlying affidavit. United 

States v. Stanert, 762 F.2d 775, 778–79 (9th Cir. 1985).

The initial investigatory stop of the vehicle was lawful. Considering the 

totality of the circumstances, law enforcement officers had specific, articulable 

facts that supported the suspicion that Diskin was engaging in drug trafficking. 

See United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en 

banc). Although this was the first time that Detective Tuss received information 

from the confidential informant (“CI”), the CI’s tip that Diskin would be 

transporting drugs was sufficiently reliable: the CI provided information about 

drug activity in Billings that Detective Tuss knew to be accurate, stated that a 

white man the CI knew as “Josh” would be the CI’s passenger on a ride from Butte 

to Billings in a Gray 2002 Volkswagen Passat with a Montana license plate 
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number during the early morning hours of October 14, 2016, and shared photos of 

the car and license plate. The information the CI provided was against the CI’s 

penal interest and detectives independently corroborated the CI’s tip by observing

the Passat on the I-90, the major throughfare between Butte and Billings, carrying 

one passenger. See United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 

1986) (explaining that an informant’s trustworthiness may be established in a 

number of ways, including through admissions against penal interest or 

independent police corroboration of information provided); cf. Alabama v. White, 

496 U.S. 325, 327, 332 (1990) (upholding a stop based on corroboration of an 

anonymous tip that an individual in possession of cocaine would be leaving an 

apartment at a particular time to travel to a particular motel). Additionally, the 

stop was lawful because the car was circulating with an expired license plate. See 

Whren v. United States, 517 U.S. 806, 813 (1996) (an objectively reasonable basis

for a stop renders the stop lawful). The stop was also not unconstitutionally 

prolonged because its aim was not to sanction a traffic violation but to investigate 

drug trafficking.

Even assuming that Diskin held a reasonable expectation of privacy in a

vehicle borrowed and driven by the CI, United States v. Pulliam, 405 F.3d 782, 

786–87 (9th Cir. 2005), the telephonic search warrant application established 

probable cause for a search based on the CI’s tip, the officers’ inability to identify 
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Diskin, inconsistencies as to how Diskin knew the CI, and the alert by the narcotics 

sniffing dog. See United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir. 1993). 

Although there was evidence that the dog sniffing procedure utilized by 

Officer Vickery was suboptimal, the district court’s conclusion that the dog sniff 

was reliable was not clearly erroneous in light of evidence that Officer Vickery had 

been a K9 Officer for 14 years, he and his canine had been partners for six years, 

and the team underwent annual certification and weekly training. See Florida v. 

Harris, 568 U.S. 237, 246 (2013) (“[E]vidence of a dog’s satisfactory performance 

in a certification or training program can itself provide sufficient reason to trust his

alert.”). Diskin’s challenge to the use of the term “alert” when the dog had not sat 

down to “indicate” the presence of drugs is foreclosed by our precedent. See 

United States v. Thomas, 726 F.3d 1086, 1098 (9th Cir. 2013) (“Evidence from a 

trained and reliable handler about alert behavior he recognized in his dog can be 

the basis for probable cause.”). 

Finally, even if Diskin had properly raised before the district court the 

argument that the search warrant application omitted information about the dog’s 

reliability, the conclusion that any omissions from the search warrant affidavit 

were not intentional or reckless was not clearly erroneous. See United States v. 

Dozier, 844 F.2d 701, 705 (9th Cir. 1988). The statement by Officer Vickery that 

he had been “assigned to the K9 Unit since October 2004,” together with the other 
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statements, gave the issuing judge a substantial basis for concluding that probable 

cause existed. See Stanert, 762 F.2d at 782 (“A defendant challenging an affidavit 

must also show that the affidavit . . . supplemented by the omissions would not be 

sufficient to support a finding of probable cause.”).

AFFIRMED.