United States District Court, D. Maryland
Ellen L. Hollander United States District Judge
Timothy Wilson has filed a motion pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside, or correct sentence. ECF 195 (the “Petition”). Wilson challenges his 2011 drug convictions, asserting a violation of his Fourth Amendment rights as a result of a traffic stop that led to a scan by a drug detection dog and then a search of his vehicle. Citing Rodriguez v. United States, __U.S. __, 135 S.Ct. 1609 (2015), Wilson maintains that the traffic stop was unlawfully prolonged, without reasonable suspicion of criminal activity, in order to conduct the canine scan. ECF 195 at 4. In addition, Wilson claims that his trial attorney “was ineffective for not challenging the constitute[ionality] of the search [of the vehicle] absent reasonable suspicion.” Id. at 5.
The government opposes the motion on several grounds. ECF 202. Mr. Wilson has not filed a reply.
No hearing is needed to resolve the Petition. For the reasons set forth below, I shall deny the Petition.
I. Factual and Procedural Background
Mr. Wilson and his codefendant, Luis Ahorrio, Jr., were charged in a two-count superseding indictment with conspiracy to distribute 280 grams or more of cocaine base (i.e., crack cocaine), in violation of 21 U.S.C. § 846, and with possession with intent to distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. § 841. ECF 83. The charges were rooted in a routine traffic stop that began at approximately 7:26 p.m. on July 23, 2010, in Worcester County, Maryland. During the stop, which was recorded on video, a drug detection canine, Camo, alerted to the presence of narcotics in a rented Toyota Corolla with a New Jersey license plate. Ahorrio was the driver of the vehicle and Wilson was the sole passenger.
Maryland State Officer Corporal Howard Kennard effectuated the stop for speeding on U.S. Route 113 and for following another vehicle too closely. ECF 95 (Memorandum Opinion of November 18, 2011), at 1-2. Kennard had been a Maryland State trooper since 1997. ECF 78 (transcript of hearing held July 29, 2011) at 21. Using a laser, he determined that the vehicle was traveling 65 miles per hour, which was ten miles above the speed limit. ECF 95 at 2 n.3. Trooper First Class Dana Orndorff arrived at the scene at 7:37 p.m., before completion of the traffic stop, and began to walk around the vehicle with the dog. ECF 95 at 6. After Camo alerted, the police conducted a search of the vehicle and recovered a substantial quantity of cocaine base. ECF 47-1 (Criminal Investigation Report) at 5; see also ECF 68-2 (Report of Investigation by Special Agent Mark Joyner).
Through counsel, Mr. Wilson filed, inter alia, a pretrial motion to suppress evidence. See ECF 28. Ahorrio also filed a motion to suppress. See ECF 43. In his submission, Wilson’s defense attorney argued, in part, that the defendants’ detention “exceeded that necessary for Corporal Kennard to address the alleged traffic violations.” Id. at 9. He also asserted: “There was insufficient reasonable suspicion to justify the extended detention of the Toyota which was subjected to a canine scan and therefore the subsequent search of the car was prohibited by the Fourth Amendment.” Id.; see also Id. at 7-9. Further, Wilson’s defense counsel complained, id. at 6: “Though [Corporal Kennard] informed Mr. Ahorrio that he was to be issued a written warning at 7:33:14 p.m., Corporal Kennard did not write the warning. Instead, he intended to engage Mr. Ahorrio in further conversation . . . he returned to his car and called the dispatcher to give notice that he intended to conduct a canine scan.” Among other cases, defense counsel cited Illinois v. Caballes, 543 U.S. 405, 409 (2005). See ECF 28 at 7.
The government opposed the various defense motions in a consolidated response. ECF 47. It also submitted several exhibits, including Kennard’s Criminal Investigation Report (ECF 47-1) and the videotape of the stop. See ECF 47 at 2 n.2.
Cpl. Kennard’s criminal investigation report (ECF 47-1 at 6-7) reflected that the canine scan was conducted based on “the totality of the following indicators:  The driver was not on the rental agreement nor listed as an additional operator.  The driver produced a Pennsylvania driver’s license but was living in New York City.  The driver’s hands were very shaky when he handed me his information.  The driver and passenger gave conflicting information about their trip. The driver stated they were traveling to Macon, Georgia and the passenger stated they were going to North Carolina.  The passenger kept showing me an officer’s badge and informed me that his brother was ‘on the job.’  The passengers [sic] breathing were [sic] shallow and rapid.”
Thereafter, on June 24, 2011, Wilson’s lawyer filed a supplemental motion to suppress evidence. ECF 71. In the supplement, defense counsel argued that the canine did not have a reliable track record. ECF 71 at 1. The government opposed Wilson’s supplemental motion. See ECF 72. In addition, it submitted several additional exhibits.
Wilson’s lawyer filed a supplemental memorandum on July 26, 2011 (ECF 73), in which he relied on what was then a recent decision of the Fourth Circuit, United States v. DiGiovanni, 650 F.3d 498 (4th Cir. 2011). Defense counsel argued that the traffic stop “exceeded both in scope and duration what is permitted by the Fourth Amendment and that no reasonable articulable suspicion existed to justify Mr. Wilson’s detention.” ECF 73 at 1-2.
Judge Quarles heard testimony and argument on various motions on July 29, 2011. ECF 74. The suppression hearing resumed on November 15, 2011. ECF 90. The transcripts for the two proceedings are docketed at ECF 78 (7/29/11) and ECF 104 (11/15/11), respectively.
After the hearing in July 2011, but before Judge Quarles ruled, Wilson’s defense attorney submitted yet another memorandum in support of the motion to suppress, addressing the canine’s entry into the vehicle. ECF 79. Defense counsel cited, inter alia, Illinois v. Cabales, 543 U.S. 405 (2005). See ECF 79 at 2. The government responded at ECF 80, supported by another exhibit.
In a Memorandum Opinion (ECF 95) and Order (ECF 96) issued November 18, 2011, Judge Quarles denied defendants’ motion to suppress. The ruling resulted in a published opinion. See United States v. Wilson, 278 F.R.D. 145 (D. Md. 2011).
In his ruling on the suppression motion, Judge Quarles made the following findings of fact, in relevant part, ECF 95 at 1-7 (footnotes omitted):
On July 23, 2010, Maryland State Police (“MSP”) Corporal H. Kennard saw a Toyota Corolla (the “Car”) with a New Jersey license plate speeding on U.S. Route 113 in Worcester County, Maryland. Compl. ¶ 3; ECF No. 47, Ex. 1 [hereinafter Crim. Inv. Report] at 5-6. The Car was also following another car too closely. Id. at 6. Ahorrio was driving, and Wilson was the passenger. Id.
At about 7:26 p.m., Kennard stopped the Car. Id.; ECF No. 47, Ex. 2 [hereinafter Video]. Kennard told the Defendants that the stop was being recorded, and asked for Ahorrio’s license and registration. Crim. Inv. Report 6. Ahorrio gave Kennard a Pennsylvania driver’s license and a car rental agreement. Id. Wilson gave Kennard a New Jersey driver’s license. Id. at 6. As Wilson opened his wallet, he revealed what appeared to be a police badge. Compl. ¶ 3. Ahorrio’s hands were “very shaky, ” and Wilson’s breathing was “shallow and rapid.” Crim. Inv. Report 7.
Kennard returned to his car, and activated the sound recording system. Id. at 6; Video at 7:27 p.m. MSP K-9 Trooper First Class Dana Orndorff arrived and approached Kennard’s window. Compl. ¶ 4; Crim. Inv. Report 6. Kennard told Orndorff that Ahorrio was not listed on the rental agreement and he “wanted to investigate further.” Crim. Inv. Report 6; Video at 7:27 p.m.
Kennard left his car and motioned for Ahorrio to leave the Toyota. Id.; Video at 7:28 p.m. Kennard asked where Ahorrio lived; Ahorrio said that his “new address” was in New York, and Wilson had rented the Car. Crim. Inv. Report 6. Ahorrio also said that he had driven in a separate car to Wilson’s house in New Jersey that day, and they were traveling to see drag races. Video at 7:29 p.m.
Kennard then approached Wilson, still sitting in the Car, and informed him that Ahorrio should be added as a driver on the rental agreement. See Id. Wilson said they were going to North Carolina for drag races. Crim. Inv. Report 6. The two spoke briefly about drag racing, then Wilson said that he understood that Kennard had a job to do, and he had “a brother on the job.” Video at 7:30 p.m. Wilson “continu[ously] displayed” the badge in his wallet. Crim. Inv. Report 6.0 While Kennard was speaking to Wilson, Orndorff approached Ahorrio. See Crim. Inv. Report 6. Ahorrio told Orndorff that he and Wilson were driving to drag races in Georgia. Id. This conversation was not recorded.
Kennard then asked Ahorrio why he had not obtained a New York license, and whether his Pennsylvania license was valid. Id. Ahorrio stated that he had just moved, and his license was “supposed to be” valid. Video at 7:30-31 p.m. Ahorrio “started to become increasingly nervous as he seemed unsure of his answers.” Crim. Inv. Report 6.
The officers returned to Kennard’s car; See Id. Orndorff said that Ahorrio had told Orndorff that he would “talk to [Ahorrio] a little bit more” while issuing him a warning. Video at 7:32 p.m. Kennard ran Ahorrio’s license and confirmed it was valid. Id. Kennard returned to Ahorrio and told him that he would be issued a written warning. Crim. Inv. Report 6; Video at 7:33 p.m. As Kennard was preparing the warning, he “started a casual conversation” with Ahorrio about New York for about two minutes. Id.; Video at 7:33-35 p.m.
Kennard then said that his agency was conducting aggressive traffic enforcement. Crim. Inv. Report 6; Video at 7:35 p.m. He asked Ahorrio if all the property in the Car was his, and if he would mind a canine scan of the Car. Id. Ahorrio stated that only one bag in the Car was his, and the officers would need Wilson’s consent to the scan. Id.
Kennard returned briefly to his car and told Orndorff that he wanted to conduct a canine sniff of the Toyota. Video at 7:35 p.m. Kennard then conducted a consensual pat-down search of Ahorrio, and directed him to stand in front of Kennard’s car. Id. at 7; Video at 7:36 p.m. Orndorff opened the passenger side door of the Toyota and had Wilson get out. Crim. Inv. Report at 7; Video at 7:36 p.m. . . .
After the pat-down, Kennard indicated that Wilson should stand by Ahorrio. Video at 7:36 p.m. Kennard asked Wilson if everything in the Car was his. Id. Wilson replied, “I guess, yeah.” Id. Wilson pulled out his cell phone, and Kennard told him to put it away. Id. Wilson said that he was playing a game on it. Id.
At 7:37 p.m., Orndorff began walking K-9 Camo around the Car. Video. The passenger door was open, and Camo put his front paws on the passenger side floorboard and sniffed the floor, seat, console, and glove box. Hr’g Tr. 120:18-21, 137:16-19 July 29, 2011. Camo also stood on his hind legs near the driver’s door. Video at 7:37 p.m.
Between 7:37 and 7:38 p.m.-11 to 12 minutes after the initial stop- Kennard told the Defendants that the dog had “alerted to the car.” Video. Kennard asked if there was “any reason why” the dog might have alerted; Wilson said he “wouldn’t ...