United States District Court, D. Maryland
UNITED STATES OF AMERICA Plaintiff.
CRAIG JOHNSON, Defendant.
L. Hollander United States District Judge.
Craig Johnson has been charged in a Superseding Indictment
(ECF 37) with the offenses of felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §
922(g)(1), and possession with intent to distribute cocaine,
in violation of 21 U.S.C. § 841(a)(1). ECF 37. The
charges are rooted in the events of March 27, 2015, when
officers of the Baltimore City Police Department
(“BPD”) initiated a stop of defendant's
vehicle. Cocaine was found in the sunroof, and a firearm was
subsequently recovered from defendant's residence,
pursuant to a search warrant.
filed a motion to suppress evidence (ECF 20) (the
“Motion”), challenging the legality of the
vehicle stop. In addition, Johnson contends that the stop was
unlawfully prolonged to await the arrival of a drug detection
dog. Johnson also insists that he did not consent to a search
of his SUV, and he maintains that the drug detection dog
unlawfully entered the vehicle, where he alerted. The
government opposed the Motion. ECF 36; see also ECF
Court held evidentiary hearings on April 21, 2016; May 6,
2016; and May 10, 2016.Thereafter, the parties submitted
simultaneous post-hearing memoranda. See ECF 83
(government's initial post-hearing memorandum); ECF 84
(defendant's initial post-hearing memorandum); ECF 85
(government's post-hearing reply memorandum); ECF 87
(defendant's post-hearing reply memorandum). Argument on
the Motion was heard on August 3, 2016.
reasons set forth below, I shall DENY the Motion.
City Police Officer Jason DiPaola has been a member of the
BPD since July 2011. ECF 58 at 13. He received 40 hours of
“specialized training in street-level narcotics
enforcement.” Id. at 15. His duties as a
police officer include investigation of narcotics crimes.
Id. at 14.
Mederios joined the BPD in 2010. ECF 81 at 33. In March 2015,
he was a patrol officer assigned to the Northwest District
Drug Unit in Baltimore City (id.), and
“[p]rimarily focused on narcotics activity.”
Id. at 34. In January 2016, he joined the police
department in York, Pennsylvania. Id. at 33.
first met Confidential Informant 1562 (“C.I.
1562” or the “C.I.”) in 2013, through a
fellow BPD officer. ECF 58 at 16. C.I. 1562 is registered
with the BPD (id. at 17-18)and has received payment from
the BPD for controlled narcotics purchases and information
provided to the BPD. Id. at 19. DiPaola knew from
his colleague that the C.I. provided reliable information
with respect to drug traffickers and illegal firearms
(id. at 17, 19) and had also made controlled
purchases of narcotics for DiPaola's colleague.
Id. at 20. DiPaola described C.I. 1562 as someone
who has “stuck around and . . . continues to work and
is very knowledgeable in the narcotics and the handguns in
the area.” Id. at 54.
began working with C.I. 1562 in 2014. Id. at 17.
Between 2014 and March 2015, C.I. 1562 made about 20
controlled purchases of narcotics for DiPaola. Id.
at 20. DiPaola estimated that, prior to March 2015, the
information he obtained from C.I. 1562 resulted in about ten
arrests involving the seizure of firearms and narcotics.
recalled that about one to two weeks prior to March 27, 2015,
while he was working with C.I. 1562 on an unrelated matter,
the C.I. provided “intel” on a person named
“Craig” who lived at 3013 Thorndale Avenue in
Baltimore, in an apartment “at the top right, ”
and who drove a white Infinity FX 35 (the “SUV”).
ECF 58 at 21-23, 55. The C.I. reported that
“Craig” was selling “ready rock” from
his SUV and from “his apartment at Thorndale.”
Id. at 22; see also id. 22-23; at 56.
DiPaola understood the term “ready rock” as a
street name for “rock cocaine.” Id. at
22. Moreover, the C.I. told DiPaola that the defendant
“keeps . . . the drugs hidden in the sunroof
area” of his SUV. Id. at 23. The C.I. also
indicated that he/she had purchased drugs from Craig's
vehicle and had Craig's phone number and “could
purchase from the apartment.” Id. at 24.
C.I. identified Craig's white Infinity SUV for DiPaola.
ECF 58 at 22-23. The C.I. also showed DiPaola the apartment
building where Craig resided. Id. DiPaola described
3013 Thorndale as “a low-rise apartment” with
four levels and two apartments on each floor. Id.
DiPaola wrote down the license tag number of the SUV and then
left. Id. at 23, 55-56. He subsequently “ran
the license plate” and “it came back to a Craig
Johnson” at “a Thorndale address . . . .”
Id. at 24. In addition, the MVA records included a
photograph of Johnson, and DiPaola also obtained
“Departmental Databases . . . to get more pictures of
[defendant] from previous arrests.” Id. at
of the BPD confirm that DiPaola had contact with the C.I. in
February and March 2015. But, there is no documentation that
the contact pertained to Johnson. See ECF 81 at
24-26; see also Defense Exhibit 1 (BPD General Order
J-1); Defense Exhibit 2 (C.I. registration forms).
the week prior to March 27, 2015, DiPaola conducted
surveillance of the SUV, which was parked in the parking lot
of the Thorndale Apartments. Id. at 25-26. While
DiPaola was in an unmarked police vehicle, he saw
“unidentified men and women entering the passenger side
of [Johnson's] vehicle and then immediately exiting
it.” Id. at 25. However, because the SUV has
tinted windows (id. at 24, 26) it was “[h]ard
to see in” the vehicle (id. at 26-27) and
DiPaola never saw Johnson. Id. at 26. Nevertheless,
based on DiPaola's training, knowledge, and experience,
he “believed that narcotics transactions were taking
place inside [defendant's vehicle] to be concealed from
the street.” Id. at 27. He also described the
particular neighborhood in Baltimore City as “basically
an open-air drug market . . . .” Id. at 28. He
said: “It's just a lot of narcotics being
distributed through there and a lot of violence and violent
crimes.” Id. at 28.
the early evening of March 27, 2015, DiPaola was again
conducting surveillance of the SUV and the Thorndale
apartment building. Id. at 28. He was in the front
passenger seat of an unmarked police vehicle; Officer
Christen Mederios was the driver; and Officer
was in the backseat. Id. at 29; ECF 81 at 36. As
Mederios put it, the officers “were watching the
[Thorndale] apartments for drug activity” and
“were looking for Mr. Johnson.” ECF 81 at 36.
DiPaola had an unobstructed view of the SUV. ECF 58 at 30.
Both IDiPaola and Mederios saw Johnson exit 3013 Thorndale
Avenue and enter the SUV. ECF 58 at 29; ECF 81 at 36. DiPaola
recognized Johnson from the photos he had seen of him. ECF 58
at 29. Neither DiPaola nor the other officers noticed anyone
else enter the SUV. ECF 58 at 33, 75-77; ECF 81 at 53.
officers began to follow the SUV in their unmarked police
vehicle. ECF 58 at 32; ECF 81 at 37. They observed the SUV
come to an abrupt stop in the middle of the 4800 block of
Pimlico Avenue, approximately 150 feet from a traffic light.
ECF 58 at 32; ECF 81 at 37. At that time, an
“unidentified black female exited the back passenger
seat, ran behind the car, and sprinted westbound on Oakley
Avenue . . . .” ECF 58 at 32. DiPaola believed that
“some sort of crime had been committed” and
“wanted to investigate what was going on . . . .”
Id. at 33. Mederios characterized the occurrence as
“just really strange, ” and so the officers
“decided to investigate further . . . .” ECF 81
at 39. Officer Muir asked Officer Vinias, who was nearby in a
marked patrol vehicle, to assist the officers in stopping the
SUV. ECF 58 at 33-34. Officer Vinias and Officer
Williams responded in a marked patrol vehicle.
Id. at 34.
approximately 7:50 p.m., the BPD officers initiated a stop of
the SUV at “the corner of Laurel and Virginia
Avenue.” Id. at 34-35. The unmarked police
vehicle was situated behind the SUV and the marked police car
was in front of the SUV, blocking the SUV. Id. at
35; 78-79. As Officer Mederios acknowledged, the SUV
“was not free to go at that point . . . .” ECF 81
approached the driver's side of the vehicle (ECF 58 at
35; ECF 81 at 40) and asked the driver, later identified as
the defendant, for his license and registration. ECF 58 at
35. DiPaola recalled that Officer Mederios approached the
passenger side of the vehicle. Id. Officer Mederios
recalled that both he and Officer DiPaola went to the
driver's side of the vehicle and that it was Officer Muir
who went to the passenger side of the SUV. ECF 81 at
Mederios said he stood behind DiPaola “for
security.” ECF 81 at 40. It is undisputed that no
weapons were drawn. ECF 58 at 35; ECF 81 at 56; ECF 82 at 35.
promptly explained to Johnson that the SUV was stopped in
order “to conduct a CDS investigation . . . .”
ECF 58 at 36. DiPaola inquired about the female who had
“jumped out of the car and began running, ” and
Johnson responded that she is “just a friend.”
Id. at 36. Both Johnson and his passenger, Jerry
Brown, produced identification. Id.; see
also ECF ECF 81 at 57. DiPaola asked Johnson if there
“was anything in the car” and defendant answered
“no.” ECF 58 at 36; see also ECF 81 at
57. DiPaola did not observe any contraband in plain view. ECF
58 at 79.
to DiPaola, he asked Johnson “if we could search the
vehicle” (ECF 58 at 36) and Johnson “said
yes” (id. at 37), without hesitation.
Id. at 83. Although Mederios did not recall
“the exact conversation” he specifically recalled
“the consent exchange.” ECF 81 at 59. According
to Mederios, DiPaola asked: “‘Do you have
anything in the vehicle? Do you mind if we take a
look?'” Id.; see also Id. at 41.
Mederios testified that, in answer to the request to search
the SUV, Johnson said: “‘Go ahead and search. Go
ahead and look.'” Id. at 42; see also
Id. at 59.
occupants of the SUV “stepped out of the vehicle.
Walked to the back of the vehicle . . . and they sat on the
curb, not in handcuffs . . . .” ECF 58 at 37. The
“K9 was then requested.” Id.
testified that he called for the drug detection dog
approximately two to three minutes after the vehicle stop.
Id. at 37, 101. Similarly, Mederios testified that
the canine unit was requested within “[a] minute or two
after the vehicle was stopped.” ECF 81 at 43. The
canine officer responded that “he'd be there in
five minutes.” ECF 58 at 37. DiPaola estimated that the
canine unit arrived within 10 minutes of the stop.
Id. According to Mederios, it took “a total of
ten minutes” from when the stop was made until the
canine arrived. ECF 81 at 45.
radio recording was played during Mederios's testimony.
It showed that Mederios called out the tag for the SUV at
about 7:48 p.m. ECF 81 at 46. The KGA also indicated that a
canine unit was requested at 7:50:48. ECF 81 at 44-45. At
7:52:33, the canine officer verbally responded to the call,
stating: “‘Give me five minutes.'”
Id. at 46.
qualified drug detection dog named Force was brought to the
scene by his handler, Detective Scott Reid, a
“K9” Officer with the BPD. ECF 58 at 195. Reid
began work with the BPD in 2007. He recalled that on March
27, 2015, he received a call for a canine narcotics scan at
around “19:55 hours, give or take.” Id.
at 201-202. But, he could not recall his time of arrival at
the scene. Id. at 202. When the canine arrived, neither
Johnson nor Brown was handcuffed. ECF 81 at 73.
is a Belgian Malinois. ECF 58 at 197. He is also a certified
narcotics detection dog as well as a patrol dog. Id.
at 197-98. A patrol dog is trained in “bite work”
as part of “go[ing] after” a suspect.
Id. at 198. According to Reid, a Belgian Malinois is
generally more energetic, agile, thinner, and faster than a
family member, the German Shepherd. Id. at 210.
began to scan the perimeter of the SUV, and DiPaola
“stepped back to the back of the car with Mr. Brown and
Mr. Johnson.” ECF 58 at 84. Although DiPaola could see
the dog, he “wasn't paying much attention.”
Id. at 85. He recalled that he was about three or
four feet from the vehicle but facing the curb where Johnson
and Brown were seated. Id. According to DiPaola, the
defendant never revoked his consent to the search, nor did he
object to the use of the dog. Id. at 39.
to DiPaola, during the “outside scan of the vehicle,
” Force “jumped through the window that was left
open by Mr. Johnson.” ECF 58 at 38; see also
Id. at 85-86. Once inside the SUV, the dog alerted at
the ceiling in the front of the SUV. Id. at 38.
DiPaola then “reached into the sunroof and recovered a
black magnetic box.” The box contained 14 blue Ziplock
bags of a white rock substance. Id.
testified that Reid “allowed the dog to enter the
vehicle, and the dog hopped into the driver's side
window.” ECF 81 at 73. As Mederios described it,
“the dog's front paws made contact with the
vehicle, pulling the rest of its body through.”
Id. at 73-74. Mederios also stated that Reid did not
attempt to stop the dog from climbing into the window.
Id. at 74.
explained that when he conducts a narcotics perimeter scan of
a vehicle, he follows “almost the same routine every
time.” ECF 58 at 200. According to Reid, although Force
is “a bite dog” (id.), he is not trained
to jump into vehicles, nor does he enter a vehicle without a
search warrant. Id. at 201. He said: “[I]f my
dog alerts on the outer part of the car without a search
warrant, then that's where I stop. I don't go inside
the car.” ECF 58 at 201. But, he also said:
“Force is trained to go to the odor of narcotics, to
find the source of narcotics. So wherever that may be. If he
has access to it, he is going to get to it.”
Id. Reid added that if Force is off leash,
“he'll go right to the source.” Id.
at 226. And, if Force is on the leash, “he'll try
to pull on [Reid] to go with him.” Id.
describing the scan of the SUV, the following testimony of
Reid is pertinent. “Once I gave [Force] the command to
sniff, he went around the car. And basically, he got to the
driver's door. Once he got to the driver's door,
there was an open window. He basically went inside the
vehicle, through the driver's open window, and basically
started casting high at the sunroof.” ECF 58 at
204-205. Reid added: “That was an indication that
something possibly might be there.” Id. at
205. However, Reid denied that he ever prompted or encouraged
Force to jump into the open window of the SUV. Id.
elaborated, id. at 226: “What [Force] did is
he basically, because of the window being open, he presented
himself right through the window and went right to the
sunroof.” According to Reid, Force “just jumped
through the window” (id. at 228) and
“just leaped” (id. at 229) when he was
about a foot and a half to two feet away from the SUV.
Id. Reid noted that Force “used the window
frame to pull himself in . . . .” Id.; see
also Id. at 231 (stating that Force “leaped up
into the window and he pulled himself through the
window”). Moreover, Reid agreed that the dog's
entry into the vehicle was “instantaneous . . .
.” Id. at 230.
Reid explained: “[A] Malinois has so much drive . . .
they don't look at obstacles. They don't look at
things that's going to interfere [with] getting their
ultimate goal. And their ultimate goal is to find narcotics,
and that's when he gets rewarded.” Id.
But, Reid could not recall “[h]ow far into the
scan” the dog was when he entered through the window,
nor could he recall the part of the SUV where the scan began.
Id. at 227. However, Reid was certain that he did
not start the scan at the driver's window, nor had Force
finished the perimeter scan of the vehicle when he entered
the SUV through the window. Id. at 227.
has performed over 450 canine scans, and this was not the
first instance in which Force had entered a vehicle through a
window in the course of an exterior vehicle scan.
Id. at 231. Reid reiterated, id.: “If
the window's open and he picks up narcotics, he's
going to go through the window.” Notably, Reid was
asked: “And you know [Force] has this
propensity?” Id. Reid responded: “Oh,
absolutely.” Id. Reid did not remember whether
or not Force was on a leash during the scan. Id. at
203. Nor could DiPaola recall if Force was leashed.
Id. at 39. Mederios thought that the dog was leashed
as it walked around the SUV, but that the dog's handler
“might have let it off when [the dog] went into the
vehicle . . . .” ECF 81 at 73.
respect to DiPaola's decision to request a canine unit,
DiPaola acknowledged that, because Johnson had consented to
the search, he did not need a drug detection dog to conduct a
scan. ECF 58 at 82. But, he stated: “I wanted a
dog.” ECF 58 at 82. He explained that, notwithstanding
the defendant's consent to the search of the SUV, the
canine unit would “make [his] case stronger.”
Id. at 81. DiPaola also said that, if the canine
had not been called, he would have searched the SUV,
including the sunroof area of the vehicle, because Johnson
had consented to the vehicle search and the C.I. told DiPaola
that the defendant “stashed” his drugs in the
sunroof of the SUV. Id. at 39-40.
DiPaola recovered the drugs from the SUV, he placed both
Johnson and Brown under arrest, handcuffed them, escorted
them to the police vehicle, and advised them of their
“Miranda rights.” ECF 58 at 40; see also
Id. at 42. DiPaola recited the warnings from memory.
Id. at 41. Both men “verbally agreed that they
understood.” Id. at 40, 42.
scene, DiPaola told Johnson that he was going to obtain a
search and seizure warrant for defendant's apartment and
asked defendant if he had any contraband in his apartment.
Id. at 42-43. Johnson disclosed that “he had a
gun in his apartment” (ECF 58 at 42-43), located in the
closet in his bedroom. Id. at 44.
police station, DiPaola again advised the defendant of his
Miranda rights, but this time he used a form
(id. at 41, 43, 44-45), and read the rights
“verbatim” from the Miranda form.
Id. at 46. The defendant again indicated that he
understood his rights. Id. DiPaola also explained a
consent to search form to Johnson with respect to
Johnson's residence, although he did not read that form
verbatim. Id. at 49. Nevertheless, Johnson read the
form for himself, indicated that he understood the form, and
signed the consent to search form at 8:55 p.m. Id.
at 49-50; see Government Exhibit 1. However, Johnson
did not sign the Miranda form. See
Government Exhibit 3. DiPaola explained that he “made a
mistake, ” because he did not ask the defendant to sign
the Miranda form. Id. at 45. Johnson
reiterated that he had a gun in his apartment. Id.
at 47. According to DiPaola, Johnson did not want his son to
be scared by the search (id. at 47), and so he gave
the police the key to his apartment. Id. at
defendant also testified. Johnson, who was 42 years of age at
the time of the hearing, is a high school graduate and is
able to read, write, and understand English. ECF 58 at 166.
recalled that he was stopped by the BPD on the evening of
March 27, 2015, “on Laurel and Virginia at the stop
sign.” ECF 58 at 171. One police vehicle was “a
regular” police vehicle and the other was an unmarked
vehicle. Id. Once stopped, “there was no way
for [him] to get out and evade[.]” Id.
to Johnson, a police officer - not DiPaola - approached the
driver's side. ECF 58 at 172. Johnson then
“cracked” his window and asked,
“‘What's the problem, Officer?'”
Id. The officer responded, “‘Nothin.
Just sit tight.'” Id.; see also
Id. at 174. Thereafter, Johnson provided his license and
registration to the officer. Johnson testified that he said
to the police officer: “‘What are you, like the
auto task force?'” Id. at 172; see
also Id. at 191. Johnson was again told to
“‘. . . sit tight. Wait for [the] ¶ 9
unit.'” Id. at 172. Johnson stated that he
continued to talk to his passenger and used his cell phone as
he sat in his SUV. Id. Then, he again asked the
police officer what was going on, and the officer indicated
that they were waiting for the arrival of the canine unit.
Id. at 174. According to Johnson, he told the
officer: “‘I didn't give you consent to put
the K9 in my car.'” Id. at 174; see
also Id. at 191.
also asserted that the police asked him if he had any weapons
in the SUV. Id. at 191. But, he denied that he was
asked for consent to search his SUV. Id. at 191-192.
And, Johnson denied that he ever gave consent to the police
to search his vehicle. Id. at 175. Moreover, Johnson
indicated that he was “well aware” of right to
refuse consent to search his vehicle. Id. Indeed, he
indicated that he had previously said no to such a request.
Id. And, knowing that he had drugs in the SUV,
Johnson claimed he would not have agreed to a search of his
“10 or 15 minutes went by, ” and Johnson and
Brown were placed on the curb, “and when the K9 unit
showed, they went from there.” ECF 58 at 172. Johnson
stated that the dog “just basically was running in and
out of the car, ” through the SUV's
“hatchback.” ECF 58 at 173. However, Johnson
denied that the dog ever leaped through the window of his
SUV. Id. at 178.
Johnson testified that DiPaola “knew exactly where it
[i.e. the drugs] was at in the sunroof. He went straight to
it, pulled the sunroof cover back, stuck his hand in there,
and took the box off.” ECF 58 at 174. Johnson claimed
that when DiPaola found the narcotics in the sunroof, he
said, “‘Bingo.'” Id. at 176.
admitted that the drugs found in the SUV belonged to him and
that he had intended to sell them. ECF 58 at 170, 185. He
also took responsibility for the firearm that was later
recovered from his residence. Id. at 170-171. But,
he denied that he conducted drug transactions in his SUV.
Id. at 185. When the Court then asked why the drugs
were in the vehicle (id. at 185), Johnson said:
“‘I forgot they was in the [sic] there. I
left' em in there.”” Id. at 186.
This testimony conflicted with Johnson's earlier
testimony, in which he said he would not have consented to a
search, knowing he had drugs in the SUV. See Id. at
acknowledged that DiPaola advised him of his Miranda
rights at the scene. ECF 58 at 176; 178-79; 186. Although
Johnson acknowledged that he consented to the search of his
residence, he claimed he did so only out of a concern for his
son, who was at home, and to avoid threatened police searches
of other locations, such as his mother's residence. ECF
58 at 176-77. Johnson also maintained that he was
“overwhelmed” when he signed the consent to
search form for his residence. Id. at 188. And, he
denied that he voluntarily gave the key to his residence to
the police. Rather, he claimed the police took the key from
him. Id. at 189.
defense also called Johnson's front seat passenger, Jerry
Brown. According to Brown, Johnson was pulled over by an
unmarked police car. ECF 82 at 34. There was more than one
police car at the scene, and the SUV was “boxed”
in. Id. at 34. Brown conceded that no guns were
drawn by the officers when they approached the vehicle.
Id. at 35.
to Brown, during the exchange between the police officer and
Johnson, the driver's side window of the SUV was down.
ECF 82 at 15. Brown recalled that the officer stated that he
had information that “there was something in the
car.” Id. at 16. Thereafter, he and Johnson
were “forced out of the car . . . .” Id.
Brown never heard the officer ask Johnson for permission to
search the SUV, nor did he ever hear Johnson consent to such
a search. Id. at 17. Brown also noted that he and
Johnson were removed from the SUV about five to ten minutes
after the stop. Id. at 18.
cross-examination, Brown was asked whether he ever heard Mr.
Johnson affirmatively tell the police they were not allowed
to search his car. He answered: “I can't
remember.” Id. at 37. Of import here, Brown
repeatedly claimed that he never discussed Johnson's case
with Johnson. Id. at 39-40. The government then
played a portion of a recorded phone call that occurred when
Johnson was detained as a result of his arrest. Id.
at 61. Brown confirmed the identity of his own
voice and that of the defendant. Id. The call, which
was used for impeachment purposes, unequivocally established
that, contrary to Brown's repeated assertions, he in fact
discussed Johnson's case with Johnson. In my view, the
impeachment seriously undermined Brown's credibility.
Falco Jimenez testified as an expert witness for the defense
on the use of drug detection dogs generally, and in
particular the German Shepherd. ECF 58 at 129. Inexplicably,
Force's veterinary records erroneously described Force as
a German Shepherd, and much of Jimenez's initial
testimony was predicated on his views as to the abilities of
that breed. Id. at 141, 151-52. As a result, much of
Jiminez's initial testimony was not particularly useful,
because Force is a Belgian Malinois, not a German Shepherd,
and Jimenez had no familiarity with Force. Id. at
to Jimenez, narcotics dogs generally are not trained to go
through open car windows (id. at 137), because this
could damage the vehicle (id. at 139), and could be
dangerous to the dog. Id. at 140. But, he
acknowledged that patrol dogs enter “through the
windows all the time.” Id. at 137. And, as
noted, Force is trained as both a drug detection dog
and a patrol dog.
(erroneously) that Force is a German Shepherd, Jiminez opined
that there is “Zero” probability that a drug
detection dog of Force's breed, age (5 and a half), and
weight (80 pounds), “trained only in drug detection,
” would jump through an open window during a perimeter
vehicle scan, “without any warning, encouragement, or
assistance from its handler[.]” Id. at 142. In
his view, if the dog went through the window, it had to
“have been commanded, lifted, and motivated to go
through the window . . . . It wouldn't do it on its
own.” ECF 58 at 145; see also Id. at 144, 151.
Jimenez maintained that the dog “can crawl through the
window. He can be lifted and pushed through the window. He
can get through the window, but he cannot jump through the
window without touching it.” Id. at 150.
indicated, the opinion testimony recited above was offered
when the expert witness, Jimenez, thought Force is a German
Shepherd. See, e.g., ECF 58 at 151-52.
During the hearing, it was established that Force is a
Belgian Malinois, and not a German Shepherd. And, Jiminez
acknowledged that a Belgian Malinois is “more of an
agile dog.” Id. at 155.
it was established that Force is a Belgian Malinois, Jimenez
was recalled. He testified by telephone on the second day of
the hearing. ECF 81 at 85.
opined that it would not be possible, even for a Belgian
Malinois, suddenly to jump through the window of an SUV,
without warning. ECF 81 at 88. Notably, Jimenez stated,
Id. at 89: “The Shepherd would not make it
through that window, but a Belgian Malinois could, but it
doesn't mean that it would do it easily . . . it would be
difficult.” He added that “there would have to be
a preparation, a sighting of the target, and most likely
crawling through the window, not, you know, clearing the
window and going through it without touching.”
Id. Rather, “[t]he dog would have to crawl
through the window.” Id. Jimenez continued:
“[I]t literally would have to put its paws on the
bottom part of the window and then pull itself through. It
would not jump through the window like maybe a younger dog
may be able to do with a running start, but the handler would
see - the handler could not miss the dog trying to do
this.” Id. at 89-90.
facts are included in the Discussion.
Probable Cause and Reasonable Suspicion
government maintains that the police had probable cause to
stop Johnson's SUV, to arrest him, and to search his
vehicle. ECF 83 at 19-24. See, e.g.,
United States v. Ross, 456 U.S. 798, 799-800 (1982)
(search); Herring v. United States, 555 U.S. 135,
136 (2009) (arrest). Alternatively, the government contends
that, pursuant to Terry v. Ohio, 392 U.S. 1 (1968),
the police had reasonable, articulable suspicion to stop the
SUV and to conduct a narcotics investigation, including use
of a drug detection dog. Id. at 24-34.
defense vigorously disagrees with the government's
contentions. ECF 87 at 1-2. As to probable cause, it notes,
inter alia, that if DiPaola believed he had probable
cause, then he had sufficient time before March 27, 2015, to
obtain an arrest warrant and a search warrant. Id.
at 2. Further, the defense maintains that the police lacked
reasonable suspicion to stop the SUV. ECF 84 at 3. Among
other things, Johnson points to “a temporal gap of
weeks” between when the C.I. provided information to
DiPaola and the date of the vehicular stop (id. at
3) and asserts: “The temporal gap rendered the
informant's tip and the officer's surveillance both
stale for the purposes of conducting the Terry stop
of Mr. Johnson and his vehicle.” ECF 87 at 10.
Insisting that reasonable suspicion does not last “in
perpetuity, ” Johnson argues: “The Court should
not countenance such an overreach of police power.”
Id. at 11. Moreover, Johnson maintains that, even if
the BPD had reasonable suspicion to justify the initial stop
of the SUV, the police unlawfully prolonged the stop, because
their suspicions had been “dispelled by the
officer's car-side investigation early in the
stop.” Id. at 12; see also ECF 84 at
police officer stops a motor vehicle and detains the
occupant, the stop constitutes a seizure that implicates the
Fourth Amendment. See, e.g., Brendlin v. California,
551 U.S. 249, 255 (2007); Whren v. United States,
517 U.S. 806, 809-10 (1996); United States v.
Sharpe, 470 U.S. 675, 682 (1985); United States v.
Williams, 808 F.3d 238, 245 (4th Cir. 2015); United
States v. Ortiz, 669 F.3d 439, 444 (4th Cir. 2011);
United States v. Digiovanni, 650 F.3d 498, 506 (4th
Cir. 2011). The Fourth Amendment protects against
unreasonable searches and seizures. See Utah v.
Strieff, __U.S.__, 136 S.Ct. 2056, 2060 (2016);
United States v. Mendenhall, 446 U.S. 544, 551
(1980). Therefore, the vehicular stop must be reasonable
under the circumstances. Delaware v. Prouse, 440
U.S. 648, 653 (1979); United States v. Palmer, 820
F.3d 640, 648 (4th Cir. 2016).
vehicular stop may be founded on probable cause. See
Arizona v. Johnson, 555 U.S. 323, 331 (2009). The
concept of probable cause is not subject to a precise
definition, however. United States v. Richardson,
607 F.3d 357, 369 (4th Cir. 2010). As the Supreme Court said
in Ornales v. United States, 517 U.S. 690, 696
(1996), probable cause “exist[s] where the known facts
and circumstances are sufficient to warrant a [person] of
reasonable prudence in the belief that contraband or evidence
of a crime will be found.” The assessment of probable
cause is based on the totality of the relevant circumstances,
“rather than on the technical or rigid demands of a
formulaic legal test.” United States v. Allen,
631 F.3d 164, 172 (4th Cir. 2011).
Maryland v. Pringle, 540 U.S. 366 (2003), the
Supreme Court reiterated, id. at 370-71 (citations
and quotations marks omitted):
[T]he probable-cause standard is a practical, nontechnical
conception that deals with the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act. Probable cause is a
fluid concept- turning on the assessment of probabilities in
particular factual ...