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United States v. Johnson

United States District Court, D. Maryland

September 2, 2016

UNITED STATES OF AMERICA Plaintiff.
v.
CRAIG JOHNSON, Defendant.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         Defendant 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.

         Johnson 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 49.

         The Court held evidentiary hearings on April 21, 2016; May 6, 2016; and May 10, 2016.[1]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.

         For the reasons set forth below, I shall DENY the Motion.

         I. Factual Summary

         Baltimore City Police Officer Jason DiPaola has been a member of the BPD since July 2011. ECF 58 at 13.[2] 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.

         Christen 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.

         DiPaola 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)[3]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.

         DiPaola 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. Id.

         DiPaola 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.

         The 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 24-25.

         Records 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).

         During 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.[4]

         During 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 Muir[5] 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.

         The 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[6] responded in a marked patrol vehicle. Id. at 34.

         At 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 at 56.

         DiPaola 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 57.[7] 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.

         DiPaola 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.

         According 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.

         Both 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.

         DiPaola 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.

         A KGA 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.

         A 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.[8] When the canine arrived, neither Johnson nor Brown was handcuffed. ECF 81 at 73.

         Force is a Belgian Malinois. ECF 58 at 197.[9] 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.

         Force 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.

         According 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.

         Mederios 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.

         Reid 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.

         In 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.

         Reid 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.

         Further, 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.

         Reid 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.

         With 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.[10] 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.

         After 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.

         At the 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.

         At the 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 44-45.[11]

         The 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.

         Johnson 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.

         According 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.

         Johnson 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 vehicle. Id.

         Some “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.

         Notably, 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.

         Defendant 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 175.

         Johnson 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.

         The 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.

         According 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.

         On 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.[12] 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.

         Andre 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 147-148.

         According 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.

         Believing (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.

         As 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.

         After 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.

         Jimenez 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.

         Additional facts are included in the Discussion.

         II. Discussion

         A. Probable Cause and Reasonable Suspicion

         The 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.

         The 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 3.

         1. Probable Cause

         When a 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).

         A 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).

         In 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 ...

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