United States District Court, D. Maryland
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
August 1, 2017. Defendant Shawn E. Hawk ("Mr.
Hawk") was arrested and issued citations for: (1)
driving under the influence of alcohol per se, ECF
1; (2) driving under the influence of alcohol, ECF 3; (3)
driving while impaired by alcohol, ECF 5; and (4) driving on
a suspended driver's license, ECF 4. On January 3, 2018,
Mr. Hawk filed a Motion to Suppress all evidence seized as a
result of his arrest, namely the ensuing breath test, arguing
that the officer lacked probable cause for his arrest. ECF
10. On February 23, 2018, the Government filed its Opposition
to Mr. Hawk's Motion. ECF 16. On June 5, 2018, this Court
held an evidentiary hearing. ECF 20. For the reasons set
forth below, Mr. Hawk's Motion to Suppress will be
following factual summary is derived from the recorded
hearing testimony. On August 1, 2017, Officer Thornton (ID
#1173) was monitoring vehicular traffic entering and exiting
Fort George G. Meade ("Fort Meade"). In particular,
Officer Thornton was stationed in the rejection lane at
Vehicle Control Point 2 ("VCP-2"), which is located
off of the Baltimore-Washington Parkway's southbound exit
onto Fort Meade. As background. Officer Thornton testified
that, "due to the high number of individuals who
mistakenly or intentionally take that exit" without
proper authorization to enter Fort Meade, the rejection lane
at VCP-2 is specifically designed to investigate these
individuals without impeding the normal flow of traffic.
Officer Thornton further indicated that, though there are
five traffic signs expressly stating that Fort Meade's
exit at VCP-2 is "restricted property," permits
"authorized personnel only," and that all persons
entering are "subject to search," two of the signs
are displayed at a point along the exit route where drivers
can no longer legally turn around without first entering Fort
approximately 7:30 a.m., Officer Thornton observed a white
Chrysler approach VCP-2. Thereafter, Officer Thornton
received a radio call from VCP-2 informing him that there was
a "vehicle rejection." because the driver of the
white Chrysler lacked the proper credentials to enter Fort
Meade. Accordingly, the vehicle was directed to the VCP-2
rejection lane, where Officer Thornton identified the driver
as Mr. Hawk. Officer Thornton explained to Mr. Hawk that he
was on restricted government property and that, after
conducting some background investigation, Mr. Hawk would be
permitted to exit Fort Meade. A license and registration
verification through the National Security Administration
("NSA") police dispatch, however, revealed that Mr.
Hawk's Maryland driver's license was
As a result of his suspended license, Mr. Hawk was no
longer free to exit Fort Meade, and Officer Thornton
requested that Mr. Hawk step out of his vehicle. Upon
complying, Mr. Hawk was instructed to open all of his
vehicle's doors and interior compartments for search. In
response to Officer Thornton's questioning, Mr. Hawk
stated that he was lost, and was attempting to attend a
mechanic's training near Annapolis Junction, Maryland.
Officer Thornton testified that the nearest public road to
Fort Meade's VCP-2 exit is Technology Drive, which is in
the Annapolis Junction area.
finalizing Mr. Hawk's citation for driving on a suspended
Maryland driver's license, Officer Thornton detected, for
the first time, a "moderate*' odor of alcoholic
beverage on Mr. Hawk's breath. Mr. Hawk told Officer
Thornton that he had consumed alcohol the previous evening.
Consequently, Officer Thornton decided to conduct Standard
Field Sobriety Tests ("SFSTs") to determine whether
Mr. Hawk was under the influence of, or was impaired by,
alcohol. Mr. Hawk completed the SFSTs under "sunny"
conditions and on VCP-2's "relatively flat"
rejection lane, which is marked for administration of the
SFSTs. According to Officer Thornton, Mr. Hawk denied having
any medical conditions that could impact his ability to
successfully complete the SFSTs.
Thornton conducted four SFSTs: the Horizontal Gaze Nystagmus
("HGN"), Vertical Gaze Nystagmus ("VGN"),
Walk and Turn ("WAT"), and One Leg Stand
("OLS") tests. In conducting the HGN test, Officer
Thornton observed six out of six possible clues. According to
Officer Thornton, exhibiting four or more clues during the
HGN test suggests that the subject may be impaired by
alcohol. Officer Thornton did not observe any relevant clues
during the VGN test. Further, during the WAT test, Mr. Hawk
made heel-to-toe contact on all eighteen steps with his arms
at his side and without stepping off of the line. Mr. Hawk
did make an improper turn, which constituted one clue, but
Officer Thornton testified that exhibiting two or more clues
suggests that the subject may be impaired by alcohol.
Finally, the OLS test requires subjects to raise their leg of
choice approximately six inches off of the ground for thirty
consecutive seconds. The four clues for the OLS test include
the subject: (1) raising his or her arms; (2) swaying; (3)
hopping; or (4) putting his or her foot down to the ground.
Officers look for a showing of at least two clues during the
OLS test to suggest intoxication. Mr. Hawk exhibited none.
on the HGN test results, the odor of alcohol detected on Mr.
Hawk's breath, Mr. Hawk's admission that he had
consumed alcohol the previous evening, and the fact that Mr.
Hawk admitted he was "lost" when entering Fort
Meade without proper credentials, Officer Thornton arrested
Mr. Hawk on suspicion of driving under the influence of
alcohol. Importantly, however, Officer Thornton testified
that he did not observe any other indications that led him to
that conclusion. Specifically, Mr. Hawk had no difficulty:
(1) providing Officer Thornton with his license and
registration; (2) exiting the vehicle and opening his doors;
(3) responding appropriately to Officer Thornton's
questions without slurred or incoherent speech; and (4)
walking to and from the location where the SFSTs were
conducted. Moreover, Mr. Hawk exhibited no stumbling or lack
of coordination throughout his interactions with Officer
Thornton, and did not require repeated instructions in order
to complete the SFSTs. Finally, Officer Thornton did not
observe Mr. Hawk commit any driving infractions.
Thornton and the Government considered Mr. Hawk's
mistaken entry onto Fort Meade to be a factor contributing to
probable cause. On cross-examination, then, Mr. Hawk sought
to determine the frequency with which individuals without
proper credentials mistakenly take the exit into VCP-2. are
directed into the rejection lane, and are either: (a)
subsequently arrested; or (b) permitted to exit Fort Meade.
Officer Thornton testified that, though the NSA tracks and
retains this data, it is classified. In response to this
Court's specific inquiry, the Government reiterated that
"the statistical data on the number of [VCP] rejections
... is classified and cannot be sufficiently sanitized to the
UNCLASSIFIED level in a way that would be helpful to the
court's deliberations." ECF 24.
without probable cause violates the Fourth Amendment."
Jolley v. Harvell, 254 Fed.Appx. 483. 486 (6th Cir.
2007) (citations omitted). Probable cause exists where the
facts and circumstances are "sufficient to warrant a
prudent man in believing that the [defendant] had committed
or was committing an offense." Beck v. Ohio.,
379 U.S. 89, 91 (1964). "While probable cause requires
more than 'bare suspicion,' it requires less than
that evidence necessary to convict." United Slates
v. Walker, 607 Fed.Appx. 247, 253 (4th Cir. 2015)
(citation and internal quotation marks omitted). Probable
cause is examined under "an objective standard of
probability that reasonable and prudent persons apply in
everyday life." Id. (citation and internal
quotation marks omitted). Thus, to determine the existence of
probable cause, courts "examine the facts within the
knowledge of arresting officers to determine whether they
provide a probability on which reasonable and prudent persons
would act; [courts] do not examine the subjective beliefs of
the arresting officers to determine whether they thought that
the facts constituted probable cause." Id.
(citation and internal quotation marks omitted). Importantly,
"suppression of evidence obtained during illegal police
conduct provides the usual remedy for Fourth Amendment
violations." United States v. Oscar-Torres, 507
F.3d 224. 227 (4th Cir. 2007) (citing Mapp v. Ohio,
367 U.S. 643, 655 (1961)).
all of the factual circumstances presented, this Court finds
that Officer Thornton lacked probable cause to arrest Mr.
Hawk on suspicion of driving under the influence of, or while
impaired by, alcohol. Accordingly, all evidence seized as a
result of that ...