United States v. Dawson , 305 F. App'x 149 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4529
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NAIM DAWSON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cr-00106-CCB)
Argued: October 31, 2008 Decided: December 31, 2008
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, P.S.C.,
Covington, Kentucky, for Appellant. Charles Joseph Peters, Sr.,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Naim Dawson entered a conditional guilty plea to a firearm
offense, preserving his right to appeal the district court’s
denial of his motion to suppress evidence. Dawson relies on
four constitutional bases for suppression: (1) that, during his
initial encounter with police officers, he was
unconstitutionally seized; (2) that there was no probable cause
for his subsequent warrantless arrest by those officers; (3)
that the officers conducted an unconstitutional warrantless
search of his residence and only then decided, based on evidence
found, to seek a search warrant; and (4) that the search warrant
ultimately secured by the officers was not supported by probable
cause and could not be relied on by the officers in good faith.
As explained below, we reject Dawson’s contentions and affirm.
I.
On March 9, 2006, the grand jury in the District of
Maryland indicted Dawson for possession with intent to
distribute fifty grams or more of crack cocaine, in
contravention of 21 U.S.C. § 841(a)(1) (the “drug offense”), and
for being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (the “firearm offense”). On October 26,
2006, Dawson filed his motion to suppress evidence, which he
thereafter supplemented three times. The district court heard
2
evidence on the suppression motion over the course of three days
in January 2007, and it denied the motion by oral ruling of
February 1, 2007. 1
A.
1.
During the evidentiary hearing on the suppression motion,
John Jendrek, a detective in the Baltimore City Police
Department detailed to the Drug Enforcement Administration
(“DEA”) Task Force, testified that, in January 2005, the DEA
Task Force was in the midst of an ongoing investigation of
several Baltimore stores, including the Ayrdale Variety Store,
suspected of selling drug paraphernalia. 2 At that time, Jendrek
knew that the owner of the Ayrdale Variety Store had previously
been convicted of a drug distribution offense, and Jendrek had
information — from confidential informants and from numerous
1
The district court followed its February 1, 2007 oral
ruling with a February 5, 2007 written order denying Dawson’s
suppression motion.
2
According to Detective Jendrek, he had been with the
Baltimore City Police Department for fifteen years — the last
eight detailed to the DEA Task Force. Jendrek had made more
than 500 drug-related arrests, prepared more than 200 search
warrants in drug investigations, and testified as an expert on
drug investigations some ten to twenty times in state and
federal courts. In more than twenty-five of Jendrek’s drug
investigations, only packaging paraphernalia (such as glass
vials or ziplock bags) was initially recovered; but in
approximately seventy-five percent of that subset of cases,
investigators subsequently recovered illegal drugs.
3
arrestees in other drug cases — about drug paraphernalia
(particularly glass vials) being sold at the store. Jendrek
explained that the illegal purpose for the glass vials is to
package powder and crack cocaine for street distribution, but
acknowledged that there are legal purposes for the vials, and
that the vials’ packaging reflects that they are for storing
perfume. Jendrek had never been in the Ayrdale Variety Store,
but he could see through the door that it also displayed tee
shirts, presumably for sale.
The investigation of the Ayrdale Variety Store included
periodic surveillance. Detective Jendrek testified that the
officers conducting the surveillance watched for customers who
stayed in the store for “a very short period of time” — “not
like they were looking around for different items” — and then
left with a black plastic bag about “the size of a football”
that appeared to have “substantial weight.” See J.A. 18-20. 3
Such bags had been shown to contain approximately 500 glass
vials each, typically packaged in small cardboard boxes, fifty
to a box. Indeed, by January 18, 2005, the officers had stopped
Ayrdale Variety Store customers fitting the targeted description
3
Citations herein to “J.A. ” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
4
on more than ten occasions, and such customers “always had . . .
glass vials.” Id. at 22.
On January 18, 2005, a Tuesday, Detective Peter Sullivan
was conducting surveillance on the Ayrdale Variety Store, and
Detective Jendrek was in his car about a block away. At
approximately 12:30 p.m., Sullivan informed Jendrek by radio
that he had observed a man — later identified as defendant
Dawson, but unknown to the officers at that time — enter and
soon thereafter leave the store with a black plastic bag about
the size of a football. It was then decided to follow Dawson
(who drove off in a Dodge Intrepid with Maryland tags) in the
hope that, as in prior cases with other suspects, he would drive
to his “stash house” and police could develop probable cause to
enter such premises.
Dawson was followed by three officers — Detectives Jendrek,
Sullivan, and Keith Gladstone — driving three separate unmarked
vehicles. Dawson drove through the Ayrdale Variety Store
neighborhood (a residential and small business area in
northwestern Baltimore), then headed north on Liberty Heights
Avenue/Liberty Road (the main north-south corridor through the
area), into Baltimore County and toward Interstate 695 (the
Baltimore Beltway). Just south of Interstate 695, Dawson drove
into another residential neighborhood and then pulled to the
5
side of the road. Dawson stopped for about five minutes,
without leaving his car. Jendrek testified that
this is a technique that, with my experience, drug
dealers or drug traffickers often pull to the side of
the road to see if anybody is following them, or they
will see if the same car may drive past them two or
three times, to find out whether someone is trying to,
you know, see what they are doing, follow their
activities or what have you.
J.A. 31-32.
When Dawson resumed driving, he travelled back through the
residential neighborhood to Liberty Road, and then headed south
on Liberty back to the city. At a red light at Callaway Avenue
(near the Ayrdale Variety Store), Dawson was stopped next to
Detective Sullivan, who, according to Detective Jendrek,
thought that Mr. Dawson looked at him and kind of
shook his head, like acknowledged that [Dawson] knew
[Sullivan] was there. Whether [Dawson] knew
[Sullivan] or knew he was a police officer, I don’t
know, but Detective Sullivan felt that our
investigation had been compromised. He thought Mr.
Dawson knew that we were following him.
J.A. 32-33. Sullivan similarly testified that
Mr. Dawson looked over at me, stared at me for maybe
15, 20 seconds. Then when I looked at him, he kind of
smiled and nodded at me, and I took that as if, in my
opinion and expertise, I took that as if he believed
that he had recognized me and figured that I was
following him.
. . . .
I told Detective Jendrek and Gladstone that I believed
that I had been burnt, which is a term that we use for
being noticed as part of the surveillance, and told
him that I was going to back off.
6
Id. at 95-96.
Next, Dawson drove across town to the east side of
Baltimore, ordered food at a Wendy’s drive-through, and then
parked in the Wendy’s parking lot and ate the food. At that
point, DEA Special Agent Bernard Malone joined the surveillance
team. Dawson thereafter drove to a spot across from the main
entrance to Johns Hopkins Hospital, parking on McElderry Street
at its intersection with Wolfe Street. By this time, it was
between 1:30 and 2:00 p.m., and the officers had been following
Dawson for about an hour. According to Detective Jendrek,
McElderry is a public street, and there was a lot of vehicle and
foot traffic in the area. Jendrek drove past Dawson, who was
getting out of his car. The officers then decided to approach
Dawson. Jendrek parked his vehicle on McElderry three spaces
away from Dawson’s vehicle. Jendrek and Malone — both in
plainclothes with firearms concealed (and Jendrek with a visible
detective badge on a chain around his neck) — approached Dawson
at about the same time. Detectives Sullivan and Gladstone were
also in the area, but out of Dawson’s sight.
Detective Jendrek and Special Agent Malone met Dawson at
the corner of McElderry and Wolfe, across the street from the
hospital entrance. According to Jendrek,
I said to Mr. Dawson, I said can I speak to you? Sir,
excuse me, can I talk to you for a minute? He said
7
yeah, what’s going on. I explained to him that I was
a police officer and that I was conducting a narcotics
investigation and that I thought he might be involved
in narcotics trafficking.
. . . .
He said I don’t have anything to do with drugs. I
don’t know what his exact words were, but he said he
had no involvement with drugs or narcotics.
. . . .
At that time I said, sir, can I have consent to search
your person and your vehicle for narcotics, and he
said yeah, go ahead.
J.A. 38. “[E]ither just prior [to] or just after asking” Dawson
for consent to search, Malone asked Dawson “for his ID or his
driver’s license.” Id. at 40-41. Dawson handed the officers
his driver’s license, which the officers held for “[m]aybe 30
seconds” prior to Dawson’s giving of consent to the search. Id.
at 41. Jendrek described the initial encounter with Dawson as
“very polite.” Id. at 39 (“Mr. Dawson was very, very polite.
We were very polite. It was not a hostile situation in any
way.”). Neither Jendrek nor Malone raised his voice, physically
touched Dawson, or blocked or attempted to block Dawson from
leaving. The conversation between Dawson and the officers, up
to the point when Dawson gave consent to search, lasted
approximately one to two minutes. During that time, Jendrek
8
testified, Dawson did not ask to leave or for the return of his
driver’s license. 4
Detective Gladstone subsequently joined the group at the
corner of McElderry and Wolfe Streets. Detective Jendrek
informed Gladstone that Dawson had consented to a search of his
car, and Gladstone then searched the vehicle. The officers
recovered the black plastic bag, five boxes of glass vials
(apparently containing fifty vials each), and five packages of
vial stoppers/tops.
Thereafter, Detective Jendrek read Dawson his Miranda
warnings and asked him why he had the glass vials. Dawson
responded that the vials were for oils, which Jendrek understood
to mean perfumes. 5 Jendrek and Special Agent Malone called for a
criminal background check on Dawson, using his driver’s license
(which bore a Gwynn Oak, Maryland address), and learned that
Dawson had been convicted in Maryland of two felonies involving
controlled substances. Dawson was then arrested for possession
4
Special Agent Malone corroborated details of Detective
Jendrek’s testimony about the initial encounter with Dawson.
See J.A. 105-07. Dawson chose not to testify at the hearing.
5
According to a later-drafted affidavit in support of the
search warrant for Dawson’s residence, when Dawson was “asked
where the oils were located for the vials[,] he said he didn’t
have any yet.” J.A. 349.
9
of drug paraphernalia in violation of Maryland law and placed in
handcuffs.
At some point after the search, around the time of the
arrest, Detective Sullivan and Special Agent Paul Neikirk
arrived at the scene. Sullivan conducted the search of Dawson’s
person, which led to the discovery of a receipt in Dawson’s
wallet with a Baltimore address of 3107 Cresson Avenue,
Apartment H. Dawson denied living at that address (a townhouse)
or having any contact with it. The officers then drove to the
Cresson Avenue townhouse with Dawson, arriving between
approximately 2:30 and 3:00 p.m.
2.
The ensuing events are the subject of some dispute between
the officers and witnesses for Dawson, including his wife,
Monique Dawson, who was working at Johns Hopkins Hospital at the
time of Dawson’s January 2007 arrest, and Monique’s niece,
LaToya Cooper, who was residing at that time in the Cresson
Avenue townhouse with Dawson, Monique, and their toddler
daughter Indigo. It is undisputed, however, that LaToya, then
sixteen years old, was alone in the townhouse when the officers
arrived there, and that she answered the front door when
Detective Jendrek and others knocked on it. Meanwhile, Dawson
remained in a vehicle in the driveway with another officer.
10
a.
According to Detective Jendrek, the officers at the front
door identified themselves to LaToya, told her they were
conducting an investigation, and asked her if they could enter
the townhouse and question her. LaToya permitted the officers
inside the residence and agreed to answer their questions.
During the questioning, LaToya confirmed that Dawson resided in
the townhouse, said that he had left the townhouse that morning,
and gave a description of his car that matched the vehicle
followed that day by the officers. 6 Jendrek testified that the
officers, who had taken keys from Dawson, then “tried his keys
in the door. Once the keys operated the lock, we secured the
location to get a search warrant.” J.A. 222. When asked by the
prosecutor at the hearing if he made “the decision at that point
in time to get the search warrant,” Jendrek responded, “Yes,
sir.” Id.In describing how a residence is “secured,” Detective
Jendrek explained that “basically you make sure no one else is
home, and anyone who is in that residence is brought down to a
common area . . . and . . . detained there [so that she] can’t
move around and damage any evidence” before a search warrant is
6
Monique Dawson subsequently corroborated that Dawson
resided in the townhouse and had left there that morning before
8:30, when he drove Monique to work at Johns Hopkins Hospital.
11
obtained. J.A. 224. In this case, Jendrek and Detective
Gladstone directed LaToya to accompany them through the
townhouse for a protective sweep. While looking upstairs for
anyone else in the residence, Jendrek testified, he found a
firearm in plain view on a shelf in the closet of the master
bedroom at the front of the townhouse. The firearm was left in
place, and the trio returned downstairs. At various points,
Detective Sullivan and Special Agent Malone were also in the
residence. Jendrek and Sullivan began preparing a warrant
application on their laptop computer in the dining room (between
the living room and the kitchen), and LaToya was left in the
living room with Malone. A decision was eventually made for
LaToya to call her aunt Monique at work from the house phone;
first LaToya, then Gladstone, spoke to Monique. Jendrek’s
impression of the conversation was that Monique did not want to
come home, but that “Detective Gladstone made it clear that this
was an important matter and she needed to come home, back to the
location.” J.A. 230. According to Jendrek, although there was
no legal requirement for Monique to be present in the residence,
the officers were concerned about being alone there with LaToya,
in light of the fact that she was a juvenile.
Monique arrived home approximately thirty to forty-five
minutes after the phone call. By that point, three more
officers, including Special Agent Christopher Quaglino, had come
12
to the townhouse. Quaglino, with Special Agent Malone as a
witness, spoke to Monique first. Detective Jendrek overheard
Quaglino identify himself to Monique, give her Miranda warnings,
advise her that she was not under arrest, and ask for her
consent to search the residence. According to Jendrek, Monique
responded that “she would [give consent], she didn’t have
anything to hide.” J.A. 232. Jendrek further testified,
however, that he “actually had no intention of using the consent
to search.” Id. Jendrek explained that he “believed that Mr.
Dawson lived at that location, and he wasn’t going to give
consent,” and that Monique was asked for consent simply as a
means “to find out if she knew anything about any contraband
that might be in the house.” Id.Thereafter, Detectives Jendrek and Sullivan continued
working on the search warrant application on their laptop
computer at the dining room table. At some point, Jendrek
realized that Monique was on the telephone telling someone that
the police were in her house. Jendrek asked her to hang up the
phone, but Monique either ignored or did not hear him, so
Jendrek pulled the phone from the wall “[a]s a matter of officer
safety.” J.A. 234. Around 5:30 p.m., once the warrant
application was complete, it was printed on the residence’s
printer and paper. Sullivan drove the application to a state
court judge for Baltimore County, and Jendrek left the townhouse
13
to attend to a family matter. Special Agent Quaglino, again
with Special Agent Malone as a witness, remained at the premises
and took a written statement from Monique. The statement
reflected that it was signed at 6:23 p.m.
Shortly thereafter, at 6:30 p.m., the state court judge
approved the search warrant. The warrant application spelled
out the expertise of Detective Sullivan, who presented the
application to the court. 7 The application also included a five-
page affidavit detailing the events of earlier that day,
including the following: the surveillance conducted on the
Ayrdale Variety Store and Dawson; Dawson’s suspicious driving
pattern; the initial encounter between Dawson and the officers;
the search of Dawson’s vehicle; Dawson’s arrest and the search
of his person; the discovery of the receipt bearing the Cresson
Avenue address; Dawson’s denial of any connection to the
7
According to the warrant application, Detective Sullivan
had been with the Baltimore City Police Department for nearly
twenty years and was currently assigned to the Narcotics Section
of the Organized Crime Division. Sullivan had participated in
more than 1000 drug-related arrests, learned about drug
distribution methods during debriefings of arrestees, and
“recovered substantial quantities of cocaine, cocaine base,
heroin, marijuana, and various paraphernalia for the
distribution, packaging, and manufacturing of controlled
dangerous substances.” J.A. 345. Sullivan had also assisted in
the preparation of more than fifty search warrants in drug
investigations, and had participated in the execution of more
than 150 such warrants. Furthermore, he had been qualified as
an expert on drug investigations in state and federal courts.
14
townhouse; the officers’ visit to the townhouse and encounters
with LaToya and later Monique, who both confirmed that Dawson
resided there; the fact that Dawson’s key fit the townhouse
door; and Dawson’s criminal record. According to the affidavit,
once the officers confirmed with LaToya that Dawson resided in
the townhouse and that his key fit the front door,
[a]t this point your Affiant believed, based on Naim
Dawson’s denial of living at 3107 Cresson Avenue and
the recovery of the packaging material [i.e., the
glass vials], Naim Dawson was utilizing 3107 Cresson
Avenue as a stash house to store CDS [controlled
dangerous substances] for his CDS enterprise. Your
Affiant then secured the location so a search and
seizure warrant could be prepared.
J.A. 350. Furthermore, the affidavit asserted that “[i]t has
been the experience of your Affiant that CDS distributors
transport this CDS paraphernalia . . . from Ayrdale Variety
Store to locations (stash houses) where they package large
quantities of CDS for street level sale.” Id. at 347.
After the officers obtained the search warrant, a search of
the townhouse was conducted. During that search, Special Agent
Malone retrieved the firearm from the master bedroom closet and
brought it downstairs. Notably, Malone corroborated Detective
Jendrek’s testimony that the firearm was within plain sight upon
opening the closet door. The record reflects that a residue-
covered mirror was also recovered from the master bedroom
(though it is not clear whether it was first observed during the
15
initial protective sweep of the premises), and that a quantity
of crack cocaine was found in the townhouse during the warranted
search.
b.
By their hearing testimony, LaToya and Monique indicated
that the officers had engaged in a pre-warrant search of the
townhouse that exceeded the permissible scope of a protective
sweep. Monique testified that, after arriving at the townhouse
and finding LaToya dressed only in boxer shorts and a tee shirt,
she had been permitted to take LaToya upstairs, accompanied by
an officer, to retrieve more clothes from the back bedroom.
While upstairs, Monique looked into the master bedroom and saw —
in contrast to the neat state of the bedroom when she left the
townhouse that morning — that there were “clothes, shoe boxes,
shoes strewn all over the floor in front of my husband’s closet.
There was actually a mirror at the foot of my bed with a gun
sitting on top of it.” J.A. 127. LaToya also testified that
the officers had disturbed the master bedroom, leaving the
closet door open, throwing clothes on the floor, and leaving
items on the bed.
LaToya and Monique also contradicted the officers’ version
of events in other ways. For example, LaToya testified that she
heard keys jingling in the lock of the front door before the
officers knocked on it, and that the officers entered the
16
premises without requesting her permission or explaining why
they were there. Monique asserted that the officers falsely
informed her, or at least suggested, that they had a warrant to
search the townhouse before they had actually obtained one.
Monique also testified that she gave consent to search the
premises only because she was led to believe the officers
already possessed a search warrant.
Finally, LaToya and Monique testified that the officers
engaged in abusive behavior toward them by, for instance, using
vulgar language and threats of arrest during the phone call to
Monique at work. According to Monique, when she arrived home,
she found LaToya (who suffers from asthma) visibly upset and
hyperventilating, as well as underdressed. Monique described
later making two calls from the house phone to arrange care for
her toddler daughter, Indigo. During the first call, one of the
officers typing on the laptop computer in the dining room —
presumably Detective Jendrek or Sullivan — told Monique to “shut
the f*** up,” because he could not concentrate. J.A. 164. And,
during the second call, one of the officers “actually ripped
[the phone] from the wall because [Monique] was on the phone
crying.” Id.B.
As set forth above, Dawson’s suppression motion rests on
four constitutional grounds. First, Dawson contends the
17
officers’ conduct during their initial encounter with him
amounted to an unconstitutional seizure invalidating his
purported consent to search his car. Second, Dawson asserts
that, though the officers found glass vials in the vehicle, they
did not possess probable cause to arrest him. Third, Dawson
maintains that the officers exceeded the scope of a legitimate
protective sweep of his residence and only then decided, based
on evidence (particularly the firearm) found during the illegal
pre-warrant search, to seek a search warrant. And fourth,
Dawson asserts that the search warrant was not supported by
probable cause and could not be relied on by the officers in
good faith, in that the warrant application failed to
demonstrate a nexus between his residence and any alleged drug
activity.
By its oral ruling of February 1, 2007, the district court
rejected each of Dawson’s grounds for suppression, concluding
(1) that the officers had not seized Dawson for Fourth Amendment
purposes before seeking his consent to search his car; (2) that
the officers possessed probable cause, in the totality of the
circumstances, to arrest Dawson for possession of drug
paraphernalia in contravention of Maryland law; (3) that, even
if the pre-warrant search of the townhouse exceeded the
legitimate scope of a protective sweep, the officers did not
rely on the firearm or any other evidence found during such
18
search in seeking the search warrant, thus satisfying the
independent source doctrine; and (4) that the search warrant was
supported by probable cause, and, even if it was not, the good
faith exception would apply. In the circumstances, the court
declined to unnecessarily resolve disputed issues about whether
the protective sweep was proper, whether LaToya or Monique gave
valid consent to search the townhouse, and whether LaToya and
Monique accurately described their encounter with the officers.
Following the court’s ruling, the parties entered a written
plea agreement in which Dawson agreed to plead guilty to the
firearm offense, while preserving his right to appeal the denial
of his suppression motion, and the government agreed to dismiss
the drug offense. The district court accepted the plea and, by
its judgment of May 23, 2007, deemed Dawson to be guilty of the
firearm offense, dismissed the drug offense on the government’s
motion, and sentenced Dawson to 210 months of imprisonment.
Dawson then timely noted this appeal.
II.
In an appeal, such as this one, of a district court’s
ruling on a motion to suppress evidence, we review the court’s
legal conclusions de novo and its underlying factual findings
for clear error. See United States v. Blatstein, 482 F.3d 725,
730 (4th Cir. 2007). We assess each of the four aspects of the
19
district court’s ruling — relating to Dawson’s initial encounter
with the officers, his arrest, the pre-warrant search of his
residence, and the subsequent warranted search thereof — in
turn.
A.
First, the district court ruled that the officers had not
seized Dawson for Fourth Amendment purposes before seeking his
consent to search his car, i.e., that the initial encounter
between the officers and Dawson was consensual. In so ruling,
the court largely relied on our decision in United States v.
Weaver, 282 F.3d 302 (4th Cir. 2002). There, we recognized
that,
[g]enerally speaking, a “seizure” warranting
protection of the Fourth Amendment occurs when, in
view of the totality of the circumstances surrounding
the “stop,” a reasonable person would not feel free to
leave or otherwise terminate the encounter. Because
the test is an objective one, its proper application
is a question of law. Circumstances where the citizen
would feel free to go, but stays and has a dialogue
with the officer, are considered consensual, and
therefore do not implicate the Fourth Amendment.
While most citizens will respond to a police request,
the fact that people do so, and do so without being
told they are free not to respond, hardly eliminates
the consensual nature of the response. In applying
the totality of the circumstances test, courts look to
numerous factors including the time, place and purpose
of the encounter, the words used by the officer, the
officer’s tone of voice and general demeanor, the
officer’s statements to others present during the
encounter, the threatening presence of several
officers, the potential display of a weapon by an
officer, and the physical touching by the police of
the citizen.
20
Id. at 309-10 (internal citations and quotation marks omitted).
We further observed that “numerous courts have noted that the
retention of a citizen’s identification or other personal
property or effects is highly material under the totality of the
circumstances analysis.” Id. at 310. We refused, however, to
deem the retention of identification, such as a driver’s
license, to be dispositive. Id.; see also United States v.
Analla, 975 F.2d 119, 124 (4th Cir. 1992) (observing that there
was no seizure where Analla voluntarily provided driver’s
license and car registration to officer, and officer
“necessarily had to keep [the] license and registration for a
short time in order to check” them, because “Analla was free . .
. to request that his license and registration be returned and
to leave the scene”).
Engaging in the totality of the circumstances assessment
here, the district court made the following findings of fact:
● The encounter occurred in “the middle of the
day,” at “a busy public area across from the
Johns Hopkins Hospital,” J.A. 325;
● The officers, Detective Jendrek and Special Agent
Malone, “simply parked” their separate vehicles
without blocking Dawson’s car, id.;
● The officers “walked up to Mr. Dawson and
identified themselves,” without displaying their
firearms or using force of any kind, id. at 325-
26;
21
● After Jendrek explained to Dawson that the
officers were investigating drug activities and
suspected Dawson was involved, and asked Dawson
for his identification and consent to search,
Dawson provided his driver’s license and gave
consent to search, see id. at 326;
● The encounter evidently “took [no] more than a
minute or two,” there were “no handcuffs, no
raised voices, no force,” and, although Dawson’s
“license was taken, it was taken only briefly,”
id.; and
● Dawson “has at least a high school education
[and] some familiarity with the criminal justice
system,” id.
In these circumstances, the court concluded, “this was a
consensual encounter between Mr. Dawson and the officers.” Id.
The court explained that
[t]here are a number of factors that are to be
considered, which I think I have addressed generally,
the time, the place, the purpose, the words, the tone
of voice and general demeanor. All of these were
neutral or innocuous.
There were several officers present, but no
display of a weapon, no physical touching.
So I think under the totality of the factors in
Weaver, this clearly was consensual and not a basis to
suppress any evidence.
Id. at 327-28. 8
8
In addition to deeming the initial encounter to be
consensual, the district court found that Dawson’s consent to
search was valid. The court explained that “Mr. Dawson is of
reasonable age and intelligence, and not threatened. There is
no evidence that he was intoxicated or anything of that kind.”
J.A. 328-29. Dawson does not challenge this aspect of the
district court’s ruling on appeal. In his reply brief, however,
(Continued)
22
In our assessment, the court committed no error in ruling
that the initial encounter between Dawson and the officers was
consensual. With respect to the taking of Dawson’s driver’s
license, we emphasize the court’s finding that, like the license
and registration in Analla, “it was taken only briefly.” J.A.
326.
B.
1.
Next, the district court ruled that the officers possessed
probable cause to arrest Dawson for possession of drug
paraphernalia in contravention of Maryland law. On this issue,
the court recognized that “[t]he probable cause standard” is “an
objective standard” that requires “more than bare suspicion, but
less than evidence necessary to convict.” J.A. 330. Indeed, we
have observed that
[p]robable cause to justify an arrest arises when
“facts and circumstances within the officer’s
knowledge . . . are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in
the circumstances shown, that the suspect has
committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37
(1979). Probable cause requires more than “bare
suspicion” but requires less than evidence necessary
Dawson mentions that, “[a]lthough not directly relevant for this
appeal, Mr. Dawson stands by his claim that he did not give
consent for the search or did not knowingly consent to the
search.” Reply Br. of Appellant 7 n.2.
23
to convict. United States v. Gray, 137 F.3d 765, 769
(4th Cir. 1998). “It is an objective standard of
probability that reasonable and prudent persons apply
in everyday life.” Id. And when it is considered in
the light of all the surrounding circumstances, even
“seemingly innocent activity” may provide a basis for
finding probable cause.” Taylor [v. Waters, 81 F.3d
429, 434 (4th Cir. 1996)].
Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998) (some
internal citations omitted) (alteration in original).
In assessing whether there was probable cause to arrest
Dawson for a Maryland drug paraphernalia offense, the district
court identified the relevant state statute as Maryland Code
Annotated, Criminal Law section 5-619, which, under subsection
(c), prohibits possession with intent to use drug paraphernalia
and deems such conduct to be a misdemeanor. Subsection (a) of
the statute lists thirteen factors for a court to consider in
determining whether an object constitutes drug paraphernalia.
Such factors include “any statement by an owner or a person in
control of the object concerning its use,” subsection (a)(1);
“any prior conviction of an owner or a person in control of the
object under a State or federal law relating to a controlled
dangerous substance,” subsection (a)(2); and “expert testimony
concerning use of the object,” subsection (a)(13). Subsection
(a) also authorizes consideration of “other logically relevant
factors.”
24
The district court made the following relevant findings of
fact with respect to Dawson’s arrest:
● The officers were conducting surveillance on the
Ayrdale Variety Store and knew from experience
that bags being carried from there of a certain
shape and weight, “loosely described as a
football size,” likely contained multiple boxes
of glass vials, J.A. 324;
● On January 18, 2005, a man later identified as
Dawson was seen “enter[ing] the store, leav[ing]
with a bag of this indicated size and shape, and
depart[ing] in a Dodge Intrepid,” which the
officers followed in separate cars, id. at 324-
25;
● Dawson’s route, various stops, and encounter with
Detective Sullivan “led the officers reasonably
to interpret that [Dawson] had been driving in a
manner to detect surveillance and, in fact, had
detected surveillance, this being behavior that
the officers in their experience believed is not
unusual for people involved in narcotics
dealing,” id. at 325;
● The subsequent consented-to search of Dawson’s
car yielded a bag containing “250 vials and
tops,” id. at 326-27;
● Such “[v]ials certainly have been recognized as
falling in [the section 5-619] definition of
paraphernalia,” id. at 329;
● After being read his Miranda rights, Dawson told
the officers that he had the vials for oils, but
“[w]hen he was asked where the oils were, he
responded to the effect of not having any,” id.
at 327; and
● The officers then ran a criminal record check of
Dawson and discovered “that he had two prior
[state] felony convictions involving controlled
dangerous substances, . . . which the officers .
. . reasonably interpreted under state law as
meaning sufficiently serious to be possession
25
with intent to distribute offenses, as indeed
they were,” id.
More specifically, the district court considered, pursuant
to subsection (a)(1) of section 5-619, Dawson’s statement to the
officers that his vials were “for oils, although he didn’t have
any [oils] with him.” J.A. 329. The court also considered, as
subsection (a)(13) expert testimony, or at least as an “other
logically relevant factor[],” the officers’ testimony about
their experiences with the Ayrdale Variety Store and their
reasons for perceiving Dawson’s behavior to be indicative of
drug trafficking. See id. at 329-30. And, the court
considered, under subsection (a)(2), Dawson’s two prior state
felony convictions on drug offenses, which the court deemed to
be “very significant.” Id. at 330. The court explained that
such convictions “are specifically mentioned as a factor [in the
section 5-619(a) analysis] and also obviously make sense in
terms of trying to figure out what the intent might be of a
particular individual with these empty vials.” Id. After
analyzing all of these factors together, the court ruled that
“the officers had probable cause to make the arrest.” Id. That
is, “considering the totality of the circumstances, a reasonable
officer had probable cause to believe . . . that Mr. Dawson
possessed these vials with the intent to use them to store,
26
contain, or conceal [controlled dangerous substances].” Id. at
331. 9
2.
We conclude that the district court made no error in its
ruling, notwithstanding Dawson’s contentions to the contrary.
In asserting that his arrest was not supported by probable
cause, Dawson emphasizes the following: the officers merely
“targeted [him] because of the look of the bag he carried out of
the store,” with “absolutely no way of knowing what [he]
purchased”; although the officers “claimed that [he] drove in an
evasive manner in order to determine whether he was being
followed[,] . . . nothing about his driving violated the law or
suggested that [he] might be committing any type of crime”; he
eventually parked near Johns Hopkins Hospital where his wife
worked, not “in a high-crime area or . . . somewhere [else] to
engage in illegal activity”; “he was ‘very polite’ and
cooperated completely with the officers,” and “did not act
nervously or suspiciously”; and, after the glass vials were
9
The court also observed that, although Dawson’s alleged
offense “was a misdemeanor, . . . it was committed in [the
officers’] presence.” J.A. 330; see also United States v.
McNeill, 484 F.3d 301, 311 (4th Cir. 2007) (declining to
determine “whether the Fourth Amendment contains an ‘in the
presence’ requirement for warrantless misdemeanor arrests
[where] the officer who arrested McNeill had probable cause to
believe, based on the evidence he witnessed, that McNeill did
commit [a] Maryland misdemeanor offense”).
27
found in his car, he told the officers, without hesitation, that
he planned to use the vials to store oils, which “is exactly
what the vials are for, as shown [on their] packaging.” Br. of
Appellant 24-25. According to Dawson, at the time his arrest,
“the officers knew only that [he] (1) had a criminal history as
to drug sales, and (2) had in his possession vials that could be
used for drug sales but also had a purely legal purpose.” Id.
at 31. These factors were insufficient, Dawson maintains, to
establish probable cause for his arrest. Dawson further
contends that his driving was an inappropriate factor in the
probable cause determination, because he “was not evasive,”
“[h]e did not speed or otherwise violate any law or traffic
ordinance,” and he drove “in a normal, unhurried manner.” Id.
at 31 n.3 (internal quotation marks omitted).
Simply put, Dawson’s version of the facts ignores key
findings by the district court — findings well-grounded in the
record — and otherwise focuses on irrelevancies. For example,
as the district court found, the officers had experience-based
reasons to believe that Dawson had purchased glass vials from
the Ayrdale Variety Store. Moreover, Dawson’s absence from a
high-crime area, and his politeness and cooperation with the
officers, did not somehow negate his other suspicious behavior.
And, the officers were not required to take Dawson at his word
that he planned to use the vials for oils, especially in light
28
of his prior state felony drug convictions. We therefore agree
with the district court that the totality of the circumstances —
including the officers’ experiences investigating the Ayrdale
Variety Store, Dawson’s apparent efforts to detect surveillance,
his lack of a credible explanation for possessing the glass
vials, and his criminal record — gave rise to probable cause for
Dawson’s arrest. See United States v. Humphries, 372 F.3d 653,
657 (4th Cir. 2004) (recognizing that, in assessing totality of
circumstances surrounding warrantless arrest, it is appropriate
to consider, inter alia, “an officer’s practical experience and
the inferences the officer may draw from that experience”).
In so concluding, we explicitly reject Dawson’s contention
that it was inappropriate to weigh the manner of his driving
toward the probable cause determination. For such contention,
Dawson relies on our decision in United States v. Sprinkle, 106
F.3d 613 (4th Cir. 1997). There, we recognized that “[e]vasive
conduct can, of course, assist an officer in forming reasonable
suspicion” for an investigative stop. Sprinkle, 106 F.3d at
618. A Sprinkle defendant drove off “right after the officers
walked by,” but also “right after his passenger [the second
defendant] got in the car” and “in a normal, unhurried manner.”
Id. The district court determined “that there wasn’t any
evasive conduct. They did drive off, but they didn’t try to run
away or flee or anything before the initial stop.” Id. at 618
29
n.2 (internal quotation marks and alterations omitted). We then
concluded that “driving away in a normal, unhurried fashion [did
not] lend itself to a finding of reasonable suspicion here.
[The] passenger had just gotten into the car, so a prompt
departure could be expected.” Id. at 618. Clearly, Sprinkle
was concerned with evasive driving as a means to flee police,
rendering it inapposite to this matter. Here, officers surmised
that Dawson was driving in order to detect surveillance (and not
to flee). Thus, it makes sense that Dawson obeyed traffic laws;
the point is that he was trying to ascertain if he was being
followed by police, without giving the officers any reason to
stop him. Accordingly, Dawson’s manner of driving was an
entirely permissible factor in the probable cause analysis. 10
10
Dawson further asserts that, “in the vast majority of
state cases involving defendants convicted of violating
paraphernalia laws for possessing vials or similar containers,
the container contains or is otherwise close to drugs.” Br. of
Appellant 27. According to Dawson, “in a case like this one,
where no indication of drugs are found near the vials, the
presumption seems to shift to that of a legal use and away from
showing any probable cause.” Id. at 28 (emphasis added).
Dawson does not, however, cite any authority recognizing or
applying such a presumption. Rather, he simply invokes
decisions deeming objects to constitute drug paraphernalia where
the objects contain drug residue or are found near drugs, and
then extrapolates from there that such evidence is essential, or
nearly so, to a finding of probable cause. As such, we are not
persuaded by Dawson’s “presumption” argument.
30
C.
The district court next ruled that, even if the pre-warrant
search of Dawson’s residence (including the discovery of the
firearm) exceeded the legitimate scope of a protective sweep,
the independent source doctrine was satisfied. In Murray v.
United States, the Supreme Court recognized that “a later,
lawful seizure is genuinely independent of an earlier, tainted
one” — and the independent source doctrine applies — unless
“the agents’ decision to seek the warrant was prompted by what
they had seen during the initial entry, or if information
obtained during that entry was presented to the Magistrate and
affected his decision to issue the warrant.” 487 U.S. 533, 542
(1988) (footnote omitted).
Here, according to the district court, “[t]he overall
circumstances suggest that there is really no evidence that
anything other than the gun and possibly [the] mirror . . . had
been found before the search warrant was authorized.” J.A. 335.
On the issue of whether the officers’ decision to seek the
search warrant was prompted by what they had found during the
pre-warrant search, i.e., the gun or the mirror, the court found
“that most likely the [officers] made their decision to seek the
warrant before the results of any illegal search and not because
of any illegal search.” Id. at 339. Indeed, the court observed
that the events occurring upon the officers’ arrival at the
31
townhouse — including LaToya’s statement that Dawson resided
there and left only that morning, and the officers’ use of
Dawson’s key to unlock the front door (all in contradiction to
Dawson’s denial of any connection to the premises) — led the
officers to “decide[] to secure the property and get a warrant,
believing that there would be narcotics, essentially evidence of
what the vials were going to be connected with, in that
residence.” Id. at 332-33; see also id. at 338 (finding “that
there was reason to secure the house, given that the officers
were investigating and had . . . spoken with [LaToya], and
that’s what finally led to the determination that they had
probable cause and should get a warrant”). The court concluded
that,
[c]learly, Detective Jendrek and the others believed
that there were drugs in the house. They testified to
the combination of circumstances that led them to
decide to get the warrant. There is no evidence that
they had in fact found the narcotics that they
believed to be in the house before they started
preparing the warrant.
Id. at 339-40. Moreover, on the question of whether information
obtained during the pre-warrant search was presented to the
state court judge, the district court found that “[t]here was
none. That’s clear.” Id. at 339. Accordingly, the court ruled
“that the independent source rule was satisfied in this case.”
Id. at 340. We agree.
32
D.
Finally, the district court ruled that the search warrant
was supported by probable cause, and, even if it was not, the
good faith exception would apply. As we have recognized,
[w]hen issuing a warrant and making a probable cause
determination, judges are to use a “totality of the
circumstances analysis.” Illinois v. Gates, 462 U.S.
213, 238 (1983). This standard “is not defined by
bright lines and rigid boundaries. Instead, the
standard allows a magistrate judge to review the facts
and circumstances as a whole and make a common sense
determination of whether ‘there is a fair probability
that contraband or evidence of a crime will be found
in a particular place.’” United States v. (David
Wayne) Williams, 974 F.2d 480, 481 (4th Cir. 1992)
(quoting Gates, 462 U.S. at 238). The magistrate
judge’s decision in this regard is one we review with
great deference. Id.United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005).
Moreover, the Supreme Court has instructed that “a court should
not suppress the fruits of a search conducted under the
authority of a warrant, even a ‘subsequently invalidated’
warrant, unless ‘a reasonably well trained officer would have
known that the search was illegal despite the magistrate’s
authorization.’” United States v. Bynum, 293 F.3d 192, 195 (4th
Cir. 2002) (quoting United States v. Leon, 468 U.S. 897, 922
n.23 (1984)). “[U]nder Leon’s good faith exception, evidence
obtained pursuant to a search warrant issued by a neutral
magistrate does not need to be excluded if the officer’s
reliance on the warrant was ‘objectively reasonable.’” United
33
States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004) (quoting
Leon, 468 U.S. at 922).
Dawson asserts that the search warrant for his residence
was not supported by probable cause and could not be relied on
by the officers in good faith, in that the warrant application
failed to demonstrate a nexus between the townhouse and any
alleged drug activity. The district court disagreed, observing
that
[t]he evidence that is contained in the affidavit
[supporting the warrant application] recites not only
the finding of the vials, the evasive driving, the two
prior convictions, the experience of the officers, and
the likely connection in their experience to vials to
a house where narcotics might be found, there is in
addition the receipt indicating a connection with
Cresson Avenue, Mr. Dawson’s denial of a connection to
that house, contradicted then by the resident of the
house, Miss [LaToya] Cooper, giving [Dawson] a very
recent connection to the house that morning, in the
same car in which the vials were found, I think making
it likely and reasonable for the officers to believe
that he was in fact concealing contraband in the
house.
J.A. 337-38. 11 In these circumstances, the court concluded, “the
affidavit provides . . . a sufficient reason . . . to think that
11
Notably, Detective Sullivan’s affidavit in support of
the warrant application reflects his belief that “Dawson was
utilizing 3107 Cresson Avenue as a stash house to store CDS for
his CDS enterprise,” and asserts that “[i]t has been the
experience of your Affiant that CDS distributors transport this
CDS paraphernalia . . . from Ayrdale Variety Store to locations
(stash houses) where they package large quantities of CDS for
street level sale.” J.A. 347, 350.
34
narcotics might be found at that particular location.” Id. at
337. Alternatively, the court ruled that “the good faith
exception under Leon would apply, even if there was not probable
cause.” Id. at 338.
In ruling that the search warrant was supported by probable
cause, the court relied on our decision in Grossman, wherein we
reiterated the principle that “it is reasonable to suspect that
a drug dealer stores drugs in a home to which he owns a key.”
400 F.3d at 218. Indeed,
[w]e have consistently determined that there was
probable cause to support . . . warrants to search
suspects’ residences and even temporary abodes on the
basis of (1) evidence of the suspects’ involvement in
drug trafficking combined with (2) the reasonable
suspicion (whether explicitly articulated by the
applying officer or implicitly arrived at by the
magistrate judge) that drug traffickers store drug-
related evidence in their homes.
United States v. (Darnell) Williams, F.3d , No. 08-4014,
2008 WL 5077821, at *7 (4th Cir. Dec. 3, 2008) (citing Grossman,
400 F.3d at 217-18; United States v. Servance, 394 F.3d 222, 230
(4th Cir.), vacated on other grounds, 544 U.S. 1047 (2005);
(David Wayne) Williams, 974 F.2d at 481-82; United States v.
Suarez, 906 F.2d 977, 984-85 (4th Cir. 1990)). Because the
district court similarly did not err in finding probable cause
for the warrant to search Dawson’s residence, we affirm the
probable cause aspect of its ruling without reaching the
alternative good faith aspect.
35
III.
Pursuant to the foregoing, we affirm the district court.
AFFIRMED
36