United States v. Johnson, Femi

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-2006
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
FEMI JOHNSON,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 103-2—Matthew F. Kennelly, Judge.
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ARGUED DECEMBER 2, 2002—DECIDED MARCH 24, 2003
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Before BAUER, POSNER, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Indicted for trafficking in heroin,
the defendant moved to suppress evidence consisting of
$5,950 in currency seized from his automobile on Febru-
ary 16, 2000. The serial numbers of the currency matched
those of currency used in a controlled buy of heroin earli-
er that day. The district judge granted the motion to sup-
press on the ground that there was no probable cause to
search Johnson’s car, and the government appeals.
A number of law enforcement officers had been engaged
in surveillance at the scene of a controlled buy of heroin
the previous month and had watched as the seller, Moham-
2 No. 02-2006
med, approached a red Toyota Corolla driven by a black
man; entered the car; left a few minutes later; walked over
to the car driven by the informant who was to make the
drug purchase; handed him the drugs and received in
exchange a bag full of money; and then, as the red Corolla
drove up beside him, leaned into the passenger-side
window of the car and then returned to his own car. The
officers hadn’t seen whether Mohammed had handed
anything to the driver of the Corolla—whose registered
owner, the officers learned shortly afterwards, was under
investigation by the British for trafficking in heroin.
At the controlled buy on February 16, also observed by
a number of officers, the same Corolla, again driven by a
black man (the same man, defendant Johnson), appeared
on the scene shortly after the informant had been told
by Mohammed that the heroin was on its way. The driver
was observed by the surveillance team to be reaching into
the right rear seat of the car as Mohammed approached.
Mohammed when he arrived at the car was seen reaching
into the same place but again was not seen removing
anything. He walked from the Corolla to the informant’s
car, gave him the heroin that the informant had agreed to
buy, and received in exchange the money later found in
the Corolla. After pocketing the money, Mohammed en-
tered an apartment complex adjacent to the scene of the
buy, and the driver of the Corolla entered it too. Shortly
afterwards both emerged, got into their respective cars,
and drove off. Officers followed the Corolla, and the driv-
er, perhaps suspecting he was being followed, began to
drive in an evasive manner. Uniformed police officers
stopped him and identified him as Femi Johnson. Rick,
a drug-detecting dog, was fetched, sniffed at the outside
of the car, “alerted,” was then led into the car, and “alerted”
at the glove compartment, where the money was found.
No. 02-2006 3
Johnson was not arrested, but was merely issued two traffic
tickets. The investigating agents didn’t want him to know
the full extent of their knowledge of his illegal activities.
He was not arrested till more than a year later.
In granting the motion to suppress, the district judge
acknowledged that on both occasions on which the red
Corolla was observed at the scene of a controlled buy, the
government had probable cause to believe that the driv-
er, which is to say Johnson, had participated in a sale of
an illegal drug and so had committed a crime. The evi-
dence was abundant quite apart from the dog alert, though
the judge was not entitled to disregard the alert on the
ground that the dog’s handler did not testify at the sup-
pression hearing although another officer, who observed
the dog alert from a distance, did. Dogs alert to drugs or,
in this case, currency containing traces of drugs. United
States v. $639,558 in U.S. Currency, 955 F.2d 712, 714 n. 2
(D.C. Cir. 1992). “Typically the dog is trained to signal a
find in one of two ways: the aggressive alert or the passive
alert. Either style requires a dog with strong search drives
that reacts reliably when he detects drugs. The dog trained
to alert aggressively tries to contact the scent source (bit-
ing, scratching, penetrating, attempting to retrieve), while
the dog that alerts passively does not try to contact the
scent source but instead performs trained behavior (sit-
ting, looking at the source, sniffing toward the source,
looking at the handler).” Sandy Bryson, Police Dog Tactics
257 (2d ed. 2000); see also Kenneth L. Pollack, “Stretching
the Terry Doctrine to the Search for Evidence of Crime:
Canine Sniffs, State Constitutions, and the Reasonable
Suspicion Standard,” 47 Vand. L. Rev. 803, 805 n. 11 (1994).
Rick is an aggressive alerter. The reason his handler did
not testify was that the motion to suppress offered no
clue that Johnson meant to contest the alert. Nor did
Johnson or his lawyer challenge the government’s account
4 No. 02-2006
of the alert at the hearing. In any event, Rick’s handler was
not the only officer capable of interpreting Rick’s behav-
ior as alerting to the presence of drugs or drug-infested
currency.
Having rejected Rick’s evidence, the judge granted the
motion to suppress because no officer had observed any-
thing being placed in the Corolla. The judge inferred from
this that there was no reason to believe that the car con-
tained contraband or evidence of crime. Actually there
was compelling reason to believe that the car contained
contraband, specifically the currency that Mohammed
had obtained in the illegal albeit government-sponsored
sale to the informant. The only plausible explanation for
Johnson’s presence at the buys and for Mohammed’s
entering Johnson’s car on the first occasion and reaching
into it on the second was that Johnson had transported
the drugs and, after the sale, the money received in ex-
change for them while Mohammed did the negotiating
and transacting with the buyers. This division of responsi-
bilities, standard in the drug trade, see U.S. Sentenc-
ing Commission, Report on Cocaine and Federal Sentencing
Policy, ch. 4, pt.E.2 (1995), http://www.ussc.gov/crack/
CHAP4.HTM/); Spencer v. United States, 688 A.2d 412, 414
(D.C. 1997), reduced the risk to Mohammed, because it
meant he was “clean,” while Johnson’s risk was reduced
by the fact that he stayed in his car—which by the way
had tinted windows that made it more difficult to iden-
tify him. His flight from the police and the dog alert were
just the icing on the cake. Neither Johnson, who testified
at the suppression hearing (the only defense witness), nor
the judge offered any innocent reason for Johnson’s pres-
ence at the controlled buys or for his minuets with Moham-
med.
REVERSED.
No. 02-2006 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-24-03