US v. Naim Dawson

Filing 920081231

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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, Judges.

Chief

Judge,

and

TRAXLER

and

KING,

Circuit

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. four constitutional bases for suppression: initial encounter with police Dawson relies on

(1) that, during his 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 Maryland distribute March 9, 2006, the grand for or jury in the with District intent cocaine, of to in

indicted fifty

Dawson grams

possession more of

crack

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. 2 The district court heard

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 to the in Drug the Baltimore City Police

Department

detailed

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 The district court followed its February 1, 2007 oral ruling with a February 5, 2007 written order denying Dawson's suppression motion. 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.
2 1

3

arrestees

in

other

drug

cases

--

about

drug

paraphernalia Jendrek

(particularly glass vials) being sold at the store.

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 periodic investigation surveillance. of the Ayrdale Variety Store included that the

Detective

Jendrek

testified

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." Such bags had been shown to contain See J.A. 18-20. 3 500 glass

approximately

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

Citations herein to "J.A. " refer to the contents of the Joint Appendix filed by the parties in this appeal.

3

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. by At radio

approximately

12:30

p.m.,

Sullivan

informed

Jendrek

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. neighborhood Dawson (a drove through and the Ayrdale Variety Store in

residential

small

business

area

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. getting out of his car. Dawson. away from Jendrek drove past Dawson, who was The officers then decided to approach

Jendrek parked his vehicle on McElderry three spaces 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. at 41. Id.

Jendrek described the initial encounter with Dawson as Id. at 39 ("Mr. Dawson was very, very polite. It was not a hostile situation in any

"very polite."

We were very polite. way.").

Neither Jendrek nor Malone raised his voice, physically

touched Dawson, or blocked or attempted to block Dawson from leaving. to the The conversation between Dawson and the officers, up 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 the black then searched bag, the five vehicle. boxes of The officers vials

recovered

plastic

glass

(apparently containing fifty vials each), and five packages of vial stoppers/tops. Thereafter, Detective Jendrek read Dawson his Miranda Dawson

warnings and asked him why he had the glass vials.

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

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. 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.
5

4

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) The officers then drove to the Dawson, arriving between

or having any contact with it. Cresson Avenue townhouse

with

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. inside the residence and agreed LaToya permitted the officers 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 J.A. 222. When asked by the

location to get a search warrant."

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 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.
6

11

obtained. Gladstone

J.A.

224.

In

this to

case,

Jendrek them

and

Detective the

directed

LaToya

accompany

through

townhouse for a protective sweep. anyone else in the residence,

While looking upstairs for testified, he found a

Jendrek

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 At various points,

place, and the trio returned downstairs.

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 minutes arrived the home approximately call. By thirty to forty-five three more

after

phone

that

point,

officers, including Special Agent Christopher Quaglino, had come 12

to the townhouse.

Quaglino, with Special Agent Malone as a Detective Jendrek overheard

witness, spoke to Monique first.

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. responded anything that to "she would J.A. [give 232.

According to Jendrek, Monique consent], Jendrek she didn't have

hide."

further

testified,

however, that he "actually had no intention of using the consent to search." Dawson lived Id. at Jendrek explained that he "believed that Mr. 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." Thereafter, working computer on at the the Detectives search dining Id. Jendrek and Sullivan on continued laptop Jendrek

warrant room

application At

their point,

table.

some

realized that Monique was on the telephone telling someone that the police were in her house. phone, but Monique either Jendrek asked her to hang up the or did not hear him, so

ignored

Jendrek pulled the phone from the wall "[a]s a matter of officer safety." application J.A. was 234. Around it 5:30 was p.m., once on the the warrant

complete,

printed

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. out the expertise of The warrant application spelled Sullivan, who presented the

Detective

application to the court. 7 page affidavit the detailing following:

The application also included a fivethe the events of earlier that on day, the

including

surveillance

conducted

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

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.

7

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. been the Furthermore, the affidavit asserted that "[i]t has experience this CDS of your Affiant . . that . from they CDS distributors Variety large

transport Store to

paraphernalia (stash

Ayrdale

locations

houses)

where

package

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. covered mirror was also The record reflects that a residuerecovered 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." the officers had J.A. 127. the LaToya also testified that master bedroom, leaving the

disturbed

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 16 the officers entered the

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 Monique premises the townhouse before that she they she was had gave led to actually consent believe obtained to search one. the

also only

testified because

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. 17 First, Dawson contends the

officers' amounted

conduct to an

during

their

initial

encounter

with

him his

unconstitutional

seizure

invalidating

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 Dawson search, that to the seek a search warrant warrant. was not And fourth, by

asserts

search

supported

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, We assess each of the four aspects of the 19

730 (4th Cir. 2007).

district court's ruling -- relating to Dawson's initial encounter with the officers, his arrest, the pre-warrant search of his residence, 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 and the subsequent warranted search thereof -- in

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). 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 There, we recognized

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." deem the retention of Id. at 310. We refused, however, to such as a driver's

identification,

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 and where Analla voluntarily to provided and driver's officer

license

car

registration

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 day," at "a busy public area across from Johns Hopkins Hospital," J.A. 325; the the

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 32526;

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. circumstances, the court concluded, "this was a Id.

In

these

consensual encounter between Mr. Dawson and the officers." 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, display of a weapon, no physical touching. but no

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

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

8

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." 326. B. 1. Next, the district court ruled that the officers possessed probable cause to arrest Dawson for possession of drug J.A.

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." 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 J.A. 330. Indeed, we

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 32425; 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 they were," id.

distribute

offenses,

as

indeed

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 their relevant factor[]," with the the officers' Variety testimony Store and about their

experiences

Ayrdale

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]." 331. 9 2.

Id. at

We conclude that the district court made no error in its ruling, In notwithstanding that his Dawson's arrest contentions not to the by contrary. probable

asserting

was

supported

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 completely or activity"; with the and, "he was `very and polite' "did not and act were

cooperated nervously
9

officers," after the

suspiciously";

glass

vials

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." Appellant 24-25. Br. of

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." at 31. establish Id.

These factors were insufficient, Dawson maintains, to 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." at 31 n.3 (internal quotation marks omitted). Simply put, Dawson's version of the facts ignores key Id.

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. 618. walked Sprinkle, 106 F.3d at

A Sprinkle defendant drove off "right after the officers 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 Id. at 618

away or flee or anything before the initial stop." 29

n.2 (internal quotation marks and alterations omitted).

We then

concluded that "driving away in a normal, unhurried fashion [did not] [The] lend itself to had a finding of reasonable the suspicion so a here. prompt

passenger

just

gotten

into

car,

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

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.

10

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. United States, the Supreme Court recognized In Murray v. 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." (1988) (footnote omitted). Here, according suggest to the district is court, no "[t]he overall that 487 U.S. 533, 542

circumstances

that

there

really

evidence

anything other than the gun and possibly [the] mirror . . . had been found before the search warrant was authorized." On the issue of whether the officers' decision to J.A. 335. 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." that the events Id. at 339. upon 31 the Indeed, the court observed officers' arrival at the

occurring

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 what and had to . . the . spoken with [LaToya], that they and had

that's

finally

led

determination

probable cause and should get a warrant"). that,

The court concluded

[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. obtained during Moreover, on the question of whether information 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 of the a fruits warrant, of a search a conducted under the

authority

even

`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)). obtained "[U]nder Leon's good faith exception, evidence to not a search to warrant be issued if by the a neutral

pursuant does

magistrate

need

excluded

officer's United

reliance on the warrant was `objectively reasonable.'"

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. that

The district court disagreed, observing

[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

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.

11

34

narcotics might be found at that particular location." 337. Alternatively, the court ruled that "the good

Id. at 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 drugrelated 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 cause to search of Dawson's its residence, without we affirm the the

probable

aspect

ruling

reaching

alternative good faith aspect. 35

III. Pursuant to the foregoing, we affirm the district court. AFFIRMED

36