United States v. Johnson, CRIMINAL NO.: ELH-15-0542

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: Ellen L. Hollander United States District Judge
• Parties: UNITED STATES OF AMERICA Plaintiff. v. CRAIG JOHNSON, Defendant.
• Docket Number: CRIMINAL NO.: ELH-15-0542
• Decision Date: 02 September 2016

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

CRIMINAL NO.: ELH-15-0542

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

September 2, 2016

MEMORANDUM OPINION

Defendant Craig Johnson has been charged in a Superseding Indictment (ECF 37) with the offenses of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). ECF 37. The charges are rooted in the events of March 27, 2015, when officers of the Baltimore City Police Department ("BPD") initiated a stop of defendant's vehicle. Cocaine was found in the sunroof, and a firearm was subsequently recovered from defendant's residence, pursuant to a search warrant.

Johnson filed a motion to suppress evidence (ECF 20) (the "Motion"), challenging the legality of the vehicle stop. In addition, Johnson contends that the stop was unlawfully prolonged to await the arrival of a drug detection dog. Johnson also insists that he did not consent to a search of his SUV, and he maintains that the drug detection dog unlawfully entered the vehicle, where he alerted. The government opposed the Motion. ECF 36; see also ECF 49.

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The Court held evidentiary hearings on April 21, 2016; May 6, 2016; and May 10, 2016.¹ Thereafter, the parties submitted simultaneous post-hearing memoranda. See ECF 83 (government's initial post-hearing memorandum); ECF 84 (defendant's initial post-hearing memorandum); ECF 85 (government's post-hearing reply memorandum); ECF 87 (defendant's post-hearing reply memorandum). Argument on the Motion was heard on August 3, 2016.

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

I. Factual Summary

Baltimore City Police Officer Jason DiPaola has been a member of the BPD since July 2011. ECF 58 at 13.² He received 40 hours of "specialized training in street-level narcotics enforcement." Id. at 15. His duties as a police officer include investigation of narcotics crimes. Id. at 14.

Christen Mederios joined the BPD in 2010. ECF 81 at 33. In March 2015, he was a patrol officer assigned to the Northwest District Drug Unit in Baltimore City (id.), and "[p]rimarily focused on narcotics activity." Id. at 34. In January 2016, he joined the police department in York, Pennsylvania. Id. at 33.

DiPaola first met Confidential Informant 1562 ("C.I. 1562" or the "C.I.") in 2013, through a fellow BPD officer. ECF 58 at 16. C.I. 1562 is registered with the BPD (id. at 17-18)³ and has received payment from the BPD for controlled narcotics purchases and information

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provided to the BPD. Id. at 19. DiPaola knew from his colleague that the C.I. provided reliable information with respect to drug traffickers and illegal firearms (id. at 17, 19) and had also made controlled purchases of narcotics for DiPaola's colleague. Id. at 20. DiPaola described C.I. 1562 as someone who has "stuck around and . . . continues to work and is very knowledgeable in the narcotics and the handguns in the area." Id. at 54.

DiPaola began working with C.I. 1562 in 2014. Id. at 17. Between 2014 and March 2015, C.I. 1562 made about 20 controlled purchases of narcotics for DiPaola. Id. at 20. DiPaola estimated that, prior to March 2015, the information he obtained from C.I. 1562 resulted in about ten arrests involving the seizure of firearms and narcotics. Id.

DiPaola recalled that about one to two weeks prior to March 27, 2015, while he was working with C.I. 1562 on an unrelated matter, the C.I. provided "intel" on a person named "Craig" who lived at 3013 Thorndale Avenue in Baltimore, in an apartment "at the top right," and who drove a white Infinity FX 35 (the "SUV"). ECF 58 at 21-23, 55. The C.I. reported that "Craig" was selling "ready rock" from his SUV and from "his apartment at Thorndale." Id. at 22; see also id. 22-23; at 56. DiPaola understood the term "ready rock" as a street name for "rock cocaine." Id. at 22. Moreover, the C.I. told DiPaola that the defendant "keeps . . . the drugs hidden in the sunroof area" of his SUV. Id. at 23. The C.I. also indicated that he/she had purchased drugs from Craig's vehicle and had Craig's phone number and "could purchase from the apartment." Id. at 24.

The C.I. identified Craig's white Infinity SUV for DiPaola. ECF 58 at 22-23. The C.I. also showed DiPaola the apartment building where Craig resided. Id. DiPaola described 3013 Thorndale as "a low-rise apartment" with four levels and two apartments on each floor. Id. DiPaola wrote down the license tag number of the SUV and then left. Id. at 23, 55-56. He

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subsequently "ran the license plate" and "it came back to a Craig Johnson" at "a Thorndale address . . . ." Id. at 24. In addition, the MVA records included a photograph of Johnson, and DiPaola also obtained "Departmental Databases . . . to get more pictures of [defendant] from previous arrests." Id. at 24-25.

Records of the BPD confirm that DiPaola had contact with the C.I. in February and March 2015. But, there is no documentation that the contact pertained to Johnson. See ECF 81 at 24-26; see also Defense Exhibit 1 (BPD General Order J-1); Defense Exhibit 2 (C.I. registration forms).

During the week prior to March 27, 2015, DiPaola conducted surveillance of the SUV, which was parked in the parking lot of the Thorndale Apartments. Id. at 25-26. While DiPaola was in an unmarked police vehicle, he saw "unidentified men and women entering the passenger side of [Johnson's] vehicle and then immediately exiting it." Id. at 25. However, because the SUV has tinted windows (id. at 24, 26) it was "[h]ard to see in" the vehicle (id. at 26-27) and DiPaola never saw Johnson. Id. at 26. Nevertheless, based on DiPaola's training, knowledge, and experience, he "believed that narcotics transactions were taking place inside [defendant's vehicle] to be concealed from the street." Id. at 27. He also described the particular neighborhood in Baltimore City as "basically an open-air drug market . . . ." Id. at 28. He said: "It's just a lot of narcotics being distributed through there and a lot of violence and violent crimes." Id. at 28.⁴

During the early evening of March 27, 2015, DiPaola was again conducting surveillance of the SUV and the Thorndale apartment building. Id. at 28. He was in the front passenger seat

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of an unmarked police vehicle; Officer Christen Mederios was the driver; and Officer Muir⁵ was in the backseat. Id. at 29; ECF 81 at 36. As Mederios put it, the officers "were watching the [Thorndale] apartments for drug activity" and "were looking for Mr. Johnson." ECF 81 at 36. DiPaola had an unobstructed view of the SUV. ECF 58 at 30. Both IDiPaola and Mederios saw Johnson exit 3013 Thorndale Avenue and enter the SUV. ECF 58 at 29; ECF 81 at 36. DiPaola recognized Johnson from the photos he had seen of him. ECF 58 at 29. Neither DiPaola nor the other officers noticed anyone else enter the SUV. ECF 58 at 33, 75-77; ECF 81 at 53.

The officers began to follow the SUV in their unmarked police vehicle. ECF 58 at 32; ECF 81 at 37. They observed the SUV come to an abrupt stop in the middle of the 4800 block of Pimlico Avenue, approximately 150 feet from a traffic light. ECF 58 at 32; ECF 81 at 37. At that time, an "unidentified black female exited the back passenger seat, ran behind the car, and sprinted westbound on Oakley Avenue . . . ." ECF 58 at 32. DiPaola believed that "some sort of crime had been committed" and "wanted to investigate what was going on . . . ." Id. at 33. Mederios characterized the occurrence as "just really strange," and so the officers "decided to investigate further . . . ." ECF 81 at 39. Officer Muir asked Officer Vinias, who was nearby in a marked patrol vehicle, to assist the officers in stopping the SUV. ECF 58 at 33-34. Officer Vinias and Officer Williams⁶ responded in a marked patrol vehicle. Id. at 34.

At approximately 7:50 p.m., the BPD officers initiated a stop of the SUV at "the corner of Laurel and Virginia Avenue." Id. at 34-35. The unmarked police vehicle was situated behind the SUV and the marked police car was in front of the SUV, blocking the SUV. Id. at 35; 78-79.

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As Officer Mederios acknowledged, the SUV "was not free to go at that point . . . ." ECF 81 at 56.

DiPaola approached the driver's side of the vehicle (ECF 58 at 35; ECF 81 at 40) and asked the driver, later identified as the defendant, for his license and registration. ECF 58 at 35. DiPaola recalled that Officer Mederios approached the passenger side of the vehicle. Id. Officer Mederios recalled that both he and Officer DiPaola went to the driver's side of the vehicle and that it was Officer Muir who went to the passenger side of the SUV. ECF 81 at 57.⁷ Mederios said he stood behind DiPaola "for security." ECF 81 at 40. It is undisputed that no weapons were drawn. ECF 58 at 35; ECF 81 at 56; ECF 82 at 35.

DiPaola promptly explained to Johnson that the SUV was stopped in order "to conduct a CDS investigation . . . ." ECF 58 at 36. DiPaola inquired about the female who had "jumped out of the car and began running," and Johnson responded that she is "just a friend." Id. at 36. Both Johnson and his passenger, Jerry Brown, produced identification. Id.; see also ECF ECF 81 at 57. DiPaola asked Johnson if there "was anything in the car" and defendant answered "no." ECF 58 at 36; see also ECF 81 at 57. DiPaola did not observe any contraband in plain view. ECF 58 at 79.

According to DiPaola, he asked Johnson "if we could search the vehicle" (ECF 58 at 36) and Johnson "said yes" (id. at 37), without hesitation. Id. at 83. Although Mederios did not recall "the exact conversation" he specifically recalled "the consent exchange." ECF 81 at 59. According to Mederios, DiPaola asked: "'Do you have anything in the vehicle? Do you mind if we take a look?'" Id.; see also id. at 41. Mederios testified that, in answer to the request to

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search the SUV, Johnson said: "'Go ahead and search. Go ahead and...