KIM R. GIBSON, District Judge.
This matter comes before the Court on Defendant Shahiydullah A. Bin Raymond's Motion to Suppress Evidence (Doc. No. 45). The Government filed a Response (Doc. No. 55). The Court held a six-day
The following facts are taken from the Suppression Hearing transcript and exhibits, including the video footage of the stop itself. In the early morning hours of Monday, May 21, 2007, Bin Raymond
Trooper Robert F. Johnson ("Trooper Johnson") of the Pennsylvania State Police was working a shift from midnight to 8:00 a.m. on Monday, May 21, 2007. (Apr. 28, 2009, Tr. 18:4-9.) He was engaging in highway interdiction on the Pennsylvania Turnpike around the Allegheny Tunnel in Somerset County. (Apr. 28, 2009, Tr. 18:8-15.) Trooper Michael Volk
While following the vehicle in the tunnel, Trooper Johnson conducted a registration check of the vehicle's license plate number. (Apr. 28, 2009, Tr. 21:25-22:2.) The vehicle was a silver-colored minivan with Ohio plates registered to a Mary Taylor. (Apr. 28, 2009, Tr. 22:11-12; Def. Ex. F.)
Trooper Johnson left his patrol vehicle and approached the driver's side of the van. Sullivan was in the driver's seat, and Bin Raymond was in the first row of seats behind the driver's seat. (Apr. 28, 2009, Tr. 22:21-23; 23:12-14.) Trooper Johnson explained why he had pulled the van over, collected Sullivan's license and insurance information, and returned to his patrol vehicle. (Apr. 28, 2009, Tr. 22:23-23:7.) Trooper Johnson checked Sullivan's license and criminal history. (Apr. 28, 2009, Tr. 23:20-22.) That check revealed that Sullivan's license was under suspension in Ohio and had a criminal history involving weapons and illicit drugs. (Apr. 28, 2009, Tr. 24:1-3.) Trooper Johnson returned to the van, informed Sullivan that he was not a valid driver, and collected Bin Raymond's license. (Apr. 28, 2009, Tr. 24:8-22.) Trooper Johnson then checked Bin Raymond's license and criminal history. (Apr. 28, 2009, Tr. 24:24-25:1.) Bin Raymond's license was valid, but he had a criminal history involving bank robbery and weapons violations. (Apr. 28, 2009, Tr. 25:3-5.)
Trooper Johnson prepared a written warning, walked back to the van, and returned Bin Raymond's license. (Apr. 28, 2009, Tr. 25:23-24; 26:14-15.) He then asked Sullivan to exit the vehicle, which Sullivan did without objection. (Apr. 28, 2009, Tr. 25:23-26:1.) Trooper Johnson explained the warning to him, handed him his license and insurance, shook his hand, and bid him good evening. (Apr. 28, 2009, Tr. 26:16-19.)
As Sullivan began to walk away from Trooper Johnson, Trooper Johnson asked Sullivan if he would not mind answering another question or two. (Video, Def. Ex. E.) In response to Trooper Johnson's questions, Sullivan told Trooper Johnson that he and Bin Raymond had been in Baltimore for the day and were headed back to Ohio. (Def. Ex. E.) Trooper Volk, serving as backup officer, arrived on the scene at some point during Trooper Johnson's questioning of Sullivan. (Def. Ex. E.) Trooper Johnson left Sullivan with Trooper Volk and walked back to the van to question Bin Raymond. (Def. Ex. E.) The questioning of Bin Raymond quickly became verbally confrontational. (Def. Ex. E.) Trooper Johnson ordered Bin Raymond out of the vehicle, patted him down, and brought him over to stand by Sullivan. (Def. Ex. E.)
Trooper Johnson then conducted a canine sniff of the vehicle. At the time of the stop, Trooper Johnson was working as a canine handler with the Bureau of Emergency and Special Operations. (Apr. 28, 2009, Tr. 11:7-9.) As of May 2007, Trooper Johnson had worked as a canine handler for eleven years and specifically with Marko, the dog involved in the stop, for four years. (Apr. 28, 2009, Tr. 12:6-7.) During the canine sniff, Marko entered the van through the open driver door and alerted at the base of the center console. (Apr. 28, 2009, Tr. 33:13-14.) He then alerted at the right front passenger door. (Apr. 28, 2009, Tr. 33:16-17.)
Following the positive canine alert, Troopers Johnson and Volk took Bin Raymond and Sullivan back to the Somerset Turnpike Barracks. (Apr. 28, 2009, Tr. 8-14.) Trooper Johnson then requested a search warrant, which was shortly thereafter signed and executed. (Apr. 28, 2009,
Since Bin Raymond objects to every phase of Trooper Johnson's encounter with Bin Raymond and Sullivan, the Court will work sequentially through each step of the traffic stop and the detention following the traffic stop, addressing each of Bin Raymond's arguments in turn.
Evidence obtained from an illegal seizure is subject to suppression under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In this case, the Court examines a traffic stop and a subsequent detention as two separate events. "If the initial traffic stop is illegal, then even if the passenger is allowed to leave the scene before the search, it will not be the case that the police have not violated his Fourth Amendment rights." United States v. Mosley, 454 F.3d 249, 256 (3d Cir.2006). Once it is found that the initial traffic stop is lawful, the Court must look to whether the traffic stop somehow evolved into an unlawful seizure by lasting unreasonably longer than the time needed to complete the traffic stop. See Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) ("A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission."). If an encounter with law enforcement occurring after completion of the traffic stop is consensual, the protections of the Fourth Amendment are not triggered. United States v. Jones, 269 F.3d 919, 925 (8th Cir.2001). A brief detention following a consensual encounter may be reasonable under the Fourth Amendment provided it is supported by articulable, reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The Court concludes that two lawful detentions took place on May 21, 2007. The first was a traffic stop for violation of Pennsylvania's "right lane" rule. Once Trooper Johnson completed the traffic stop, there was an intervening period of time where the Fourth Amendment was not implicated at all. During this period of time Trooper Johnson engaged in consensual encounters with Sullivan and then Bin Raymond. It was during his conversation with Bin Raymond that Trooper Johnson seized Bin Raymond within the meaning of the Fourth Amendment. The second detention was simply a Terry stop justified by Trooper Johnson's reasonable suspicion that criminal activity was afoot.
As a preliminary matter, because this memorandum is replete with references to Trooper Johnson's testimony, and Bin Raymond accuses Trooper Johnson of perjuring himself (Def.'s Br. 30-33), the Court first turns to Trooper Johnson's credibility. Trooper Johnson's demeanor, both on the Pennsylvania Turnpike and in the courtroom, were professional. He did not hesitate to admit when he had made a mistake, for example, that his turning off the vehicle was inconsistent with not taking control of the vehicle. (May 20, 2009, Tr. 75:4-7 (stating that turning off the vehicle "was an oversight on my part").)
Around 2:00 a.m. on Monday, May 21, 2007, Trooper Johnson pulled over the vehicle in which Bin Raymond was a passenger for violation of 75 Pa.C.S.A. § 3313(d) of the Pennsylvania Motor Vehicle Code. That code section, which imposes on drivers a general requirement to remain in the right lane except under certain circumstances, provides as follows:
Trooper Johnson testified that he observed Bin Raymond's vehicle in the "wrong" lane for three to five seconds as it approached the Allegheny Tunnel. (Apr. 28, 2009, Tr. 21:5-8.) Bin Raymond argues that Trooper Johnson's stop of the vehicle was unsupported by reasonable suspicion or probable cause. The Court credits Trooper Johnson's testimony and disagrees with Bin Raymond.
Bin Raymond argues that his vehicle should never have been pulled over in the first place. A traffic stop is a "seizure" under the Fourth Amendment "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Everyone in the vehicle, not just the driver, is seized. Id. Thus, Bin Raymond, a passenger in the vehicle (and also, incidentally, the owner), has standing to assert a
"[A]ny technical violation of a traffic code legitimizes a stop, even if the stop is merely pretext for an investigation of some other crime." Mosley, 454 F.3d at 252. It is of no import how severe a traffic violation is; even a minor traffic violation, if there exists probable cause to believe one has occurred, legitimizes a traffic stop. See Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (finding a traffic stop proper because the defendant was violating the Pennsylvania Motor Vehicle Code by driving with expired tags); United States v. Hutchinson, 471 F.Supp.2d 497, 501 (M.D.Pa.2007) (finding probable cause existed that defendant had violated the California Motor Vehicle Code
At a certain distance from the Allegheny Tunnel, the two lanes of traffic are demarcated by white hash lines that permit passing. (Apr. 28, 2009, Tr. 20:11-12.) Closer to the tunnel, double white lines divide the two lanes, at which point no passing is permitted. (Apr. 28, 2009, Tr. 20:12-16.) Presumably, the prohibition on passing before cars enter the tunnel prepares drivers for the requirement that they stay in their lane once they are in the tunnel. As drivers approach the tunnel they pass "STAY IN LANE" signs, and just as they enter the tunnel drivers pass underneath the words "DO NOT CROSS CENTER LINE." (Def.'s Exs. A-D, FF.)
Trooper Johnson testified that he observed the vehicle when it was in the white hash mark area and watched it remain in the left lane for three to five seconds before reaching the "stay in lane" zone. (Apr. 28, 2009, Tr, 20:17-21; 21:7-8.) He further testified that the vehicle was alone on the road, with no other traffic surrounding it. (Apr. 28, 2009, Tr. 20:22-23, 21:11-15.) Finally, Trooper Johnson noted that the Pennsylvania Turnpike being a limited access highway, no left-hand turn would have been possible. (Apr. 28, 2009, Tr. 21:2-4.) Accordingly, none of the exceptions of 75 Pa.C.S.A. § 3313(d)(1) existed at the time of the traffic stop. The Court credits Trooper Johnson's testimony as to the traffic violation. Because Trooper Johnson had probable cause to believe a traffic violation had occurred, the traffic stop was lawful. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (observing that "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred"). Bin Raymond's argument that Trooper Johnson did not have probable cause to pull the vehicle over is without merit. The van was legally stopped.
Bin Raymond would like to view the purpose of a traffic stop more narrowly than courts do. "[O]nce a car has been
Trooper Johnson announced the completion of the traffic stop when he told Sullivan, "Have a good evening, buddy. Take care." (Def. Ex. E.) Trooper Johnson then asked Sullivan if he minded answering "another question or two real quick." (Def. Ex. E.) Sullivan replied, "Sure." (Def. Ex. E.) It is difficult to overstate the degree to which Bin Raymond finds Trooper Johnson's conduct to be laced with deceit. He believes that in asking these questions Trooper Johnson was engaging in "deceptive interdiction tactics." (Def.'s Br. ¶ 23.) The Court finds Bin Raymond's arguments on this point to evince a fundamental misunderstanding about whether a seizure occurred and to be otherwise meritless for several reasons. The Government, on the other hand, seems to view the further questioning of Sullivan and Bin Raymond as an extension of the traffic stop justified by reasonable suspicion that arose during the course of the traffic stop. This, too, is an incorrect representation of the sequence of events. If the further questioning were an extension of the traffic stop, then this Court's inquiry would be whether "something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention." United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995). However, as discussed below, the Court does not view the further questioning as an investigative detention deriving from the scope of the original traffic stop.
The questioning of Sullivan fell within the following sequence of events. First, there was a traffic stop. The traffic stop ended when Trooper Johnson said goodbye to Sullivan. Then there was a consensual encounter between Trooper Johnson and Sullivan during which exchange Trooper Johnson asked Sullivan questions unrelated to the traffic stop. Then Trooper Johnson engaged Bin Raymond in questioning. Then Bin Raymond and Sullivan were detained. There were, in essence, two seizures: a traffic stop, then a Terry-type stop, with an intervening period of time during which Trooper Johnson's conduct implicated no constitutional rights.
Sullivan was not "seized" for purposes of the Fourth Amendment when Trooper Johnson asked Sullivan to answer more questions. The traffic stop had clearly ended, and Bin Raymond himself elicited testimony on this point throughout the Suppression Hearing. Several times Trooper Johnson testified that he had completed the traffic stop upon shaking Sullivan's hand and wishing him a good evening:
Bin Raymond believes the further questioning of Sullivan prolonged the traffic stop.
Bin Raymond's confusion as to whether he was detained is obvious from the questions he posed at the Suppression Hearing. Bin Raymond thought he was being detained without reasonable suspicion when Trooper Johnson reinitiated his encounter with Sullivan:
(May 19, 2009, Tr. 42:1-4.) It is apparent from Bin Raymond's questions, in which he tried over and over to pinpoint the indicators that led Trooper Johnson to further question Sullivan, that he believes Trooper Johnson needed reasonable suspicion in order to engage in a consensual encounter with Sullivan. Although at the Suppression Hearing the Assistant United States Attorney asked Trooper Johnson to explain his motivation for further questioning Sullivan (Apr. 28, 2009, Tr. 27:3-18), Trooper Johnson's thoughts at that moment are legally irrelevant. Trooper Johnson asked Sullivan if he would answer questions, and Sullivan consented. This further questioning did not implicate the
One of the reasons, if not the only reason, Trooper Johnson strikes Bin Raymond as deceptive is that he asked for Sullivan's consent to answer "another question or two." (Def. Ex. E at 18:13.) Bin Raymond counts a total of 22 questions asked of Sullivan. (Def.'s Br. ¶ 23.) Bin Raymond seems to believe that, in engaging Sullivan in further questioning, Trooper Johnson entered into a sort of oral contract that he immediately breached upon asking question number three. The Court finds no basis for finding that a difference between the proposed number of questions and the actual questions asked is a mark of deception. Nor does the Court find that 22 questions of Sullivan (or the 26 questions asked of Bin Raymond) amount to a coercive interrogation, particularly since Sullivan's evasive answers naturally generated follow-up questions. Bin Raymond's attempt to establish deceptive interdiction tactics is completely unavailing.
In fact, the only individual who appears deceptive in the Trooper Johnson-Sullivan exchange is Sullivan himself, and Sullivan appears largely responsible for the number of questions asked. Sullivan's uncertainty as to very recent events
(Def. Ex. E.) Sullivan told Trooper Johnson a highly dubious story. The story also included an indicator that, among others, contributed to reasonable suspicion, namely, the long trip with a relatively short
(Apr. 28, 2009, Tr. 28:4-9.) His demeanor raised suspicion as well. Trooper Volk's report indicated that Sullivan appeared to be "nervous." (Def. Ex. GG.)
Bin Raymond's outrage at the stop and subsequent detention is compounded by his discovery after the fact that Trooper Johnson had asked Trooper Volk to prepare a "consent to search" form. Trooper Johnson's intent to search the car before questioning Bin Raymond and Sullivan is legally irrelevant. Trooper Johnson's mindset has no impact on the Court's Fourth Amendment analysis. Regardless of whether Trooper Johnson was predisposed to executing a search, he could not detain Bin Raymond and Sullivan before he had a reasonable suspicion that criminal activity was afoot, and he could not search inside the van (absent consent) before he had found probable cause. Bin Raymond also cites no authority for the proposition that preparing a "consent to search" form somehow violates the Fourth Amendment. See Mosley, 454 F.3d at 252 (explaining that as long as a traffic stop is lawful it can be pretext for investigating some other crime).
Trooper Johnson was only able to ask Bin Raymond a few questions before Bin Raymond began replying with, "Why are you asking me these questions?" The answers Bin Raymond did provide as to what he had been doing in Baltimore generated contradictions with Sullivan's hazy version of events. Bin Raymond is difficult to hear on the video, but he did not identify the hotel as the Best Western. He was equally fuzzy on details and at times sought to change the subject entirely by, for example, pointing out that Sullivan was named after his grandfather. When Trooper Johnson asked for Bin Raymond's consent to search the vehicle, he declined.
Bin Raymond finds neither himself nor Sullivan to have been suspicious. That might simply be a matter of Bin Raymond's faulty self-perception combined with his apparent disbelief that something that is not a physical object can contribute to reasonable suspicion. Trooper Johnson testified that the trip itself—a 7-hour, 429-mile trip—from Ohio to Baltimore and back to Ohio within a relatively short period of time was "a very good indicator" (Apr. 28, 2009, Tr. 28:6-9) and "really piqued [his] interest" (Apr. 28, 2009, Tr. 31:2-5). The questioning of Sullivan and Bin Raymond yielded a highly suspicious story rife with contradictions. Indeed, once Trooper Johnson had both Bin Raymond and Sullivan together, he told them, "Your story doesn't match up with his story."
The Court now turns to determining when Bin Raymond and Sullivan were seized. The Fourth Amendment is not triggered until seizure occurs. United States v. Brown, 448 F.3d 239, 245 (3d Cir.2006) (citing Terry, 392 U.S. at 16, 88 S.Ct. 1868). An individual may be seized when a law enforcement officer uses physical force or restraint or when the individual submits to the officer's "show of authority." Brown, 448 F.3d at 245 (quoting California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). Here, Trooper Johnson switched to an authoritative tone with Bin Raymond, ordered him out of the vehicle, and told him
There is an abundance of confusion in this case as to when seizure occurred. The Government appears to take the position that there was one continuous seizure from the moment Trooper Johnson pulled the van over with evolving legal justifications dependent on the changing circumstances. (Gov. Br. 17-21.) In his affidavit of probable cause, Trooper Johnson states that he placed Bin Raymond and Sullivan in investigatory detention following the exterior canine sniff of the vehicle. (Gov. Ex. 3.) At the Suppression Hearing, Trooper Johnson confirmed that he understood the investigatory detention to follow the canine sniff:
(May 19, 2009, Tr. 100:12-101:4.) Bin Raymond obviously picked up on an anomaly here. The Court is not aware of the difference between "mere detention" and "investigatory detention." When Trooper Johnson conducted his canine search, Bin Raymond and Sullivan were detained. However, the Court's disagreement with both Trooper Johnson and the Government as to when seizure occurred does not impact the suppression decision.
Having established the moment of seizure (i.e. before the canine sniff), the Court looks to whether the seizure fell within the Terry exception to the warrant requirement. If it did, then the search did not violate the Fourth Amendment. In order to lawfully detain Bin Raymond and Sullivan for a brief period of time, Trooper Johnson must have had a reasonable, articulable suspicion that some criminal activity may have been afoot. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Reasonable suspicion is a "somewhat abstract" idea. United States v. Arvizu, 534 U.S. 266,
While the Fourth Amendment demands that detaining officers have a particularized, objective basis for suspicion, officers must also be permitted "to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them." Arvizu, 534 U.S. at 273, 122 S.Ct. 744. In addition, officers should be permitted to make "commonsense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The question here is "whether a reasonable, trained officer standing in [Trooper Johnson's] shoes could articulate reasons justifying" the detention of Bin Raymond and Sullivan. Johnson, 332 F.3d at 206.
In reviewing Trooper Johnson's determination of reasonable suspicion, this Court looks to the "totality of the circumstances" surrounding his detention of Bin Raymond and Sullivan. Arvizu, 534 U.S. at 273, 122 S.Ct. 744. Each of an officer's observations may be "by itself readily susceptible to an innocent explanation" yet as a whole amount to a reasonable suspicion. Id. at 274, 122 S.Ct. 744. Any factor taken "by itself may not be "proof of any illegal conduct and [be] quite consistent with innocent travel" yet still have a cumulative effect of establishing reasonable suspicion. Sokolow, 490 U.S. at 9, 109 S.Ct. 1581.
The holistic approach to Trooper Johnson's observations is a concept that appears to elude Bin Raymond. Bin Raymond has parsed Trooper Johnson's observations in a way that is directly inconsistent with the Supreme Court's "totality of the circumstances" review. Trooper Johnson testified that prior to the canine search the following facts indicated to him that criminal activity was afoot:
(May 19, 2009, Tr. 27:25-28:7.) The Court finds that Trooper Johnson did have reasonable suspicion upon those facts alone to detain Bin Raymond and Sullivan. Bin Raymond's attempts to cloud the issue by combing through the record for omissions and contradictions and "gotcha" moments
Bin Raymond finds it significant that the testimony quoted in the immediately preceding paragraph does not match exactly the indicators Trooper Johnson listed in his affidavit of probable cause (Gov. Ex. 3) or his criminal complaint (Def. Ex. O) or his testimony at the preliminary hearing (not in the record). This strikes the Court as totally unremarkable. First, Trooper Johnson explained at the Suppression Hearing that the factors he listed in his testimony were "the gist of it" (May 19, 2009, Tr. 28:9), not a comprehensive itemization. Second, as the Court has already explained, reasonable suspicion is a fluid concept that escapes codification, and the factors Trooper Johnson emphasized most in his testimony (the long trip of short duration, the conflicting stories, and the criminal histories) are such strong indicators that it is unlikely the black bag and the absent vehicle owner were what tipped the balance in establishing reasonable suspicion. Third, and most importantly, Bin Raymond spent a large part of the 26 hours of the Suppression Hearing poring over each suspicious factor in isolation, completely misapplying the "totality of the circumstances" test.
Bin Raymond approaches the reasonable suspicion test with mathematical precision. In his brief he argues:
(Def.'s Br. 14.) The question is not how each factor or the sum total of the factors amount to reasonable suspicion. It is only the whole, not its individual constituents, that establishes reasonable suspicion. Bin Raymond incorrectly views Sullivan as a removable variable in an equation.
The name in which the vehicle was registered, for example, was a recurring theme during the Suppression Hearing because it was the one factor that was most consistent with innocent travel. The vehicle license plate query revealed the owner of the van to be Mary Taylor. (Def. Ex. F.) Bin Raymond told Trooper Johnson that Mary Taylor was his wife. He even produced his marriage license at the Suppression Hearing. (Def. Ex. G.) Although Bin Raymond told Trooper Johnson that the van was registered to his wife, Trooper Johnson testified to the fact that the vehicle query revealed a name different from the Defendant's "piqued [his] interest because the owner of the vehicle wasn't there." (Apr. 28, 2009, Tr. 144:1-2.) Trooper Johnson definitely noticed that Bin Raymond did not have the same last name as his wife. (Apr. 28, 2009, Tr. 144:4.) But Trooper Johnson readily admitted that the vehicle owner's absence was not an overwhelming factor in his determination of reasonable suspicion. He described the absent driver as "not something you can totally hang your hat on" (Apr. 28, 2009, Tr. 144:11), but rather something that only seems significant in the context of other indicators. Trooper Johnson said a spouse driving a vehicle
Certainly a woman keeping her maiden name after marriage is not only consistent with innocent behavior but a continuation of the trail boldly blazed by women's rights activist and suffragette Lucy Stone
The absent Mary Taylor was the most innocuous of the indicators that night, but even that in the totality of the circumstances contributed slightly to reasonable suspicion. Understandably, indicators such as the two individuals' criminal histories, differing stories about the purpose of the trip to Baltimore and what they did there, and the fact that the round-trip journey took more time than the stay in Baltimore contributed even more so.
Bin Raymond also has a preconceived list of drug trafficking indicators, such as "aftermarket compartments, possibly missing seats, [and] aftermarket tint." (Def.'s
In addition to not appreciating the "totality of the circumstances" test, Bin Raymond advances the argument that Trooper Johnson had nothing more than a "hunch" because at the preliminary hearing he stated, "I don't know if I can say that I made observations. I would say that I began to think something was going on." (May 19, 2009, Tr. 42:20-22 (quoting preliminary hearing transcript).) Bin Raymond then generates semantic confusion as to what an "observation" is. Trooper Johnson testified that to him an "observation" is something "visual." (May 19, 2009, Tr. 44:1.) Bin Raymond concludes that because Trooper Johnson began to "think" criminal activity was afoot and testified that to him "observation" and "thinking" are different, all Trooper Johnson had was a "hunch." (Def.'s Br. ¶ 67.) This argument conveys nothing more to the Court than that Bin Raymond believes an "observation" capable of establishing reasonable suspicion must be a physical object possessed overwhelmingly by drug traffickers. His belief is without any legal or logical foundation.
Trooper Johnson and Marko were certified in the detection of marijuana, hashish, cocaine, cocaine base, heroin, and methamphetamine. (Gov. Exs. 1-2.) After detaining Bin Raymond and Sullivan upon reasonable suspicion of criminal activity, Trooper Johnson conducted a canine sniff of the car.
There is nothing remarkable about a canine sniff of the exterior of a vehicle during a traffic stop even absent reasonable suspicion that the vehicle contains contraband. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (finding no cognizable
What is different about this canine sniff is the fact that it migrated to the interior of the vehicle through the driver's door, which stayed open after Bin Raymond exited the vehicle. Sullivan had previously exited the vehicle from that door, and he closed it behind him immediately. (Def. Ex. E.) Bin Raymond, on the other hand, was ordered to leave the vehicle on his own or be extricated, and immediately upon exiting the vehicle he was ordered to place his hands on the roof of the van. (Def. Ex. E.) Bin Raymond did not have an opportunity to close the door. After being patted down, Bin Raymond was ordered to stand by Trooper Johnson's vehicle. (Def. Ex. E.) The driver's door remained open. During the fast pass, Marko entered the van through the open driver's door and alerted to the center console. (Apr. 28, 2009, Tr. 33:13-14.)
Other courts have addressed canine sniffs that migrate from the outside to the inside of the vehicle. In Hutchinson, 471 F.Supp.2d at 500, the drug-detecting canine leapt through the open driver's window into the vehicle. The court in Hutchinson canvassed caselaw on this subject and found the consensus among courts to be that "a canine sniff that migrates from outside a car ... to the interior does not constitute a violation of the Fourth Amendment provided that the canine makes entry into the suspect vehicle of its own initiative and is neither encouraged into nor placed in the vehicle by a law enforcement officer." Id. at 506. In United States v. Pierce, No. 08-126-JJF, 2009 WL 255627, at *3 (D.Del. Feb.2, 2009), the drug-detecting dog entered an open driver's door during an exterior canine sniff. The court in Pierce, concluded that the canine's behavior was unprompted and instinctive and did not transform the canine sniff into a search within the meaning of the Fourth Amendment. Id. at *6. Similarly, the record here supports the Court's conclusion that Marko entered the vehicle on his own without any encouragement from Trooper Johnson.
Bin Raymond attempts to involve Trooper Johnson in Marko's entry into the vehicle by making him responsible for the fact that the driver's door remained open. Bin Raymond finds it significant that he never wanted the door open in the first place:
(May 19, 2009, Tr. 72:3-5.) When Bin Raymond exited the vehicle, his back was turned to Trooper Johnson and also to the open door. (May 19, 2009, Tr. 74:17-18.) Trooper Johnson testified that Bin Raymond "had easy access to the door" while he was being patted down with his hands on the roof of the van (May 19, 2009, Tr. 74:19-20), that Bin Raymond "had every opportunity" to shut the door upon exiting the van (May 19, 2009, Tr. 75:16-17), and that Bin Raymond "could have asked [Trooper Johnson] to shut the door" (May 19, 2009, Tr. 75: 23-24). From watching the video and the nature of Trooper Johnson's interaction with Bin Raymond, and
Nevertheless, the Court does not find that the Government in any way interfered with the vehicle or schemed to allow Marko's ingress. Bin Raymond's argument that Trooper Johnson controlled the door is based on Bin Raymond's view that "Tpr. Johnson controlled the defendant, Sullivan, the vehicle and the area from the time he activated his patrol lights until defendant was placed in custody. It was due to Tpr. Johnson's physical actions and verbal orders that the door was left open." (Reply 14.) Leaving aside the fact that there was a break in Trooper Johnson's control over Bin Raymond, Sullivan, the vehicle, and the area when he ended the traffic stop, the control Trooper Johnson exercised is too attenuated to transform the canine sniff into a search. The record simply does not support Bin Raymond's theory that Trooper Johnson "aided and/or assisted the defendant's exit by pushing open the vehicle door and leaving it; an act done solely for the purpose of facilitating the canine's entry into the vehicle." (Def.'s Br. 22.) While the Court understands perfectly well why the door remained open, it was Bin Raymond himself who opened it. Ordering Bin Raymond to exit the vehicle was proper. Mimms, 434 U.S. at 111, 98 S.Ct. 330 (finding that ordering a driver out of a car is a de minimis intrusion on the individual's personal liberty). Bin Raymond concedes that he could not decline to get out of the van. (Def.'s Br. ¶ 46.) But Bin Raymond fails to make the connection between his inability to decline Trooper Johnson's order and Trooper Johnson's facilitating Marko into the van. Bin Raymond's assertions that Marko entered the vehicle because the door was open, and the door was open because Trooper Johnson ordered Bin Raymond out of the vehicle, do not lead to the conclusion that Trooper Johnson encouraged Marko to enter the vehicle.
Trooper Johnson's conduct with regard to the driver's side door is easily distinguishable from that of the border patrol agent in United States v. Winningham, 140 F.3d 1328 (10th Cir.1998), a case Bin Raymond mistakenly finds analogous to the one sub judice. In Winningham, the agent himself opened the sliding door of a van and then left it open. Id. at 1329. The defendant had no role in the sliding door's opening because he had been ordered away from the van. Id. The Tenth Circuit in Winningham found that since the officers themselves had opened the van's sliding door and left it open for six minutes before the canine unit arrived, "[a] desire to facilitate a dog sniff of the van's interior ... seem[ed] readily apparent." Id. at 1331. The Court is unable to infer any such desire from Trooper Johnson's conduct. Trooper Johnson did not open the door, and he began the canine sniff mere moments after the door was opened. (Def. Ex. E.)
Moreover, in addition to indicating at the center console, during the fast pass Marko also indicated at the right front passenger door, which was closed. (Apr. 28, 2009, Tr. 33:16-17; 37:12-13.) The holdings of Hutchinson and Pierce certainly did not hinge on the fact that an exterior alert occurred just before the dog somehow found its way into the vehicle. In both cases, however, there was an external canine alert just before the dog leaped into the vehicle, or at least the courts generously
The traffic stop on May 21, 2007, was a lawful one that did not result in any Fourth Amendment violations. Following the traffic stop, a consensual encounter ensued with Sullivan and Bin Raymond during which Trooper Johnson developed reasonable suspicion that criminal activity was afoot. A second brief detention occurred that also resulted in no Fourth Amendment violation. Trooper Johnson, through his dog Marko, conducted a canine sniff of the vehicle during this second detention. The dog's entry into the vehicle did not transform the canine sniff into a search within the meaning of the Fourth Amendment. As a result, the Court concludes that Bin Raymond's Motion to Suppress Evidence is without merit and must be denied. The following Order will issue:
This Court heard approximately 26 hours of testimony that generated almost one thousand pages of transcript.
Bin Raymond: Is a citizen driving from Baltimore in the dark a.m. hours reason [sic] to be suspicious?
Tpr. Johnson: It depends.
Bin Raymond: Yes or no. Is it? Is it not?
Tpr. Johnson: Yes.
(Apr. 28, 2009, Tr. 147:23-148:1.) Citing this excerpt from the Suppression Hearing, Bin Raymond then argues in his brief, "It should be noted by the court that this officer believes any citizen driving from Baltimore at night is suspicious." (Def.'s Br. 14.) In fact, Trooper Johnson, when not pressed to pick one of Bin Raymond's answers, consistently adhered to the idea that the total of the indicators were what led him to a reasonable suspicion of criminal activity.
