United States v. Dawson

305 F. App'x 149
Procedural entryThis page is a short order in United States v. Dawson. Read the opinion of the Court — 587 F.3d 640
Court of Appeals for the Fourth Circuit·Decided December 31, 2008·No. 07-4529·Unpublished

Opinion

PER CURIAM:

Naim Dawson entered a conditional guilty plea to a firearm offense, preserving his right to appeal the district court’s denial of his motion to suppress evidence. Dawson relies on four constitutional bases for suppression: (1) that, during his initial encounter with police officers, he was unconstitutionally seized; (2) that there was no probable cause for his subsequent warrantless arrest by those officers; (3) that the officers conducted an unconstitutional warrantless search of his residence and only then decided, based on evidence found, to seek a search warrant; and (4) that the search warrant ultimately secured by the officers was not supported by probable cause and could not be relied on by the officers in good faith. As explained below, we reject Dawson’s contentions and affirm.

I.

On March 9, 2006, the grand jury in the District of Maryland indicted Dawson for possession with intent to distribute fifty grams or more of crack cocaine, in contravention of 21 U.S.C. § 841(a)(1) (the “drug offense”), and for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (the “firearm offense”). On October 26, 2006, Dawson filed his motion to suppress evidence, which he thereafter supplemented three times. The district court heard evidence on the suppression motion over the course of three days in January 2007, and it denied the motion by oral ruling of February 1, 2007. 1

A.

1.

During the evidentiary hearing on the suppression motion, John Jendrek, a detective in the Baltimore City Police Department detailed to the Drug Enforcement Administration (“DEA”) Task Force, testified that, in January 2005, the DEA Task Force was in the midst of an ongoing investigation of several Baltimore stores, including the Ayrdale Variety Store, suspected of selling drug paraphernalia. 2 At that time, Jendrek knew that the owner of the Ayrdale Variety Store had previously been convicted of a drug distribution of *151 fense, and Jendrek had information—from confidential informants and from numerous arrestees in other drug cases—about drug paraphernalia (particularly glass vials) being sold at the store. Jendrek explained that the illegal purpose for the glass vials is to package powder and crack cocaine for street distribution, but acknowledged that there are legal purposes for the vials, and that the vials’ packaging reflects that they are for storing perfume. Jendrek had never been in the Ayrdale Variety Store, but he could see through the door that it also displayed tee shirts, presumably for sale.

The investigation of the Ayrdale Variety Store included periodic surveillance. Detective Jendrek testified that the officers conducting the surveillance watched for customers who stayed in the store for “a very short period of time”—“not like they were looking around for different items”— and then left with a black plastic bag about “the size of a football” that appeared to have “substantial weight.” See J.A. 18-20. 3 Such bags had been shown to contain approximately 500 glass vials each, typically packaged in small cardboard boxes, fifty to a box. Indeed, by January 18, 2005, the officers had stopped Ayrdale Variety Store customers fitting the targeted description on more than ten occasions, and such customers “always had ... glass vials.” Id. at 22.

On January 18, 2005, a Tuesday, Detective Peter Sullivan was conducting surveillance on the Ayrdale Variety Store, and Detective Jendrek was in his car about a block away. At approximately 12:30 p.m., Sullivan informed Jendrek by radio that he had observed a man—later identified as defendant Dawson, but unknown to the officers at that time—enter and soon thereafter leave the store with a black plastic bag about the size of a football. It was then decided to follow Dawson (who drove off in a Dodge Intrepid with Maryland tags) in the hope that, as in prior cases with other suspects, he would drive to his “stash house” and police could develop probable cause to enter such premises.

Dawson was followed by three officers— Detectives Jendrek, Sullivan, and Keith Gladstone—driving three separate unmarked vehicles. Dawson drove through the Ayrdale Variety Store neighborhood (a residential and small business area in northwestern Baltimore), then headed north on Liberty Heights Avenue/Liberty Road (the main north-south corridor through the area), into Baltimore County and toward Interstate 695 (the Baltimore Beltway). Just south of Interstate 695, Dawson drove into another residential neighborhood and then pulled to the 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 *152 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.

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.

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United States v. Dawson, 305 F. App'x 149 (4th Cir. 2008).

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