United States v. Zavia Johnson

• Court: Court of Appeals for the Third Circuit
• Decided: July 31, 2018
• Docket: 17-2008
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-2008 _____________

UNITED STATES OF AMERICA

v.

ZAVIA L. JOHNSON, aka Lester Hayes aka Xavier Johnson, Appellant _____________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 1-12-cr-00070-001) District Judge: Honorable David S. Cercone ______________

Submitted Under Third Circuit L.A.R. 34.1(a) April 13, 2018 ______________

Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge 1

(Filed: July 31, 2018) ______________

OPINION * ______________

1 The Honorable Susan R. Bolton, Senior District Judge, United States District Court for the District of Arizona, sitting by designation. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. VANASKIE, Circuit Judge.

Appellant Zavia Johnson appeals his judgment of conviction following the District

Court’s denial of his motion to suppress evidence gathered after the seizure and search of

his car following a traffic stop. On appeal, Johnson challenges the duration of the traffic

stop, the existence of probable cause to seize the rental vehicle he was driving, and the

omission of certain facts from the officer’s affidavit of probable cause presented in

support of a search warrant application. Discerning no clear error in the District Court’s

findings of fact, and concluding that its legal analysis is consistent with governing

precedent, we will affirm the judgment of conviction entered on April 19, 2017.

I.

On the morning of November 2, 2012, Pennsylvania State Trooper Gary S. Knott

was traveling on Interstate 79 in Erie County, Pennsylvania, when he observed a Nissan

Altima ahead of him lingering in the passing lane. 2 Trooper Knott suspected that the

driver lacked “situational awareness” because he appeared not to have noticed Trooper

Knott’s marked cruiser driving up behind him. (App. at 146.) Trooper Knott testified

that he moved into the right-hand lane and pulled alongside the Altima, whose driver

“looked over at [Trooper Knott] and immediately . . . went from a slouched position very

casually and . . . jumped and grabbed the steering wheel with two hands, [causing] the

vehicle to veer to the left on top of the fog line on the left side of the road.” (Id. at 147-

2 It is a violation of the Pennsylvania Vehicle Code to proceed in the left-hand lane absent a legally-permitted purpose. See 75 Pa. Cons. Stat. § 3313(d)(1). 2 48.) The driver then maneuvered his car into the right-hand lane in front of Trooper

Knott’s cruiser, at which point Trooper Knott decided to pull the vehicle over. A

dashboard camera in Trooper Knott’s vehicle recorded the entirety of the Trooper’s

encounter with Johnson.

As Trooper Knott approached the Altima, he noticed that the driver’s hands were

trembling and that his nervousness seemed “significantly higher than the average

motorist who’s not involved in any other criminal activity.” (Id. at 153.) The driver

introduced himself as Zavia Johnson and told Trooper Knott that he was traveling from

Rochester, New York, to Pittsburgh, Pennsylvania, to purchase alligator skin boots.

Trooper Knott took Johnson’s New Jersey driver’s license and two rental car contracts

back to his cruiser to verify them. Trooper Knott soon learned that Johnson’s real name

was Lester Hayes, and that he had several other aliases and an extensive criminal record. 3

Trooper Knott also learned that the Altima’s rental contract had expired. There then

ensued a lengthy effort to ascertain whether Johnson was in legal possession of the rental

vehicle. About fifty minutes after Trooper Knott pulled Johnson over, he was informed

that Johnson was in lawful possession of the car.

In the meantime, Trooper Knott was confronted with suspicious incidents. About

seven minutes into the traffic stop, a silver car pulled up behind Trooper Knott’s cruiser,

remained at a distance of 300 yards away for approximately forty seconds, and then

drove away. Based on Trooper Knott’s experience and training, he knew that drug

3 For consistency throughout this opinion, we will refer to Appellant as Johnson.

3 traffickers often traveled together in several cars, and believed the silver car was a “trail

vehicle[].” (Id. at 185.) He decided to call for back-up to verify whether the car was

related to Johnson. 4

Suspecting drug trafficking activity, Trooper Knott also summoned a State Police

canine unit to conduct a drug sniff of Johnson’s car. About forty minutes after the stop,

Corporal Brian Peters arrived with his drug detection dog, Iggy, who is trained to detect

marijuana, cocaine, heroin, and methamphetamine. Trooper Knott briefed Corporal

Peters about Johnson’s criminal record, his nervousness, and a strong odor of a fragrance

emanating from Johnson’s car. Corporal Peters then approached Johnson’s passenger

window and had a conversation with him, where Johnson asserted that his name was

Zavia Johnson and denied using aliases. Johnson told Corporal Peters that he had several

businesses in Rochester, and that he was traveling to Pittsburgh to conduct business and

see his family.

About one hour into the traffic stop, Trooper Knott informed Johnson that he

suspected that criminal activity was afoot based on Johnson’s nervousness and the

fragrance emanating from his car. Trooper Knott had Johnson exit his vehicle and read

Johnson his Miranda rights, but assured Johnson that he was not under arrest. He also

conducted a pat down of Johnson. Trooper Knott told Johnson that he knew about his

aliases and criminal record, to which Johnson responded that he had used different names

in the past.

4 The silver car turned out to be unrelated to Johnson or the traffic stop. 4 Trooper Knott requested consent to search the Altima, which Johnson denied.

Trooper Knott then informed Johnson that Corporal Peters and Iggy were going to

conduct a scan of his Altima. About an hour and five minutes after the stop, Corporal

Peters and Iggy conducted their scan of the Altima. Corporal Peters testified that, before

he and Iggy reached the Altima, Iggy’s “head was raised, his mouth closed, he was

sniffing, [and] his head was drifting back and forth,” which Corporal Peters considered to

be the first step of “alert” behavior. (Id. at 385.) Corporal Peters testified that although

Iggy did not “indicate,” or, locate the source of the odor, he still “alerted to the presence

of [a] controlled substance.” (Id. at 387.)

Following Iggy’s alert, Trooper Knott determined that he had probable cause to

search the car. He decided to seize the car and apply for a search warrant, but told

Johnson that he was not in custody and was free to leave. The tow truck arrived almost

an hour and forty minutes into the stop, and towed the car to the Edinboro Police

Department, the closest facility where Trooper Knott could apply for the search warrant.

Afterward, Trooper Knott drove Johnson (who rode in the back of the cruiser to the

police station) to a Greyhound bus station.

After dropping Johnson off, Trooper Knott returned to the police station and

learned that the magistrate to whom he intended to apply for the warrant would not be

available for another four hours. Trooper Knott was concerned about leaving the Altima

at the police station because it would not be in “a completely secure facility that only a

law enforcement officer would have access to,” so he received instruction from his

5 supervisors to conduct an inventory search of the car pursuant to department policy. (Id.

at 195.) The search revealed large sums of cash and bricks of heroin in the trunk.

Trooper Knott then had the Altima towed to a Pennsylvania State Police facility,

and returned to the Greyhound bus station and arrested Johnson. Afterward, Trooper

Knott applied for a warrant to search the Altima, and submitted a five-page supporting

affidavit of probable cause. A Pennsylvania magistrate granted the warrant, and the

search revealed 175 bricks of heroin and $7,000, among other items of an incriminating

nature.

Johnson was charged in a one-count indictment with possession with intent to

distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) &

841(b)(1)(B)(i). He moved to suppress evidence and statements obtained through the

traffic stop, seizure, and search of his car. He also filed a supplement to his suppression

motion where he cited several statements in Trooper Knott’s affidavit and argued that

these allegedly false statements destroyed probable cause. (App. at 22.) The District

Court held a two-day suppression hearing, where the government presented testimony of

Trooper Knott, Corporal Peters, and Corporal Michael T. Ruhf—a certified canine

handler whose responsibilities include training and certifying police dogs.

Following the hearing, the District Court denied Johnson’s suppression motion.

First, the District Court found that the initial traffic stop of Johnson’s Altima was

reasonable, given that the dashboard camera video showed Johnson driving in the passing

lane in violation of the Pennsylvania Vehicle Code. The District Court next found that

Trooper Knott did not unreasonably prolong the length of the traffic stop. In particular,

6 the District Court reasoned that Trooper Knott’s inquiries into Johnson’s license and

rental car contracts “w[ere] necessary and reasonable [processes that] naturally prolonged

the stop.” (Id. at 14.) The Court further determined that, once Trooper Knott learned of

Johnson’s aliases and criminal record, he had “a valid reason to conduct further inquiry

into the identity of the individual he had stopped.” (Id. at 15.)

Second, the Court held that Trooper Knott had probable cause to seize and search

Johnson’s car based on Iggy’s alert to the presence of drugs in the vehicle, and Trooper

Knott’s other observations. According to the Court, Corporal Peters’ determination that

Iggy had alerted to the presence of drugs was reasonable based on the dog’s change in

posture and respiration rate. The Court further held that Iggy’s inability to “indicate” did

“not detract from the alert behavior observed by Corporal Peters . . . .” (Id. at 20.)

Third, the District Court rejected Johnson’s argument that the inventory search of

the Altima “was nothing more than a pretext to further Trooper Knott’s criminal

investigatory search and therefore was illegal.” (Id. at 644.) The District Court

concluded that, since Trooper Knott had probable cause to search Johnson’s car before he

applied for the search warrant, the inventory search did not amount to a Fourth

Amendment violation.

Finally, the District Court held that Johnson failed to show that Trooper Knott

made several false statements in the search warrant affidavit, opining that certain

omissions or statements would not have affected the magistrate’s probable cause

determination. (Id. at 23.) To the contrary, the Court found that Trooper Knott’s

decision to omit certain facts from the search warrant affidavit—including Johnson’s

7 later admission that he used aliases when he was arrested—would have only strengthened

the case against Johnson. The Court thus denied Johnson’s motion and admitted the

evidence.

Following the denial of his motion, Johnson pled guilty to the offense. He was

sentenced to 180 months’ imprisonment, followed by a ten-year term of supervised

release. He timely appealed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 28 U.S.C. § 1291. We review the denial of a motion to suppress “for

clear error as to the underlying factual findings and we exercise plenary review over

questions of law.” United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006).

III.

On appeal, Johnson renews his arguments that: (1) the traffic stop was

unreasonably prolonged; (2) the officers lacked probable cause to seize and search the

Altima because Iggy never alerted to the presence of a controlled substance in his car;

and (3) the affidavit of probable cause contained material omissions. We find no merit in

these contentions.

A.

“[A] police stop exceeding the time needed to handle the matter for which the stop

was made violates the Constitution’s shield against unreasonable seizures.” Rodriguez v.

United States, 135 S. Ct. 1609, 1612 (2015). “Authority for the seizure thus ends when

tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id.

8 at 1614. Such tasks include “checking the driver’s license, determining whether there are

outstanding warrants against the driver, and inspecting the automobile’s registration and

proof of insurance.” Id. at 1615.

Johnson argues that Trooper Knott unreasonably prolonged the stop “[b]y not

using the most expeditious and available means” to inquire into Johnson’s rental car

contracts. (Appellant’s Br. at 64.) We disagree. As the government correctly notes,

Trooper Knott “was unable to devote his singular attention to the rental car issue because

he was dealing with identifying Johnson, [a] proper inquiry incident to a legal traffic

stop.” (Appellee’s Br. at 54.) Moreover, there is nothing to indicate a lack of diligence

in chasing down information from the car rental agency to verify that, even though the

rental contract had expired, Johnson was authorized to possess the car.

We likewise reject Johnson’s argument that the officers could have expedited the

start of the dog sniff, which did not occur until twenty-five minutes after Iggy arrived,

and more than one hour after the stop. Corporal Peters’ delay in dispatching Iggy was

not unreasonable, given that Corporal Peters was familiarizing himself with the case and

Iggy was becoming accustomed to his surroundings. See United States v. Holt, 777 F.3d

1234, 1257 (11th Cir. 2015) (finding no unreasonable delays where drug dogs had arrived

for vehicle scan and were dispatched after officer concluded a routine records check).

We thus conclude that the length of the traffic stop was reasonable under the

circumstances.

B.

9 “[A] dog’s positive alert while sniffing the exterior of the car provides an officer

with the probable cause necessary to search the car without a warrant.” United States v.

Pierce, 622 F.3d 209, 213 (3d Cir. 2010) (citations omitted). As testified to by the

officers in this case, an “alert” is instinctual behavior displayed by a drug detection dog

that includes “increased respiration and change in body posture when the dog initially

encounters the odors he’s trained to detect.” (App. at 374.)

Johnson claims that the dashboard camera footage belies the District Court’s

finding that Iggy alerted. Johnson further maintains that Iggy’s failure to alert dispelled

suspicion that his vehicle contained drugs.

Admittedly, the dashboard footage is somewhat ambiguous. For instance,

Corporal Peters and Trooper Knott can be heard discussing Iggy’s behavior, where

Corporal Peters seemed to express frustration with Iggy’s performance during the sniff. 5

Corporal Ruhf also testified that, after reviewing the video, he could not say either way

whether Iggy alerted. (App. at 345.) Nevertheless, the record contains sufficient

evidence to support the District Court’s finding that Iggy alerted. For example, in his

supplemental investigation report, Corporal Peters wrote that, prior to the search, Iggy

first alerted by “lift[ing] . . . his nose high and . . . sniffing the air with increased

respirations.” (Id. at 549.) Corporal Peters then wrote that Iggy alerted during the car

scan by “lifting his head up over the trunk lid and stretching his neck out to sniff higher

on the trunk deck.” (Id.) We also agree with the government that, in light of the fact that

5 According to the government, Corporal Peters’ frustration stemmed from Iggy’s failure to indicate, despite his alert. 10 Corporal Peters and Iggy had been a unit since 2007 and underwent their most recent

training one week before the traffic stop, “Corporal Peters . . . [was] in the best position

to interpret his canine’s response . . . .” (Appellee’s Br. at 26.) We thus conclude that it

was not clear error to find that Iggy alerted and that, based on the alert and other factors

observed by Trooper Knott, probable cause existed to seize and search the car.

C.

“The Fourth Amendment prohibits the intentional or reckless inclusion of a

material false statement (or omission of material information) in a search-warrant

affidavit.” United States v. Pavulak, 700 F.3d 651, 665 (3d Cir. 2012) (citation omitted).

“Materiality” is decided by inserting the allegedly-omitted facts into the affidavit and

“then determin[ing] whether or not the corrected warrant affidavit would establish

probable cause.” Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (citation and internal

quotation marks omitted).

Johnson limits his appeal to one statement in Trooper Knott’s affidavit: “[Corporal

Peters] related to me that he observed a positive response from his dog indicating the

odor(s) that he is trained to detect.” (App. at 503.) Johnson contends that, even if Iggy

alerted, 6 Trooper Knott’s “failure to tell the magistrate that Iggy did not ‘indicate,’ or

engage in the behavior he is trained to do, was a material omission . . . .” (Appellant’s

6 As we have concluded that the District Court did not clearly err in finding that the drug-sniffing dog did alert to the presence of narcotics, it necessarily follows that the District Court did not clearly err in finding that the statement in the probable cause affidavit that Corporal Peters informed Trooper Knott that Iggy had given a positive response for the presence of drugs was not false. 11 Br. at 36) (citing United States v. Jacobs, 986 F.2d 1231, 1234-35 (8th Cir. 1993)

(holding that statement in affidavit of probable cause that drug dog “showed an interest in

the [defendant’s] package,” but not informing the magistrate that the dog failed to fully

alert, was a recklessly-made material omission.)) Johnson further argues that, once the

statement is corrected, the affidavit fails to provide probable cause to seize and search his

car.

Johnson is mistaken. A drug dog’s “alert” to the presence of a controlled

substance is enough to provide probable cause. See Pierce, 622 F.3d at 213 (citations

omitted). While an “indication” would bolster the affidavit, it is not material to a

probable cause finding.

IV.

For the reasons stated, we will affirm the judgment of conviction entered on April

19, 2017.