United States v. Timothy Wilson , 547 F. App'x 232 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4191
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY M. WILSON,
Defendant - Appellant.
No. 12-4205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS R. AHORRIO, JR., a/k/a Luis R. Ahorrio,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:10-cr-00488-WDQ-1; 1:10-cr-00488-WDQ-2)
Argued: October 31, 2013 Decided: November 26, 2013
Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Susan Amelia Hensler, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland; Michael Daniel Montemarano,
MICHAEL D. MONTEMARANO, PA, Columbia, Maryland, for Appellants.
Joshua L. Kaul, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, Martin Bahl, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant Timothy M. Wilson. Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Timothy Wilson and Luis Ahorrio were tried and convicted of
possession with the intent to distribute, and conspiracy to
distribute 280 grams or more of cocaine base. Their indictment
and eventual conviction stemmed from a routine traffic stop
during which a narcotics detection dog alerted to the presence
of contraband in their vehicle. Wilson and Ahorrio appeal their
convictions arguing, among other things, that the district court
erred in denying their motions to suppress evidence obtained in
the ensuing search of their car. For the reasons that follow,
we affirm.
I.
A.
On July 23, 2010, Ahorrio drove from his home in Queens,
New York to meet Wilson at his home in southern New Jersey.
From there, they rode south in a rented Toyota Corolla.
As they travelled through Worcester County, Maryland, they
passed Corporal Howard Kennard of the Maryland State Police, who
was monitoring traffic on that stretch of U.S. Route 113. Cpl.
Kennard--accompanied by Trooper First Class Dana Orndorff and
Camo, a narcotics detection dog--stopped Wilson and Ahorrio
after observing their vehicle exceeding the speed limit and
following another vehicle too closely.
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Cpl. Kennard approached the vehicle and began the usual
traffic-stop formalities. In the process, Cpl. Kennard observed
that Wilson and Ahorrio both appeared nervous and that the
driver of the car, Ahorrio, was not listed on the vehicle’s
rental agreement.
Trooper Orndorff subsequently approached the car and began
conversing with Ahorrio while Cpl. Kennard spoke with Wilson.
Both men stated that they were traveling to watch drag races,
but they gave different geographic destinations: Wilson
indicated that they were traveling to North Carolina while
Ahorrio said they were driving to Georgia.
Cpl. Kennard then asked Ahorrio for permission to conduct a
canine scan of the vehicle. Ahorrio replied that the officers
would need to ask Wilson. Trooper Orndorff then instructed
Wilson to exit the vehicle, retrieved Camo, and began the scan,
concluding when Camo alerted at the front driver’s-side door.
Trooper Orndorff then informed Cpl. Kennard of the alert and
rewarded Camo with a toy on the side of the road.
Cpl. Kennard then began to search the vehicle, where he
ultimately found clear Ziploc bags containing 327.9 grams of a
substance containing cocaine base. Those small bags were
contained within a larger white plastic bag, concealed within a
brown paper Burger King bag, and hidden beneath the front
passenger-side seat. The outer Burger King bag also contained a
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receipt bearing the address of a Burger King located less than a
half mile from Ahorrio’s residence in Queens. Cpl. Kennard then
ordered Ahorrio and Wilson to the ground and arrested them.
B.
Ahorrio and Wilson were charged in a single indictment with
conspiracy to distribute and possession with intent to
distribute 280 grams or more of cocaine base in violation of 21
U.S.C. § § 841 & 846. Both defendants moved to suppress the
evidence found during the search of their vehicle. Wilson
argued, in particular, that Camo’s alert was so unreliable that
it could not have given the officers probable cause to believe
that narcotics were actually present in the car.
The government provided records of Camo’s 81 prior field
scans, as well as information about his training and
certification. While the results of his training and evaluation
exercises indicated that Camo was highly reliable--he falsely
alerted in training only once--his field records told a
different story. Of the 81 field scans Camo had performed, he
had alerted in all but four. But of the 77 scans where Camo
alerted, in only 24 did officers actually locate any narcotics.
The government argued that in the 53 cases where Camo
alerted but no narcotics were found, the odor of drugs may
nonetheless have lingered in the car. Moreover, the government
argued that in twenty of those cases there was direct evidence
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that drugs or drug users had recently been present in the car.
The district court adopted these conclusions and held that
Camo’s training and certification were sufficient to establish
his reliability. It therefore denied Wilson’s and Ahorrio’s
motions to suppress.
The case then proceeded to trial, at the conclusion of
which Wilson and Ahorrio were convicted on both counts. They
were each sentenced to ten years’ imprisonment.
II.
In considering a district court’s denial of a motion to
suppress, we review its legal conclusions de novo and its
factual determinations for clear error. United States v. Smith,
395 F.3d 516, 519 (4th Cir. 2005). In doing so, we consider the
evidence in the light most favorable to the government. United
States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 2003). We may
affirm the district court’s decision on any ground supported by
the record, not just the ground upon which it actually reached
its decision. Smith, 395 F.3d at 519.
Accordingly, we affirm the district court’s denial of the
motions to suppress on the ground that the officers are entitled
to the good faith exception to the suppression remedy. We
therefore need not decide whether Camo’s alerts were, in fact,
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sufficiently reliable to give the officers probable cause to
search the vehicle.
At the time of the search, we had indicated that a
narcotics detection dog was per se reliable if it had completed
an adequate training program and obtained the appropriate
certifications. Addressing this issue in an unpublished
opinion, we stated that evidence of the dog’s “training and
certification was enough by itself to establish [his]
reliability so that his positive alerts for controlled
substances established probable cause.” United States v. Koon
Chung Wu, 217 F. App'x 240, 245 (4th Cir. 2007) (unpublished)
(per curiam).
“For exclusion to be appropriate, the deterrence benefits
of suppression must outweigh its heavy costs.” Davis v. United
States, 131 S. Ct. 2419, 2427 (2011). “[W]hen the police act
with an objectively reasonable good-faith belief that their
conduct is lawful . . . the deterrence rationale loses much of
its force and exclusion cannot pay its way.” Id. at 2427-28
(internal citations and quotations omitted). In Davis, the
Supreme Court thus concluded that the exclusionary rule does not
apply “when the police conduct a search in objectively
reasonable reliance on binding appellate precedent.” Id. at
2434. We believe the same reasoning applies when officers act
in objectively reasonable reliance on our unpublished circuit
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precedent. This is so because “[e]xcluding evidence in such
cases deters no police misconduct and imposes substantial social
costs.” Id.
Our opinion in Wu would reasonably have led Cpl. Kennard
and Trooper Orndorff to believe that their search of Wilson and
Ahorrio’s vehicle was legal. Wu indicated that Camo’s alert
provided probable cause for the search because his training and
certification established his reliability regardless of his
actual field performance.
The Supreme Court’s subsequent decision in Florida v.
Harris, 133 S. Ct. 1050 (2013), makes clear that a more nuanced
analysis is required, but it was decided well after the search
at issue in this case. Harris reiterates the longstanding
principle that we avoid “rigid rules, bright-line tests, and
mechanistic inquiries” for probable cause. Id. at 1055.
Accordingly, when a dog’s reliability is challenged, its
performance in the field “may sometimes be relevant” alongside
training and certification records in the totality of the
circumstances. Id. at 1057. But because Harris was not the
controlling law at the time of the search in question, it can
have no bearing on whether the officers believed, in good faith,
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that their conduct was lawful. The district court therefore did
not err in denying appellants’ motions to suppress. *
III.
For the foregoing reasons, Wilson’s and Ahorrio’s
convictions and sentences are
AFFIRMED.
*
We have also considered the other arguments raised by
appellants and find them to be without merit.
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