US v. Timothy Wilson, No. 12-4191 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4191 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY M. WILSON, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Timothy Wilson and Luis Ahorrio were tried and convicted of possession with the intent to distribute, and distribute 280 grams or more of cocaine base. and eventual conviction stemmed from a conspiracy to Their indictment 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 after observing detection their vehicle dog--stopped exceeding following another vehicle too closely. 3 Wilson the and speed Ahorrio limit and Cpl. Kennard approached the vehicle and began the usual traffic-stop formalities. In the process, Cpl. Kennard observed that both Wilson and Ahorrio 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 indicated gave that different they were geographic traveling destinations: to North Carolina Wilson 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 Trooper need to ask Wilson. 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 passenger-side seat. King bag, and hidden beneath the front The outer Burger King bag also contained a 4 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. § § evidence 841 & 846. found during Both defendants moved to suppress the 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 certification. as information about his training and While the results of his training and evaluation exercises indicated that Camo was highly reliable--he falsely alerted in training different story. only once--his field records told a 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 alerted government but no argued narcotics that were in the found, nonetheless have lingered in the car. 53 the cases odor of where drugs Camo may Moreover, the government argued that in twenty of those cases there was direct evidence 5 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 which Wilson and Ahorrio were convicted on both counts. of 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 factual determinations for clear error. 395 F.3d 516, 519 (4th Cir. 2005). de novo and its United States v. Smith, 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, 6 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 certifications. opinion, we reliability Addressing stated certification program that was so this evidence enough that and his by obtained issue of positive substances established probable cause. appropriate an unpublished in the itself the dog s to training establish alerts for and [his] controlled 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. States, 131 S. Ct. 2419, 2427 (2011). with an objectively reasonable Davis v. United [W]hen the police act 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 In citations and quotations omitted). 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. 2434. Id. at We believe the same reasoning applies when officers act in objectively reasonable reliance on our unpublished circuit 7 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 Accordingly, when a for dog s probable cause. reliability is Id. at 1055. challenged, its performance in the field may sometimes be relevant alongside training and circumstances. certification Id. at 1057. records in the totality of the 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, 8 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. 9