Petition for Writ of Certiorari — Eric Tyrell Johnson, Petitioner v. United States
Supreme Court briefDec 31, 2025
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APPENDIX
TABLE OF CONTENTS
Appendix A
Court of appeals opinion,
August 5, 2025 ......................... 1a
Appendix B
District court memorandum
opinion denying suppression
motions,
July 6, 2022 ............................ 18a
Appendix C
District court order denying
suppression motions,
July 6, 2022 ............................ 61a
Appendix D
District court judgment,
March 30, 2023 ...................... 63a
Appendix E
Court of appeals order granting
motion to strike or withdraw petition for rehearing,
August 29, 2025 ..................... 77a
Appendix F
Search warrant application and
affidavit,
August 8, 2019 ....................... 78a
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APPENDIX A
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT
No. 23-4255
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC TYRELL JOHNSON, a/k/a E,
Defendant - Appellant.
Appeal from the United States District Court for the
District of Maryland, at Baltimore.
Deborah K. Chasanow, Senior District Judge.
(1:20-cr-00038-DKC-3)
Argued: May 8, 2025
Decided: August 5, 2025
Before HARRIS, RICHARDSON, and HEYTENS,
Circuit Judges.
Affirmed by published opinion. Judge Harris wrote
the opinion, in which Judge Richardson and Judge
Heytens joined.
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ARGUED: Sylvia Olga Tsakos, SKADDEN,
ARPS, SLATE, MEAGHER & FLOM LLP, Washington, D.C., for Appellant. Adeyemi Adenrele, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Marjorie Grismer, Chicago, Illinois, Shay Dvoretzky, Parker RiderLongmaid, Caitlin M. Hird, SKADDEN, ARPS,
SLATE, MEAGHER & FLOM, LLP, Washington,
D.C.; Gary E. Proctor, Jennifer Smith, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Erek L. Barron, United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
PAMELA HARRIS, Circuit Judge:
Law enforcement officers suspected that Eric
Tyrell Johnson was involved in a drug trafficking
scheme. Before seeking a warrant, they investigated
by conducting a warrantless dog sniff for contraband
at the front door of Johnson’s apartment, in the hallway of a large, multi-unit building. Based in part on a
positive alert, the police then obtained a warrant to
search the apartment and uncovered drugs, guns and
other incriminating evidence. After the district court
denied Johnson’s motion to suppress that evidence as
fruit of a Fourth Amendment violation, Johnson was
convicted of drug- and gun-related offenses.
On appeal, Johnson argues that the district court
erred in denying his motion to suppress. According to
Johnson, the warrantless dog sniff at his apartment
door violated the Fourth Amendment on two separate
grounds: the police used a trained drug-detection dog
to access details of his home, otherwise unavailable
from the outside, in which he has a reasonable
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expectation of privacy; and the police intruded onto
the “curtilage” of his home when they positioned the
dog immediately outside his apartment door. For the
reasons given below, we disagree on both counts,
and therefore affirm the judgment of the district
court.
I.
A.
In March 2019, a Narcotics Task Force in Washington County, Maryland, working with the federal
Drug Enforcement Administration, began investigating a drug trafficking organization suspected of
selling fentanyl and heroin in Maryland and West Virginia. The investigators conducted an extensive
wiretap and surveillance operation that led them to
suspect defendant Eric Tyrell Johnson was trafficking
drugs from Apartment 201 in a large multi-unit complex called Greenwich Place in Owings Mills,
Maryland.1
Agent Jasen Logsdon of Washington County, who
was leading the investigation, decided to conduct a
dog sniff at Johnson’s apartment to confirm – or dispel
– those suspicions before seeking a search warrant for
the premises. On August 7, 2019, at approximately
3:00 a.m., Logsdon and his certified canine detection
team, with the permission of building management,
entered the Greenwich Place apartment building.
Apartment 201 was located in a long hallway on
the building’s second floor, near the elevators. As the
1 On appeal of a denied motion to suppress, this court re-
views the facts in the light most favorable to the government.
United States v. Rush, 808 F.3d 1007, 1010 (4th Cir. 2015).
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district court would later find, that meant other second-floor residents would routinely walk past
Johnson’s door on their way to and from the elevators.
Johnson’s apartment was recessed from the common
hallway by approximately three and a half feet, and
there was nothing in the area in front of the apartment door at the time of the dog sniff.
The trained drug-detection dog conducted a “free
air scan” of Apartment 201’s front door and alerted to
the odor of illegal drugs in the area of the lower door
seam. The next day, law enforcement officers applied
for a warrant to search Apartment 201, relying in part
on the dog’s positive alert. The warrant was granted,
and police searched the apartment on August 12,
2019. The search uncovered a heroin-fentanyl powder
mixture, a handgun, ammunition, cell phones, cash,
and other items indicative of drug-dealing.
B.
A federal grand jury indicted Johnson along with
several co-defendants, charging Johnson with three
counts: conspiracy to distribute and possess with intent to distribute fentanyl and heroin, in violation of
21 U.S.C. § 846; possession with intent to distribute
fentanyl and heroin, in violation of 21 U.S.C. §
841(a)(1); and unlawful possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1).
Johnson moved to suppress the evidence recovered from his apartment, arguing that it was fruit of
a Fourth Amendment violation for two separate and
alternative reasons. First, citing Kyllo v. United
States, 533 U.S. 27 (2001), and Justice Kagan’s concurrence in Florida v. Jardines, 569 U.S. 1, 12 (2013),
Johnson argued that the dog sniff constituted a search
under the “reasonable expectation of privacy”
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standard because the police used a specialized device
(the trained dog) to discover details of his home (the
presence of drugs) that would otherwise have been unavailable absent a physical intrusion into the
apartment. Because the police had no warrant for that
search, Johnson finished, it violated the Fourth
Amendment. Second, this time pointing to the majority opinion in Jardines, 569 U.S. at 1, Johnson
contended that the dog sniff violated the Fourth
Amendment under a property-based approach because it involved an unlicensed physical intrusion
onto the “curtilage” of his home – with the “curtilage”
being the area of the apartment-building hallway just
outside Johnson’s door.
The district court was persuaded by neither argument. United States v. Nelson, No. 20-cr-0038-DKC-3,
2022 WL 2484143, at *18 (D. Md. July 6, 2022).2 A dog
sniff does not violate any reasonable expectation of
privacy, the court held, because an alert by a trained
dog exposes only the presence of illegal narcotics, in
which there can be no legitimate privacy interest. Id.
Nor, the court held, did the part of the common hallway in front of Johnson’s apartment door qualify as
“curtilage,” protected from police intrusion under the
Fourth Amendment. The court agreed with the government that Johnson “had no property based right
outside the apartment door.” Id. at *17. Instead, the
court reasoned, the hallway was regularly accessed by
other tenants and by building cleaning staff, and consent to enter the building by other members of the
2 The district court addressed Johnson’s motion to suppress
together with motions filed by multiple co-defendants, including
named co-defendant Jeroam Edwin Nelson, Jr. See Nelson, 2022
WL 2484143, at *1.
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public was “apparently [] given routinely upon request.” Id. Under those circumstances, the common
hallway – including the area just outside Johnson’s
door – did not qualify as “curtilage” of the home from
which police were excluded.
Johnson proceeded to trial.3 A jury convicted
Johnson on all counts, and the district court sentenced
him to 150 months in prison. Johnson timely appealed, challenging only the denial of his motion to
suppress.
II.
“When reviewing a ruling on a suppression motion, we review the district court’s legal
determinations de novo and factual findings for clear
error.” United States v. Rush, 808 F.3d 1007, 1010 (4th
Cir. 2015). Where, as here, “the motion has been denied, we review the evidence in the light most
favorable to the government.” Id.
The question in this case is whether the dog sniff
at Johnson’s apartment door constituted a “search”
within the meaning of the Fourth Amendment.4
Johnson was tried alongside co-defendant Jarvis Antonio
Coleman-Fuller, and their appeals were initially consolidated.
This court subsequently granted the defendants’ motion to file
separate briefs, and then affirmed Coleman-Fuller’s conviction
and sentence in a separate opinion, United States v. ColemanFuller, No. 23-4237, 2025 WL 101067 (4th Cir. Jan. 15, 2025).
3
4 Subject to only a few exceptions, a warrantless search of a
home is unreasonable and hence unconstitutional under the
Fourth Amendment. Kyllo, 533 U.S. at 31. But that rule applies
only if there has been a predicate “search” within the meaning of
the Fourth Amendment. Id. Absent a search, in other words, the
Fourth Amendment is not implicated at all, and the warrantless
nature of the dog sniff at Johnson’s apartment raises no Fourth
Amendment concerns.
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Johnson argues that it did, drawing on two lines of
Fourth Amendment cases. The first, which traces
back to Katz v. United States, 389 U.S. 347 (1967), applies the familiar “reasonable-expectations test,”
under which a search occurs when government conduct violates a “reasonable expectation of privacy.”
See United States v. Jackson, 728 F.3d 367, 374 (4th
Cir. 2013) (describing Katz standard). The second,
sometimes referred to as a “property-based” approach,
identifies as a search any unlicensed physical intrusion by the government into a constitutionally
protected area – such as a home or its curtilage – to
gather information. Id. at 373 (citing Jardines, 569
U.S. at 6–7, 11). According to Johnson, the dog sniff
outside his apartment constituted a Fourth Amendment search in both these respects: the dog’s alert
violated his reasonable expectation of privacy by revealing information about the contents of his home,
and it was obtained by way of a physical intrusion into
protected “curtilage” just outside his apartment door.
Our court has twice rejected this very pair of arguments in unpublished, non-precedential decisions.
See United States v. Makell, 721 F. App’x 307, 308 (4th
Cir. 2018) (dog sniff at apartment door in common
hallway neither violates reasonable expectation of privacy nor intrudes on protected curtilage); United
States v. Legall, 585 F. App’x 4, 5–6 (4th Cir. 2014)
(same with respect to dog sniff at hotel room door). We
reach the same result today. For the reasons given below, the dog sniff at Johnson’s apartment door was not
a Fourth Amendment search under either of the theories advanced by the defendant.
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A.
We begin with Johnson’s argument that the dog
sniff violated his reasonable expectation of privacy because it revealed private information about the
interior of his home. It is certainly true, as Johnson
argues, that “the Fourth Amendment draws a firm
line at the entrance to the house,” and that individuals generally have a reasonable expectation of privacy
as to what is inside and protected from public view.
Kyllo, 533 U.S. at 40 (internal quotation marks and
citation omitted); id. at 31–35. It follows, the Supreme
Court held in Kyllo, that a Fourth Amendment search
has occurred if the government uses a specialized device “not in general public use” – there, a thermalimaging device that could detect heat patterns inside
a house – to “explore details of the home that would
previously have been unknowable without physical intrusion[.]” Id. at 40. And this case, Johnson says, is
just like Kyllo: The police used a specially trained dog
to learn details about the interior of his home – specifically, the presence of illegal drugs – that they could
not otherwise have discovered without entering his
apartment.
We appreciate the logic of this argument. But
there is a problem: When it comes to Fourth Amendment expectations of privacy, dog sniffs are different.
See United States v. Place, 462 U.S. 696, 707 (1983)
(explaining that in this context, “the canine sniff is sui
generis”). As the Supreme Court has made clear, an
individual’s “interest in possessing contraband cannot
be deemed ‘legitimate.’” Illinois v. Caballes, 543 U.S.
405, 408 (2005) (quoting United States v. Jacobsen,
466 U.S. 109, 123 (1984)). And a dog sniff, crucially,
can “only reveal[]” just that – “the possession of
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contraband.” Id. at 408–09. Unlike a visual inspection
of the inside of a home, or the use of Kyllo’s thermal
imaging device from the outside, see 533 U.S. at 38
(explaining that device might reveal “at what hour
each night the lady of the house takes her daily sauna
and bath”), an alert by a trained narcotics-detection
dog “does not expose noncontraband items that otherwise would remain hidden from public view[.]” Place,
462 U.S. at 707. It exposes “only the presence or absence of narcotics, a contraband item” – which means
that it cannot violate any reasonable expectation of
privacy. Id. (holding that dog sniff of luggage is not
Fourth Amendment search); Caballes, 543 U.S. at 409
(same for dog sniff of car); cf. Jacobsen, 466 U.S. at
122–24 (applying same reasoning to find that chemical test that could disclose only whether suspicious
powder was an illegal drug was not Fourth Amendment search).
Johnson argues that we may look past this doctrine because his case involves a home, not a car or
luggage, and homes are “afforded the most stringent
Fourth Amendment protection.” See United States v.
Brinkley, 980 F.3d 377, 383–86 (4th Cir. 2020) (quoting United States v. Martinez-Fuerte, 428 U.S. 543,
561 (1976)).5 But we read the Supreme Court’s
5 Johnson focuses on Caballes – considering a dog sniff of a
car – and seeks to distinguish that case on the ground that there
is a diminished expectation of privacy in automobiles. See
Jardines, 569 U.S. at 14 n.1 (Kagan, J., concurring). Johnson has
less to say about Place, involving a dog sniff of luggage. Luggage
often holds quite intimate contents, and individuals generally retain a full expectation of privacy in those contents. Indeed, the
Supreme Court has held that even the physical manipulation of
soft luggage from the outside invades a reasonable expectation of
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reasoning in Place and Caballes as categorical, not
context-specific: Because a dog sniff can reveal only
the presence of contraband, and there is no reasonable
expectation of privacy in contraband, a dog sniff is not
a search – period. Most other courts, though not all,
have reached the same conclusion. See, e.g., United
States v. Scott, 610 F.3d 1009, 1016 (8th Cir. 2010) (rejecting effort to distinguish Caballes and holding that
dog sniff at apartment door violates no reasonable expectation of privacy); Fitzgerald v. State, 864 A.2d
1006, 1016 (Md. 2004) (holding that “Place’s rationale
that dog sniffs are unique in their narrow yes/no determination” applies to dog sniffs at apartment doors);
but see United States v. Whitaker, 820 F.3d 849, 852–
53 (7th Cir. 2016) (holding that Place and Caballes are
distinguishable and that dog sniff of home invades
reasonable expectation of privacy).
We recognize that Justice Kagan, in a separate
concurring opinion, has embraced the defendant’s position that a dog sniff at the door of a home may violate
a reasonable expectation of privacy. See Jardines, 569
U.S. at 12–16 (Kagan, J., concurring). But the Supreme Court has declined the opportunity to follow
suit. Id. at 11. Unless and until the Court tells us otherwise, we consider ourselves bound by Place and
Caballes to hold that the dog sniff at Johnson’s apartment door violated no reasonable expectation of
privacy.
privacy and constitutes a Fourth Amendment search. See Bond
v. United States, 529 U.S. 334, 336–39 (2000).
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B.
Johnson’s alternative argument draws on the
property-based approach of Jardines, in which the Supreme Court held that a dog sniff conducted on the
front porch of a house was a Fourth Amendment
search. 569 U.S. at 5–9, 11–12. That was so, the Court
reasoned, not because it violated a reasonable expectation of privacy, but because the police on the front
porch had physically intruded into the “curtilage” of
the home – the “area belonging to Jardines and immediately surrounding his house” – which is protected
“as part of the home itself” under the Fourth Amendment. Id. at 5–6. An unlicensed intrusion into that
constitutionally protected area to gather evidence, the
Court held, is a “search” for Fourth Amendment purposes. Id. at 5–6, 11–12; see also Collins v. Virginia,
584 U.S. 586, 593 (2018) (“When a law enforcement
officer physically intrudes on the curtilage to gather
evidence, a search within the meaning of the Fourth
Amendment has occurred.”) (citing Jardines, 569 U.S.
at 11)).
As the district court recognized, Nelson, 2022 WL
2484143, at *17–18, whether the dog sniff here was a
search under Jardines turns on whether the area of
the common hallway just outside Johnson’s door qualifies, like Jardines’s front porch, as protected
“curtilage.” In United States v. Dunn, 480 U.S. 294,
301 (1987), the Supreme Court provided us with four
factors to consider in identifying curtilage: the “proximity of the area claimed to be curtilage to the home,
whether the area is included within an enclosure surrounding the home, the nature of the uses to which
the area is put, and the steps taken by the resident to
protect the area from observation by people passing
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by.” But we are not to apply the factors “mechanically.” Id. Instead, the bottom-line question in every
case is whether the area in question should be treated
“as part of the home itself,” bringing it within the
“places and things” – “persons, houses, papers, and effects” – enumerated in and protected by the Fourth
Amendment. Jardines, 569 U.S. at 6 (cleaned up); see
Dunn, 480 U.S. at 301.
We considered a similar curtilage question in
Jackson, 728 F.3d at 374, and concluded that an
apartment’s curtilage did not extend to a courtyard
between apartment buildings used by all residents of
an apartment complex. The parties in Jackson agreed
that a patio immediately outside the defendant’s
apartment was part of the apartment’s curtilage. Id.
at 373. But that patio, we held, “marked the boundary
between the particular property conveyed by lease to
each tenant and the apartment complex’s common
property.” Id. at 374. And that “common property,” we
reasoned, through which other residents had the right
to walk, could not be “placed under the home’s ‘umbrella’ of Fourth Amendment protection” under the
Dunn factors. Id. (quoting Dunn, 480 U.S. at 301).
We think the same rationale applies to the “common property” now at issue – the hallway outside
Johnson’s apartment. Here, instead of a patio, it is
Johnson’s apartment door that “mark[s] the boundary” between his residence, protected as a home under
the Fourth Amendment, and the “apartment complex’s common property.” Id. Johnson “had no
property based right outside [his] apartment door.”
Nelson, 2022 WL 2484143, at *17. Instead, as the district court explained, that area was part of a common
hallway, used regularly by other building residents
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and by building cleaning staff. Id. And it was not just
other residents and staff; despite locks at the front
door, entry to the interior hallways was “not restricted . . . in any way” because building management
“routinely” granted consent to enter on request. Id. at
*17–18. Johnson could of course exclude any of those
people from the interior of his apartment, but they all
had a right to be in the common hallway outside his
door. That takes the apartment hallway, like the
courtyard in Jackson, outside the scope of the Fourth
Amendment’s protection of the home. Jackson, 728
F.3d at 374; see United States v. Cruz Pagan, 537 F.2d
554, 558 (1st Cir. 1976) (explaining that an apartment
tenant’s “dwelling cannot reasonably be said to extend
beyond his own apartment and perhaps any separate
areas subject to his exclusive control” (cleaned up)).
Johnson sees it differently, emphasizing that the
police dog alerted at the “seam” of his apartment door,
mere inches from the interior. According to Johnson,
Dunn’s first factor – proximity of purported curtilage
to the home – weighs so heavily in his favor that it is
dispositive. Br. of Appellant at 24 (describing police as
approaching “as close to [Johnson’s] home as one could
get without entering”). And it is true that this degree
of proximity has been treated as highly relevant to the
curtilage inquiry, including by the Ninth Circuit in
the recent decision relied on by Johnson. See, e.g.,
Jardines, 569 U.S. at 6–7 (describing front porch as
within area “immediately surrounding” and “adjacent
to” home); Chong v. United States, 112 F.4th 848, 852
(9th Cir. 2024) (treating as curtilage area of driveway
“[j]ust one foot away from the home”).
But the context of those cases is critically different: In those cases, the defendant owned or otherwise
14a
had the right to exclude others from the area immediately surrounding his dwelling. See Jardines, 569 U.S.
at 5–6 (describing front porch as within area “belonging to Jardines and immediately surrounding his
house”); Chong, 112 F.4th at 852 (explaining that
house was “owned by [defendant] Chong,” who lived
there with his extended family). The same is true of
Dunn itself, in which the Supreme Court considered a
“warrantless entry onto [the defendant’s] ranch property,” “completely encircled by a perimeter fence.” 480
U.S. at 297. Applying what would become the “Dunn
factors,” the Court concluded that a barn located 60
yards from the ranch house, though still within the
defendant’s property, fell outside the home’s curtilage.
Id. at 302. What the Dunn factors measure, in other
words, is which part of the area in which a defendant
has a property-based interest qualifies as Fourth
Amendment-protected curtilage. Id. at 300–03; see
also Oliver v. United States, 466 U.S. 170, 176–79, 184
(1984) (holding that farmhouse’s curtilage did not extend to “open fields” within defendant’s farm property
and from which he had the “right to exclude” others).
Nothing about Dunn supports the proposition that
close proximity to a home can convert common property, like a street or sidewalk – property open to
others, from which the defendant has no right to exclude – into curtilage. See Lindsey v. State, 127 A.3d
627, 641–44 (Md. Ct. Spec. App. 2015) (explaining
Dunn in similar terms).
Our holding aligns not only with Jackson but also
with decisions from other courts recognizing the importance of a property-based “right to exclude” to the
curtilage analysis. See, e.g., State v. Edstrom, 916
N.W.2d 512, 520 (Minn. 2018) (hallway directly outside apartment door is not “curtilage” because
15a
tenant’s right to exclude others from own apartment
does not “extend to the common areas of the building”); Lindsey, 127 A.3d at 643; United States v.
Acosta, 965 F.2d 1248, 1251–52 (3d Cir. 1992) (police
entry into hallway outside apartment door, in which
defendant had an “easement of access,” did not violate
Fourth Amendment because the defendant “did not
have the right to exclude others, nor did the record indicate that he had ever attempted to do so”); Cruz
Pagan, 537 F.2d at 558 (apartment building parking
garage is not “curtilage” because garage is not subject
to tenant’s control).6 It also puts us squarely within a
general consensus that common areas shared by all
tenants of an apartment building usually will not
qualify as Fourth Amendment curtilage. See Nelson,
2022 WL 2484143, at *18 (recognizing “majority approach”); United States v. Brooks, 645 F.3d 971, 975
(8th Cir. 2011) (staircase to basement shared by all
tenants is not curtilage); cf. United States v. Sweeney,
821 F.3d 893, 902 (7th Cir. 2016) (“[T]here is generally
no reasonable expectation of privacy in shared and
common areas in multiple-dwelling residential buildings.”).7
6 Courts sometimes use the phrases “right to exclude” and
“exclusive control” (or some variant thereof) more or less interchangeably. See, e.g., Acosta, 965 F.2d at 1252. We think “right
to exclude” is more to the point and less prone to misunderstanding. Mr. Jardines, for instance, had a “right to exclude” from his
front porch, even if he shared that right with a Mrs. Jardines and
thus lacked “exclusive” control.
7 In the only contrary authority cited by the defendant (or
located by us), the Supreme Court of Illinois held that the police
intruded on protected curtilage when they conducted a dog sniff
at an apartment door from a common hallway, relying on
Jardines. People v. Bonilla, 120 N.E.3d 930, 938–39 (Ill. 2018).
The court in that case did not discuss the fact that the defendant
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In sum, we agree with the district court that the
common hallway outside Johnson’s apartment door is
not properly treated as “part of the home itself” for
purposes of the Fourth Amendment. Jardines, 569
U.S. at 6 (quoting Oliver, 466 U.S. at 180). That is not,
of course, because Johnson rents his home instead of
owning it; Johnson has the same right to “retreat into
his own home and there be free from unreasonable
governmental intrusion,” id. (internal quotation
marks and citation omitted), as any homeowner. It is
because Johnson has “no[] . . . right to exclude others”
from the hallway outside his home, and there is no indication “that he had ever attempted to do so.” Acosta,
965 F.2d at 1252; Nelson, 2022 WL 2484143, at *16
(noting that at time of dog sniff, “there was nothing in
front of the apartment door (no door mat or other indicia of control by the occupant[])”).
We go no further in deciding the case before us today. Multi-dwelling units come in all kinds of
configurations, and some may include “common” areas different from the apartment hallway here or the
courtyard in Jackson. See United States v. Hopkins,
824 F.3d 726, 732 (8th Cir. 2016) (walkway leading to
two townhouse doorways – “‘common’ only to [the defendant] and his immediate neighbor” – falls within
curtilage). Other cases may present different factual
twists. Cf. United States v. Lewis, 62 F.4th 733, 742–
43 (2d Cir. 2023) (calling for individualized and factspecific approach to assessing whether defendant has
in Jardines, as the owner of the property, had a right to exclude
others from his front porch. With respect, we think that this
property-based concept is important to what the Supreme Court
has described as Jardines’s “traditional property-based understanding of the Fourth Amendment.” 569 U.S. at 11.
17a
reasonable expectation of privacy in porch of multiunit dwelling, including attention to whether porch
was generally open to building visitors). We hold only
that on the facts as found by the district court and disputed by neither party, the police did not intrude on
Fourth Amendment-protected curtilage when they
conducted a dog sniff in the common hallway just outside Johnson’s apartment door.
III.
For the reasons given above, we affirm the judgment of the district court.
AFFIRMED
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APPENDIX B
IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MARYLAND
UNITED STATES
OF AMERICA
:
:
JEROAM EDWIN
NELSON, JR., et
al.
:
Criminal No. DKC
20-0038
:
:
MEMORANDUM OPINION
Count one of the third superseding indictment
charges eight defendants with conspiracy to distribute
and possess with intent to distribute controlled substances from April to September 2019. Individual
defendants are charged in separate counts with substantive offenses including possession with intent to
distribute controlled substances, possession of a firearm by a prohibited person, possession of a firearm in
furtherance of a drug trafficking crime, and possession of body armor by a violent felon. Many motions to
suppress are pending, pertaining to wiretap evidence,
evidence recovered from searches pursuant to warrants for location information, for various residences,
and for automobiles, and statements allegedly made.
Other pending motions seek disclosure, severance,
and to adopt motions filed by other defendants. After
full briefing, a two-day motions hearing was held on
some of the pending motions. Argument on others was
deferred pending resolution of the first group.
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I. Wiretaps-Background and Standards of
Review
The investigation leading to the current charges
was conducted by the Washington County Narcotics
Task Force, beginning in March 2019, when a tip led
them to a storage unit in Hagerstown, Maryland. Law
enforcement came to believe that Thamar J. Smith
had rented the unit, that he was using it to store narcotics for distribution, and that he was supplying
narcotics to Tyler and Edward Ware. A covert motionactivated video camera captured Mr. Smith processing narcotics in the storage unit. GPS on his
vehicle led to the Ware brothers. Then, beginning in
June 2019, a state court judge authorized interception
of four phones used by the Wares (TT1-TT4), which
led to authorizations to intercept phones allegedly
used by Jeroam Nelson (TT5, TT8, and TT10), Philander Spruill (TT6), and Jarvis Coleman-Fuller (TT9).
Defendants have moved to suppress the fruits of TT3,
TT5, TT6, TT8, TT9, and TT10.1 They claim that the
authorizations (1) were not supported by probable
cause, (2) did not demonstrate necessity (that normal
investigative procedures had been tried, or shown to
be insufficient or too dangerous), (3) did not properly
name one of the defendants, and (4) failed to disclose
a previous wiretap application. They also claim that
(5) material misstatements or omissions were made in
the applications, (6) the interceptions did not cease
1 At least one defendant has challenged each of these wire-
tap authorizations. Not all defendants have standing to
challenge all of them, however. A criminal defendant must be an
“aggrieved person” to move to suppress under Title III, 18 U.S.C.
§ 2518(10)(a), defined as “a person who was a party to any intercepted wire, oral, or electronic communication or a person
against whom the interception was directed,” id. § 2510(11).
20a
upon achieving the stated goals, or the goals were too
broad, (7) minimization requirements were not observed, and (8) some of the recordings were not sealed
timely.
The interceptions were authorized by Maryland
judges. And, while Maryland and federal law are congruent in many ways, there are differences. It
becomes necessary, then, to determine how admissibility is to be analyzed.
Federal law governs the admissibility of evidence
in federal criminal cases. See, e.g., United States
v. Glasco, 917 F.2d 797, 799 (4th Cir. 1990). The
Federal Wiretap Act contains a narrow exception
to this general rule: under 18 U.S.C. § 2516(2),
The principal prosecuting attorney of any State
or the principal prosecuting attorney of any political subdivision thereof [may apply] ... to a
[State court] judge for, and such judge may
grant in conformity with [18 U.S.C. § 2518] and
with the applicable State statute [a wiretap order].
18 U.S.C. § 2516(2) (emphasis added). Under this
provision, “when a state court authorizes a wiretap ... state wiretapping law should govern the
admissibility of the wiretap evidence in federal
court.” United States v. Bullock, 2000 WL 84449,
at *4 (4th Cir. Jan. 27, 2000); see also Glasco, 917
F.2d at 799.
United States v. Harris, 719 F.Supp.2d 616, 619 (D.
Md. 2010).
The Maryland statute provides:
(i) (1) Any aggrieved person in any trial, hearing,
or proceeding in or before any court, department,
21a
officer, agency, regulatory body, or other authority
of this State or a political subdivision thereof, may
move to suppress the contents of any intercepted
wire, oral, or electronic communication, or evidence derived therefrom, on the grounds that:
(i) The communication was unlawfully intercepted;
(ii) The order of authorization under which
it was intercepted is insufficient on its face,
or was not obtained or issued in strict
compliance with this subtitle; or
(iii) The interception was not made in conformity with the order of authorization.
Md. Code Ann., Cts. & Jud. Proc. § 10-408 (West) (emphasis added).2 In the federal statute, each of the
three is separate and distinct from the others. Dahda
v. United States, 138 S.Ct. 1491, 1499- 1500 (2018).
2 The federal counterpart is different in that it does not con-
tain the second clause in subsection ii:
(10)(a) Any aggrieved person in any trial, hearing, or
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United
States, a State, or a political subdivision thereof, may move
to suppress the contents of any wire or oral communication
intercepted pursuant to this chapter, or evidence derived
therefrom, on the grounds that-(i)
cepted;
the communication was unlawfully inter-
(ii)
the order of authorization or approval under
which it was intercepted is insufficient on its face; or
(iii)
the interception was not made in conformity
with the order of authorization or approval.
18 U.S.C. § 2518 (10)(a).
22a
Maryland law divides the wiretap law into “preconditions” and “post conditions” and applies different
standards for suppression:
For the purpose of evaluating the validity of
a wiretap order, this Court has established a
dichotomy between preconditions and post
conditions. State v. Bailey, 289 Md. 143, 152–
54, 422 A.2d 1021 (1980). Preconditions include the actions that must be taken before
a judge may issue an ex parte wiretap order
and the inclusion of certain provisions required to be in the wiretap order. Id. at 153–
54, 422 A.2d 1021. One such precondition is
the requirement in § 10–408(e) (3) that
“[e]very order and extension thereof shall
contain a provision that the authorization to
intercept ... shall be conducted in such a way
as to minimize the interception of communications not otherwise subject to interception
under this subtitle....” See State v. Siegel, 266
Md. 256, 273–74, 292 A.2d 86 (1972) (holding
this requirement to be a precondition to obtaining intercept authority). With regard to
preconditions, we said that the statute “sets
up a strict procedure that must be followed
and we will not abide any deviation, no matter how slight, from the prescribed path.” Id.
at 274, 292 A.2d 86 (emphasis in original).
Failure of a precondition requires suppression of all the evidence obtained under the
wiretap. Id. See also § 10–408(i) (1) (ii) (stating as a ground for suppression that “[t]he
order of authorization under which [the communication] was intercepted ... was not
obtained or issued in strict compliance with
23a
[the wiretapping
added).
statute]”)
(emphasis
Post conditions are the actions that must be
taken after a valid wiretap order has been issued, including compliance with the
minimization mandate in the order. Bailey,
supra, 289 Md. at 153–54, 422 A.2d 1021. To
post conditions, we apply a substantial compliance standard. Id. In the context of
minimization, the substantial compliance
standard is actually a reasonable compliance
standard, which evaluates “the overall reasonableness of the totality of the conduct of
the monitoring agents in light of the purpose
of the wiretap and the information available
to the agents at the time of interception.”
Spease and Ross v. State, 275 Md. 88, 99, 338
A.2d. 284 (1975). Under this standard, imperfect compliance with a post condition does
not require suppression of the evidence obtained pursuant to the wiretap order, so long
as the level of compliance is reasonable under the circumstances. Furthermore, we
have never decided what sanction we would
apply if the monitoring agents were to fail to
reasonably comply with the minimization
mandate.
State v. Mazzone, 336 Md. 379, 383–84 (1994). The
case that first recognized the dichotomy was State v.
Bailey, 289 Md. 143, 153-54 (1980), where the defect
was the failure of the wiretap order to contain a termination directive, as had been the case in Siegel. The
Siegel order also failed to include directives that interception begin “as soon as practicable” and that
24a
interceptions be minimized. Siegel, 266 Md. at 272-73.
The Bailey court said that “the language is unequivocal, leaving no room to doubt that the legislature
intended that the wiretap order conform scrupulously to the mandate of the statute.” Bailey, 289 Md.
at 152 (emphasis added.) Here, the arguments go to
the contents of the affidavits, and not to the orders
themselves.
The parties discuss several Maryland cases from
the Court of Special Appeals. In Poore v. State, 39 Md.
App. 44, 50-55 (1978), the alleged defect was the absence of a post-intercept order to delay notification.
Again, the problem was with an order, and not with
an affidavit. In any event, suppression was not required because it was not a “substantial departure.” It
is correct that Allen v. State, 89 Md. App. 25 (1991),
discussed strict compliance in the context of the exhaustion requirement and the requirement that the
application contain a “full and complete statement of
the facts and circumstances relied upon by the applicant . . . .” The Court of Special Appeals found that the
State had complied with those requirements so there
was no cause to suppress. Finally, Salzman v. State,
49 Md. App. 25 (1981), dealt with exhaustion of normal investigative procedures and disclosure of
previous interceptions and discussed “strict compliance.” It did not find any violations, however. In
Mazzone, 336 Md. at 392-93, the Court of Appeals
found that any error in the minimization guidelines,
issued at the time the intercept order was signed, was
part of the judicial supervision of the wiretap and not
subject to the strict compliance standard. In sum, the
focus of the Court of Appeals had been on asserted errors by the issuing judge in the contents of orders or
guidelines. The Court of Special Appeals has
25a
discussed strict compliance in other contexts but has
not found suppression to be required.
The relevant standards follow.
A. Probable Cause
The probable cause standard for a wiretap order
is the same as it is for a warrant.
Pursuant to the provisions of the Maryland
Code governing the issuance of wiretaps, the
issuing court must find probable cause for
belief that an individual is committing, has
committed, or is continuing to commit a particular offense enumerated in § 10-406. See
Md. Code Ann., Cts. & Jud. Proc. § 10-408(c).
There furthermore must be probable cause
for belief that particular communications
concerning that offense will be obtained
through the interception of communications
over the targeted communication devices. Id.
The standard of review governing affidavits
in support of wiretap orders is identical to
the standard governing the review of search
warrants. United States v. Talbert, 706 F.2d
464 (4th Cir. 1983). A reviewing court is not
to substitute its judgment for probable cause
but need only determine whether there was
a substantial basis for the issuing court’s determination of probable cause. Illinois v.
Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983).
Galloway v. United States, No. 10-cr-775-RDB, 2018
WL 1326399, at *5 (D.Md. Mar. 15, 2018).
26a
B. Necessity
Both federal and Maryland law require a finding
regarding normal investigative procedures. These
provisions are “designed to ensure that the relatively
intrusive device of wiretapping is neither ‘routinely
employed as the initial step in criminal investigation,’
United States v. Giordano, 416 U.S. 505, 515 (1974),
nor ‘resorted to in situations where traditional investigative techniques would suffice to expose the crime.’
United States v. Kahn, 415 U.S. 143, 153 n. 12 (1974).”
United States v. Smith, 31 F.3d 1294, 1297 (4th Cir.
1994). In this regard:
The government’s burden in alleging sufficient facts to show the need for wiretaps “is
not great.” United States v. Smith, 31 F.3d
1294, 1297 (4th Cir. 1994). Although the government cannot satisfy its burden with mere
conclusory statements or a recitation of certain difficulties in collecting evidence “it
need only present specific factual information sufficient to establish that it has
encountered difficulties in penetrating [the]
criminal enterprise or in gathering evidence— to the point where ... wiretapping
becomes reasonable.” Id. at 1297–98 (alterations in original) (internal quotation marks
and citations omitted).
Galloway, 2018 WL 1326399, at *5. Moreover,
In many other cases, we have affirmed wiretaps intended to reveal the higher levels of a
conspiracy when ordinary investigative
methods could not reach them. See, e.g.,
United States v. Galloway, 749 F.3d 238,
242–43 (4th Cir. 2014); Smith, 31 F.3d at
27a
1297–98; United States v. Leavis, 853 F.2d
215, 222 (4th Cir. 1988); United States v.
Clerkley, 556 F.2d 709, 714–15 (4th Cir.
1977).
United States v. Davis, 782 F.App’x 246, 251 (4th Cir.
2019).
C. Franks v. Delaware
Believing it was – or would have been – fairly easy
to discover their criminal behavior without resorting
to wiretaps, Defendants contend that the affiant either misstated applicable “facts” regarding other
investigative procedures or omitted material “facts” in
that regard. The so-called facts were whether other
procedures, such as physical surveillance, could or
would bear fruit. They argue based only on their own
assessment and provide no affidavit or other offer of
proof.
To demonstrate that a Franks hearing is
warranted, “the accused must make a substantial preliminary showing that false
statements were either knowingly or recklessly included in an affidavit supporting a
search warrant and that, without those false
statements, the affidavit cannot support a
probable cause finding.” United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011)
(emphasis in original).
United States v. Seigler, 990 F.3d 331, 344 (4th Cir.
2021), cert. denied, 142 S. Ct. 336 (2021). Moreover,
the alleged misstatements must be as to facts, rather
than opinions. See, e.g., United States v. Gordon, 871
F.3d 35, 51 (1st Cir. 2017).
28a
D. Identification
A wiretap application must include “the identity
of the person, if known, committing the offense and
whose communications are to be intercepted.” Md.
Cts. & Jud. Proc § 10-408(a) (l) (ii) (4); 18 U.S.C. §
2518(l) (b) (iv). The Supreme Court has held that “Title III requires the naming of a person in the
application or interception order only when the law
enforcement authorities have probable cause to believe that that individual is ‘committing the offense’
for which the wiretap is sought.” Kahn, 415 U.S. at
155.
E. Notice
A wiretap application must contain a “full and
complete statement of the facts concerning all previous applications known to the individual authorizing
and making the application, made to any judge for authorization to intercept wire, oral, or electronic
communications involving any of the same persons,
facilities or places specified in the application, and the
action taken by the judge on each application.” Md.
Cts. & Jud. Proc. § 10-408(a) (l) (v); 18 U.S.C. § 2518(l)
(e).
F. Minimization
Every interception must be conducted so as to
“minimize” the “interception of communications not
otherwise subject to interception . . . and must terminate upon the attainment of the authorized
objective . . .” 18 U.S.C. § 2518(5). All of the applications in this case provided instructions and
procedures for minimization.
The statute does not require that all innocent communications be left untouched.
29a
Rather, it simply requires that unnecessary
intrusions be minimized or reduced to the
smallest degree possible. [United States v.]
Clerkley, 556 F.2d [709, 716 (4th Cir. 1977)].
In determining whether the minimization
requirements of section 2518(5) have been
met, the courts apply a standard of reasonableness on a case-by-case basis. Id.
United States v. Bautista, 972 F.2d 342 (table), 1992
WL 172667, at *4 (4th Cir. 1992). As pointed out by
Judge Hollander, “[in] the course of interception, it is
difficult to know in advance which conversations ultimately might be ‘irrelevant and should have been
terminated.’ United States v. LaGorga, 336 F.Supp.
190, 196 (W.D.Pa. 1971). This is why minimization
cannot be judged by hindsight.” United States v. Miller, 50 F.Supp.3d 717, 726 (D.Md. 2014).
Although Defendants purported to raise an argument concerning minimization in their motions, there
are no specifics presented and no argument was made
at the hearing. The formalities for minimization were
included in the applications (and presumably the orders) and, in the absence of any argument, much less
evidence, that the instructions and protocols were not
followed, the minimization requirement provides no
basis on which to suppress any evidence.
G. Failure to Cease Interceptions when Objective Obtained
Under Federal law, “(5) No order entered under
this section may authorize or approve the interception
of any wire, oral, or electronic communication for any
period longer than is necessary to achieve the objective of the authorization, nor in any event longer than
thirty days.” 18 U.S.C. § 2518. Furthermore, the order
30a
shall require that it “terminate upon attainment of
the authorized objective, or in any event in thirty
days.” There is no argument that the orders failed to
comply with those directives. Rather, Defendants contend that the objectives were too broad, and could
never be achieved, or were in fact achieved but the
wiretaps continued.
H. Sealing
Both wiretap statutes provide that “Immediately
upon the expiration of the period of the [wiretap] order, or extensions thereof, [wiretap] recordings shall
be made available to the judge issuing such order and
sealed under his directions.” Md. Cts. & Jud. Proc. §
10-408(g) (l); 18 U.S.C. § 2518(8) (a). “The presence of
the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a
prerequisite for the use or disclosure of the contents of
any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of
section 2517.” 18 U.S.C. § 2518(8) (a). The satisfactory
explanation applies to a delay in sealing as well as to
the absence of a seal. United State v. Ojeda Rios, 495
U.S. 257, 264 (1990).
The primary thrust of § 2518(8) (a), see
S.Rep. No. 1097, 90th Cong., 2d Sess., 105
(1968), and a congressional purpose embodied in Title III in general, see, e.g., United
States v. Giordano, 416 U.S. 505, 515, 94
S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), is to
ensure the reliability and integrity of evidence obtained by means of electronic
surveillance. The presence or absence of a
seal does not in itself establish the integrity
of electronic surveillance tapes. Rather, the
31a
seal is a means of ensuring that subsequent
to its placement on a tape, the Government
has no opportunity to tamper with, alter, or
edit the conversations that have been recorded. It is clear to us that Congress viewed
the sealing requirement as important precisely because it limits the Government’s
opportunity to alter the recordings.
Ojeda Rios, 495 U.S. at 263. An explanation must
have been objectively reasonable at the time and the
evidence must be presented at the trial level, and not
just on appeal. Id. at 267-68.
Maryland law, while calling for immediate sealing, treats that requirement as a “post condition,”
requiring proof of prejudice and lack of substantial
compliance to result in suppression. See, Allen v.
State, 89 Md. App. 25, 33-34 and 37 (1991).
With those standards in mind, the wiretap applications can be examined individually.
II. Discussion and Analysis
A. TT1 and TT2-Tyler Ware
There is no direct challenge to the first two wiretaps, aimed at Tyler Ware and authorized on June 6
and June 13. Likely, none of the moving defendants
has standing to contest those intercepts. Those affidavits have not been provided to the court although
some of the intercepted conversations and text messages are described in affidavits for later wiretaps.
32a
B. TT3-Edward Ware, Issued June 20, 2019,
by Judge Mark K. Boyer.3
Mr. Nelson, joined by others, argues that probable
cause was lacking for the phone allegedly used by Edward Ware, whom the authorities identified as the
main source for his brother Tyler. He argues that “relatively little of the 121-page wiretap application
actually relates to Edward Ware or his suspected activities” and that “the factual basis offered to intercept
TT3 consists of a single two-month-old sighting of Edward Ware getting into Thamar Smith’s car, a dozen
phone and text conversations between the Ware
brothers, Edward Ware’s contact with two drug users
and a suspected drug dealer, the bare assertions of
two confidential informants that Edward Ware sold
drugs, and two anonymous tips from February and
April 2019 mentioning him.”
In contrast, the Government contends that the affidavit detailed a several month long investigation
into the drug trafficking activities of the Wares, outlined their criminal histories including a number of
prior drug convictions, described multiple anonymous
tips to law enforcement by concerned citizens, provided information about Eddie Ware’s involvement in
drug trafficking from four reliable confidential
sources, explained how one of these confidential
sources had recently completed two controlled purchases of heroin/fentanyl from Tyler Ware.
In reply, Mr. Nelson takes issue with the Government’s characterization of the information, pointing
3 TT4 was also authorized on June 20. Intercepted conver-
sations over TT4 are referenced in later affidavits, although no
current defendant challenges TT4 directly.
33a
out that two of the tips were several years earlier, the
confidential sources provided general information, not
clearly based on personal knowledge, and that only
three of them had information regarding Edward
Ware. He concludes that “the anonymous and confidential sources’ information should not materially
bear upon the probable cause analysis.” (ECF No. 314,
at 9).
Defendant’s argument relies on a too narrow and
hyper-critical view of the information and requires a
subjective credibility assessment that is the province
of the issuing judge. A reviewing court, rather, is to
determine whether the issuing judge had a substantial basis for concluding that probable cause was
shown. That review is based on the totality of circumstances and does not require parsing out information
so that it can be evaluated in isolation from other information. Thus, it is not irrelevant that some
information specifically referred to Tyler Ware, Edward Ware’s twin brother, or to Thamar Smith.
It is correct that the most concrete information
concerning Edward Ware is that, on April 17, 2019, he
was seen with Thamar Smith under circumstances
that led law enforcement to conclude that Smith had
sold Edward controlled substances. (ECF No. 311-1,
at 39.) That is hardly the only circumstantial evidence
supporting the conclusion that he was involved in the
drug distribution conspiracy. Conversations and text
messages between the Wares intercepted on phones
used by Tyler Ware concerned drugs, and his phones
were in frequent contact with others also believed to
be involved in illegal usage of CDS.
The argument concerning exhaustion of normal
techniques is similarly based on a crabbed view of the
34a
relevant considerations. Sought on June 20, 2019, the
affidavit recounted the course of the investigation beginning in mid-March. The initial investigation
focusing on Thamar Smith, surveillance of the storage
facility, and the tracking of his vehicle, led the authorities to the Ware brothers, who were each observed in
contact with Mr. Smith. By mid-May, agents had developed information from confidential sources,
checked trash bags and containers, attempted physical surveillance, continued to monitor the GPS on Mr.
Smith’s vehicle, checked wage data for some of the
suspected associates, and reviewed “historical recording data from [a] covert surveillance recording device.”
TT1, a line used by Tyler Ware, was monitored
from June 6 to June 9, when he stopped using it. Interception of communications over TT2, another line
used by Tyler Ware, was authorized on June 13. Law
enforcement thought the Ware brothers were working
together, but each was in charge of his “own separate
local DTO.” They thought that Edward Ware was supplying Tyler Ware, and that Thamar Smith was the
source of supply. The affiant analyzed telephone records of proposed TT3. (On page 95, the affidavit begins
discussing TT4, also used by Edward Ware.)
In the section entitled “Exhaustion of Alternative
Investigative Methods and Need for Wire and Electronic Intercept,” the affiant listed and discussed
several techniques, describing what success the technique had achieved, but noting the limitations for
further development. In particular, the affiant noted
the “close-knit” nature of the organization, the familiarity of the targets with agents and their law
enforcement vehicles, and the geography and buildings in certain areas, which all made surveillance,
35a
introduction of undercover officers, or controlled purchases difficult or unlikely to bear fruit. Other
techniques were described as premature or likely to
thwart the investigation. Specific information was
provided as to the danger or unlikelihood of producing
evidence for some techniques as well as why others
were not available.
Mr. Nelson complains that the agents did not attempt “surveillance, confidential source interviews, or
controlled buys to investigate Edward Ware before
seeking to wiretap his phone conversations.” Specifically, he contends that they cut off surveillance in
April 2019 before they should have, and disregarded
other “obvious” investigative opportunities, such as
surveillance around Pangborn Boulevard, and even
“misleadingly” said that they did not know where his
residence or stash house were located. According to
Mr. Nelson, they should have tried to learn more
about him from informants.
Mr. Nelson ignores the particularized information
about the characteristics of this conspiracy, including
its insularity and familiarity with local law enforcement. This is more than mere conclusory language
and adequately shows why the “normal” techniques
were insufficient to reveal the full scope of the conspiracy.
C. TT5-Unknown Black Male, Issued June
28, 2019, by Judge Mark K. Boyer
Mr. Nelson challenges the probable cause determination because it was based primarily on
intercepted conversations between TT5 and TT3 (used
by Edward Ware). The affidavit reveals no direct contact between Thamar Smith and the user of TT5, or
between TT5 and Tyler Ware. Thus, Mr. Nelson
36a
contends that the recitation of the larger investigation
was irrelevant. Moreover, he claims that there were
only limited conversations over two days in June 2019
which were not explicitly drug related. He acknowledges that the affidavit recounts one instance of video
surveillance, showing Edward Ware around Tyler’s
residence, walking up to a Jeep. The toll analysis is
said to be “sparse.”
He concludes:
Thus, the factual basis offered to intercept
TT5 is markedly less than that of TT3, which
is deficient in its own right, and consists of
minimal communications over two days and
TT5’s mere association with people who were
not implicated in the investigation at the
time of the application. If a person’s mere association with a suspect at a crime scene does
not create probable cause to search them,
then a person’s mere association with people
who have nothing to do with an investigation
certainly cannot do so. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“Where the
standard is probable cause, a search or seizure of a person must be supported by
probable cause particularized with respect to
that person.”).
As the Government recounts, the TT5 affidavit began with a summary of the investigation beginning
with Thamar Smith and the Ware brothers, and then
the conversations between the Wares and others over
TT1, TT2, TT3, and TT4. Specifically, the affidavit
contained transcripts and descriptions of “numerous”
purportedly drug-related conversations between Eddie Ware, using TT3, and the user of TT5 (who, at that
37a
time, was unknown, but who was later identified as
Jeroam Nelson).
Mr. Nelson posits that “interim” efforts should
have been attempted, including real-time surveillance
of Edward Ware, obtaining subscriber information
and toll records for the telephone number given to Enterprise, surveillance of the address given to
Enterprise, and checking law enforcement and wage
databases for Jeroam Nelson.
Again, the defense argument is based on a too
stringent view of the necessity requirement. Judge
Hollander’s discussion of the requirement in Miller,
50 F.Supp.3d at 727-28, catalogues the considerations
that apply. Among them are that other investigatory
techniques need not be shown to be wholly unsuccessful or that all possible alternatives have been
exhausted, and that issuing judges may rely on the
knowledge, training, and experience of the affiant.
Like in Miller, the issuing judge determined that the
exhaustion had been shown, and there is no basis to
disagree with that conclusion.
Mr. Nelson also contends that the failure to name
him in the application renders it illegal and requires
suppression of the interceptions obtained by TT5 and
well as the following ones, TT8, TT9, and TT10. The
application stated that investigators had been unable
to make a positive identification of the user of TT5.
The affidavit explained that the subscriber information listed the user as “Nelson Me” at an address
in Kansas, and that investigators had surveilled the
user in a black Jeep Cherokee that was rented by
Jeroam Nelson at an address in Hagerstown. Given
the history of the investigation, it was not unreasonable for the investigators to resist leaping to the
38a
conclusion that the person using that phone was
Jeroam Nelson. Subscriber information for other
phones were in fictitious names (e.g., TT3 in name of
Adam Jones, used by Edward Ware), and Thamar
Smith used a fake driver’s license in the name of Michael Silver. In the application, the affiant recited
that the “unknown Black Male” had been operating
different vehicles rented in someone else’s name.
(ECF No. 311-2, at 116). He also stated that he knows
that “distributors of CDS often subscribe to telephones in fictitious names.” (ECF No. 311-2, at 118).
The application and affidavit correctly included all the
information developed. The failure to name Mr. Nelson does not require suppression.4
D. TT6-Unknown Male #2, issued June 28,
2019, by Judge Mark K. Boyer, and continuation issued on July 26 (Philander Spruill).
This wiretap, sought on the same day as TT5, is
challenged by Mr. Spruill (ECF Nos. 106, 109 and 268)
and Mr. Benton (who adopted ECF No. 260, filed by
Mr. Delaney, ECF Nos. 277, 309).
Mr. Benton’s motion (ECF No. 260) asserts that
TT6 should be suppressed because it failed to identify
Mr. Spruill, erroneously referred to TT5 concerning
necessity5, and, moreover, because the affidavit failed
to acknowledge that Mr. Spruill’s identity was known
4 Mr. Nelson stopped using TT5 on June 30, and, the Gov-
ernment contends, switched to TT8.
5 TT5 and TT6 were sought on the same afternoon, and the
affidavits were signed only a few minutes apart. TT6 contains
several obvious typographical errors referring to TT5 (or TT4)
when TT6 should have been referenced. While not to be encouraged, these errors do not require suppression as they could not
have misled the issuing judge.
39a
and failed to demonstrate necessity. He argues that
law enforcement had indeed identified Mr. Spruill as
the user of TT6 and “knew” that he lived at 746 Spruce
Street before seeking the wiretap.
Mr. Spruill does not contend expressly that probable cause is lacking, even though he points out that
the bulk of the affidavit does not even mention him or
his telephone. He notes that it is not until page 97 that
there is mention of the “unknown Male #2” or the
phone that is TT6. A communication between TT3
(Edward Ware) and TT6 occurs the day after TT3 is
authorized, June 21. He does argue that the exhaustion section is but a “rehash” of previous applications,
that it was not possible that the residence of the “unknown Male #2” was not known, that no attempt was
made to surveil him, and that there is no investigative
activity after June 26.
This affidavit, like its predecessors, contains sufficient foundation for the finding of probable cause,
including text messages, intercepted calls, surveillance, and analysis of toll records. The exhaustion
requirement was also supported. Sought at the same
time as TT5, this affidavit reported that the intercepts
over TT1-4 revealed planned meetings but that the
meetings occurred out of view of physical surveillance,
and that, while “unknown male #2” has been seen
meeting with Edward Ware, his identity and residence and/or stash house remained unknown.
Continued surveillance, in conjunction with interceptions, would continue.
Mr. Spruill, as does Mr. Benton, argues that he
should have been named in the application and points
to the subsequent application for a tracking device on
his phone. The application was signed and issued on
40a
July 2, 2019, but contains a “reviewed by” notation apparently dated June 26. On page 4, the affiant noted
that he believed that Philander Spruill is “unknown
male #2.” The email address on the prepaid wireless
account is budda2360@icloud.com, and Mr. Spruill
was known to have the street name Budda. This is too
weak a reed on which to base a failure to name argument. The tracking warrant was not sought until July
2 and the reviewed by notation does not establish that
all of the contents were known by June 26.
The affidavit for TT6 contains the information
that law enforcement observed a Blue Chrysler registered to Mr. Spruill at a location surveilled based on
interceptions between Tyler Ware and the unknown
mail using TT6. They identify the Chrysler as belonging to the unknown male. They recite that the
residence of the unknown male is not known and that
attempts to identify him have been unsuccessful even
though he has been observed. The affidavit states that
he has been seen operating different rental vehicles
on more than one occasion and that he was using a
rental vehicle that was rented in someone else’s name.
The subscriber information for TT6 comes back to a
prepaid customer with an address in Georgia. Suppression is not warranted due to the failure to name
Mr. Spruill.
With regard to the continuation, Mr. Spruill argues that necessity wasn’t shown, and that, by that
time, the goals of the investigation had been met and
interceptions should have ceased.
The Government responds that the recitations of
other investigative techniques were not mere repetitions, but rather provided updates. Moreover, it
41a
argues that the same explanations remained applicable and thus were properly included in this affidavit.
The purpose of defining the goals of a wiretap is
to enable the issuing and monitoring judge to assess
the necessity for and progress of the investigation.
United States v. Rose, No. 19 Cr. 789 (PGG), 2021 WL
2117119, *6 (S.D.N.Y. May 24, 2021). When the crime
under investigation is a conspiracy, significant leeway
is permitted in defining the goals:
First, defendant contends that the goals of
the wiretaps were “so broad that [they] could
never be met,” therefore rendering 18 U.S.C.
§ 2518 “a nullity.” According to defendant,
“[t]he electronic surveillance authorized
through 1995 had met its realistic investigative goals,” and after January 1, 1996, the
government was “manufacturing requisite
necessity” by stating that investigative goals
had not been met.
In the 1996 wiretap applications, the
government stated that, among other things,
it expected that the intercepted wire communications would concern “the identification of
other co-conspirators, and aiders and abettors who are acting in concert with the
subjects of this application, including the
identity of currently unidentified sources of
heroin, and individuals involved in the planning and commission of interstate computer
robberies.” See, e.g., N.D. Cal. Jan. 19, 1996
Appl. at 14943:15-19; E.D. Cal. Jan. 19, 1996
Appl. at 15057:20-25; N.D. Cal. Jan. 30, 1996
Appl. at 15166:12-16; N.D. Cal. Feb. 16, 1996
Appl. at 15364:9-13. While defendant is
42a
correct that many of the members of the Luong organization had been identified by the
end of 1995, it does not follow that the government s goal of identifying remaining
members of the conspiracy was overbroad or
amounts to “manufacturing” necessity.
An order authorizing electronic surveillance “‘must be broad enough to allow
interception of any statements concerning a
specified pattern of crime.’” Licavoli, 604
F.2d at 620 (quoting United States v. Tortorello, 480 F.2d 764, 780 (2d Cir. 1973)).
Moreover, as the Ninth Circuit has recognized, “[b]ecause the government has a duty
to extirpate conspiracy beyond its duty to
prevent the mere commission of specific substantive offenses . . . the government is
entitled to more leeway in its investigative
methods when it pursues a conspiracy.”
McGuire, 307 F.3d at 1198.
The mere fact that some of the main conspirators have been identified does not bar
the government from using electronic surveillance to identify remaining members of
the conspiracy. Cf. United States v. Torres,
908 F.2d 1417, 1422 (9th Cir. 1990) (“We have
consistently upheld findings of necessity
where traditional investigative techniques
lead only to apprehension and prosecution of
the main conspirators, but not to apprehension and prosecution of suppliers, major
buyers or other satellite conspirators.”);
Sandoval, 550 F.2d at 430 (stating that
“[r]equiring the officers to halt their
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investigation when they obtained evidence to
prosecute only [the main conspirator and his
wife] would have frustrated” the objective of
apprehending satellite conspirators).
In light of the government’s duty to eradicate conspiracies, the government s goal of
further identifying members of the Luong organization through the use of wiretaps in
1996, while broad, was not impermissible.
See McGuire, 307 F.3d at 1198 (stating that
the conclusion that the government has more
leeway in investigating conspiracies “reflects
a larger principle of proportionality embodied in the wiretapping statute: The more
grave the threat posed to our society, the
greater the government’s leeway in pursuing
it.”); see also Sandoval, 550 F.2d at 431 (noting that “the affidavit, while broad in the
sense of the numbers suspected, is narrowly
limited to the [the main conspirator] and his
underlings and to the one alleged conspiracy”).
United States v. Ai Le, 255 F.Supp.2d 1132, 1137–38
(E.D.Cal. 2003) (footnote omitted). It is not unusual in
drug conspiracy investigations to define those goals in
terms of learning the identity, location, and method of
everyone involved. See, United States v. Gordon, 871
F.3d 35, 51-52 (1st Cir. 2017).
The continuation affidavit, executed on July 26,
identified Mr. Spruill as the user of TT6 with the nickname Buddha and a leader of the DTO. It recited that
his source of supply in Baltimore County was still unknown. The affiant noted that intercepted
communications have indicated that meetings were to
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take place throughout the tristate area. At that point,
though, “agents have not been able to positively identify the location of/or person of the Source of Supply
believed to be located in Baltimore County, Maryland.” It was feared that DTO “leaders”, presumably
including Mr. Spruill, may or may not have direct contact with their source of supply and associates may
conduct the transactions, and meetings might occur in
public or in private, such as in restrooms. Accordingly,
while they intended to continue to use surveillance,
particularly in conjunction with authorized interceptions, surveillance would not fully meet the goals of
the investigation. Covert electronic surveillance devices were used, but had not revealed his source of
supply. A GPS tracking device was installed on his car
(and one used by Mr. Benton). Again, while useful,
particularly in conjunction with authorized interceptions, the tracking information was not likely to
achieve the full goals and objectives. This explanation
was more than sufficient to satisfy the “necessity”
prong.
Arguments by the targets of surveillance that the
authorities had achieved their objectives also ring hollow. Obviously, the investigation was progressing, but
more remained to be pursued.
E. TT8-Jeroam Nelson. Issued August 9,
2019, by Judge Mark K. Boyer
Mr. Nelson challenges the probable cause showing
by pointing out that it was wrong to characterize him
as an associate of Tyler Ware, that there was no information linking him to either brother and that
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information from the TT5 intercept was stale.6 He also
contends that there was no probable cause to establish
that the phone number belonged to or was used by
him, the common call comparison and single tip being
insufficient.
The Government, in contrast, highlights the calls
on TT8, immediately after its activation when Mr.
Nelson stopped using TT5, to drug associates who had
been in contact over TT5 immediately beforehand. It
argues that the tip from the confidential source was
corroborative. It also contends that the passage of five
weeks does not make the information stale and that
the switching of phone numbers along with continued
communication with suspected co-conspirators and
customers indicates continuing distribution.
The Government correctly argues that there was
probable cause to authorize interception of TT8. While
the substance of the calls on TT5 more than a month
earlier is important to that determination, there was
also ample evidence that the drug distribution was
continuing and that TT8 was being used for that purpose. The pattern established in earlier intercepts
continued, corroborated by the tip. The totality of circumstances provided ample basis.
The missed “interim” efforts for this wiretap allegedly included more real time surveillance, checking
Mr. Nelson’s probation records, investigating other
subjects intercepted over earlier wiretaps, further use
of confidential sources, checking phone records and
CSLI, and GPS tracking of rental cars. Again, this argument applies an inappropriate standard. The
6 Conversations over TT5 were intercepted only from June
28 to 30.
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issuing judge had sufficient basis on which to conclude
that exhaustion had been shown.
TT8 did not include TT6 in the list of “all previous
applications known to the individual authorizing and
making the application, made to any judge for authorization to intercept wire, oral, or electronic
communications involving any of the same persons,
facilities or places specified in the application, and the
action taken by the judge on each application.” TT6
was aimed at “Unknown Black Male #2” who turned
out to be identified as Philander Alexander Spruill,
and not Nelson. The only specified overlap in the two
concerned the Ware brothers, who the Government
proffers were not intercepted over TT8, TT9, or TT10,
as it turned out. The same judge who authorized TT6
was considering TT8. The Government contends that
the omission was “a simple oversight of absolutely no
consequence.” The defense sees it as a fatal omission,
particularly under Maryland law. The Court of Special Appeals, in Salzman, 49 Md. App. at 37-38,
discussed the disclosure requirements under Maryland law, and emphasized that only prior applications
“known to the individual” applicant need be included
involving the same persons.
18 U.S.C. § 2518(1) (e) requires an application to
include “a full and complete statement of the facts concerning all previous applications known to the
individual . . . making the application, made to any
judge for authorization to intercept . . . wire . . . communications involving any of the same persons, . . .
and the action taken by the judge on each such application[.]” The purpose of this section has been
discussed, but not definitively resolved:
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The legislative history of Title III does not
amplify the meaning of this statutory section, but in United States v. Bellosi, 163
U.S.App.D.C. 273, 276, 501 F.2d 833, 836
(1974), the court concluded that the legislative intent was “strictly to limit the
employment of those techniques of acquiring
information * * * to conform with the commands of the Fourth Amendment * * *.” In
that case the court discerned a number of objectives that could be served by section
2518(1) (e), among them being the prevention of judge-shopping; providing the judge
to which application is made with detailed
information appropriate to judicial consideration of whether the proposed intrusion on
privacy is justified; and to reveal to the judge
whether past applications have been denied
in order to forestall Government harassment
or other abuses of the statutory procedure.
We accepted Bellosi’s analysis of the statutory objectives in United States v. Bernstein,
509 F.2d 996 (4 Cir. 1975), vacated and remanded on other grounds, 430 U.S. 902, 97
S.Ct. 1167, 51 L.Ed.2d 578 (1977), and in our
opinion Congress never intended that section 2518(1) (e) should be construed to
require successive applications as a precondition to an appeal.
Application of U.S., 563 F.2d 637, 641–42 (4th Cir.
1977).
As noted above, only the Wares were identified as
potential participants in conversations to be overheard in both TT6 and TT8. As noted throughout, the
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Ware brothers were using the phones in TT1 (briefly),
TT2, TT3, and TT4. If they were to be intercepted on
TT6, they would using their own phones that had already been subject to intercepts that were listed in the
new application. The wiretap laws require identification of all persons expected to be intercepted,
regardless of whether they will be using the phone
line that is the subject of the intercept or on the other
end:
We therefore conclude that a wiretap application must name an individual if the
Government has probable cause to believe
that the individual is engaged in the criminal activity under investigation and expects
to intercept the individual’s conversations
over the target telephone.
United States v. Donovan, 429 U.S. 413, 428, (1977).
By referencing the earlier intercepts on the Ware
brothers’ phones, the issuing judge was advised of the
previous intercepts and including TT6 would have
been superfluous as to the Wares. TT8 was essentially
a continuation of TT5 which had been used by Mr.
Nelson. TT5 was issued on the same day as TT6, so it
is easy to see why the affiant did not see that TT6 was
not pertinent to TT8.
Mr. Nelson was not named in TT6 (he couldn’t
have been because he had not yet been identified) and,
while he has standing to challenge TT8, it is not logical that he should be able to complain about the
omission of a reference to another intercept that did
not involve him. Clearly TT6 was “known” to the applicant, but it has not been shown that he knew that
TT6 should have been included but he chose
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deliberately to omit it. At most, it was an innocent
mistake and could not have misled the issuing judge.
F. TT9-Jarvis Coleman-Fuller, Issued August
14, by Judge Daniel P. Dwyer
Defendants make a similar staleness argument
for TT9, which relied on interceptions over TT5 between Mr. Nelson and Mr. Coleman-Fuller in late
June. They also claim that the interceptions are “unpersuasive” regarding Mr. Coleman-Fuller’s role and
whether drug related conversations would be overheard.
The Government sees it quite differently, calling
this application “textbook.” It points out that the affidavit described a controlled purchase from Mr.
Coleman-Fuller the second week of August, preceded
by text messages. It also refers to the toll analysis.
Again, the Government has the better analysis.
Mr. Coleman-Fuller somewhat inconsistently challenges information about CS3, either as it relates to
probable cause or as part of the Franks challenge, but
then says CS3 should have been used further before
resorting to the wiretap. He says we don’t know
whether CS3 is using drugs or requesting payment,
making his reliability unproven. Those details would
not have changed the equation. CS3 was used for a
monitored, but not recorded, controlled buy, and had
no other involvement or information.
Regarding necessity, in addition to the earlier
mentioned possible “interim” efforts, Defendants fault
the law enforcement failure to make use of information provided to Enterprise and to undertake
surveillance of Mr. Coleman-Fuller using information
from a confidential source. He contends that proceeding to TT9 was premature. The affidavit revealed the
50a
limited role that CS3 had and could play in the investigation. CS3 is described as not being a member of
the DTO and knowing only that he sold CDS in a specific area, but not knowing the details of ColemanFuller’s role or his source of supply. The issuing judge
was also told that Mr. Coleman-Fuller used rental vehicles, and changed vehicles frequently, and that they
had been unable to locate his residence or stash house
through surveillance. The information was sufficient.
A part of Coleman-Fuller’s Franks challenge rests
on the contention that he was erroneously portrayed
as the source of drugs leading to an overdose by incorporating a misleading chart of chats. As noted by the
Government, it does not appear that anything is omitted and that the affiant states that Martin obtained
drugs from someone else and no longer needed Coleman-fuller to bring any. There certainly was nothing
material omitted. He also points to the typographical
errors, but those also are immaterial.
G. TT10-Jeroam Nelson, issued August 20
by Judge Mark K. Boyer
Mr. Nelson’s argument regarding this, final, intercept is unclear. As noted by the Government, the
application referred to many drug related conversations involving Mr. Nelson intercepted over TT8 and
TT9 and the search at the home of Eric Johnson resulting in the search of his phone containing
communications with Mr. Nelson. Immediately after
using TT8 to text another person, Mr. Nelson stopped
using TT8 and began using TT10. Investigators were
still intercepting TT9 and overheard calls between
Mr. Coleman-Fuller and Mr. Nelson on TT10 that law
enforcement believed to be drug related. The basis for
probable cause was ample. Regarding necessity, Mr.
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Nelson says the section was an “exact replica” of TT9
with one difference, law enforcement believed he frequented several different addresses, but hadn’t
identified them positively yet.
The allegedly missed interim efforts here are more
real-time surveillance of the targets and warrants for
phone records and CSLI. TT10 was sought only 6 days
after TT9 and was necessitated because Mr. Nelson
stopped using TT8 after the search at Mr. Johnson’s
residence. The affidavit outlined what normal
investigative techniques had been used or tried, and
why the wiretap was justified.
H. Franks v. Delaware
Given the facial validity of the wiretap orders, it
is necessary to address Defendants’ request for a hearing pursuant to Franks v. Delaware so that they can
try to establish that “facts” were either misstated or
omitted such that the issuing judges would have declined to issue the orders had the “facts” been properly
presented. The so-called “facts” about which Defendants complain relate to the availability of other, less
intrusive, investigative techniques. As noted before,
the burden on law enforcement to justify a wiretap is
not great and is designed to show that other techniques would not suffice to uncover the crime.
Defendants complain that law enforcement was too
quick to seek wiretaps and, perversely, seem to contend that their involvement was so obvious that it
could have been uncovered by more surveillance or
other less intrusive procedures. They argue, however,
based only on what is in the affidavits and do not supply any outside evidence, expert or otherwise, to show
precisely what could have been done so easily or with
guaranteed results.
52a
For TT3, they assert that the affidavit omitted the
ability to track Edward Ware via CSLI, to surveil
Pangborn Ave and Avalon, or to use a known confidential source.
For TT5, the affidavit allegedly omitted the ability
to utilize Enterprise rental information, probation information, or wage data, and possibly get more from a
confidential source.
For TT8, the allegedly omitted information included all of the previous assertions, as well as
“critical information” about CS2, the ability to locate
Mr. Nelson’s rental vehicles using surveillance and
CSLI, and the ability to investigate other targets using toll records, CSLI and surveillance.
For TT9, all of the above.
For TT10, again, all of the above.
Defendants have not established the foundation
for a Franks hearing. Most of their quarrels with the
statements and omissions relate to opinions about the
availability of various investigative techniques. As
noted at the outset of this opinion, Defendants must
do more than speculate and offer their own unsubstantiated opinions in order to be entitled to a
hearing. They have not done enough.
I.
Sealing
At present, the recordings for all DEA wiretaps
are downloaded to encrypted DVDs at the DEA headquarters in Washington, D.C. The encrypted disks are
then sent via FedEx to the agents, in Hagerstown,
Maryland in this case. At that point, according to the
Government, they are impossible to tamper with. Defendants argue that delays in sealing TT5, TT8, TT9,
and TT10 require suppression of evidence. The first
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two were not sealed until approximately 10 days after
expiration, while the latter two were not sealed until
more than six weeks after expiration and were not
downloaded for about a week.
The sealing orders themselves, and the memoranda supplied in ECF Nos. 311-8 and 311-9,
establish the dates of downloading, dispatch to the
agents in Hagerstown, custody before physical
transport to the Judge, and sealing. There does not
appear any substantial delay with regard to TT5. For
TT8 and TT9, TFO Mills7 reports that he was “unable”
to meet with Judge Boyer until September 20 and
Judge Dwyer until October 29. He reports taking
TT10 to Judge Boyer for sealing on October 31. He titled the subject of the memos “Late Submission of Non
Drug Evidence.”
The Government argues that there was substantial compliance, because any delays were not long
enough to raise concerns and that at least some portion of the delays was due to logistical difficulty in
meeting with the judge. The court agrees. The
orders and memos establish the system employed to
safeguard the integrity of the recordings. After expiration, the recordings are downloaded to encrypted
DVDs, send via commercial shipper to the local authorities, where they are placed in a temporary nondrug locker until they are taken to a judge to be
sealed. After that, the disks are transferred to the
non-drug evidence coordinator.
The agents, both in DC and Hagerstown, were
aware of the prompt sealing requirement and the
7 The Government advised that TFO Mills passed away be-
fore the hearing. TFO Teets was not called to testify.
54a
paramount need to protect the integrity of the recordings. There has been no challenge to the assertion that
the encrypted DVDs are tamper proof (nor any suggestion that these recordings have been tampered
with.) Still, all steps in the process were documented,
even the “lateness” of the evidence submission. Under
the Maryland framework, there has been no showing
of prejudice even if the timing violated the immediacy
requirement. Under federal law, there was a satisfactory explanation for the delay. The agent represented
to his superiors that he was “unable” to meet with the
two judges more promptly and, in light of the encrypted nature of the disks secured in an evidence
locker, that explanation is sufficient and reasonable.
III. Johnson’s motions to suppress, statement and search pursuant to warrant. (ECF
No. 213).
On August 8, 2019, a search warrant was issued
for 10090 Mill Run Circle, Apt. 201, Owings Mills,
Maryland. Eric Johnson moves to suppress all evidence obtained in the ensuing search as well as all
derivative evidence. The primary issue ready for resolution is whether the affidavit contained illegally
obtained evidence in the form of a warrantless dog
sniff.
A. Canine Sniff
Two days before the issuance of the warrant, law
enforcement brought a K-9 drug detection dog who
conducted a “free air scan of the TARGET APARTMENT main entry door.” The dog gave a positive alert
for the odor of a controlled dangerous substance. As
part of the evidentiary hearing, Agent Jasen Logsdon
testified about the circumstances surrounding that
“dog sniff.” Agents visited management and obtained
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a swipe card to access the locked entry door and permission to access the common areas. The target
apartment was leased to Latrice Campbell, the suspected girlfriend of Eric Johnson. Agent Logsdon
described the large apartment complex, with locked
entry doors. After entering with the canine drug detection team, he and the team took the elevator to the
second floor and entered a long hallway. With photos,
a video, and narrative, he described the hallway, and
demonstrated how he instructed the canine officer
about the area of interest. The canine officer told him
that the dog alerted to apartment 201. As stipulated
by the parties, in a report the canine handler described the positive alert in the area of the lower door
seam. Apartment 201 is near the elevators and occupants of other apartments on that floor would walk by
the door on their way down the hall to their own apartments. The small set back is created by the presence
of what appear to be storage closets. At the time of the
dog sniff, there was nothing in front of the apartment
door (no door mat or other indicia of control by the occupant.)
The defense called Michael McGee who inspected
the area outside the door to apartment 201. He, too,
described the area and provided measurements. He
said that the door is recessed from a common hallway
by approximately three and a half feet. Mr. McGee
gained access to the building through two secured
doors, by using the buzzer on the wall to get the property manager or someone else to answer. He clarified
that the first buzzer provided access to a person in an
office where he explained that he was a private investigator and wanted to take some photos and
measurements. He then went to the door to make his
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measurements, without getting permission from the
tenant in apartment 201
Officer Logsdon gained access to the hallway by
consent of the management of the apartment building.
Such consent is, apparently, given routinely upon request. The investigator for Mr. Johnson, Mr. McGee,
also was granted access merely by asking management. The area is carpeted and routine cleaning would
be expected, with staff frequenting the area regularly.
(Information gleaned by a telephone call to the management office was that cleaning was done daily
during the week.) Other tenants use the common hallway and pass by the area going to and from their
apartments, although the door to Apartment 201 is recessed a bit because of storage closets adjacent to it.
Based on that evidence, the court finds that the
dog sniff was not a violation of the Fourth Amendment. The area just outside the apartment door is not
within the curtilage and the presence there of law enforcement and the dog did not violate any reasonable
expectation of privacy.
The defense contends that the area immediately
outside of the door to any dwelling constitutes curtilage and is off limits to law enforcement for the
purpose of a dog sniff. It argues that the majority opinion by Justice Scalia in Florida v. Jardines, 569 U.S.
1 (2013), left unclear whether a canine sniff outside
an apartment door constitutes a search under the
Fourth Amendment. By appropriate extension, however, of the concurring opinion, the defense contends
that the question can be answered in his favor. The
concurring opinion by Justice Kagan relied on Kyllo v.
United States, 533 U.S. 27, 40 (2001), which had found
that “surveillance of the home constitutes a search
57a
where the government uses a device that the public
does not have access to in order to explore details of
the home that ‘would previously have been unknowable without physical intrusion.’” Justice Kagan
concluded that Kyllo resolved Jardines because a device not in general public use was used to explore
details of the home previously unknowable without
physical intrusion.
The defense recognizes that the factors described
in United States v. Dunn, 480 U.S. 294 (1987), help to
determine whether an area is within the curtilage.
Those factors are proximity to the home, whether the
area is within an enclosure, the nature and uses of the
area, and steps taken to protect the area from observation. From those factors, Mr. Johnson argues that
the apartment building is secured, the area in question is immediately outside the apartment home, the
area is used to enter and leave the apartment and not
by others for socializing, and he locks the apartment
door and chose to live in a secured apartment building. He argues that people shouldn’t be treated
differently depending on whether they live in a rental
unit or an owner-occupied single family home.
Mr. Johnson cites to a Seventh Circuit case,
United States v. Whitaker, 820 F.3d 849, 854 (7th Cir.
2016), which held that use of a drug-sniffing dog to
search a hallway outside a person’s apartment invaded that person’s reasonable expectation of privacy.
The Government, of course, disagrees and points
to the decision by the undersigned in Seay v. United
States, 15-cv-3367-DKC & 14-cr-0614-DKC, 2018 WL
1583555 (D.Md. April 2, 2018). There, in the course of
rejecting an ineffective assistance of counsel claim,
the court found that Mr. Seay could not show that the
58a
common hallway of the apartment building was part
of the curtilage to his apartment. Here, the Government argues that Mr. Johnson had no property based
right outside the apartment door and that, under the
Dunn factors, his argument fails. The Government asserts that the same analysis applies regardless of the
income level of the resident.
Ironically, perhaps the best evidence that the police did not enter the curtilage is the testimony from
the defense investigator. He merely asked the management personnel to let him in so he could take
measurements in the hallway and they did. Entrance
was not restricted to residents in any way despite the
locks on the front door. He went right up to the apartment door, probably even closer than the canine team
went, to use a measuring tape to determine the width
of the door.
While caselaw is still developing, the “majority approach continues to reject the notion that common
areas of multiunit dwellings are curtilage.” Stephen
Grego, State v. Edstrom: No Warrant Needed for Minnesota Police to Conduct a Dog Sniff Outside Your
Apartment, 16 U.ST. THOMAS L.J. 297, 327 (2020).
Nor did the canine sniff violate a reasonable expectation of privacy. Albeit in an unpublished per
curiam opinion, the Fourth Circuit has concluded,
post Jardines, that a canine sniff in a hotel hallway:
did not infringe upon a reasonable expectation of privacy. “The use of a well-trained
narcotics-detection dog—one that ‘does not
expose noncontraband items that otherwise
would remain hidden from public view—during a lawful traffic stop, generally does not
implicate legitimate privacy interests.’”
59a
Illinois v. Caballes, 543 U.S. 405, 409, 125
S.Ct. 834, 160 L.Ed.2d 842 (2005) (internal
quotation marks and citation omitted).
Moreover, “[t]he legitimate expectation that
information about perfectly lawful activity
will remain private is categorically distinguishable from [a person’s] hopes or
expectations concerning the nondetection of
contraband.” Id. at 410, 125 S.Ct. 834. Because the drug-detecting dog disclosed only
the presence of illegal narcotics, we find that
the dog-sniff did not violate Legall’s legitimate expectation of privacy.
United States v. Legall, 585 F.App’x 4, 6 (4th Cir.
2014).
B. Statements
Eric Johnson also moves to suppress any statements made during a brief custodial interrogation on
August 12, 2019. The court heard testimony about the
entry into the apartment and contact with Mr. Johnson as it might affect the admissibility of any
statement he made. Based on that evidence, the court
finds that the alleged statement by Mr. Johnson was
made after Miranda warnings were given orally and
he indicated that he understood. While it was early in
the morning, and he had been awakened by the forced
and unannounced entry into his apartment, Mr. Johnson appeared awake, and alert, in the body worn
camera video. After the entry, the situation was calm,
Mr. Johnson followed directions of the police, and was
seated for some time before the entry team left and
the investigators arrived. Any statement was made
voluntarily. The motion to suppress (ECF No. 212)
will be denied.
60a
IV. ECF No. 390, motion to suppress by Coleman-Fuller, denied as moot.
Counsel stated in court on March 14 that the Government would not be using any statements.
Accordingly, the motion will be denied as moot.
V. Conclusion
For the foregoing reasons, the motions to suppress
the wiretap evidence will be denied, as will the motions of Eric Johnson and Jarvis Coleman-Fuller
discussed above. The remaining motions will be discussed at the forthcoming hearing.
Date: July 6, 2022
/s/
DEBORAH K. CHASANOW
United States District Judge
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APPENDIX C
IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MARYLAND
UNITED STATES :
OF AMERICA
:
JEROAM EDWIN
NELSON, JR., et
al.
:
Criminal No. DKC 200038
:
:
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this 6th day of July, 2022, by the
United States District Court for the District of Maryland, ORDERED that:
1. The motions to suppress evidence obtained via
electronic intercepts (ECF Nos. 106, 109, 206,
232, 276, 299, and 309), BE, and the same
hereby ARE, DENIED;
2. The motion to suppress (canine search and
statements) by Eric Johnson (ECF No. 212)
BE, and the same hereby IS, DENIED;
3. The motion to suppress statements (ECF No.
390, Coleman-Fuller) BE, and the same hereby
IS, DENIED as moot;
4. The consent motion to substitute exhibit (ECF
No. 398, Coleman-Fuller) BE, and the same
hereby IS, GRANTED;
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5. Rulings on the pertinent motions to adopt,
amend, seal, and file surreplies will be memorialized in a separate order; and
6. The clerk will transmit copies of the Memorandum Opinion and this Order to counsel for the
parties.
/s/
DEBORAH K. CHASANOW
United States District Judge
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APPENDIX D
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
UNITED STATES
OF AMERICA
v.
ERIC TYRELL
JOHNSON
JUDGMENT IN A
CRIMINAL CASE
(For Offenses Committed
on or After November 1,
1987)
Case Number: DKC-1-20CR-00038-003
Defendant’s Attorney: Joseph A. Balter
Assistant U.S. Attorney:
Joan Castleton Mathias
THE DEFENDANT:
❑
pleaded guilty to count(s) ____
❑
pleaded nolo contendere to count(s) ____,
which was accepted by the court.
❑
was found guilty on Counts One, Three and
Four of the Third Superseding Indictment after a plea
of not guilty.
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Title & Section
Nature of
Offense
Date Offense
Concluded
Conspiracy to
distribute
21 U.S.C.
and pos§ 841(b)(1)(B)(vi)
sess with 11/30/2019
21 U.S.C.
intent to
§ 841(b)(1)(B)(i) distribute
heroin and
fentanyl
21 U.S.C.
§ 841(a)(1)
21 U.S.C.
§ 841(b)(1)(B)(i),
(vi)
18 U.S.C.
§ 922(g)(1)
18 U.S.C.
§ 924(e)(1)
Count
Number(s)
1ss
Possession
with intent to
distribute
controlled
substances
8/12/2019
3ss
Possession
of a firearm and
ammunition by a
prohibited
person
8/12/2019
4ss
The defendant is adjudged guilty of the offenses
listed above and sentenced as provided in pages 2
through 6 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984 as
modified by U.S. v. Booker, 543 U.S. 220 (2005).
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❑ The defendant has been found not guilty on
count(s)____
❑ The Superseding Indictment and Second Superseding Indictment are dismissed on the motion of
the United States.
IT IS FURTHER ORDERED that the defendant
shall notify the United States Attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs,
and special assessments imposed by this judgment
are fully paid.
March 24, 2023
Date of Imposition of Judgment
3/30/2023
Deborah K. Chasanow
Date
United States District Judge
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be
imprisoned for a total term of 150 months on counts
one and three, concurrent, and to a term of 120
months on count four, concurrent. He was in state
custody from August 12, 2019, until he came into federal custody. None of that time has been credited to
any other sentence.
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❑ The court makes the following recommendations to the Bureau of Prisons: placement at
Cumberland, MD so as to be as close to hom’e as possible.
❑ The defendant is remanded to the custody of
the United States Marshal.
❑ The defendant shall surrender to the United
States Marshal for this district:
❑
at ____ a.m./p.m. on ____.
❑
as notified by the United
States Marshal
❑ The defendant shall surrender, at his/her own
expense, to the institution designated by the Bureau
of Prisons at the date and time specified in a written
notice to be sent to the defendant by the United States
Marshal. If the defendant does not receive such a written notice, defendant shall surrender to the United
States Marshal:
❑
before 2pm on _______________
A defendant who fails to report either to the designated institution or to the United States
Marshal as directed shall be subject to the penalties of Title 18 U.S.C. §3146. If convicted of an
offense while on release, the defendant shall be
subject to the penalties set forth in 18 U.S.C.
§3147. For violation of a condition of release, the
defendant shall be subject to the sanctions set
forth in Title 18 U.S.C. §3148. Any bond or property posted may be forfeited and judgment
entered against the defendant and the surety in
the full amount of the bond.
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RETURN
I have executed this judgment as follows:
Defendant delivered on _____ to _____ at _____, with
a certified copy of this judgment.
_________________________________
UNITED STATES MARSHAL
By: _____________________________
DEPUTY U.S. MARSHAL
SUPERVISED RELEASE
Upon release from imprisonment, the defendant
shall be on supervised release for a term of 5 years
concurrent on counts one and three, and a concurrent
term of 3 years on count four.
The defendant shall comply with all of the
following conditions:
The defendant shall report to the probation office
in the district to which the defendant is released
within 72 hours of release from the custody of the Bureau of Prisons.
A. MANDATORY CONDITIONS
1) You must not commit another federal, state or
local crime.
2) You must not unlawfully possess a controlled
substance.
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3) You must refrain from any unlawful use of a
controlled substance. You must submit to one drug
test within 15 days of release from imprisonment and
at least two periodic drug tests thereafter, as determined by the court.
❑ The above drug testing condition is suspended,
based on the court’s determination that you pose a low
risk of future substance abuse. (check if applicable)
4) ❑ You must make restitution in accordance
with 18 U.S.C. §§ 3663 and 3663A or any other statute
authorizing a sentence of restitution. (check if applicable)
5) You must cooperate in the collection of DNA
as directed by the probation officer.
6) ❑ You must comply with the requirements of
the Sex Offender Registration and Notification Act (34
U.S.C. § 20901, et seq.) as directed by the probation
officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you
reside, work, are a student, or were convicted of a
qualifying offense. (check if applicable)
7) ❑ You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that
have been adopted by this court as well as with any
other conditions on the attached page.
B. STANDARD CONDITIONS
OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of
supervision. These conditions are imposed because
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they establish the basic expectations for your behavior
while on supervision and identify the minimum tools
needed by probation officers to keep informed, report
to the court about, and bring about improvements in
your conduct and condition.
1) You must report to the probation office in the
federal judicial district where you are authorized to
reside within 72 hours of your release from imprisonment, unless the probation officer instructs you to
report to a different probation office or within a different time frame.
2) After initially reporting to the probation office, you will receive instructions from the court or the
probation officer about how and when you must report
to the probation officer, and you must report to the
probation officer as instructed.
3) You must not knowingly leave the federal judicial district where you are authorized to reside
without first getting permission from the court or the
probation officer.
4) You must answer truthfully the questions
asked by your probation officer.
5) You must live at a place approved by the probation officer. If you plan to change where you live or
anything about your living arrangements (such as the
people you live with), you must notify the probation
officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to
unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a
change or expected change.
6) You must allow the probation officer to visit
you at any time at your home or elsewhere, and you
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must permit the probation officer to take any items
prohibited by the conditions of your supervision that
he or she observes in plain view.
7) You must work full time (at least 30 hours per
week) at a lawful type of employment, unless the probation officer excuses you from doing so. If you do not
have full-time employment you must try to find fulltime employment, unless the probation officer excuses
you from doing so. If you plan to change where you
work or anything about your work (such as your position or your job responsibilities), you must notify the
probation officer at least 10 days before the change. If
notifying the probation officer at least 10 days in advance is not possible due to unanticipated
circumstances, you must notify the probation officer
within 72 hours of becoming aware of a change or expected change.
8) You must not communicate or interact with
someone you know is engaged in criminal activity. If
you know someone has been convicted of a felony, you
must not knowingly communicate or interact with
that person without first getting the permission of the
probation officer.
9) If you are arrested or questioned by a law enforcement officer, you must notify the probation officer
within 72 hours.
10) You must not own, possess, or have access to
a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was
modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or
tasers).
11) You must not act or make any agreement with
a law enforcement agency to act as a confidential
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human source or informant without first getting the
permission of the court.
12) If the probation officer determines that you
pose a risk to another person (including an organization), the probation officer may require you to notify
the person about the risk and you must comply with
that instruction. The probation officer may contact the
person and confirm that you have notified the person
about the risk.
13) You must follow the instructions of the probation officer related to the conditions of supervision.
C. SUPERVISED RELEASE
ADDITIONAL CONDITIONS
❑ VOCATIONAL SERVICES PROGRAM
You must participate in a vocational services program and follow the rules and regulations of that
program. Such a program may include job readiness
training and skills development training.
❑ DRUG TREATMENT
You must participate in a substance abuse treatment program and follow the rules and regulations of
that program. The probation officer will supervise
your participation in the program (provider, location,
modality, duration, intensity, etc.).
❑ SUBSTANCE ABUSE TESTING
You must submit to substance abuse testing to determine if you have used a prohibited substance. You
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must not attempt to obstruct or tamper with the testing methods.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the
conditions specified by the court and has provided me
with a written copy of this judgment containing these
conditions. For further information regarding these
conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.
Defendant’s Signature _____________ Date________
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on
Sheet 5B.
Assessment
TOTALS
Restituti
on
Fine
AVAA
Assessm
ent*1
JVTA
Assessment**2
$300.00 $.00
$.00
$.00
$.00
❑ CVB Processing Fee $30.00
*1 Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.
**2 Justice for Victims of Trafficking Act of 2015, Pub. L. No.
114-22
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The determination of restitution is deferred
until ___________. An Amended Judgment in a Criminal Case (AO 245C) will be entered after such
determination.
❑
❑
The defendant must make restitution (including community restitution) to the following payees in
the amount listed below.
If the defendant makes a partial payment, each
payee shall receive an approximately proportioned
payment, unless specified otherwise in the priority
order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal
victims must be paid before the United States is
paid.
Name of Total
Restitution
Payee
Loss***3 Ordered
Priority or
Percentage
$.00
TOTALS
$__________
$
$0.00
❑
Restitution amount ordered pursuant to plea
agreement __________________
❑
The defendant must pay interest on restitution and a fine of more than $2,500, unless the
restitution or fine is paid in full before the fifteenth
day after the date of the judgment, pursuant to 18
U.S.C. § 3612(f). All of the payment options on Sheet
*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses
committed on or after September 13, 1994, but before April 23,
1996.
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6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
❑
The court determined that the defendant does
not have the ability to pay interest and it is ordered
that
❑
the interest requirement is waived for the
❑
❑
fine
❑
restitution
the interest requirement for the
❑
fine
❑
restitution
is modified as follows
SCHEDULE OF PAYMENTS
Payment of the total fine and other criminal monetary penalties shall be due as follows:
A
❑ In full immediately; or
B ❑ $____ immediately, balance due (in accordance with C, D, or E); or
C
❑ Not later than _______; or
D ❑ Installments to commence ____ day(s) after
the date of this judgment.
E ❑ In ____ (e.g. equal weekly, monthly, quarterly) installments of $ ____ over a period of ____
year(s) to commence when the defendant is placed on
supervised release.
The defendant will receive credit for all payments
previously made toward any criminal monetary penalties imposed.
Unless the court expressly orders otherwise, if
this judgment imposes a period of imprisonment, payment of criminal monetary penalties shall be due
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during the period of imprisonment. All criminal monetary penalties, except those payments made through
the Bureau of Prisons Inmate Financial Responsibility Program, are to be made to the Clerk of the Court.
❑
NO RESTITUTION OR OTHER FINANCIAL PENALTY SHALL BE COLLECTED
THROUGH THE INMATE FINANCIAL RESPONSIBILITY PROGRAM.
If the entire amount of criminal monetary penalties
is not paid prior to the commencement of supervision, the balance shall be paid:
❑
in equal monthly installments during
the term of supervision; or
❑
on a nominal payment schedule of $____
per month during the term of supervision
The U.S. probation officer may recommend a modification of the payment schedule depending on the
defendant’s financial circumstances.
Special instructions regarding payment of criminal
monetary penalties:
❑
Joint and Several
Case Number
Defendant and
Co-Defendant
Names (including defendant
Total
number)
Amount
Joint and
Several
Amount
Corresponding
Payee, if
appropriate
❑
The defendant shall pay the cost of prosecution.
❑
The defendant shall pay the following court
cost(s):
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❑
The defendant shall forfeit the defendant’s interest in the following property to the United
States:
See attached Order.
Payments shall be applied in the following order:
(1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment, (5) fine principal,
(6) fine interest, (7) community restitution, (8) JVTA
assessment, (9) penalties, and (10) costs, including
cost of prosecution and court costs.
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APPENDIX E
FILED: August 29, 2025
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-4255
(1:20-cr-00038-DKC-3)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ERIC TYRELL JOHNSON, a/k/a E
Defendant - Appellant
ORDER
Upon consideration of appellant’s motion to strike
or withdraw appellant’s pro se rehearing petition, the
court grants the motion.
Entered at the direction of Judge Harris with the
concurrence of Judge Richardson and Judge Heytens.
For the Court
/s/ Nwamaka Anowi, Clerk
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APPENDIX F
APPLICATION/AFFIDAVIT FOR SEARCH
AND SEIZURE WARRANT
TO: The HONORABLE JUDGE ________________ of
the DISTRICT COURT for Washington County, Maryland.
Application is herewith made for a Search and
Seizure Warrant in that there is probable cause to believe the laws relating to the illegal possession,
manufacturing, distribution, and possession with intent to distribute controlled dangerous substances, as
defined in the Annotated Code of Maryland, Criminal
Law Article, Title 5, dealing generally with controlled
dangerous substances are being violated in and upon
a certain premises, by person(s), located at the address of 10090 Mill Run Circle Apartment 201,
Owings Mills, Baltimore County, Maryland
21117,(the TARGET APARTMENT) is located on the
second floor within a multi-unit apartment complex
called Greenwich Place, located off Mill Run Circle.
The multi-unit apartment complex has four (4)
floors, with the exterior material being a combination
maroon brick with tan vinyl. There is a concrete walkway that leads from the guest parking lot to the main
entrance door to Greenwich Place and is clearly labeled “10090”.
From the exterior, the TARGET APRTMENT is
observed on the second floor to the front right of the
main entry door of Greenwich Place. There are several
exterior windows observed trimmed in white and a
balcony trimmed in white, all of which overlook the
front parking lot.
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The TARGET APRTMENT is located through the
main entry door to Greenwich Place, past the lobby,
and to the right. An elevator is taken to the second
floor and the TARGET APARTMENT is located directly across the exit of the elevator. The TARGET
APARTMENT main entry door is maroon in color,
trimmed in white, with the door locking mechanism
located on the right side. “201” is clearly inscribed located in the middle top portion of the main entry door.
Investigators have been too said TARGET APARTMENT and can identify same. Below are photographs
of the TARGET APARTMENT building and the main
entry door to the TARGET APRTMENT.
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The name of your Affiant is Agent Jay Mills, of the
Washington County Sheriff’s Office, presently assigned to the Washington County Narcotics Task
Force, Hagerstown, Washington County, Maryland.
Agent Jay Mills has been a member of the Washington County Sheriff’s Department for over eighteen
(18) years as a duly sworn Deputy Sheriff.
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Agent Mills has attended and successfully completed a twenty (20) week minimum standard training
at the Western Maryland Police Academy, which was
conducted by the Hagerstown Department of Police
between March 2000 and July 2000. Parts of the academy dealt with the identification, investigation,
packaging, sale, and distribution of controlled dangerous substances, as well as the laws of the state of
Maryland as they pertain to Search and Seizure.
Agent Mills was assigned to the Washington
County Sheriff’s Department Uniform Patrol Division
from July 2000 to July 2007. During this time Agent
Mills was responsible to enforce traffic and criminal
Laws in the State of Maryland and to respond to calls
for service as required by this department within the
boundaries of Washington County, Maryland. In that
time Agent Mills has made in excess of two hundred
criminal and traffic related arrests many of which involved violations of Maryland’s Controlled Dangerous
Substance Laws.
From July 2007 to August 2012 Agent Mills was
assigned to the Washington County Sheriffs Department Traffic and Criminal Interdiction Unit. During
this time it was Agent Mills’ responsibility to handle
uniformed traffic matters, as well to interdict persons
violating criminal laws in Maryland. Agent Mills was
also responsible for assisting the Washington County
Narcotics Task Force with motor vehicle stops, identifications, and as a uniformed Officer on search and
seizure warrants. On numerous occasions Agent Mills
assisted the Narcotics Task Force, Drug Enforcement
Administration, and the Criminal Investigation Unit
of the Washington County Sheriff’s Department, with
active investigations. During Agent Mills’ time on the
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Traffic and Criminal Interdiction Unit he has made
and/or participated in over one hundred criminal arrest most of which pertained to violations of
Maryland’s Controlled Dangerous Substance Laws.
In August of 2012 Agent Mills was assigned to the
Washington County Narcotics Task Force. Since
Agent Mills’ assignment to the Washington county
Narcotics Task Force he has made or assisted in the
arrests of over 200 persons for drug related offenses.
Agent Mills has also participated in the execution of
numerous search and seizure warrants. Agent Mills
also participates in undercover drugs purchases, and
also drives informants to undercover drug purchases.
In January of 2016 Agent Mills was assigned as a full
time Task Force Officer with the Drug Enforcement
Administration.
In April 2004 Agent Mills attended an eight-hour
block of instruction on Undercover Narcotics Surveillance Operations Training. The Multi-Jurisdictional
Counterdrug Task Force of the Southeastern Public
Safety Institute of St. Petersburg, Florida gave this
course. This training dealt with Undercover Operations Utilizing Automobiles, Surveillance, Informants
and their handling.
In March 2006 Agent Mills attended a twenty-four
block of instruction in Criminal Drug Interdiction.
The Public Agency Training Council of Indianapolis
Indiana gave this course. This course dealt with highway criminal interdiction, as well as identification of
indicators of deceptive behavior, and roadside interviews.
In November of 2006 Agent Mills attended a
thirty-two hour block of instruction in advanced highway criminal and terrorist interdiction. Desert Snow
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of Guthrie, Oklahoma gave this training. This course
dealt with highway criminal and terrorist interdiction. This course also dealt with identification of
hidden compartments and the use of natural voids in
motor vehicles to conceal contraband, weapons, and
us currency. Agent Mills was also trained in the use
of the “Echo Test” for testing vehicle tires, which contained contraband on non commercial vehicles. Agent
Mills was also instructed on how to identify indications of deceptive behavior. During this course Agent
Mills and other students actually searched vehicles
with hidden compartments and natural voids. A total
2,284 pounds of simulated narcotics, 6.3 million dollars in simulated U.S. currency, and 223 different
types of hidden or natural compartments were located. During this class Agent Mills also participated
in a simulated meth lab workshop. During the simulated meth lab workshop Agent Mills was instructed
on the production of meth, and the weights and packaging of meth.
In July 2008 Agent Mills attended a twenty-four
hour block of instruction in Jetway interdiction. The
Drug Enforcement Administration gave this course.
This course dealt with Hotel/Motel interdiction, Bus
interdiction, Airport interdiction, and Parcel interdiction.
In May of 2009 Agent Mills attended a twentyfour hour block of instruction on advanced commercial
vehicle criminal and terrorist interdiction. Desert
Snow in conjunction with the Northeast Counter Drug
Training Center gave this course. This course dealt
with highway criminal and terrorist interdiction specifically for commercial vehicles. Agent Mills was
instructed and how to test commercial vehicle tires
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and large fuel tanks, for contraband by the use of the
“Echo Test”. Agent Mills and other students also participated in several commercial vehicle searches for
both natural voids and hidden compartments; which
contained simulated narcotics, explosives, and U.S.
currency. Agent Mills was also instructed on how to
identify indications of deceptive behavior
In July of 2009 Agent Mills attended a twentyfour hour block of instruction on Hidden Assets in
Commercial Vehicle Training. The 4:20 group of
South Carolina gave this course. The course dealt
with highway interdiction specifically commercial motor vehicles. Agent Mills along with other students
actually searched commercial motor vehicles containing simulated narcotics and U.S. currency.
In September of 2009 Agent Mills attended an
eight-hour block of instruction on interview and interrogation. The U.S. Attorney’s out of Baltimore
Maryland put this training on. This training mainly
dealt with custodial interview and interrogation, and
techniques used to obtain confessions.
In October of 2009 Agent Mills attended an eighthour block of instruction on Heroin. The Drug Enforcement Administration of Baltimore Maryland put
this training on. This training dealt with the production and importation of heroin into the United States.
This training also went into detail on tabletop operations, and distribution trends of heroin in the United
States.
In April of 2013 Agent Mills attended a forty eight
hour block of instruction in Undercover Drug Law Enforcement Training (Top Gun School). The Northeast
Counter Drug Training Center and the Maryland
State Police hosted this class. During this course of
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training Agent Mills participated in undercover purchases of various types and weights of controlled
substances in different types of packaging. Agent
Mills also participated in the planning and execution
of high risk search and seizure warrants. Agent Mills
was instructed on different types of undercover surveillance and informant handling. During this class
Agent Mills was exposed to several different types of
controlled dangerous substances including their
weights and packaging.
In March of 2014 Agent Mills attending a thirty
six hour block of instruction on Advanced Undercover
Techniques and Survival. The course was hosted by
the International Association of Undercover Officers
in Daytona Beach Florida. During this course Agent
Mills was taught many different techniques used by
undercover officers all over the United States and
abroad. This course also dealt with informants and
their handling, the planning and execution of high
risk search and seizure warrants, and the planning
and execution of undercover controlled purchases of
controlled dangerous substances.
Agent Mills has also been called upon to assist in
instructing criminal interdiction, consensual encounters, and hotel/motel interdiction to students of the
Western Maryland Police Academy. Agent Mills has
attended numerous other police in-service training
classes, part of which dealt with the identification, investigation, packaging, use, sale, and distribution of
controlled dangerous substances.
Over the past eighteen (18) years as a police officer for the Washington County Sheriff’s
Department, Agent Mills has assisted in the execution
of numerous search and seizure warrants for
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controlled dangerous substances. Agent Mills has also
testified as an expert witness relating to controlled
dangerous substances in the Circuit Court for Washington County, Maryland.
In addition, Agent Mills has been a deputized as a
Task Force Officer for the Drug Enforcement Administration (DEA) and the Federal Bureau of
Investigation (FBI), case specific for different investigations that involved wire interceptions. During these
investigations, Agent Mills has monitored phone and
text conversations between suppliers, distributors,
and users of CDS. Agent Mills also conducted surveillance during these operations. While working these
assignments Agent Mills has learned street jargon,
pricing, and the quantities of street level drug sales.
Agent Mills has also conducted well over one hundred
(100) cellular telephone downloads utilizing a Cellebrite UFED Touch device during his assignment at
the Washington County Narcotics Task Force. In reviewing these cellular telephone downloads between
distributors and users of CDS Agent Mills has
learned, many different terms used in relation to the
names of specific types of CDS as well as amounts and
prices.
In support of this application, and as a basis
for probable cause, your Affiant does depose
and swear that:
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INTRODUCTION
Since June, 2019 to present the Washington
County Narcotics Task Force (WCNTF) and the Drug
Enforcement Administration (DEA) have been investigating a drug trafficking organization run by
Philander SPRUILL, Christopher BENTON, Tyesha
WEEDON and others. As a part of this, investigators
have spoken with confidential sources, witnesses, and
sources of information, have conducted undercover
controlled purchases of heroin/fentanyl, have tracked
vehicles and phones, have initiated Title III’s (wire
taps) and have conducted surveillance of those involved, in addition to other investigative activities.
Based on these investigative activities investigators
have identified several residences/apartments and vehicles used and/or associated with this organization.
Your Affiant has not identified every part of this investigation known to him, however only enough
information to establish probable cause for this affidavit.
Based on this investigation, investigators have determined that Philander SPRUILL obtains quantities
of heroin/fentanyl from a Source of Supply (SOS) in
Ownings Mills, Maryland. SPRUILL transports the
heroin/fentanyl back from Owings Mills, Maryland to
Hagerstown, Maryland, processes/cuts it and then resells it predominantly in Washington County,
Maryland and Berkley County, West Virginia. When
SPRUILL travels to Ownings Mills, Maryland, he
travels to 10090 Mill Run Circle. 10090 Mill Run Circle is a very large apartment complex located in a
commercial shopping area in Owings Mills, Maryland.
Based on surveillance and other investigative technics
investigators believe that SPRUILL is meeting with a
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male named Eric JOHNSON and/or a female named
Latrice CAMPBELL in apartment 201 at 10090 Mill
Run Circle, Owings Mills, Maryland (the TARGET
APARTMENT).
Based on my training, knowledge, and experience,
I know that it is common for narcotics distributors to
store narcotics and/or other contraband at their residences/apartments. Thus, as set forth in more detail
below, there is probable cause to believe that there
will be fruits, evidence and instrumentalities of distribution, possession with intent to distribute and
conspiracy to distribute and possess with intent to distribute CDS in the TARGET APARTMENT.
CRIMINAL HISTORY OF Eric JOHNSON and
Latrice CAMPBELL
Eric Tyril JOHNSON, date of birth redacted,
FBI# redacted SSN # redacted Eric JOHNSON has
the following criminal convictions: a 2002 CDS Manufacture / Distribution Narcotic and VOP in Frederick,
Maryland; a 2002 CDS Possession With Intent to Distribute Narcotic in Frederick, Maryland; a 2002 Fail
Obey Lawful Order in Frederick, Maryland; a 2005
Wear Carry / Transport Handgun; a 2005 CDS Manufacture / Distribute Narcotic in Frederick, Maryland;
a 2010 CDS Possession- Not Marijuana in Frederick,
Maryland; and a 2018 CDS Possession With Intent to
Distribute Narcotic in Frederick, Maryland;
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Latrice Geneva CAMPBELL, date of birth redacted
has no identifiable criminal history;
HISTORICAL INFORMATION
As detailed further below, this DTO investigation
started with Thamar SMITH being identified through
this investigation and by law enforcement officers to
be the leader of a larger DTO for the distribution of
Controlled Dangerous Substances to include cocaine,
crack cocaine, heroin, and/or fentanyl, operating in
and/or around the area of Maryland, District of Columbia, West Virginia, Virginia, and Pennsylvania.
Agents have attempted to identify Thamar
SMITH’s Source of Supply, and current storage and/or
“stash house” where Thamar SMITH is storing, processing, and/or packaging Controlled Dangerous
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Substances (cocaine, crack cocaine, heroin, and/or fentanyl), firearms, monetary proceeds of the DTO, and
other evidence to assist in the prosecution of the DTO
for the illegal sales and distribution of Controlled
Dangerous Substances in Washington County, Maryland. Despite numerous efforts, Thamar SMITH’s
Source of Supply has neither been identified nor has
enough information been developed into Thamar
SMITH’s DTO.
During the initial investigation into Thamar
SMITH’s DTO, Tyler WARE and Edward WARE have
been identified by law enforcement officers to be the
leaders of a local DTO involved in the distribution of
Controlled Dangerous Substances, to include cocaine,
crack cocaine, heroin, and/or fentanyl, operating in
and/or around the area of Hagerstown, Maryland and
at that time were originally supplied by Thamar
SMITH.
Utilizing a Court Order, intercepted communications were collected starting on Target Telephone #1
on June 6th 2019, Target Telephone #2 on June 13th
2019, Target Telephone #3 on June 20th 2019, and
Target Telephone #4 on June 20th 2019, known to be
used by the DTO of Tyler WARE and/or Edward
WARE.
Through these intercepted communications,
Agents have positively identified Philander Alexander
SPRUILL, utilizing Target Telephone #6, as a Source
of Supply for Tyler WARE and Edward WARE’s local
DTO. Philander SPRUILL was identified through
physical surveillance, electronic surveillance, the Motor Vehicle Administration records, call records,
intercepted telephone communications and toll analysis, and intelligence gathered through monitored
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intercept electronic communications through a Maryland State Court Ordered Title III (wire).
Agents have found that Philander SPRUILL
a.k.a. “Buddha” is the leader of a larger DTO and is
currently supplied by an unknown Source of Supply in
Baltimore County, Maryland. Philander SPRUILL’s
direct DTO associates consists of Tyesha Georquiss
WEEDON and Christopher Scott BENTON. Philander SPRUILL directs Tyesha Georquiss WEEDON
and Christopher Scott BENTON to distribute CDS in
the area of Washington County, Maryland. Philander
SPRUILL’s DTO associates include: Charles Aaron
KEGARISE a.k.a. “Bundy”, Michael Eugene Lyle
a.k.a. “Big Mike”, Sirage Ekwan Carter DELANEY
a.k.a. “Dramu”, Tyler Lee WARE, and Edward Melvin
WARE a.k.a. “Eddie”.
Since the initial identification of Target Telephone #6, utilized by Philander SPRUILL, and the
Court Order on June 28th 2019 and “re-up” on July 26
to allow the electronic intercept of communications on
Target Telephone #6, Agents have seen consistent
communication between Target Telephone #6 and
other Target Subject(s) and/or other known associates
of illegal usage of Controlled Dangerous Substances.
CURRENT INFORMATION
As stated above investigators have been intercepting communications on one of Philander SPRUILL’S
telephones (TT6) since June 28th, 2019. Based on
those interceptions investigators have established
that SPRUILL uses TT6 when he is selling CDS to his
customers however investigators has also established
that SPRUILL has another telephone on which he
contacts his suppliers on. Investigators have yet to
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identify the phone number that SPRUILL uses to contact his suppliers.
SURVEILLANCE CONDUCTED JULY 9, 2019
On July 9, 2019, at approximately 12:05 p.m. investigators intercepted session #2029. Which was an
incoming call to PHILANDER SPRUILL utilizing TT6
from Michael LYLES utilizing telephone number
(240) 971-9631. Below is a transcript of session #2029
in part:
PS: Yeah
ML: Yo
PS: What’s up
ML: It’s Big Mike what’s goo with ya
PS: Who’s this Big Mike
ML: Yeah
PS: Listen, what’s up you trying to do something
ML: Yeah but
PS: Yo listen, wait real quick, like I’m about to go
meet, I’m gonna go grab something better that I got
right now
ML: Alright how long you talking
PS: I’m only, I’m going to Baltimore and coming right
back
ML: Alright can you stop through on your way back
PS: Bro I’m not gonna stop with a whole bunch of
drugs on me to break off something, Bro I got to get it
where it goes and I’ll double back, but I’m not gonna
stop. It’ll be just my luck I’m pulling in Fred, I’m not,
you just don’t do that shit Bro, you get your shit, you
go from one place to another and secure that shit, you
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don’t keep stopping with a whole load in the car, I
don’t ride with 10, 5 grams Bro, I ride with a Buck,
two three, like I ain’t gonna stop, you know what I’m
saying, that’s hot, stopping in Fred get the tags man,
soon as I come back, I’m gonna put it up and come
double back out there though, soon as I put it up I’ll
come double back out there... You hear me
ML: Alright
PS: It’s worth it though, I mean it’s defiantly worth it
ML: Umm let me
PS: I’m just not driving through Fred with a bunch of
drugs I can’t do it
ML: Huh
PS: I don’t give a fuck if I miss it or none of that, I’m
just not driving through Frederick with a bunch of
drugs so
ML: No I feel you
PS: I mean if nigga can wait it’s gonna be worth it
though, that’s all I can say, I’m on my way out there
right now
ML: Oh you already on the road
PS: Yeah I’m already on the road, so I ain’t procrastinating, I’m on the road right now
ML: Alright
PS: So you want me to hit you on this number
ML: Yeah
PS: And if you hold them down, I’ll do something for
you, hold it down I’ll do something for you, throw you
some extra
ML: Huh
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PS: I said hold it down, if you wait for me I got something extra for ya
ML: (unintelligible) 4 or 5 of them
PS: Alright what ever you get I’ll throw something on
top of that
Based on their training, experience and
knowledge of this investigation, investigators believe
that LYLES was attempting to purchase four or five
grams of heroin/fentanyl from SPRUILL. Investigators also believe that SPRUILL is telling LYLES that
he will meet him later because he (SPRUILL) is going
to meet his supplier to purchase/be fronted an amount
of heroin/fentanyl.
At the time of this call, investigators had a court
ordered GPS phone ping on SPRUILL’S cellular telephone (TT6). It should be noted that GPS phone pings
do not give the exact location of the device; rather they
give a general area (in Meters) where the device is. At
approximately 1:18 p.m. SPRUILL’S cellular telephone pinged in the near Interstate 795 in the area of
Owings Mills, Maryland. At approximately 1:39 p.m.
SPRUILL’S cellular telephone pinged approximately
960 Meters from the TAGRET APARTMENT. A short
time later SPRUILL began traveling back towards
Hagerstown, Maryland.
At approximately 2:56 p.m. investigators observed
SPRUILL arrive back at his residence (746 Spruce
Street) from Owings Mills, Maryland via covert surveillance. SPRUILL exited his vehicle and entered his
residence through the back door. At approximately
3:11 p.m. investigators began intercepting communications between Bret REDMAN and Philander
SPRUILL regarding REDMAN purchasing two grams
of heroin/fentanyl from SPRUILL. SPRUILL
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indicated that he needed a twenty-five minutes before
he could meet REDMAN. SPRUILL also told REDMAN to go to the “same place” which investigators
know to be Lee Street between Potomac Street and
Locust Street.
Based on these communication investigators went
to the area of SPRUILL’S residence and Lee Street to
conduct surveillance. At approximately 3:55 p.m., utilizing a covert video surveillance device, investigators
observed SPRUILL exit the rear entry door to his residence. SPRUILL was observed carrying a gray
Walmart grocery bag that appeared to be full of an unknown content.
SPRULL was observed leaving his residence operating his Acura TL. Investigators followed SPRUILL
to Lee Street. At approximately 3:57 p.m., SPRUILL
parked on Lee Street and sent REDMAN a text message indicating that he was there. At approximately
3:59 p.m., REDMEN approached the passenger side
door of SPRUILL’S vehicle. A short time later, investigators observed REDMEN exit SPRUILL’S vehicle
carrying a gray Walmart grocery bag that appeared to
be full of clear plastic bags. REDMEN crossed Lee
Street toward the direction of the sidewalk of 6 Lee
Street as SPRUILL drove out of the area.
REDMEN walked to the front of the area of 6 Lee
Street and threw the gray Walmart grocery bag in an
open trash container located on the sidewalk, in the
common area. REDMEN then left the area. Investigators remained in the area in visual contact with the
gray Walmart grocery bag.
At approximately 4:05 p.m., Investigators seized
the gray Walmart grocery bag from the trash container. Investigators found that the trash container
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contained only large black and white trash bags. The
gray Walmart grocery bag seized was the only grocery
style bag located in the trash container. Immediately
upon seizure, investigators observed sandwich bags
with cut corners, indicative to the sales and distribution of CDS.
Investigators took the Walmart grocery bag back
to their office and inspected it. The following items
were recovered from the Walmart grocery bag:
A1: one (1) gray Walmart grocery bag, one (1)
empty box of sandwich bags, numerous sandwich
bags with cut corners containing a tan powder residue of suspected fentanyl;
A2: one (1) large plastic bag with tan powder residue of suspected fentanyl;
A3: one (1) foil pack with tan powder residue of
suspected fentanyl;
A4: one (1) wax paper with tan powder residue of
suspected fentanyl;
A5: one (1) wax paper with tan powder residue of
suspected fentanyl;
Based on these events that occurred on July 9th,
2019 investigators believe based on their training, experience, and knowledge of this investigation that
SPRUILL traveled to the TARGET APRTMMENT
and met with his supplier to purchase or be fronted a
quantity of fentanyl. Investigators believe that
SPRUILL transported the fentanyl back to Hagerstown, Maryland, cut it, and packaged it for street
level sales. Investigators also believe that SPRUILL
took the trash out of his residence and gave it to REDMAN to through away so that law enforcement would
not be able to intercept it.
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SURVEILLANCE CONDUCTED JULY 10, 2019
On Wednesday, July 10th 2019, investigators intercepted communications on TT6, identified to be
used by Philander SPRUILL and telephone number
(304)620-0680, identified to be used by an unknown
black male known only as “Reg”.
Utilized intercepted communications in conjunction with physical and electronic surveillance, Agents
learned the following:
CALL: 2178
INCOMING: (304) 620-0680
DATE: 07/10/2019
TIME: 09:22:23
PARTICIPANTS: Philander Spruill (PS) and Unknown Male (UM)
PS: Reg
UM: What’s up, did you get good
PS: Nah I’m on my way to get it now, I’m leaving I’m
in my car leaving right now it’s there I just gotta grab
it right now I was waiting for my man to pull up with
it but (Unknown) I’m going right now I anint gonna go
far be back in town by like 12 be in town by 12
UM: Okay you be back in town by 12
PS: Yeah I’ll be back in town by 12
UM: Okay sounds good
PS: Alright come on buddy
UM: I’m just gonna wait on you
PS: Alright got you we gotta do shit jumping again I
need that shit
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UM: Yeah I’m just gonna wait on (unknown) fucking
with nobody
PS: I’m on the way right now
UM: Yeah I’m not fucking with nobody else I’m just
gonna wait on you
PS: Alright come on buddy
UM: Alright
Based on this DTO investigation, investigators
know through their training, knowledge, and police
experience that “get good” is common drug terminology if Philander SPRUILL has the suspected CDS in
his possession. Philander SPRUILL’S response is that
he’s “gotta grab it” and will be “back in town”.
At approximately 1045 hours, utilizing a Court
Ordered GPS tracking device data on the 2012 Acura
TL, Philander SPRUILL’s motor vehicle is observed
traveling east bound on Interstate 70 from U.S. Route
40.
Agent Teets, Agent Shifflet, Agent Hook, Agent
Dellamura, and Agent Logsdon began actively following the GPS tracking device data on the 2012 Acura
TL toward the direction of Owings Mills, Maryland.
At approximately 11:45 a.m., utilizing a Court Ordered GPS tracking device data on the 2012 Acura TL,
SPRUILL’S motor vehicle is observed parked in the
parking lot nearest the main entrance into Greenwich
Place.
At approximately 11:47 a.m., Agent Logsdon arrived in the area of the parking lot nearest the main
entrance into Greenwich Place. Agent Logsdon observed the 2012 Acura TL located parked in the
parking lot nearest the main entrance into the TARGET APARTMENT building. Shortly after, Agent
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Teets, Agent Shifflet, Agent Hook, and Agent Dellamura arrived on scene to conduct physical
surveillance.
At approximately 12:16 p.m., Agent Teets observed SPRUILL exit the side door (marked “A”) to the
right of the main entrance into the TARGET APARTMENT building. SPRUILL was observed by
investigators entering the 2012 Acura TL and leaving
the parking lot shortly after with a juvenile child.
At approximately 12:19 p.m., utilizing a Court Ordered GPS tracking device data on the 2012 Acura TL,
SPRUILL’S motor vehicle is observed leaving the
parking lot nearest the main entrance into TARGET
APARTMENT building.
Agent Teets, Agent Shifflet, Agent Hook, Agent
Dellamura, and Agent Logsdon began actively following the GPS tracking device data on the 2012 Acura
TL toward the direction of Hagerstown, Maryland.
At approximately 1:24 p.m., utilizing a Court Ordered GPS tracking device data on the 2012 Acura TL,
SPRUILL’S motor vehicle is observed traveling west
bound US Route 40 at Eastern Boulevard, toward the
direction of his residence, 746 Spruce Street.
At approximately 1:35 p.m., utilizing electronic
surveillance, Agents observed the 2012 Acura TL park
behind Philander SPRUILL’s residence. At 1:37 p.m.,
SPRUILL was observed exiting the 2012 Acura TL
with a juvenile child and entering into his residence.
CALL: 2268
INCOMING: (304) 620-0680
DATE: 07/10/2019
TIME: 14:20:30
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PARTICIPANTS: Philander Spruill (PS) and Unknown Male (UM)
PS: Yo
UM: Yep
PS: Hello
UM: Got uh you got you got the stuff
PS: Yeah (unknown) gonna take two you want two
UM: Yeah you got two of them
PS: Yeah I’m (Unknown)
UM: Depends on how fast you can get to me if you can
get to me fast enough I’ll take the two
PS: Alright (Unknown) right now
UM: Huh
PS: It’s being made as we speak (unknown) You don’t
hear the noise I’m making it right now. (mixing noise
in the background).
UM: Okay yeah shit
PS: Over talk (unknown)
UM: How long you think
PS: Like 25 right
UM: 25 minutes
PS: Yeah
UM: Alright I’m gonna go head and call him and tell
him it gonna be about 30 minutes
PS: Alright
UM: Alright
Based on this DTO investigation, investigators
know through their training, knowledge, and police
experience that “two of them” is common drug
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terminology for two (2) grams or two (2) predetermined quantities of suspected CDS, suspected heroin
and/or fentanyl. SPRUILL responded “don’t you hear
the noise I’m making it right now” is common
knowledge that drug distributors prepare and/or add
filler or cutting agent to the CDS before distribution.
CALL: 2276
OUTGOING: (304) 620-0680
DATE: 07/10/2019
TIME: 14:53:55
PARTICIPANTS: Philander Spruill (PS) and Unknown Male (UM)
UM: Yea!
PS: Yo!
UM: Yo!
PS: You want the two?
UM: Yea!
PS: Huh?
UM: I want two!
PS: Alright!
UM: Alright um!
PS: I’ll see you (unintelligible)
UM: OK!
SURVEILLANCE CONDUCTED JULY 30, 2019
On July 30th 2019, TFO Mills was monitoring a
covert surveillance camera affixed to the rear of Philander SPRUILL’S residence located at 746 Spruce
Street Hagerstown, Maryland. At approximately 8:08
p.m. TFO Mills observed a black 2016 Nissan Altima
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displaying Maryland registration 62813CH pull in the
driveway of 746/748 Spruce Street and park.
An unknown black male exited the driver’s door
the Altima and walked into the back door of 746
Spruce Street. It should be noted that SPRUILL was
inside of the residence at this time. A short time later
an unknown black female exited the passenger side
door of the Altima and smoked a cigarette while waiting to the rear of the residence.
At approximately 8:14 p.m. the black male who
was operating the Altima exited the rear door of 746
Spruce Street and walked back to the vehicle. The unknown black male entered the front passenger seat of
the Altima and the unknown black female entered the
driver’s seat of the Altima. The Altima then left the
area.
TFO Mills caused a checked to be made of the
Maryland Registration plate on the Altima and found
that it was registered to Latrice Geneva CAMPBELL
listing an address of 4700 Creekside Circle Apartment
201, Ownings Mills, Maryland 21117. TFO Mills
checked the Maryland State Police ETIX system to see
if the Altima had been stopped previously in the State
of Maryland and found that the Altima had been
stopped three times in 2019. According to the ETIX
system, the operator of the vehicle at the time of all
three stops was Eric Tyrell JOHNSON. TFO Mills obtained Maryland driver’s license photographs of both
CAMPBELL and JOHNSON. TFO Mills compared
the driver’s license photograph of JOHNSON to the
unknown male captured on the covert camera at
SPRUILL’S residence and it appears to possibly be the
same person.
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Investigators have determined that SPRUILL
travels to the TARGET APARTMENT located in Owings Mills, Maryland to “re-up” his supply of
heroin/fentanyl. TFO Parrish sent a subpoena to Management at Greenwich Palace in an attempt to
identify if JOHNSON or CAMPBELL have an apartment at this location.
On August 1, 2019, TFO Parrish received a response from Management at Greenwich Palace
indicating that CAMPBELL is the leassee of apartment 201 at 10090 Mill Run Circle, Owings Mills,
Maryland 21117 (the TARGET APARTMENT)
SURVEILLANCE CUNDUCTED AUGUST 5,
2019
On August 4th 2019 at approximately 10:10 p.m.
SPRUILL is seen on electronic surveillance camera
exiting his residence at 746 Spruce Street in Hagerstown, Maryland and entering his black Acura TL. A
short time later SPRUILL drives out of view of the
camera. At approximately 11:45 P.M. TFO Bryce Parrish observed, via court ordered GPS tracker, that
Philander SPRUILL began traveling east bound on
interstate 70. Based on previous surveillance operations by Investigators TFO Parrish believed that
SPRUILL would be traveling to Owings Mills, Maryland to meet a source of supply of heroin/fentanyl.
TFO Parrish began traveling toward Owings
Mills, Maryland however was approximately 20-30
minutes behind SPRUILL. TFO Parrish continued to
monitor the GPS Tracker. On August 5th2019 at 12:52
a.m. TFO Parrish observed the GPS tracker showing
a location at the intersection of Grand Central Avenue
and Mill Run Circle in Owings Mill’s Maryland. More
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specifically in the Lowes parking lot closest to that intersection. It should be noted that the Lowes’ parking
lot is located within the same business/residential
area as the TARGET APRTMENT. At Approximately
1:15 a.m. TFO Parrish observed SPRUILL’s Acura TL
backed into a parking space at the Lowes parking lot.
Within approximately 20 yards of SPRUILL’s vehicle
was a gathering of five unknown males and approximately five vehicles including SPRUILL’s. TFO
Parrish observed the group of males converse in the
Parking lot for approximately 30 minutes before all of
the vehicles left the area together. TFO Parrish terminated surveillance at that time. The GPS tracker
showed that SPRUILL returned to Hagerstown, Maryland. At approximately 2:47 a.m. SPRUILL is seen,
via surveillance camera, exiting his Acura TL and entering his residence at 746 Spruce Street in
Hagerstown, Maryland.
K-9 SCAN CONDUCTED AUGUST 7, 2019
On August 7, 2019 at approximately 3:05 a.m.
TFO Vigue and his certified K-9 partner “Cody” from
the Baltimore HIDTA Office met with TFO Logsdon
at the TARGET APARTMENT. TFO Vigue and his K9 partner conducted a free air scan of the TARGET
APARTMENT main entry door. TFO Vigue advised
that K-9 “Cody” gave a positive alert for the odor of a
controlled dangerous substance.
In addition to the above listed information, investigators know based on intercepted communications
and the court ordered GPS tracking device on
SPRUILL’s 2012 Acura that he has traveled to the
area of the TARGET APRTMENT on July 15th, July
24th and August 6th.
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Based upon your Affiant’s training, experience,
and participation in other investigations involving
Controlled Dangerous Substances (CDS) he knows the
following:
A. That narcotics traffickers often purchase and / or
title assets in fictitious names, aliases or the
names of relatives, associates or business entities
to avoid detection of these assets by government
agencies.
B. That even though these assets are in names other
than the narcotics traffickers, the narcotics traffickers actually own and continue to use these
assets, and / or exercise dominion and control over
them.
C. Those narcotics traffickers must maintain, on
hand, large amounts of U.S. Currency in order to
maintain and finance their on-going narcotics
business.
D. That it is common for narcotics traffickers to
maintain books, records, receipts, notes, ledgers,
receipts relating to the purchase of financial instruments and / or the transfer of funds, and other
papers relating to the transportation, ordering,
sale, and distribution of controlled substances.
The aforementioned books, records, receipts,
notes, ledgers and other papers are maintained
where the traffickers have ready access to them.
E. That it is common for narcotics traffickers to secrete contraband, proceeds of narcotics sales and
records of narcotics transactions in secure locations within their residences, their businesses, the
residences of relatives and associates, safe deposit
boxes, and / or other locations over which they
maintain dominion and control, for ready access
106a
and to conceal these items from law enforcement
authorities.
F. That in order to accomplish this concealment, narcotics traffickers frequently build stash places
within their residences, their businesses, the residences of relatives and associates, or use safe
deposit boxes, or burial in the ground. There are a
number of publications available instructing
where and how to conceal narcotics. Copies of
these types of publications have been found in the
aforementioned locations of narcotics traffickers.
G. That it is common for persons involved in narcotics trafficking to maintain evidence relating to
their obtaining, secreting, transfer, concealment
and / or expenditure of narcotics proceeds, such as:
large amounts of currency, financial instruments,
precious metals and gemstones, jewelry, books,
records, invoices, receipts, records of real estate
transactions, bank statements and related records, certificates of deposits, passbooks, money
drafts, letters of credit, money orders, bank drafts,
cashier’s checks bank checks, safe deposit box
keys, money wrappers, and other evidence of
other financial transactions. These items are
maintained by the narcotics traffickers within
their residences, their businesses, the residences
of relatives and associates, safe deposit boxes and
/ or other locations over which they maintain dominion and control.
H. That narcotics traffickers often utilize electronic
equipment such as computers, telex machines,
facsimile machines, currency-counting machines,
telephone answering machines and cellular telephones to generate, transfer, count, record and /
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or store the information described above in items
A, C, D, E and G above.
I.
That when narcotics traffickers amass large proceeds from the sale of narcotics, the narcotics
traffickers attempt to legitimize these profits
through money laundering activities. To accomplish these goals, narcotics traffickers utilize,
including but not limited to, domestic banks and
their attendant services, securities brokers, professionals such as attorneys and accountants,
casinos, real estate agents, shell corporations,
business fronts, and otherwise legitimate businesses which generate large quantities of
currency to legitimize their illegal profits.
J. That the sale of cocaine, heroin and other controlled dangerous substances generate large
quantities of United States currency in small denominations (commonly referred to as street
money).
K. That it is common for narcotics traffickers to separate their “street money” by denomination and
put this currency in rubber banded stacks varying
$100.00 or $1000.00 increments to facilitate quick
counting.
L. That the courts have recognized that the small and
medium denominations of questionable currency,
along with the manner in which the currency is
handled, carried and concealed may establish
probable cause that there is a substantial connection between the questionable currency and
narcotics transactions.
M. That it is common for narcotics traffickers to exchange “street money” (small denominations) for
large denominations of currency, which can be
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concealed in secure locations within their residences, their businesses, the residences of
relatives and associates, safe deposit boxes, and /
or other locations in order to amass a larger
amount of currency in a concealed area.
N. That the Currency Transaction Report (CTR) (IRS
Form 4789), which is required to be completed and
filed with the IRS by all financial institutions on
every currency transaction which exceeds
$10,000.00, causes tremendous problems for narcotics traffickers when they attempt to negotiate
their illegal profits at a financial institution.
O. That, in order to evade the filing of a CTR, narcotics traffickers often “structure” their currency
transactions so that no one transaction exceeds
$10,000.00. Or they provide false or misleading information in an attempt to legitimize or conceal
the source and / or ownership of the currency; or
they have someone conduct their currency transactions on their behalf.
P. That deposits of large amounts of currency, which
include the structuring and / or breaking of a
cache of funds into multiple deposits, each under
$10,000.00 so as to circumvent the filing of CTR’s,
is indicative of money laundering activities.
Q. That narcotics traffickers at times become fearful
that their extravagant spending habits will bring
them under scrutiny by the Internal Revenue Service or other Federal, State, or Local agencies. In
order to legitimize their spending, these traffickers
file
tax
returns
reporting
income
commensurate with the amount of money they
have spent during the year, which they feel, can
be traced and documented by the government.
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The “source” of their income reported on these returns are usually falsely stated, misleading, or
generic in terms. Retained copies of these returns
are commonly kept by the traffickers in their residences and businesses.
R. That cocaine and/or other controlled dangerous
substance traffickers commonly maintain addresses or telephone numbers in books, papers or
cellular telephones which reflect names, addresses and /or telephone numbers of their
associates in the trafficking organization, and / or
individuals involved in their money laundering
activities.
S. That narcotics traffickers utilize cellular telephones, personal digital assistants (PDA), text
messaging, and “push to talk” or “direct connect”
so as to make it more difficult for law enforcement
authorities to identify and /or intercept their conversations. These organizations also use scanners
and telephone tap devices in an attempt to develop their own intelligence information about
police activities.
T. That drug traffickers often keep paraphernalia for
packaging, cutting, weighing and distributing
controlled dangerous substances; these paraphernalia include but are not limited to scales, plastic
bags, and cutting agents such as baking soda and
inositol.
U. That drug traffickers take or cause to be taken
photographs of themselves, their associates, their
property, and their product using still and video
cameras. That these traffickers usually maintain
these photographs in their possession.
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V. That the courts have recognized that unexplained
wealth is probative evidence of crimes motivated
by greed, in particular, trafficking in controlled
substances.
W. That narcotics traffickers commonly have in their
possession that is on their person, at their residences and/or businesses, firearms, including but
not limited to: handguns, pistols, revolvers, rifles,
shotguns, machine guns and other weapons.
These firearms are used to protect and secure a
drug trafficker’s property. Such property may include, however, is not limited to: narcotics,
records, proceeds and profits derived from narcotics trafficking. These firearms are also used to
prevent the theft of controlled dangerous substances and to protect dealers from law
enforcement officers effecting a seizure and arrest. It has been your Affiants experience that
drug traffickers also utilize firearms to intimidate
persons who owe money for controlled substances
provided on consignment.
Therefore your Affiant Agent Jay Mills avers that
based on information a reliable source of information,
electronic surveillance, GPS tracking devices, physical surveillance as well as other investigation by your
Affiant and other investigators that there is probable
cause to believe that there is now being concealed certain property, namely; controlled dangerous
substances, related paraphernalia, monies relating to
the illegal sale of controlled dangerous substances and
documents showing financial records, drug transactions, drug associates and proprietary interest, which
is in violation of the Laws of the State of Maryland
and evidence relating to the commission of a crime
111a
pertaining to the Annotated Code of Maryland, Criminal Law Article, Title 5 in and upon the premises,
person(s) located at 10090 Mill Run Circle Apartment
201, Owings Mills, Maryland 21117.
Your Affiant therefore prays that a Search and
Seizure Warrant be issued, authorizing, Agent Jay
Mills, or any other police officer in and for the State of
Maryland, with the necessary and proper assistance,
to search and seize as follows:
A. Enter and search the person(s), and premises,
as completely described above as well as any
outbuildings, which may be attached thereto
or otherwise, associated therewith;
B. Search the person(s) and clothing of all persons found in or upon said premises, who may
be participating in violations of the statutes
hereinbefore cited, and who may be concealing
evidence, paraphernalia, documents, money,
firearms, and controlled dangerous substances;
C. Open and search any safes, boxes, bags, compartments, electronic devices or things in the
nature thereof, found in or upon said premises, or person(s);
D. Seize and search all evidence, paraphernalia,
documents, weapons, ammunition, controlled
dangerous substances, electronic devices such
as cellular telephones and the data stored in
them, telephone answering machines and audio tapes and the messages stored there upon,
and money used in or incidental to the conduct
or operation of controlled dangerous substance violations, found in or upon said
premises, person(s);
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E. Seize all property for which there is probable
cause to believe is subject to forfeiture, pursuant to Criminal Procedure Article, Section 12101 et seq. Annotated Code of Maryland;
F. Arrest all persons found in or upon said premises that may be participating in violations of
the statutes hereinbefore cited;
G. Leave a copy of this warrant, the affidavit and
application in support thereof, together with
an inventory of the property seized; and,
H. Return a copy of this warrant, the affidavit
and application in support thereof, together
with an inventory of the property seized, if
any, to me within ten days after the execution
of this warrant, or if not served, you are to return this warrant to me promptly after its
expiration as required by law.
*************************************************
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT
THE CONTENTS OF THE FORGOING DOCUMENT ARE TRUE AND CORRECT TO THE
BEST OF MY KNOWLEDGE, INFORMATION
AND BELIEF.
Reviewed and approved as to probable cause by:
Michele Hansen, A.S.A. for Washington County Maryland, this the 7th day of August 2019 at 5:24 p.m.
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Sworn to and subscribed to me this
day of
August 2019, in Washington County, Maryland.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.