Petition for Writ of Certiorari — Seldon v. United States (No. 07-258)
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ts Supreme Court, U.S.
U. ai ILE 5
No.07-___
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OFFICE OF THE CLERK
IN THE
Supreme Court of the Anited States
RONALD LAMONT SELDON.
Petitioner.
oe
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
KONA E RU RE AND *
KURLAND & KURLAND. PLA.
1OL7 N. Calvert St.
Baltimore. MD 21202
* Counsel of Record (410) 547-1670
July 17. 2007
W:SON-EFESPRANTINGCO INC — 1202) 789-0096 - Wasexucion D C 20002
QUESTIONS PRESENTED
1. Whether the United States Court of Appeals for the
Fourth Circuit erred in concluding that the Fourth Amend-
ment 1s not implicated in a search and seizure of a vehicle by
virtue of no government action, where the Court of Appeals
expressly held that the Sheriff's deputy’s telephone call was
the “initiating” act for the subsequent search by the Maryland
State Police officer?
Il. Whether the District Court erred in concluding that
the July, 2000, search of the vehicle was not impermissibly
tainted by the earlier October, 1999, search of the same
vehicle while in the custody of the car dealership, even
though the limited purpose of bailment of the vehicle had
already been achieved and the scope of the government
agents’ search was more intrusive than the search by the
dealership’s mechanics?
II]. Whether the District Judge abused his discretion when
he announced, on the record, that he was disinclined to apply
the exclusionary rule based on his personal prejudice and
being “tired of having to let people [go,]” on constitutional
grounds?
(1)
il
PARTIES TO THE PROCEEDING
The case caption identifies all the parties to the proceeding
appearing here and before the United States Court of Appeals
for the Fourth Circuit, below.
TABLE OF CONTENTS
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Te ee FE FE ee se vccisicarersvessnccvctevcensevoncnincays
IEEE cticspievrnsimscencvrssspsnsncoetovecestensent svaeibed
ET I als ab blnctdshaniicllcathinanrekdononrerccevenannstntontnns
ee FR crintcissvensntvissemnsnnavantaveseeticorens
EPA EE Ge FURS 6 PRG sisesenecsvincessvenesenievenciensoss
Fis I IE oi aiicreretiestintedsnvsesertascesscvenss
B. Proceedings Below and in State Court.................
REASONS FOR GRANTING THE WRIT oe.
The Fourth Circuit erred in concluding that the
search and seizure at issue was premised on no
government action, and the decision below
creates the potential for arbitrary abuse by the
police of private citizen reports, insulating
warrantless searches and seizures arising out
of escalated or conflated police interpretations
of such private citizen reports from Fourth
PT I visions soteccnsiatnscasntivmnivccunrsees
A Where a government agent shared infor-
mation, interpreted through the experien-
tial bias of his law enforcement back-
ground, with another government agent
affiliated with a different police agency,
there was government action. .............. ee
B. The district judge reached his findings of
fact by discrediting the testimony of the
private citizen, crediting instead the testi-
mony of the government agents.........00000.....
(iil)
i)
ty i)
tsar
6
9
10
.
iV
TABLE OF CONTEN TS—Continued
The prosecutor herself conceded that the
information given the authorities by the
private citizen was not enough to justify a
later, warrantless search of the vehicle........
The decision below appears to create a
conflict with other decisional law in both
the Fourth and Ninth Circuits ......................
Il. Review 1s urgently needed, because there 1s
little or no authority from this August Court on
the issue of third party consent to search
private vehicles held by a bailee for the limited
purpose of repairing the vehicle. ...............0.0..
A.
In the instant case, the limited purpose of
the bailment had been achieved and all
possessory rights and expectation of pri-
vacy had reverted to the batlor. ........0...0....
The search conducted by the government
agents was more intrusive than inspection
of the vehicle by the Pohanka Mazda
I sitiiiincctendacsrabenticeicuphoisiauss
Iti]. The district judge abused his discretion by
indicating on the record that he was disin-
clined to apply the exclusionary rule based on
being “tired of having to let people [go],” on
COSINE BIDE icc senssciiviocsssscnscncterceseree
Re OR eto Gaia osede rack conf vencdsdacnrdascuaicnetoeneeaten
APPENDIX A
Seldon v. United States, 479 F. 3d 340 (4th Cir.
2007)...
OOOO HHH EHH H OHH HEHEHE EEE EEEHOHHE SOHO HEHE HEHE EEEHHEE HEHE REESE
15
19
20
tw
w
V
TABLE OF CONTENTS—Continued
APPENDIX B
Relevant Excerpt of Affidavit in Support of
Application for Search and Seizure Warrant of
I IE EE WIIIIIOD -«ciccrcuncveesechuussunncbescousveweneseasiuves
APPENDIX C
Transcript of Videotape of Petitioner’s July 13,
IID Salhi ak vacicitiln. \doareseyoumabceneconssounadabideodivsds
APPENDIX D
United States v. Seldon, Relevant Transcript Pages
of Proceedings from Suppression Hearing, Includ-
ing Bench Opinion of the Honorable Frederick J.
Motz (November 24, 2003)[pp. 20-26, 68-73, 83-
103, 142-143, 199-202, 212-234) 00... eeeeeeenee
APPENDIX E
Maryland v. Seldon, (No. K-00-1402 Anne Arundel]
Cty., Md., Cir. Ct.), Transcript of Proceedings (Janu-
ary 30, 2002) Testimony of Pohanka Mechanic
SEALER RE see LER er eR alee ono
APPENDIX F
Seldon v. Marvland, 824 A. 2d 999 (Md. Ct. Spec.
RETR SSA EREES Reine Sbor o SRlaaie e R
APPENDIX G
Relevant Statutory and Constitutional Provisions .....
APPENDIX H
Seldon v. United States, No. 04-4473 (April 18,
2007) Order on Rehearing and Mandate of the
United States Court of Appeals for the Fourth
a anda alk alriag tn das wat pe caddies
Page
10a
lla
ORE:
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70a
S2a
Illa
V1
TABLE OF AUTHORITIES
CASES
Arndt v. Davis, 163 N.W.2d 886 (Neb. 1969).......
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709,
pi SR Ry, Re eae a aoe
Chapman v. United States, 365 U.S. 610, 81 S.
Ce Fy oe ie SE I 0 OIE Prccccveevctescecerecteceine
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.
Ct. 2022, 29 L. Ed.2d 564 (1971)....................6.
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
110 S. Ct. 2447, 110 L. Ed.2d 359 (1990).........
Eagle Fire Co. of New York v. Mullins, 120
3 RE 8 a,” , See creme
James v. Jacobson, 6 F.3d 233 (4th Cir. 1993)...
Jefson v. London Guarantee and Accident Co.,
[1 N.E.2d 993 (Ill. App. 1937)..........ceeseceereeee
Johnson v. American Automobile Insurance Co.,
EE Fe, I I, Fe vecntessibviscecinkndpvivntenvsncaconee
Kaupp v. Texas, 538 U.S. 626, 123 S. Ct. 1823,
PSF Tic. ae ee Ce Diivcctsnbevctusontinncsectecetcvenses
Koon v. United States, 518 U.S. 81, 116 S. Ct.
2035, 135 L. Ed.2d 392 (1996).........0.0000.0
Laroche v. Farm Bureau Mutual Automobile
Insurance Co.,7 A. 2d 361 (Pa. 1939)......00......
Matits v. Nationwide Mutual Insurance Co., 166
Pe, ee a Ce anitieccckiineciwkiecaueinns
Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285,
fe Gos, Snr eenene mnmeRCerO
Seldon v. Maryland, 824 A.2d 999 (Md. App.
Seldon v. United States, 479 F.3d 340 (4th Cir.
Ticks nior cic nalrndadaaaamidadnalaniaaene
Specht v. Jensen, 832 F.2d 1516 (10th Cir. 1987).
Stovall v. New York Indemnity Co., 8 S.W.2d 473
CI: Were es ectica acacia acratcsacowssnsceacceciateieumasioedes
Page
passim
passim
8
Vil
TABLE OF *''THORITIES—Continued
Page
Travelers Insurance Co. v. Greenough, 190 A.
gE Ry. 5 MARREMEeen oe See aT ene ee apen Eto r 21
United States v. Eldridge, 302 F.2d 463 (4th
ach iccaasenietiosaidancchsunisabacanucecsevecceeaiccnekss 19
United States Fidelity and Guaranty Co. vy.
Fisher, 94 P. 2d 549 (Nev. 1972)... eeeeeee 22
United States v. Jacobsen, 466 U.S. 109, 104 S.
E,W Oe hee te AP CE POS cc vccesesesncnsstenesices passim
United States v. Jarrett, 338 F. 3d 339 (4th Cir.
at snk reste Siaulg tp cx buniindasacdiueodonnaantabebeoes 19
United States v. Moussaoui, 365 F.3d 292 (4th
3 RRTEBA San pe in eee eee 15
Walter v. United States, 447 U.S. 649. 100 S. Ct.
2395S, OS L. Ed.2d S10 (1GRO)......cccrcccovececccoorssess 24-25
Wong Sun v. United States, 371 U.S. 471, 83 S.
Ct. 407, 9 L. Ed.2d 441 (1963)......00........ccceceeeee 6
CONSTITUTIONAL PROVISIONS
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STATUTES
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TREATISES AND SECONDARY AUTHORITY
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7 Am. Jur. 2d, AUTOMOBILE INSURANCE $§ 120-
as ca cisc cub Aca iagtans nis lalatcessasnuuandconaal 21.22
3 W. LAFAVE, SEARCH AND SEIZURE 88 8.6(a)
I a ceitiias 19, 22
IN THE
Supreme Court of the Anited States
No. 07-__
RONALD LAMONT SELDON,
Petitioner,
7.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Fourth Circuit is reported at 479 F.3d 340 (4th Cir. 2007), and
is reprinted in the Appendices to the Petition, at Appendix A
(hereinafter, “Pet. App.”). The District Court’s bench opinion
is unreported, but reprinted with the transcript excerpts of the
proceedings below at Pet. App. la. In earlier State of Mary-
land proceedings, the Court of Special Appeals of Maryland
reversed the Petitioner's State conviction. Its Opinion and
Order in Seldon v. Marvland, 824 A.2d 999 (Md. Ct. Spec.
App. 2003) ts reprinted as well, at Pet. App. 82a.
5
JURISDICTION
The Court of Appeals entered its judgment after the Appel-
lant’s Petition for Rehearing on April 10, 2007, and sub-
sequent mandate on April 18, 2007; this Honorable Court,
therefore, has jurisdiction pursuant to 28 U.S.C. § 1254(1)
(2006). This Petition for a Writ of Certiorari, moreover, is
timely filed, within ninety (90) days of the entry of the Court
of Appeals’ mandate.
STATUTES INVOLVED
This case involves provisions of the Controlled Substances
Act, codified as amended at 21 U.S.C. § 846 (2006) and 18
U.S.C. § 1957(a) (2006). The pertinent provisions are repro-
duced in the Appendix at Pet. App. I 1 la.
STATEMENT OF THE CASE
A. Factual Background
On October 29th, 1999, Pohanka Mazda, an automobile
dealership in Wicomico County contacted Detective Carson
Wentland concerning “something unusual” in a 1998 Mazda
MPV van. Detective Wentland, in turn, contacted Sergeant
Michael Lewis of the Maryland State Police to notify him that
the dealership had discovered “something suspicious.” Pet.
App. 28a. Both officers arrived at the dealership in the late
afternoon. Pet. App. 74a.
The vehicle had been repaired and placed in a customer
pick-up lot. /d. Sergeant Lewis spoke to the technician who
worked on the vehicle. Mr. Bruce Willey. Sergeant Lewis
directed Mr. Willey—the technician who had reported “some-
thing unusual” in the vehicle to his supervisor—to drive the
vehicle into the service bay. Pet. App. 74a-75a._ There,
Sergeant Lewis and Detective Wentland conducted a warrant-
less search of the vehicle. Pet. App. 74a-76a. According to
Mr. Willey. Sergeant Lewis pushed the front seat back, and
removed the carpet. Pet. App. 74a-76a.
3
Sergeant Lewis observed two false compartments con-
structed cither inside or next to the gasoline tank. Pet. App.
28a-30a. Sergeant Lewis inspected the vehicle by using a
screwdriver, prying open one of the compartments and hook-
ing up alligator clips in an attempt to operate the electrically-
switched hydraulic compartment. Pet. App. 28a-30a. After
his inspection, Sergeant Lewis recorded the vehicle’s tag and
VIN number. Se/don v. United States, 479 F.3d 340, 342 (4th
Cir. 2007). Upon further inquiry by Sergeant Lewis, the
dealership produced documents to confirm that Appellant
Ronald Seldon had brought the vehicle in for repairs. /d.
Sergeant Lewis learned Mr. Seldon’s identity and that he
was implicated in a drug investigation, for the first time at
Pohanka Mazda on October 29, 1999. /d.
Approximately nine months later, on July 13, 2000, Mr.
Seldon was operating the same 1998 Mazda MPV van east-
bound on Route 50 near Annapolis. /d¢. According to Sergeant
Lewis, he happened to---coincidentally-—be traveling the
same route on the same day at the same time. Sergeant Lewis
paced Appellant’s vehicle at 71 m.p.h. in a 55 m.p.h. zone
and stopped Appellant for a speeding violation. /d The
traffic stop occurred at approximately 1:50 p.m.
Sergeant Lewis approached the passenger side of the vehi-
cle. /d. While he waited for Mr. Seldon to produce his
license and registration, Sergeant Lewis smelled air fresh-
eners. observed several law enforcement decals on the
vehicle’s windshield, and a large wad of money being pulled
trom Appellant’s pant pocket. When Mr. Seldon gave Ser-
geant Lewis his license, Sergeant Lewis immediately recog-
nized Mr. Seldon—claiming that the recognition “hit” him
forcefully--as the individual whose automobile he had previ-
ously searched while under repair at Pohanka Mazda the
previous October. Pet. App. 28a-3la. Upon returning to his
vehicle, Sergeant Lewis placed a call to verify the validity of
Mr. Seldon’s license. Pet. App. 31a.
4
After Maryland State Police dispatch confirmed that Mr.
Seldon’s license was valid, Sergeant Lewis placed a call to
Sergeant Michael Kenhart of the Wicomico County Narcotics
Task Force. Sergeant Lewis informed Sergeant Kenhart that
he had stopped Mr. Seldon for a traffic violation but “he had
enough to do him.” Pet. App. I la-l4a. Sergeant Lewis re-
quested back up and a canine unit, but the canine unit was not
available. Upon returning to Mr. Scldon’s Mazda MPV, Ser-
geant Lewis decided to search the vehicle. Pet. App. 12a-14a.
Sergeant Lewis asked Mr. Seldon to exit his vehicle and
stand to the rear. Mr. Seldon cooperated, but refused to
consent to a search. Sergeant Lewis repeatedly engaged Mr.
Seldon in conversation claiming that he could smell the odor
of cocaine emanating from the Mazda and that Mr. Seldon,
during the course of this commentary, was nervous. Pet. App.
| 2a-l6a. Mr. Seldon denied he was nervous and again refused
to consent to the search. Pet. App. 15a-l6a. When back up
arrived, Sergeant Lewis used a crowbar to search the vehicle,
including the compartments in the vehicle of which he had
prior knowledge from the carlier, October, 1999, search while
the vehicle was at Pohanka Mazda. Pet. App. 28a-3la. One
compartment was empty but the second compartment con-
tained cocaine and marijuana. Mr. Seldon was arrested, and
subsequently charged by the State of Maryland with various
violations of the controlled dangerous substance laws. Se/don
v. Marvland, 824 A.2d 999 (Md. Ct. Spec. App. 2003).
Concurrently, federal authorities were undertaking their
own investigation of Mr. Seldon’s activities, issuing a sealed
indictment on February 20, 2003. The activities included not
only those out of which the State of Maryland drug distri-
bution charges arose, but violations of various financial trans-
action and money-laundering statutes as well, to include other
members of Mr. Seldon’s family and other codefendants.
Seldon, 479 F. 3d at 342. That investigation, however, came
to full fruition and grew out of the information gleaned from
)
Mr. Seldon’s July !3, 2000, arrest, detention, seizure of evi-
dence, and State of Maryland prosecution, see Pet. App. 10a,
one that was eventually overturned on appeal by the Mary-
land Court of Special Appeals in a written, reported opinion
by The Honorable Joseph F. Murphy, Chief Judge. Se/don,
$24 A.2d at 1016.
As the federal search and seizure warrant itself indicates,
applied for by Special Agent David M. Riviello on the same
day as Petitioner's arrest by Sergeant Lewis of the Maryland:
State Police, the Government systematically relied upon the
information gathered, both in the illegal search of October 29.
1999 and the subsequent illegal search of July 13, 2000, Pet.
App. | la.
At the federal suppression hearing, held on November 24,
2003, the question of whether Sergeant Lewis could smell
cocaine in Mr. Seldon’s Mazda MPV while standing at the
side of the road was extensively litigated, but the Court failed
to make a specific factual finding one way or the other. 479
F. 3d at 342. Sergeant Lewis also testified under oath that the
memory of the earlier search triggered his specific recollec-
tion of Mr. Seldon personally, knowledge he exploited to
effect the latter search and arrest in July, 2000 from the
moment he reviewed Mr. Seldon’s license documents. Pet.
App. 28a-29a.
RB. Proceedings Below and in State Court
The instant petition for a writ of certiorari arises out of the
Petitioner's conviction in the District of Maryland for con-
spiracy to distribute and possession with intent to distribute
cocaine hydrochloride and cocaine base, in violation of 21
U.S.C. § 846 (2006), and conspiracy to engage in unlaw-
ful monetary transactions in violation of 18 U.S.C. § 1957
(a)(2006). At his June &, 2004, trial and guilty plea, Peti-
toner preserved his right of appeal from the demial of his
suppression motion, contending that the evidence used against
6
him was the derivative product of an illegal search and
seizure. Kaupp v. Texas, 538 U.S. 626, 123 S. Ct. 1823. 155
L. Ed.2d 814 (2003); Wong Sun v. United States, 371 U.S.
471, 83S. Ct. 407, 9 L. Ed.2d 441 (1963). Despite expressly
finding that it was the telephone call of Deputy Wentland—a
government agent—that had “imitiated Lewis's involvement
in this matter,” the United States Court of Appeals for the
Fourth Circuit nevertheless concluded that Sergeant Lewis
had a “independent, untainted” basis for his latter search of
the vehicle. which relied exclusively upon the reports of the
service technician, Mr. Willey. 479 F. 3d at 341.
As indicated, in earlier State of Maryland proceedings
brought on similar theories and the same facts as those at
issue here, the Petitioner was convicted of possession with
intent to distribute controlled, dangerous substances, specifi-
cally cocaine hydrochloride and manjuana. On appeal, Chief
Judge Joseph Murphy, writing for the Court of Special Appeals
of Maryland, vacated the Petitioner’s conviction on the ground
that the earlier search required government agents to procure
a warrant, since there was no exigency, the limited purpose of
the bailment had been achieved, and because there was no
independent basis for the latter search: the factual findings at
trial were that cocaine cut with caffeine had no discernable
odor. The October, 1999, search had, therefore, impermissi-
bly tainted the July, 2000, search. The State of Maryland
petitioned the Court of Appeals of Maryland for a writ of
certiorari, which denied further review. Marvland v. Seldon,
832 A.2d 206 (2003).
REASONS FOR GRANTING THE WRIT
SUMMARY
The instant petition for a writ of certiorari raises what
would appear to be an important issue of first impression with
respect to what constitutes “government action.” Specifl-
cally, does a government agent's interpretation and recasting
-
of information provided by a private citizen, prior to com-
municating that information to a second government agent
who subsequently takes action, consutute “government ac-
tion?” More to the point, does not the mere act of exchanging
information between respective police agencies, where both
agents are acting under color of law, implicate “government
action?”
In the instant case, a citizen reported what—ostensibly—
was Observation of “something unusual” tn a vehicle to a
government agent, Wicomico County Sheriff's Deputy Carson
Wentland. Pet. App. 28a-29a. Deputy Wentland interpreted
the reported information to subsequently reformulate it on the
basis of his “training, knowledge and experience” as indicia
of criminal activity or “something suspicious,” conceding, how-
ever, that he had “no idea” what might be involved. Pet. App.
28a-29a. Subsequently, he iterated that interpretation of the
citizen's report to a second government agent, Sergeant Michael
Lewis of the Maryland State Police. Pet. App. at 28a-29a.
After contact with Deputy Wentland, Sergeant Lewis then
spoke with dealership employees and ordered them to make
the vehicle available for a search. Pet. App. at 74a-75a.
Under the facts of the case as the United States Court
of Appeals for the Fourth Circuit found them, the second
government agent's involvement in the case—the agent who
conducted the search—was initiated by virtue of his contact
with the first government agent. Seldon v United States 479
F.3d at 344. In the interim, the citizen report of “something
unusual” had already transmuted, in Deputy Wentland’s
mind, to “something suspicious.” Pet. App. ai 28a. More-
over, there is a clear point of temporal demarcation in the
case at which the “private citizens” transmute into agents of
the government after the arrival of Sergeant Lewis on the
scene, complying with his directives.
As such, Sergeant Lewis could never have had an “inde-
pendent source” of provsable cause for the subsequent search
8
he performed in July, 2000: from his “initial” involvement in
the case—~-Deputy Wentland’s telephone call—the pervasive
influence of government authority over the “private citizens”
is written all over the case. Moreover, if the police are free to
take citizen reports, recast and escalate them through their
experiential bias, to turn every report of potentially innocuous
“unusual” activity into “something suspicious” through noth-
ing more than their investigative curiosity, none of which
courts may attribute to police action, the potential for abuse ts
lamitless. The police are thus free to use any citizen report,
hyperbolically conflate that report to indicate any “suspicion”
of criminal activity they can conjure, and proceed to initiate a
warrantless search with the assurance their actions are effec-
tively insulated from Fourth Amendment scrutiny.
It is well-settled that private citizens, acting in concert with
the police or at the instigation of the police, are “government
agents.” E.g., Specht v. Jensen, 832 F.2d 1516 (10th Cir.
1987). In this case, the District Judge arrived at his factual
findings by actually discrediting the testimony of the private
citizen, finding that an unknown “somebody” had made
police aware of the “suspicious activity.” Pet App. at 50a.
The prosecutor herself, however, conceded on the record that
the information provided by the private citizen in State of
Maryland court proceedings, testimony to which the Govern-
ment stipulated in the federal proceedings, was not itself
indicative of “suspicious” activity, only “something unusual.”
Pet. App. at 74a-76a.
Second, the paucity of decisional law from this August
Tribunal on the issue of search and seizure of bailed property
raises a novel issue. The bailment in this case is distinct, as
well: the Government sought authority from the Court of
Appeals for the search, citing to United States v. Jacobsen,
466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed.2d 85 (1984), in
which a bailed freight tube carried by Federal Express broke
open, revealing the presence of contraband: cocaine. In that
9
case, this Court authorized field testing of the cocaine by the
government agents, on the basis that destruction of the
minimal amount of cocaine served an important Jaw enforce-
ment interest, and the search by the government actors did
not exceed the scope of the search and seizure effected by
the private citizens. /d. In Jacobsen, the revealed material
inherently suggested a criminal act, because the contents of
the container were revealed. /d.
In Seldon, however, the private citizens only saw the exte-
rior of the container, analogous to the exterior of the Fedex
freight tube: it was the government agents who attempted to
open the container. The scope of the government agents’
actions here exceeded that of the private actors. And, in sum,
no one witnessed evidence that inherently demonstrated the
commission of a “criminal” act, something the district judge
expressly recognized. Pet. App. 54a-56a.
Moreover, the district judge abused his discretion, when he
declined to apply the law on the basis of personal prejudice
and being tired of “letting people [go]” on the basis of
Constitutional guarantees. Finally, the parailel, anomalous
results in the federal and state court proceedings are note-
worthy: this case, as good, reported law in each respective
jurisdiction, stands for diametrically opposite propositions,
each decided on the basis of supreme, federal case authority.
I. The Fourth Circuit erred in concluding that the
search and seizure at issue was premised on no
government action, and the decision below creates
the potential for arbitrary police abuse of private
citizen reports, insulating escalated or conflated
police interpretations of private information from
Fourth Amendment scrutiny.
In the instant case, there seems to be no reasonable dispute
that Sergeant Lewis's involvement in the case was “initiated”
by government action: the telephone call of Wicomico Sher-
10
iffs Deputy, Carson Wentland. The United States Court of
Appeals for the Fourth Circuit (King, J.) held:
And the evidence of record confirms the district court's
finding in this regard. In the telephone call that initiated
Lewis's involvement in this matter, Deputy Wentland.
of the Wicomico County Sheriff's Department, notified
Lewis that technicians at Pohanka had reperted what was
“apparently a false compartment” in a vehicle they were
servicing.
Seldon v. United States, 497 F.3d 340, 344 (4th Cir. 2007).
Notwithstanding its express finding that Sergeant Lewis's
involvement in the matter was the direct effect of another
government agent's solicitation, the Fourth Circuit neverthe-
less concluded that Lewis’s July, 2000, Annapolis search was
premised on a basis independent of his October, 1999 search.
How the Court concludes this 1s less clear: at the same time it
concedes that Sergeant Lewts’s entire involvement in the case
is premised on the telephone call of a government agent—
Deputy Wentland—who has already interpreted and _ re-
phrased the information, it wholesale discounts the presence
of the government agent already reformulating the infor-
mation. /d. From “something unusual” in the vehicle, the
“secret compartments” had already transmuted to “something
suspicious” by the time Deputy Wentland telephoned Ser-
geant Lewis to solicit his aid. Pet. App. 28a.
A. Where a government agent shared information,
interpreted through the experiential bias of
his law enforcement background, with another
government agent affiliated with a different
police agency, there was government action.
The private citizens in the case at bar never initiated
contact with Sergeant Lewis. Indeed, but for the act of the
other government agent, private citizens would have had no
contact whatsoever with Sergeant Lewis. Moreover, in State
of Maryland proceedings, the private citizen, Bruce Willey.
the auto technician, presented a distinctly different picture of
his contact with Sergeant Lewis than Sergeant Lewis himself
presented on the witness stand in the federal proceeding,
black-letter testimony to which the Government stipulated.
Mr. Willey’s testimony does not paint a picture of voluntary
cooperation; to the contrary, it depicts government control
and direction.
DEFENSE COUNSEL: And do you recall what the problem
was with the car?
MR. WILLEY: | was given the job to replace the
fuel pump.
DEFENSE COUNSEL: And during your inspection of the
car—were you the only mechanic
that worked on the car?
MR. WILLEY: The fuel pump was ordered by
another technician before.
DEFENSE COUNSEL: But were you the only mechanic that
worked on the car?
MR. WILLEY: Yes.
DEFENSE COUNSEL: And when you were inspecting the
car, was there something unusual
you found”?
MR. WILLEY: Yes.
DEFENSE COUNSEL: And as a result of that, what did you
do?
MR. WILLLY: | notified the service adviser that |
had tound something usual [sic] and
stopped.
DEFENSE COUNSEL: And as a result of what your service
manager told you, what did you do”
MR. WILLEY:
DEFENSE COUNSEL:
MR. WILLEY:
DEFENSE COUNSEL:
MR. WILLEY:
DEFENSE COUNSEL:
MR. WILLEY:
DEFENSE COUNSEL:
MR. WILLEY:
DEFENSE COUNSEL:
MR. WILLEY:
DEFENSE COUNSEL:
MR. WILLEY:
DEFENSE COUNSEL:
MR. WILLEY:
DEFENSE COUNSEL:
12
-_
We went ahead and replaced the fuel
pump. and finished the job up as
normal, parked the vehicle.
When you repaired the car, did you
put everything in the car _ back
together again the way a car would
look?
Yes.
* * *
And during that day, did Sgt. Lewis
arrive at Pohanka car dealership?
Yes.
Do you recall what time?
Five o'clock.
Did you meet him?
| was leaving to go home. When |
went outside to get in my vehicle, |
seen Sgt. Lewis standing there, yes.
And as a result of what Sgt. Lewis
said, what did you do?
He asked me to pulled [sic] the
vehicle hack in.
Into——
A service bay.
And did you do that?
Yes.
After the car was pulled into the
service bay, what did you do?
13
MR. WILLEY: | talked to Sgt. Lewis for a few
minutes, kind of explained what |
had seen, and that was basically it.
DEFENSE COUNSEL: Did you get out of the vehicle?
MR. WILLEY: Oh, yes.
DEFENSE COUNSEL: And who inspected the vehicle?
MR. WILLEY: Sgt. Lewis and Detective Wendelet
[sic].
DEFENSE COUNSEL: Was there any other Pohanka em-
ployee there directing Sgt. Lewis
through the inspection?
MR. WILLEY: No.
Pet. App. 74a-76a (emphases added).
Under oath, as will be shown below, Sergeant Lewis
presented a much more passive picture to the district court, in
particular omitting his directives to dealership employees.
The transcript, however, makes clear that from his “initial”
involvement in the case, he “took charge” and directed the
activities of the private actors.
B. The District Judge reached his findings of fact
by discrediting the testimony of the private
citizen, crediting instead the testimony of the
government agents.
Moreover, the district judge credited the government agents’
version of the facts, discrediting—in the process—the private
citizen accounts. The vastly superior resources of the Govern-
ment in prosecuting crime notwithstanding, see, Bovkin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 279 (1969),
the Court appeared to bend over backwards to help the Gov-
ernment fill in factual gaps, despite the its having stipulated
therefore admitted—basic facts. For instance:
14
THE COURT: And my question is, I’m perfectly willing
to accept the stipulation of Mr. Willey’s
testimony. That's fine if you don’t want
to call him. And | realized that all he said
was that he said to the officers that
something was suspicious.’ | must say,
based upon what | think common sense
was, and it’s now been laid out by
Sergeant Lewis, somebody, when they got
there, said, it wasn't like they just like
they found a suitcase sitting there or
something. Somebody, whether it was
Willey or it was somebody else, some-
hody elucidated it by verbal act or by
something, that it had to do with a secret
compartment. [ think otherwise there
wasn’t any reason for all of this to unfold.
Pet. App. at 50a (emphasis supplied).
Thus, the District Court “elucidates” how Sergeant Lewis
learned, from a “private citizen,” about the “secret compart-
ments.” It was not Mr. Willey-—ostensibly the private citizen
who had the information to share the police—who told him.
Pet. App. at 50a. “Somebody” else told him. “Somebody.”
The court is not certain who it was; however, certain that
“somebody” was a private citizen and not a government
‘As shown, Mr. Willey. in fact. never used the word “suspicious.”
which was, instead, the law enforcement officers’ term. Mr. Willey re-
ported finding something “unusual.” “Unusual” is detined as, “uncom-
mon or rare.” Merriam Webster Collegiate Dictionary (Eleventh ed..
2003) at 1374. “Suspicious” is defined as: “tending to arouse suspicion:
questionable.” Merriam Webster Collegiate Dictionary (Eleventh ed.,
2003) at 1260. While the latter clearly has a criminal connotation, the
former clearly does not. As such, the state actors connnoted the entire
specter of criminality in their own minds: the language of the private
actor was, by definition, nos an indicator of criminality.
15
agent. In reality, the Court “finds” facts that are nowhere in
the evidence. Pet. App. 50a.
More to the point, since the parties were stipulating to a
version of the facts proven in the State court proceedings,
arguably both the Government and the Court relinquished
the opportunity to adduce supplemental facts that would
“flesh out” the Government’s position. It is axiomatic that
“stipulation ‘may be no match for the robust evidence that
would be used to prove’ the stipulated fact.” United States v.
Moussaoui, 365 F.3d 292 (4th Cir. 2004).
C. The Prosecutor herself conceded that the
information given the authorities by the private
citizen was not enough to justify a warrantless
search of the vehicle.
There is very little disagreement between most of the
actors at the suppression hearing, that the testimony of the
Pohanka mechanic, Bruce Willey, did not alert the Govern-
ment to the specific presence of a “false compartmenr,”
which the Court specifically noted was not per se indicative
of criminality anyway. Pet. App. 56a.
ASST. U.S. ATTORNEY: In the state court transcript, the
mechanic basically testified in
response to questioning on direct
that he notified his service ad-
viser that he had found svic-
thing unusual during repair of
the fuel compartment.” dnd it
“Sneaking the word “compartment” into the record seems to be a
favored Government strategy here. The mechanic, Bruce Willey, was not
repairing a “fuel compartment,” but a faulty fuel pep. The “something
unusual” was located inside the gas tank. Pet. App. 50a, 74a-75a. Sergeant
Lewis. moreover, received the “relayed information” about the “false
compartment.” directly in conversation with Deputy Wentland, rather than
a private citizen
16
never went bevond that in terms
of what was -—
THE COURT: What are you going to find? Are
you going to find a suitcase?
What you're going to find ts a
secret compartment,
ASST. U.S. ATTORNEY: A secret compartment. And the
sergeant will testify that the in-
formation that was relaved to
him was that there was a hidden
compartment in the vehicle.
Pet. App. 24a (emphases added).
And further:
THE COURT: Let me hear the government’s
position on, assume that a// the
officers were told that there was
something suspicious by the car
dealer.
* * *
ASST U.S. ATTORNEY: Your Honor, if Sergeant Lewis
arrives on the scene with only
knowledge that there's some-
thing suspicious in the vehicle
and he is no given more specifics
as to what that suspicious thing
is, then the government's posi-
tion would be that that alone is
not detailed enough to assist him
in the subsequent stop.
Pet. App. 27a (emphasis added)(transcript page 26).
Later, on the stand, in the transcript excerpt upon which the
Fourth Circuit relied to support its “no government action”
1/7
theory of affirmance——what emerges is that the “private citi-
zen” upon whom Sergeant Lewis relied for “relay” of the
information about the “secret compartment,” is really no
private citizen at all; rather, he’s a government agent, who has
“no idea” what the technicians are talking about, without
searching the van. Sergeant Lewis presents the events, how-
ever, in a far different light than the private citizen, Mr.
Willey, portraying the police as merely passive observers at
the scene:
SERGEANT LEWIS:
Your Honor, a phone call came
into the barrack and | was asked
to pick up a line. When I picked
up the line, it was a Wicomico
Count sheriff's deputy that Pm
familiar with, Carson Wentland,
he’s a detective there. And he
had told me he got a phone call
from the Pohanka Mazda dealer-
ship in Salisbury, and their ser-
vice technicians had been doing
some repair work on a van and
they found something suspicious
inside the gas tank. And I said,
what do you mean suspicious?
He said, apparently, a false com-
partment, but they wanh me to
come take a look at. He said,
Mike, / have no idea what I'm
looking at. Can you meet me
down there? 1 said, [ll meet vou
there in five minutes.
| got there right about the
same time the deputy did. And
he and | met with the service
manaver, [| believe his name was
18
John Fiscus. And there were
other technicians there. But I re-
member one because | graduated
from high school with him, a guy
named Bruce Willey. ... And we
went into the service bay there.
They brought the van in. And
they directed my attention or our
attention, myself and the detec-
tive’s attention, to the right front
seat area. And they showed us a
false. compartment in the gas
tank.
ASST. U.S. ATTORNEY: Now, in. observing that false
compartment, did you take any
action, touch the vehicle in any
way to observe that false com-
partment?
SERGEANT LEWIS: Yes, ma’am, | did.
CHa
| saw a black wire going down
inside the gas tank. If, in fact,
this was an electronically con-
trolled compartment, | knew if |
could electrify these wires or put
power to these wires, it would
jump the compartment open so |
could inspect inside the com-
partment.
Pet. App. 83a-84a.
From the transcript, the sequence of events 1s indisputable.
The deputy’detective and state police sergeant got some
general information from the service technician. Pet. App. 28a.
19
But, without searching, the government agents otherwise had
“no idea” what was in the van. Pet. App. 28a (emphasis
added). Thus, they elected to effect a warrantless search.
Pet. App. 28a. During the warrantless search, they, learned
that the “something unusual,” about which they otherwise had
“no idea,” was, in fact, a “secret compartment.” Pet. App.
74a-75a, 28a-29a. The “something unusual” did not actually
transmute, there-fore, into a “secret compartment” until the
search was a fait accompli. Pet. App 28-29a.
D. The decision below appears to create a conflict
with other decisional law in both the Fourth
and Ninth Circuits.
Specifically, Se/don appears to create conflict with United
States v. Rhodes, 713 F.2d 463 (9th Cir. 1983). Specifically,
though the question of what constituted a “government agent”
was decided in the context of due process entrapment, in
Rhodes there was an exchange of information between a
bounty hunter and police officers. /d. at 467. Cunningham,
the bounty hunter, eventually arranged a meeting between the
defendant and undercover postal inspectors. In Rhodes, it
was specifically Cunningham’s private role and his own inter-
est in sharing the information—receiving compensation—
that precluded the Ninth Circuit from considering him a
government agent. Se/don also appears to raise an internal
conflict with decisional law in the Fourth Circuit, t.e., with
United States v. Jarrett, 338 F. 3d 339 (4th Cir. 2003), for
instance. In Jarrett, a government informant computer hacker
gained unauthorized access to the criminal defendant's com-
puter, and turned the materials over to the government. In
that case, the information was highly probative and of great
utility to the government. The hacker, however, was ruled not
to be a government agent for Fourth Amendment purposes,
by virtue of the government's limited participation and lack
of acquiescence in the search.
20
In the instant case, however, the information from the
source “private individual” had already been transformed by
Deputy Wentland by the time he shared the information with
the second law enforcement officer, Sergeant Lewis. More-
over, Deputy Wentland’s solicitation of Sergeant Lewis was
premised on another important fact: the information had
limited or no law enforcement utility without searching. Pet.
App. 28a. Passing on the information from one officer to
another was specifically premised on a government agent's
interpretation, who was p search. Pet. App. 28a. Here, also,
as the Fourth Circuit expressly found, Sergeant Lewis’s con-
tact had no independent source from its very outset, because
he was directly solicited to expand the private search by
another police officer.
Il. Review is urgently needed, because there is little or
no authority from this August Court on the issue of
third party consent to search private vehicles held
by a bailee for the limited purpose of repairing the
vehicle.
The Fourth Circuit, erroneously finding that Sergeant Lewis
had received the information from an independent source in-
volving no government action, dodged the entire constitu-
tional question here as to the effect of the earlier search on the
later one. That omission is especially important, specifically
because there 1s very little authority from this August Court
directly on point. This is apparent from the order and opinion
of the Court of Special Appeals of Maryland, which relied
upon Professor LaFave’s treatise, 3 W. LAFAVE, SEARCH
AND SEIZURE $§ 8.6(a)(3d ed.1996) and the Fourth Circuit's
opinion in United States v. Eldridge, 302 F.2d 463 (4th
Cir.{962). The novelty of the question, 1.e., third party
consent to search bailed vehicles, 1s one the Court should
address.
Further, Jacobsen, upon which the Government relied,
does not present a good analogy: in Jacobsen the private
2]
actors had breached the exterior of the container involved and
saw the contraband tn plain view. United States v. Jacobsen,
466 U.S. 109, 104 S.Ct. 1652, 80 L. Ed.2d 85 (1984). Here,
we have a secreted, closed container in a vehicle. It has not
been breached to reveal its contents. As the district court
judge conceded, moreover, having a secret compartment tn-
stalled in a vehicle, like other “customization” of vehicles, is
not in itself indicative of a crime. Pet. App 56a.
A. The limited purpose of the bailment had been
achieved and all possessory rights and expecta-
tion of privacy had reverted to the bailor.
The lack of direction from the Court of Appeals on the
batlment issue, and the Government's overreaching argument
in the District Court that virtually unfettered searches of
bailed property are the constitutional norm under the circum-
stances of the case, are both particularly troubling, especially
given the authority upon which the Government relied.
Jacobsen, 466 U.S. at 114, 104 S. Ct. at 1654, 80 L. Ed. 2d. at
85. In the context of contract interpretation—-particularly in
the milieu of automobile insurance contracts—the question of
consent and bailment of automobiles has been dealt with
extensively, construed under various state statutes and cases
either strictly, moderately or liberally; however, in the context
of third party searches there has been relatively scant applica-
tion. See, e.g,, Chapman v. United States, 365 U.S. 610, 81
S. Ct. 776.9 L. Ed.td 828 (1961).
Under the “strict” rule, permitted use of the vehicle will not
deviate from the use contemplated by the parties at the time
of granting the permission, imposing |) temporal. 2) territo-
rial, and 3) “specific use” limitations on the bailee. 7 Am.
Jur. 2d, Automobile Insurance § 120 (2006). See also
Johnson v. American Automobile Insurance Co., 161 A. 496
(Me. 1932): Travelers Insurance Co. v. Greenough, 190 A.
129 (N.H. 1937): Laroche vo Farm Bureau Mutual Auto-
mobile Insurance Co., 7 A. 2d 361 (Pa. 1939); Eagle Fire Co.
BA,
of New York v. Mullins, 120 S.E.2d 1 (S.C. 1961); Annot., 5
A.L.R.2d 600 (2005).
Under the “moderate rule.” consent by the bailor to the
bailee’s use of the automobile is generally recognized, unless
such use is considered a “gross violation” of the terms of the
original bailmeit. 7 Am. Jur. 2d, Automobile Insurance § 122
(2005). As such, the “moderate rule” 1s an ad hoc principle,
requiring a determination on a case by case basis. /d.
Under the “liberal” rule, if the original taking 1s with the
bailor’s consent, every subsequent act, short of theft and the
like, is considered authorized, whether or not the bailor origi-
nally authorized the bailee’s specific conduct or act. The
only prerequisite is permission to use the automobile in the
first place. 7 Am. Jur. 2d, Automobile Insurance § 121
(2005); Jefson v. London Guarantee and Accident Co., 11
N.E.2d 993 (Ill. App. 1937); Arndt v. Davis, 163 N.W.2d 886
(Neb. 1969); United States Fidelity and Guaranty Co. v.
Fisher, 94 P. 2d 549 (Nev. 1972); Small v. Schuncke, 201 A.
2d 56 (N.J. 1964): Matits v. Nationwide Mutual Insurance
Co., 166 A. 2d 345 (NJ. 1960); Stovall v. New York Indem-
nity Co., 8 S.W.2d 473 (Tenn. 1928).
In the case sub judice, as the Court of Special Appeals of
Maryland correctly determined, because the bailment of the
automobile in question was for a specific and limited purpose,
that purpose and those limitations must be taken into account
in any calculus of the risk assumed by the bailor. 3 W.
LAFAVE, SEARCH AND SEIZURE $§ 8.6(a)(3d ed. 1996). The
special and limited purpose of the bailment here was to repair
the vehicle, which imposed the strictures of the “strict” rule
on the bailor, Pohanka Mazda as to time, place. and “specific
use” of the Appellant’s Mazda van. /d.
23
B. The search conducted by the government
agents was more intrusive than inspection of
the vehicle by the Pohanka Mazda mechanics.
The authority upon which the Government relies, more-
over, 1s also completely unavailing to support tts position,
because it is inapposite, failing to present an analogous
situation. Notably, however, the Jacobsen Court counseled
the Government to exercise restraint in conducting war-
rantless searches, prefacing its holding with this precaution:
When the wrapped parcel involved in this case was
delivered to the private freight carrier, it was unques-
tionably an “effect” within the meaning of the Fourth
Amendment. Letters and other scaled packages are in the
general class of effects in which the public at large has a
legitimate expectation of privacy; warrantless searches
of such effects are presumptively unreasonabhie. (internal
citations omitted). Even when government agents may
lawfully seize such a package to prevent loss or destruc-
tion of suspected contraband, the Fourth Amendment
requires that they obtain a warrant before examining the
contents of such a package.
United States v. Jacobsen, 466 U.S. 109. 114, 104 S. Ct.
1652, 1657, 80 L. Ed. 2d 85 (1984).
In Jacobsen, the Federal Express agents in question discov-
ered cocaine in a shipping tube that had either been broken
open or cuf open in transit.) Jd. The private freight carrie?
discovered the cocaine, which—at the time the government
agents arrived on the scene—the private actors had already
observed. /d. The private actors could attest to the granular
quality of the substance, such that, government agents were
The facts of the case are inconclusive as to whether there was suspi-
clon by a Fedex employee that the tube in question contained cocaine.
intending to explore the question, or whether the tube was acerdentally
opened by an encounter with a forklift.
24
only required to use a very small sample of the already
exposed white powder, to determine its chemical composition
as cocaine hydrochloride. /d Thus, in Jacobsen, this
Honorable Court affirmed the validity of the warrantless
search, because the scope of Government action did not ex-
ceed the scope of private action, and there was no legitimate
privacy interest infringed by the Government that the Federal
Express employees, private actors, had not already infringed.
Id.
However, the Jacobsen Court also noted that:
[A]jdditional invasions of respondents’ privacy by the
Government agent must he tested by the degree to which
they exceeded the scope of the private search. That
standard was adopted by a majority of the Court in
Walter v. United States, supra.
Id. at 116 (emphasis added).
In Walter v. United States, 447 U.S. 649, 662, 100 S. Ct.
2395. 65 L. Ed. 2d 410 (1980). the opposite circumstance pre-
sented: the scope of government intrusion exceeded that of
the private actor, the search was conducted without a warrant
and there was no exigency. The Wa/ter Court stated:
If a properly authorized official search 1s limited by the
particular terms of its authorization, at least the same
kind of strict limitation must be applied to any official
use of a private party’s invasion of another person's
privacy. Even though some circumstances—for exam-
ple, if the results of the private search are in plain view
when materials are turned over to the Government—may
justify the Government’s reexamination of the materials,
surely the Government may not exceed the scope of the
private search unless it has the right to make an inde-
pendent search.
Id. (emphases added).
25
Thus, the High Court ruled the search facially unreasonable
and reversed the Appellant Walter's conviction on obscenity
charges. /d.
In the instant case, the record shows facts more analogous
to Walter than to Jacobsen. Specifically, the scope of the
intrusion effected by Sergeant Lewis far exceeded the scope
of the intrusion by the private actors, a fact which is uncon-
troverted on this record:
DEFENSE COUNSEL: Did you take tools to the scene? |
overheard you this morning that you
didn’t take any tools to the scene.
SERGEANT LEWIS: No, sir, | did not, with the exception
of the wire clips, the alligator clips.
DEFENSE COUNSEL: Let me see if | understand this.
What tools did you take to the
scene?
SERGEANT LEWIS: _ I have tools in the trunk of my car,
Your Honor, including alligator clips,
two sets.
DEFENSE COUNSEL: From what] — sorry.
SERGEANT LEWIS: = There were tools provided by the
mechanics that were there in the
garage.
DEFENSE COUNSEL: You didn’t use any of your tools?
SERGEANT LEWIS: [| don’t recall whether | used my
straight edge screwdriver or a straight
edge screw driver provided by the
mechanics. But I requested a straight
edge screw driver and that’s what |
used to pry the rear portion of the
seat up. to look down inside the
compartment.
26
DEFENSE COUNSEL: You testified under oath before Judge
Loney that you had taken alligator
clips to the scene.
SERGEANT LEWIS: That’s what I said a while ago, yes,
sir.
DEFENSE COUNSEL: And it was your alligator clips that
you used to try to work these wires?
SERGEANT LEWIS: That ts correct, sir.
See, Pet. App. 83a-84a.
Earlier in the proceeding, Sergeant Lewis explained his pur-
pose in bringing the alligator clips to the scene: to expand the
intrusiveness of his search into the compartments. The record
also irrefutably supports the position that the private actors
never so much as contemplated any action to open the “some-
thing unusual” compartments.
SERGEANT LEWIS: _ I saw a black wire going down in-
side the gas tank. If, in fact, this was
an electronically controlled compart-
ment, I knew if [| could electrify
these wires or put power to these
wires, it would jump the compart-
ment open so I could inspect inside
the compartment.
Pet. App. at 29a-3 La: 83a-84a.
Not only did Sergeant Lewis locate the “compartments,”
after speaking with the mechanics, who reported “something
unusual;” not only did he virtually pull up the floorboards 1n
the vehicle to expose the “compartments,” Pet. App. at 29a-
3la. Sergeant Lewis then attempted to open the compart-
ments by applying an electrical charge and “alligator clips.”
Pet. App. 31a: 83a. He was not searching merely to confirm
the existence of the compartment or an outside shell: he was
on a mission to get info the compartments, to open and locate
27
contraband in them, doing so without consent, in a vehicle
whose owner (and driver) was not even at the scene. Pet.
App. 28a-30a.
Here, the same scenario presents as in Wa/ter: no warrant,
no exigency, no consent to search, and the extent of the
intrusion by the governmental actor exceeded the scope of the
intrusion by the private actor. Walter, 447 U.S. at 662. In
Jacobsen, the private actors already had knowledge of the
contraband. 466 U.S. 109, 114, 104 S. Ct. 1652, 1657. In the
case sub judice, however, the private actors had general
knowledge of something “unusual,” which the authorities
used to pursue a search at the scene, designed to procure
evidence much more specific and incriminating, and com-
pletely without reason: with the owner of the vehicle no-
where in sight, procuring a search warrant, as the Court of
Special Appeals of Maryland has noted, was Sergeant Lewis's
only “reasonable” investigatory prerogative. Se/don v. Mary-
land, 824 A.2d 999, 1015 (2003). What occurred here was a
“general exploratory search from one object to another, [in
the hope that] something incriminating at last emerges,” of
the ilk specifically condemned in Coolidge v. New Hamp-
shire, 403 U.S. 443, 91S. Ct. 2022, 29 L. Ed.2d 564 (1971).
Ill. The district judge abused his discretion by
indicating on the record that he was disinclined to
apply the exclusionary rule based on_ personal
prejudice, being “tired of having to let people [go],”
on Constitutional grounds.
At the suppression hearing, the District Court abused its
discretion, relying on no legal authority whatsoever in
support of its opinion, tending to indicate that it was reluctant
to apply the law on the basis of what it considered compelling
facts. Pet. App. 67a. By definition, a court abuses its dits-
cretion when it makes an error of law or refuses to apply the
law. Koon v. U.S., 518 U.S. 81, 116 S. Ct. 2035, 135 L.
28
Ed.2d 392 (1996)(citing, Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 110 S. Ct. 2447, 110 L. Under a traditional
“fruits” analysis, moreover, Fourth Amendment violations
have traditionally mandated a broad—rather than narrow—
application of the exclusionary rule to “evidence discovered
as a result of an unconstitutional search.” Oregon v. Elstad,
470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985)
(emphasis added). In fact, Sergeant Lewis eventually man-
aged to open one of the compartments, which—as the facts as
found in the State proceedings demonstrated, Se/don, 824
A.2d at 1002—turned out to be empty.
Here, the District Court offered no legal rationale or any
specific legal authority to support its denial of Petitioner’s
Motion to Suppress. Disturbingly, the Court resisted even
applying the law, commenting that it was “tired of having to
let people [go]” on what would appear to be purely Iegal
grounds, relying entirely on a “common sense” approach to
the facts. Pet App. 67a; James v. Jacobson, 6 F.3d 233 (4th
Cir. 1993)(abuse of discretion occurs when the court either
refuses to exercise its discretion, or arrives at an erroneous
determination of either the law or the facts).
CONCLUSION
For the reasons stated, this Honorable Court should grant
the Petitioner the requested relief, and issue a writ of
certiorari to the United States Court of Appeals for the Fourth
Circuit.
Respectfully submitted,
RONALD I. KURLAND *
KURLAND & KURLAND, P.A.
1017 N. Calvert St.
Baltimore, MD 21202
* Counsel of Record (410) 547-1670
July 17, 2007
APPENDIX
la
APPENDIX A
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4473
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VV,
RONALD LAMONT SELDON, a/k/a Pee Wee.
Defendant-Appellant.
Appeal trom the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CR-03-93-JFM)
Argued: February 2, 2007
Decided: March 15, 2007
Before WIDENER, MICHAEL, and KING. Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinon,
in Which Judge Widener and Judge Michael joined.
COUNSEL
ARGUED: Ronald Ira Kurland, LAW OFFICES OF KUR-
LAND & KURLAND, Baltimore, Maryland, for Appellant.
Christine Manuelian, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee. ON BRIEF: Rod J. Rosen-
stein, United States Attorney. Baltimore. Marvland. for Ap-
pellee.
2a
OPINION
KING. Circuit Judge:
Ronald Lamont Seldon appeals the denial of his motion to
suppress evidence discovered as a result of a July 13, 2000
search of his vehicle by the Maryland State Police (the
“MSP"). Seldon was convicted, in the District of Maryland,
of conspiracy to distribute and possess with the intent to
distribute cocaine hydrochloride and cocaine base, in viola-
tion of 21 U.S.C. § 846: and conspiracy to engage in unlawful
monetary transactions, in violation of 18 U.S.C. § 1957(a).
These convictions were the result of Seldon’s conditional
guilty plea, pursuant to which he reserved his right to appeal
the suppression ruling. Seldon contends that the evidence
underlying his convictions was the fruit of an unlawful search
of his vehicle. As explained below, we reject this contention
and affirm.
I.
A.
On October 29, 1999, Set. Mike Lewis of the MSP re-
ceived a telephone call from Deputy Carson Wentland of the
Wicomico County (Maryland) Sheriffs Department. Deputy
Wentland related that he had been contacted by the Pohanka
Mazda dealership in Salisbury (the county seat of Wicomico
County), and informed that Pohanka’s service technicians had
found what was “apparently a false compartment” in a van
that had been brought to the dealership for repairs. Supp. J.A.
68. Sgt. Lewis was the MSP’s instructor on the subject of
traffic stop techniques. including how to detect hidden com-
partments in vehicles, and Deputy Wentland requested his
assistance in responding to the Pohanka call.
Citations herein to “Supp. J.A. “ reter to the contents of the Sup-
plemental Joint Appendis filed by the parties in this appeal.
3a
When Sgt. Lewis arrived at Pohanka Mazda later that day.
he spoke to the service technicians who had reported the
hidden compartment. The vehicle in question was a white
1998 Mazda MPV minivan that had been brought to Pohanka
for service because it was “hard starting” and “cut[ ] off after
starting.” Supp. J.A. 74. Pohanka technicians informed Lewis
that they had traced the problem to the fuel pump, which was
inside the gas tank, and that when they had attempted to
access the tank to repair the pump, they had discovered two
hidden compartments. One of the compartments was located
inside the gas tank, and the other was located near the gas
tank.
After his initial conversation with the technicians, Sgt.
Lewis conducted his own firsthand examination of the van’s
interior (the “Pohanka search”). The compartment inside the
gas tank (the “first compartment”) was accessible by remov-
ing some bolts from the front passenger-side seat and lifting
the seat upward. Pohanka personnel guided Lewis to the seat
and lifted it to reveal the first compartment; the bolts had
been removed earlier. The technicians then showed Lewis
what appeared to be the exterior of a second compartment.
this one underneath the middle passenger-side seat (the “sec-
ond compartment”). Unlike the seat above the first compart-
ment, the seat above the second compartment could not be
lifted by hand; rather, 1t appeared to be secured and controlled
by a system of electronically operated pistons. Lewis noticed
a wire near the second compartment. and knew from expert-
ence that it might control the pistons that secured the seat. He
attached alligator clips to the wire and directed electrical
current into it man attempt to raise the seat and expose the
compartment. This effort to raise the seat was unsuccessful.
however, and Lewis took no further steps to access the
second compartment.
After he had concluded the Pohanka search. Lewis asked
the dealership employees who had brought the minivan in for
ta
repairs. The Pohanka personnel informed Lewis that “it’s a
guy that brings it in here all the ume.” named Ron Seldon.
Pohanka employees also gave Lewis a photocopy of the
documentation for the service visit. which indicated “who
brought the vehicle in.” Supp. J.A. 74. Lewis recorded the
minivans license plate number and vehicle identification
number. He also contacted the Wicomico County narcotics
task force and learned that Seldon was suspected of being a
major drug dealer. Lewis filed incident reports concerning
Seldon and the van with the Wicomico County narcotics task
force and the Drug Enforcement Agency.
4
Nine months later, on July 13, 2000, Lewis was driving on
Route 50 in Annapolis, Maryland, when he observed Seldon
traveling at approximately 71 miles per hour in a 55 mile per
hour zone. Lewis stopped Seldon for speeding in the van in
which the Pohanka Mazda technicians had discovered the
hidden compartments. Lewis later testified, however, that he
did not recognize the vehicle at the time he initiated the stop.
When Lewis approached the van, Seldon rolled down the
vehicle's window, and Lewis “immediately was met with a
very strong odor, overwhelming odor of air freshener, cou-
pled with fabric softener sheets.” Supp. J.A. 81. Based on his
knowledge and training. Lewis knew that individuals trans-
porting tlicit drugs commonly use large amounts of air fresh-
ener to mask the drugs” odor. Lewis also observed several
decals on Seldon’s windshield indicating support for police
charitable organizations. Lewis was aware that vehicles used
to transport contraband often bear such collections of pro-
police decals.”
* Lewis also testified that he detected. emanating from Seldon’s vehi-
cle. an odor that he associated with large quantities of illicit cocaine. The
district court concluded that Lewis's belief that he had smelled cocaine
was not a legitumate basis for his search of the van. Supp. JA. 198. Be-
cause we agree with the court that factors other than Lewis's asserted de-
da
Lewis asked Seldon for his driver's license and registration
card. When Seldon reached into his pocket to retrieve his
driver's license. he also brought out a thick bundle of cash,
which Lewis recognized as another indicator of illegal drug
activity. In addition, as Seldon searched for his registration
card, Lewis noticed signs that he was nervous: he was breath-
ing very deeply. his carotid pulse was pounding, and he
avoided eye contact with Lewis. “In fact.” Lewis testified,
“on one occasion he actually stopped doing what he was
domg and he just sat in his seat and... sighed, and then he
started looking again for the registration card.” /c/. at 82.
When Lewis saw the name on Seldon’s driver's license, he
realized that Seldon was the individual whose minivan he had
examined at Pohanka Mazda. Lewis also recalled that Seldon
was the subject of an investigation by the Wicomico County
narcotics task force, and he called a task force official to
make sure that any action he took with regard to Seldon
would not interfere with that investigation. The official ad-
vised that the task force had no objection to Lewis's tak-
Ing enforcement action against Seldon. Lewis then called
for backup and conducted a search of Seldon’s van (the
“Annapolis search’). In the hidden compartment under the
middle passenger-side seat, he found a package containing
approximately 500 grams of cocaine and two packages con-
taining a total of approximately 850 grams of marijuana. Each
package was wrapped in fabric softener sheets, saran wrap,
and clear packing tape.
After the Annapolis search, law enforcement officials con-
tinued to investigate Seldon’s illegal activities. In the course
of such investigation. they sought and obtained search war-
rants for areas (including buildings) in which Seldon pos-
tection of the scent of cocaine gave him probable cause to search Seldon’s
vehicle. we need not reach of address the issue of when. it ever. an otti-
cers perception that he has smelled cocaine can contribute to probable
cause for a search.
6a
sessed a privacy interest. Probable cause for these warrants
was provided. in part. by the evidence discovered in the
Annapolis search. The searches conducted under warrants
obtained after the Annapolis search yielded evidence that was
used in Seldon’s subsequent prosecution.
3.
On February 20, 2003, Seldon (along with co-conspirators
including his mother, his girlfriend, and his girlfriend's
mother) was indicted by a federal grand jury in the District of
Maryland, on charges including conspiracy to distribute and
possess with the intent to distribute cocaine hydrochloride
and cocaine base. in violation of 21 U.S.C. § 846; and con-
spiracy to engage in unlawful monetary transactions, in viola-
tion of [8 U.S.C. § 1957(a).° On September 30, 2003, Seldon
moved to suppress all se1zed evidence that had resulted from
the Annapolis search. contending that the Pohanka search had
been unconstitutional under the Fourth Amendment, and that
Lewis would have lacked probable cause for the Annapolis
search had he not Jearned of Seldon’s hidden compartments
in the course of his earlier unlawful Pohanka search.
On November 24, 2003. the district court held a hearing on
Seldon’s suppression motion. The court observed that Sgt.
Lewis had lawfully learned, from his conversations with the
employees of Pohanka Mazda _— and independently of his per-
sonal examination of Seldon’s vehicle in the Pohanka search—
that Seldon was the driver of a van containing hidden com-
partments. See Supp. J.A. 205-06. In light of Lewis's training
Seldon was also prosecuted in the Circuit Court tor Anne Arundel
County. Maryland. on charges including possession of controlled sub-
stances with intent to distribute. In those proceedings, he made a sup-
pression motion similar to the one at issue here. The circuit court denied
his motion, but on appeal, the Court of Special Appeals of Maryland
reversed. ruling that both the Pohanka and Annapolis searches had + 10-
lated the Fourth Amendment. See Seldon v. Marvland, 824 A.2d 999 (Md.
Ct. Spec. App. 2003).
7a
and experience, the court concluded, this lawfully obtained
knowledge, plus the other indicia that Seldon was transport-
ing illicit drugs, had provided Lewis probable cause to con-
duct the Annapolis search. See id. at 223. The Annapolis
search had thus been lawful even if the Pohanka search had
not, because the latter search had not served as the basis for
the former. Accordingly, the court, ruling from the bench.
denied Seldon’s motion to suppress the evidence that had
resulted from the Annapolis search. See id. at 232.
On March 29, 2004, Seldon entered a conditional guilty
plea, contingent on the reservation of his right to appeal the
district court’s suppression ruling. See Fed. R. Crim. P.
Ll({aX2) (authorizing conditional guilty pleas). On June 8,
2004, the court sentenced Seldon to 360 months” imprison-
ment on each of the two counts of which he was convicted,
those sentences to run concurrently. Seldon has trmely ap-
pealed the demal of his motion to suppress, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
B.
In an appeal of a district court’s ruling on a motion to
suppress evidence. we review the court's legal conclusions de
novo and its underlying factual findings for clear error. See
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
Seldon contends that Sgt. Lewis dacked sutherent lawtully
obtained information to provide probable cause for the
Annapolis search, and that the district court erred in conclud-
ing otherwise. The heart of Seldon’s position is that Lewis's
knowledge regarding Seldon and the hidden compartments
was constitutionally tainted because it was the result of the
Pohanka search, which Seldon maintains violated his Fourth
Amendment rights. Thus, Seldon asserts. the only lawfully
obtained information supporting the Annapolis search was the
indicia of drug-running that Lewis observed when he pulled
Sa
Seldon over for speeding: the strong odor of air freshener, the
thick bundle of cash, the pro-police decals. and Seldon’s
unusually nervous behavior. Those factors, Seldon contends,
Were insufficient to provide probable cause to search his
vehicle.
Seldon altogether ignores, however, the district court's
finding that Lewis knew of the hidden compartments, and
Seldon’s identity as the van’s owner, from a source independ-
ent of the Pohanka search: the information reported by the
Pohanka Mazda employees. And the evidence of record con-
firms the district court’s finding in this regard. In the tele-
phone call that initiated Lewis’s involvement in this matter,
Deputy Wentland, of the Wicomico County Sheriff's
Department, notified Lewis that technicians at Pohanka had
reported what was “apparently a false compartment” in a
vehicle they were servicing. Supp. J.A. 68. When Lewis
arrived at the Pohanka dealership, technicians there explained
to him the nature of the hidden compartments that they had
discovered. And, significantly, dealership employees—not
Lewis's examination of the vans interior in the course of the
Pohanka search- -were also the source of his knowledge that
Seldon was the van’s driver. It is well settled that no constitu-
tional violation occurs when a private citizen uncovers evi-
dence of criminal activity and reports it to the authorities, re-
gardless of whether the citizen discovers the evidence by
means that would have been constitutionally available to gov-
ernment agents. See United States v. Jacobsen, 466 U.S. 109,
119-20 (1984): Burdeau v. McDowell, 256 U.S. 465, 475
(1921).
Because Lewis had an independent, untainted source for
his knowledge of the hidden compartments and Seldon’s
connection to them, he could lawfully rely on that knowledge
in deciding to conduct the Annapolis search—even if the
Ya
Pohanka search had been unlawtul.? See United States. v.
Wardrick, 350 F.3d 446, 452-53 (4th Cir. 2003) (where
information underlying search warrant was obtained through
assertedly unlawful search, fact that same information was
also obtained from independent, lawful source cured any pos-
sible taint); Sutton v. United States, 267 F.2d 271, 272 (4th
Cir. 1959) (“It is one thing to say that officers shall gain no
advantage from violating the individual’s rights; it 1s quite
another to declare that such a violation shall put him beyond
the law’s reach even if his guilt can be proved by evidence
that has been obtained lawfully.”); see also Silverthorne
Lumber Co. v. United States, 25\ U.S. 385, 392 (1920) (rec-
ognizing that even ilegally obtained facts are not “sacred and
inaccessible” and that “|i]f knowledge of them ts gained from
an independent source they may be proved like any others”).
And, we agree with the district court that Lewis's lawful
knowledge concerning Seldon and the hidden compartments,
combined with his observation of indicia that Seldon was
transporting illicit drugs, provided probable cause for the
Annapolis search. We therefore reject Seldon’s contention
that evidence resulting from the Annapolis search should
have been suppressed.
III.
For the foregoing reasons, we allirm the district court's
ruling on the suppression motion.
AFFIRMED
“Because we conclude that Lewis possessed probable cause for the
Annapolis search independent of the knowledge he acquired in the Po-
hanka search, we need not reach or address Seidon’s contention that the
Pohanka search was unconstitutional.
10a
APPENDIX B
AFFIDAVIT IN SUPPORT OF
SEARCH AND SEIZURE WARRANTS
Your affiant. Special Agent David M. Riven of the Drug
Enforcement Administration hereby deposes and says as
follows:
e-¢ @
Il. BASIS OF INVESTIGATION
|. On October 29, 1999, POHANKA MAZDA in Salisbury.
Maryland contacted the Wicomico County Sheriff's Office
regarding a white 1998 Mazda MPV mini-van that had been
brought in for service. The van bore Maryland registration
M154920 and was dropped off by Ronald SELDON. While
working on the van, mechanics notced that the vehicle’s gas
tanks had been physically altered. An examination of the
vehicle by Sergeant Michae! Lewis of the Maryland State
Police revealed two hidden compartments. in the gas tank
capable of holding numerous kilograms of cocaine. The vehi-
cle was repaired by POHANKA MAZDA and returned to
Ronald SELDON without his knowledge that the compart-
ments had been found.
cr
=/§
lla
APPENDIX C
Transcript of traffic stop by Sgt. Michael Lewis on
y
July 13. 2000.
t. Michael Lewis, MSP
= Dispatcher
=§
e
Idon
One male date of birth 9’81/74, thru Maryland.
10-4
(Dispatcher addressing unrelated calls)
Annapolis 7-29
Go ahead
Negative on the Seldon subject , he shows address 1n
Salisbury, shows a valid “C™, Charles, expires 9-8-03,
he has seven current.
10-4 and I copy.
Can | talk to Kenhart please.
Mike Kenhart. Mike Lewis. | am going to tell vou
something you ain't going to believe, you probably
are. | stopped this white MPV flying eastbound on 50,
guess Who's driving?
No, 1€s Ronald Seldon, well veah yeah.
Mike, he’s seared, it’s in here, he ts terrified, scared
to death. He’s right by himself. (m= rmght here in
Annapolis. Mike he’s scared to death. | got enough to
do him. He's terrified. It's 410 935 7191. He is scared
to death. 7191, 935 7191. Okay, bunk, bye.
I just left Waterloo Barracks was on my way home.
fraveling eastbound on Rt. 50 this subject traveling
up the middle lane. Saw him change trom slow lane to
middle lane passing slower traffic paced the subject at
l2a
71 miles per hour in a posted 55. Stopped the vehicle
traveling eastbound. Once | got to the vehicle realized
[| had my camera off ever since | was at Waterloo
because | was riding the Assistant AG around today. |
have come back to my car. | have activated my
camera, | made a phone call | recognize this guy as
being a large cocaine dealer, | recognize the name. |
put 2 and 2 together and called the local task force.
waiting for a response back from them right now as to
what they want me to do. This man ts scared to death.
An overwhelming odor of air freshener emanating
from the vehicles interior. Got extremely nervous,
carotid pulse is pounding in his neck. No doubt in my
mind there is something inside this vehicle. Can
clearly smell the odor, can clearly smell the odor of
cocaine coming from within this vehicle as | spoke to
him on the passenger side. It is rare that | will smell
that, but | can smell the actual definitive odor of
cocaine There is esther a strong air freshener smell or
perhaps a masking agent smell coming from the
passenger window.
(Phone ringing)
Hey, hello.
Okay, uh huh, okay. Absolutely not. Mike, he’s terri-
fied. He’s scared to death. I'll do whatever you guys
suggest I do. He’s valid, he has 7 points on his driving
record, but he is valid. He’s scared to death.
How about Chris Ford, she’s K-9 girl working this
area. Let me see if she is working, hold one second.
7-29 Annapolis
7-29.
Is Trooper Ford working?
D:
1D:
10-74 she’s on special assignment today at the K-9
Center.
Does Annapolts P.D. have a K-9”
10-4, ll have to check with them.
10-4, I'm eastbound Rt. 50, just of west of White hall
Road. I need K-9, 10-25 this location, please.
Eastbound and west of Whitehall?
Ihat’s correct between Old Mill Bottom and
Whitehall. 10-63, 10-28.
(Resumes Cellphone conversation) He's got seven
points Mike, but he ts valid. He’s treating, he wanted
to know why | was asking all kinds of questions.
When | went up to him Sir, how you doing, where you
coming from
Annapolis advised 10-74, we are going to check with
the county reference the dog.
10-4.
and ah where you coming from
10-28.
Maryland registranon, M, Mary, 322822, thats M,
Mary. 322822.
[Q-4+. Do you want me to start another unit to you?
That’s correct. You can start another unit. but | am
Ocean King.
10-4. It was 10-74 trom the county reference the dog.
1Q-4.
(Resumes cellphone conversation) | have no dog
Mike. Based on the traps that | know are in here.
Based on his body language we have enough. Oh |
l4a
think so, call Beau Ogelseby real quick and call me
back. Uh huh. Uh huh Okay. Ain't no doubt in my
mind...Mike he’s terrified Listen to me | can smell a
strong odor of fabric softener and air freshener com-
ing from the passenger side window. | can also smell
what | believe ts cocaime and | rarely smell cocaine
unless it is in bulk form and [| can smell what I'm
almost certain is cocaine but it 1s mixed in with a
masking agent. | was trying to stand there as | was
talking to him so | could get a definitive on what | am
smelling. | believe it is cocaine, but | can’t swear to It.
Mike this ts the van that [ got the two compartments
in it, so | know right now that is enough probable
cause in and of itself. I'm going to. | will let you know
when the other trooper gets here. Okay, | will partner.
When .. . Okay, when we do what we got to do.
Okay, partner. Bye.
7-29 Annapolis
10-43. I'm likely going to be doing a search on this
vehicle if you could start, if you have availability,
have a couple troopers respond. But | am Ocean King.
10-4, J-12 units are en route to your location.
10-4. Also. can you give me a CH on this subject
10-9”
Will you rua a criminal history on this subject.
10-4, | checked with Centerville and Glen Burnie,
negative on the K-9.
10-4
7-29 Annapolis
Go ahead Annapolis
15a
Subject shows a 98 Mazda van registered to Yvonne
Seldon in Salisbury. 10-29 negative.
10-4. Advised 1-12 1s en route.
He should be out with you shortly.
Come on back here | want to talk to you for a minute.
Come on back here. Come on over here big guy |
don’t want you to get hit. Is Yvonne Seldon your
mom?
Yes.
Let me ask you a question. When | was standing up
there a while ago, next to the passenger side window.
| got a strong odor of air freshener coming from out of
the vehicle and [ believe | am smelling, thru my ex-
perience, that | am smelling cocaine. Do you have any
large amounts of cocaine in your van?
No I don’t have nothing in my van. Where all these
questions coming from?
Because sir | believe | smelling the odor of cocaine
coming out of this van. [| generally can’t smell the
odor of cocaine unless it is ina large amount Large
amount. Do you have a large amount of cocaine in
your vehicle?
Sir, | don't have anything in my vehicle.
Do you have a large amount of cocaine in that black
bag?
No, sir.
Okay. | got another trooper that 1s on hits way here.
When he comes here | want to make sure that what |
am smelling ts not cocaine. Do you have anything
tlegal in your vehicle at all?
No, SID.
4
A
.
16a
Okay | like to check it out. Do you have any problem
with that?
Yes. | got a problem with that.
Okay. well, when the trooper gets here. | believe what
1 am smelling ts cocaine,
Okay
So | have requested a drug dog respond to the scene.
Uh
A drug dog can certainly detect what | can’t necessar-
ily detect. Do you have a problem with a drug dog
scanning your van?
| got a problem with all that because Lam not doing
anything wrong.
Okay, well trust me. You were stopped for a violation.
| clearly smell what | believe ts the strong odor of air
freshener, which ts not illegal. But it 1s coupled with
cocaine, with what | believe to be cocaine through on
my experience, Mr. Seldon
Right.
| obviously don’t know you from Adam. you could be
a lawyer you could be a doctor, | don't know
Right
But | believe what | am smelling is cocaine coupled
with the air fresheners. So when another trooper gets
on the scene | going to check the vehicle out, okay?
No, sir
Okay when the other trooper . . . You're welcome to
have a seat in my car. You're welcome to have a seat
in your van, whichever you would like to do. The
other trooper is going to be here shortly. | would
17a
rather you have a seat in my car, as Opposed to your
van, because | don’t know if you have any weapons in
there. Do you have any weapons in there? Do you
have anything on you? Do you mind if [ search you to
make sure you don’t have any weapons on you?
No, Yes, sir, | have a problem with you doing all this
because | didn't do anything wrong.
Well. you are obviously very nervous right now.
No I’m not nervous at all
You were extremely nervous when you were sitting
up in your van and you are extremely nervous now.
Sir. I'm not nervous. ['m not nervous at all.
Okay. tell you what I’m going to check the van
because | believe that | am smelling cocaine coming
out the van. [f I’m wrong, I'm wrong and you are on
your way. If I'm right and | believe ['m going to be
what I’m smelling | believe | am going to find some-
thing in the van. Maybe it’s in that bag on the front
floor beard. | don’t know. But [| know what | am
smelling, ve smelled it many times before.
Sir, you can smell whatever but | know I'm not going
nothing wrong. You pulled me over and said [ was
speeding, | was not speeding.
Sir, Pm
I'm not trying to
| appreciate that, | appreciate that. | been behind you
pacing you. | saw you on the phone the whole tme |
Was pacing you. | got up next to you thinking maybe
he would slow down. You never even looked over at
me at all, until | got ahead of you to see if you would
see me and you finally saw me.
TY
D:
lSa
Sir. listen sir. Can you show me where vou clocked
me at?
| been pacing you
Sir, I'm not lying to you. | was not speeding at all.
okay, okay
I'm not trying to down you credibility as an officer,
I*m not downing your credibility
| appreciate that, | appreciate that
| know people give you a hard ume
They do. we do. You have been nice. Haven't | been
nice to you? And | am going to be nice to you
Yeah, well you, | mean you been, you been nice to me
until you said you smelled cocaine on me or whatever
you said
No | didn't say | smelled it on vou. | don’t smell
anything on you right now. [ smelled it coming out of
the van. When [ was standing next to the van. | don't
smell anything on you at all.
Then you telling me that you going to have me sitting
here for a while.
No, no, | am not going to have vou sitting here for a
while. 5 minutes. 5 minutes, that’s all. Pm not going
to have vou sit here for 20 minutes, 25 minutes. | am
not going to do that. Okay Be right with you. Stand
tight for a second.
(Second trooper arrives)
7-29
7-29
Code 77 this location. this vehicle. Fl be out.
LD:
or
—
.
ee. ee
19a
10-5]
Negative, Code 77 I'll be searching the vehicle this
location, suspicious vehicle
10-4 direct
10-4
Pat you down make sure you don’t have weapons,
what is that?
That's my wallet
Will you take it out so | can make sure it’s not a
weapon. It 1s more than that.
That’s money
What's all that over here
That's about my religion
Okay, that’s fine
(Search of vehicle begins)
Put your hands behind your back, hands behind your
back. Turn around now. Something ts wrong under-
neath this seat. Put him in the front seat of my car
until | can determine what is undermeath this seat.
Looks like it might be a compartment underneath this
seat.
Something wrong with that seat. I’m going into it big
guy, Is there anything 1n there?
Sir, | don’t know what you're talking about
Phat’s not your van ts 1?
| don’t know what you're talking about.
Okay
7-29 Annapolis
20a
D: Annapolis 7-29
E. You want to start another unit this way. [| have what |
believe is a false compartment in the floor, we are
going to try to access it here on the roadside
D: 10-4 direct
3 Can | make a phone call.
& Not now.
& Now that | have the doors open | can smell cocaine
big time. We are going to get into it here shortly
~ Sir,
x Mr. Seldon
& Trooper come here a second, see that Sheet metal, it’s
after market. There has definitely been a modification
made here. (Il have a job getting in here, but there ts
definitely a false compartment in here.
(Third Trooper arrives.
Advises stop is audio and video taped)
Dialogue between troopers to locate tools to access traps.
&. He refused me consent. These bolts have been in and
out several mes, it is a dead give away. Found one
false compartment. it ts on hinges. You look down
inside of here it ts just loaded with air fresheners. See
that’s a stainless steel tank built down in there if you
That compartment’s empty, it is built down inside the
gas tank. This one ts not electronically or hydrauli-
cally controlled. First one ts empty. This one may be
empty because it Is easy to open. The other one
appears to be electronically controlled which may
make it a little bit harder to access.
ela
First of all. see these bolts right here? They should be
bolted to the floor. They tack welded it to the top of
this to make it look like it is factory. There is no bolt
at all, They tack welded it, there was a bolt from the
factory. But this ts controlled probably electronically
and hydraulically to lift up, so now | got to locate the
wires that go into the compartment.
Okay, here’s the wires. This indicates at least to hydro
piston. one going to a piston here and one going to a
piston there. Pop the hood It ts loaded. [ can see
multiple packages. We're loaded. We will take the
vehicle back to the barracks and access there. Not
going to do anymore work on the roadside. Request a
10-51 it is loaded inside. State storage.
Sir, you are under arrest for narcotics trafficking. | can
see the multi packages beneath the second bucket seat
there. There is nothing inside the first compartment.
You are under arrest.
(Cellphone call to Mike) Hey. about what. okay tell
him I'm in route with a 10-59, hell be familiar. Two
kilos. multi kilos, that’s correct. | don’t know. | could
only gain access enough to see that it ts packed in
there. Okav. honey. Bye. baby.
| called Wicomico County Task Force. Evident!
vile of their main targets in Wicomico Cou
Seldon. Ronald Lamont Seldon.
(Additional Conversation among troopers
regarding assignments. etc.)
eo
APPENDIX D
United States v. Seldon, Relevant Transcript Pages of
Proceedings from Suppression Hearing, Including Bench
Opinion of the Honorable Frederick J. Motz (November 24,
2003)[pp. 20-26, 68-73. 83-103, 142-143, 199-202, 212-234]
* * *
[20] want to pursue it, go ahead and pursue it. And maybe
you have to because as | have analyzed this, frankly. or
maybe we could reach the question of the legality, assuming
that all that was reported by the dealer was something
suspicious, then take a look at the legality of the search.
Because it seems to me that 1f you add knowledge of a
suspicious compartment to what Officer Lewis knew at the
time of the stop, then the government has a serious argument
that probable cause exists. And that’s something which I’m
not preyudging but that’s something which | want to address
on the merits.
MS. WHITE: Your Honor, on the tssue of the Circuit
Court's finding with regard to the odor of cocaine, that goes
back to Ms. Manuelian’s explanation to the Court that there
was great confusion about what Sergeant Lewis smelled and
what that means scientifically. The Circuit Court found that it
is scientifically impossible to smell cocaine. In this hearing,
and that’s why—
THE COURT: All right. Ms. White. You've got a right.
Your office brings these cases in. You got a fair chance in
state court. You bring them back here. I don’t like it. | don't
like it one bit because | think it’s a misuse of my resources to
come in and try to do this. You're perfectly willing to come
in and take a set of facts and say, the State court was wrong.
[21] And | will analyze it. [f | agree with you, then I'll rule
your way and it will be up to the Fourth Circuit to rule on it,
23a
maybe, because you wouldn't be able to appeal if | ruled your
way.
But that’s fine. You want to come in and take three days of
this Court’s time to relitigate something that the prosecuting
authorities had full opportunity to litigate in Circuit Court,
you just go ahead and do it and let’s have a fine day. Call
your first witness.
MS. WHITE: Yes, Your Honor.
MS. MANUELIAN: Your Honor—
THE COURT: Boy, what kind of judgment the U.S.
Attorney's office is displaying.
MR. KURLAND: Judge
THE COURT: Particularly, particularly when you might
have, if you would stt down and analyze it a different way,
and you should have presented it in your memorandum,
which you didn’t file, when he had filed his memorandum
long ago and you file a memorandum that says nothing two
days before the hearing, | want to know what's happening up
there or over there in the U.S. Attomey’s office.
I’m furious about this, particularly because at least | look at
this and analyze that it might all be academic. That shouldn't
be my job. Those arguments should have been brought to me
by you, that say, look, so what, so what whether he [22
smelled cocaine. May not make a difference if you find this,
if you found that it was a proper search. Everything that I’ve
said this morning you should have said in your memorandum,
and said nothing in your memorandum. And you didn't say
anything in your memorandum until way late because your
memorandum should have been filed a long, long ume ago.
MS. WHITE: Yes, Your Honor, you're correct.
MS. MANUELIAN: Your Honor, if | may. | think that |
understand the Court’s wanting to circumvent some of this
24a
process and | agree that we can. And you've mentioned
something about doing something incrementally,
In the state court transcript, the mechanic basically testified
in response to questioning on direct that he notified his
service adviser that he had found something unusual during
repair of the fuel compartment. And it never went beyond that
in terms of what was—
THE COURT: What are you going to find? Are you going
to find a suitcase? What you're going to find ts a secret
compartment.
MS. MANUELIAN: A secret compartment. And the ser-
geant will testify that the information that was relayed to him
was that there was a hidden compartment in the vehicle. If
that’s the only supplemental fact we need to clarify that
wasn't clarified in the state level—
THE COURT: | don’t want to argue your case for you. [23]
But analyze it that way.
MS. MANUELIAN: Your Honor, I think that we may
have— :
THE COURT: You've got to make a judgment. How I’m
going to rule, and I've given my tentative view. Mr.
Kurland’s a good lawyer, he may persuade me to the con-
trary, in Which case you could present your other evidence.
MS. MANUELIAN: Your Honor, | think that we can avoid
going through the other the evidence if we can supplement
the record.
THE COURT: Let me ask you this. How much of this, and
again, I didn’t do this because you all didn’t and | finally
thought I°d wait until the hearing.
Does your case rise or fall on this or is it the fact that
everything you learn later allegedly is tainted by what essen-
tially is the illegal search at the, you know, at the body shop,
25a
at the service dealer? | mean, if that, maybe you ought to
exercise judgment whether you need what came out of that
stop that day.
| understand Mr. Kurland’s position is everything 1s tainted
because it really started, | gather, with Sergeant Lewis look-
ing in the car where the mechanic says there’s something
suspicious there and ts holding the car in a bailment. If that’s
the law of taint, | need to be persuaded of it.
MS. MANUELIAN: No, Your Honor, we have ample
evidence [24] and Agent Rivello can testify at length about
that.
THE COURT: | don't want to hear it. | want you to
exercise judgment as to whether or not you should be spend-
ing three days of this Court’s time, prosecutorial and defense
resources in litigating something which is academic, which
you really don't need.
MS. MANUELIAN: Your Honor, we don't agree we
should be spending three days worth of court time. We never
did. And we don’t believe, based upon, and I think there was
alluded to in the motions response, that there was ample
evidence beyond just this stop. So all we're asking the Court
to do Is to—
THE ‘COURT: What I’m asking you, if hypothetically |
were not to find the entire investigation tainted, in the
exercise of good judgment would the U.S. attorney present
evidence from the stop that occurred on July 13, 2000?
MS. MANUELIAN: Assuming Your Honor ruled that the
stop was, had probable cause, yes, we would, because the
evidence is significant in terms of the fact that there are drugs
found and large quantities of money.
THE COURT: So this is. this is evidence which you think
you need in your case?
26a
MS. MANUELIAN: Yes. Your Honor. We think we need
this evidence in the case. But We agree that
—
THE COURT: No. That ts the threshold question because
you might step back and say. look. this has been a [25] three.
four year old investigation, this 1s simply one incident that
occurred, you know. The judge may find that there was
probable cause for it, but that injects risks in our case. So
therefore, in the exercise of good lawyerly judgment, we're
not going to present the evidence.
And if that was gomg to be your judgment, | would be
furious that you had spent my time making me make the
probable cause determination.
MS. MANUELIAN: Your Honor, if that were our call, we
would have notified the Court of that a long time ago. We
think this evidence ts significant because it’s very consistent
with the cooperating witnesses who are going to be testifying
about the transport of cocaine for Mr. Seldon in hidden com-
partments in vehicles.
And the fact that Mr. Seldon himself was actually stopped
in a vehicle with hidden compartments in which there was
cocaine is a very significant piece of evidence. So that’s why
we're pursuing it.
And we think that there's sufficient amount of information
in the record now for the Court to make the kind of ruling that
would say that there was probable cause, whether, regardless
of whether or not you make the finding—
THE COURT: Let me hear the government's position on,
assume that all the officers were told was that there was
something suspicious by the car dealer. How do you then
analyze the [26] legality of their looking into the car to find
the compartment? Tell me, spin that out for me. Tell me what
authorities you have.
7.
27a
MS. WHITE: Your Honor, if Sergeant Lewis arrives on the
scene with only the knowledge that there’s something suspi-
cious in the vehicle and he is not given more specifics as to
what that suspicious thing is, then the government’s position
would be that that alone is not detailed enough to assist him
in the subsequent stop.
But 1f he ts told there’s something suspicious and he makes
observations of the vehicle that don’t require his participation
in disassembling the velucle to some degree to see these
compartments, or 1f when he arrives at the dealership he ts
told, we found a compartment here and there. then those two
circumstances. combined with what he observed at the traffic
stop, the government believes would be sufficient probable
cause.
THE COURT: All right. Obviously, there are factual things
I’ve got to hear. I'm not going to—I've obviously indicated
some views, at least preliminarily, without having had full
argument, I'm inclined to disagree with the Court of Special
Appeals” analysis so that its not fair to Mr. Kurland to not
allow him to do whatever cross examination he wants of
anybody.
MR. KURLAND: Your Honor, ('m sorry. But Pd be very
* * * *
[68] distance learning centers throughout the state. Pm cur-
rently doing that.
Q Let me direct your attention back to October of 1995,
October 29th of that vear.
MR. KURLAND: °99. Your Honor.
Qs I'm sorry if | misspoke. *99. Were you working that
day?
A Yes, maam. | was.
Q = And what was your assignment that day?
28a
A I was assigned to the Traffic Operations Section but |
was at the Salisbury barrack doing paperwork.
Q Did there come a time that you were contacted for
assistance at the Salisbury barrack?
A Yes, ma‘am.
Q Can you describe for us what happened”?
A _ Your Honor, a phone call came into the barrack and |
was asked to pick up a line. When | picked up the line, it was
a Wicomico County sheriff's deputy that I’m familiar with.
Carson Wentland, he’s a detective there. And he had told me
he got a phone call from the Pohanka Mazda dealership in
Salisbury, and their service technicians had been doing some
repair work on a van and they found something suspicious
inside the gas tank. And I said, what do you mean suspicious.
He said, apparently a false compartment but they want me to
come take a look at. He said, Mike, | have no idea what I’m
looking at. Can you meet me down there? | said, [Il meet you
there in five minutes.
[69] It's about two and a half to three miles south of the
Salisbury barrack on US Route 13 in Salisbury, just south of
Zion Road.
Q If | could ask you, Sergeant Lewis, to just scoot your
chair a little bit closer to the microphone. | want to make sure
that everyone can hear clearly.
Can you tell us approximately what ume you received the
phone call from the deputy?
A Right around 4:30 tn the afternoon.
Q And how long after you finished that conversation
with the deputy did you leave your location at the barracks to
meet with him at Pohanka?
A [told him I’d meet him there in about five minutes.
In about five minutes | was there.
Q And can you please describe for us what you ob-
served when you arrived at the dealership?
29a
A Your Honor, | got there right about the same ume the
deputy did. And he and I met with the service manager, |
believe his name was John Fiscus. And there were other
technicians there. But | remember one because | graduated
from high school with him, a guy named Bruce Willey. And |
hadn't seen Bruce since high school, as a matter of fact.
And we went 1n to the service bay there. They brought the
van in. And they directed my attention or our attention,
myself and the detective’s attention, to the right front seat
area. [70] And they showed us a false compartment in the gas
tank.
Q = Now, in observing that false compartment. did you
take any action, touch the vehicle in any way to observe that
false compartment?
A Yes, ma‘am, | did.
Q ~~ What did you do?
A Actually got down on my knees into the right front
seat area where the floor was, to better look at this com-
partment. The compartment. Your Honor. was modified in
that when you removed the front two bolts that held the seat
in place, the seat had been modified and been placed on a
steel plank. and it was hinged with a piano hinge on the back
of it. And when you grab the front portion of the bucket seat
and pulled it upward. it would hinge on the back like this and
allow you to look inside the gas tank which was located
beneath the right front bucket seat and the right middie bucket
seat of that particular type minivan, which was a Mazda
MPV. 1998 model. It had leather interior. It was a nicer
model MPV.
Q = Sergeant Lewis, you testified about removing bolts.
Did you remove the bolts to access that compartment?
As | don’t think [ removed them at all. ma’am. No, sir.
I'm really not sure whether [| did. But 1m almost certainly |
didn’t. The bolts were either already removed or they were
loosened because they actually took me to the seat first and
30a
pulled the seat back up so | could see it. That's when I got in
[71] to look at it closer. | didn’t have any tools at all to
remove the seat. | certainly don't recall removing tha seat. I
didn't have any tools.
Qin your 19 years of experience, how often had you
seen a compartment such as the one you've just described to
the Court?
A Your Honor, | had never seen any compartments in a
gas tank of a Mazda MPV. I've found many compartments in
the MPV’s. They're generally in the rear cargo floor, inside
the seat cushions, the left interior side wall behind the
driver's seat, or the dashboard. But this was the first time Id
ever seen one inside the gas tank of a Mazda MPV.
Q After you observed this first compartment, what, if
anything, did the employees there at Pohanka show you next?
A They said, well, that’s not the only one, there's some-
thing behind the fuel pump. | said, a second compartment?
They said, yes, sir, right beneath the seat.
| then stepped up, walked back. They had opened the night
door, right middle door. And when | looked down tn there, |
said, show me what you're talking about. And they pulled the
carpet mat. It wasn't the carpet on the floor but it was the
carpet mat that went around the bucket seat. And when they
pulled that back. [| could see a cut or a seam in the carpet. And
when you pushed down with vour fingers in the carpet. they
showed me a steels plank. | got down there closer to examine
it and couldn't see really what | wanted to see. So | asked for
a [72] straight edge screwdriver and | stuck it into the crack to
pry it up some and then [| could see it was a stainless steel
vault built beneath that seat as well. But it was unlike the
front seat. This was electronically and/or hydraulically con-
trolled with two pistons connected to the portion of the seat,
and [| couldn't get into that one.
Q Now. when vou desernbe the pistons associated with
this compartment, did you actually observe those pistons?
3la
A No. ma’am. I did not.
Q How do you know or what made you think they were
pistons associated with thts second compartment?
MR. KISRLAND: Objection.
THE COURT: Overruled.
A Your Honor, I’ve seen these pistons hold seats in
place in the past. But beneath those seats would be a false
floor, not a gas tank. So | knew because this seat wouldn't
budge. it had to be held in with these pistons or electronic
trunk locks. I've seen it both ways. But | believed them to be
pistons.
Q With regard to this second compartment, did you
make any observations regarding any bolts near the second
compartment?
A Yes, ma’am.
Q Can you describe what you saw?
A Your Honor, these bolts weren't scarred up, weren't
marred up like the front bolts on the right front seat. These
bolts had actually been welded to the steel plank that held this
* * %*£
[83] fabric softener sheet coupled with the air freshener, 1
started smelling a very distinctive odor that [ve only
associated with cocaine in the past. Judge. That’s all [ve ever
associated the odor with, large cocaine seizures. It Was a very
distinctive odor. It was coupled with the air freshener and the
fabric softener sheets.
But | st:zted looking around the van after | started smelling
it and iny thought was, it’s got to be in this bag.
When | got his driver's license and I saw Ronald Lamont
Seldon on his driver's license. it hit me then, this ts the guy
that brought a White MPV into Pohanka Mazda dealership. |
confirmed with the task force that he ts a large drug dealer in
the Salisbury Wicomico County area. In fact, the whole lower
Jad
shore | was told. And then it hit me, this 1s probably the same
van. | certainly wouldn't recall the tag number.
But | later confirmed that it was, in fact, the van, based on
the VIN number or vehicle identification number. But it was
a different tag on the van at this time.
| was putting two and two together. That's why when |
went back to my car. | called the Wicomico County Narcotics
Task Force. | knew they were working him. They told me that
the day | checked the van at the Pohanka Mazda dealership.
And | didn’t want to mess up any ongoing investigation they
had. That's why | went and called them up.
That's what [ did. | called Sergeant Mike Kenhart who at
[84] the ume was a supervisor—
MR. KURLAND: Your Honor, I’m going to object to the
narrative right now,
THE COURT: That’s all right. I'd have to hear it one way
or the other, just saves some time. Go ahead.
THE WITNESS: | knew that Sergeant Mike Kenhart was
the task force supervisor. When [| called the task force, he
didn’t answer, but | asked for him immediately.
When he got on the phone. | said, Mike, you'll never guess
who | got stopped. | said, you probably will. And he said
Peewee. Well. unbeknownst to me, Mr. Seldon’s street name
on the street was Peewee. | didn’t know that. I said no, it’s
Ronald Seldon. He said, well, that’s Peewee. I said, | got him
stopped. He said, where? | said. at Route 50 eastbound at
White Hall Road tn Annapolis. | said, it’s in here. [ can smell
it coming from the vehicle. [t's in here.
BY MS. WHITE:
Q Sergeant Lewis, based on your experience, what sig-
nificance do you attach to the odor of air fresheners and
fabric softeners in vehicles?
33a
A. Your Honor, my 19 and a half years as a Maryland
state trooper. I've probably accessed between 6 and 800
electronically and/or hydraulically controlled compartments.
In almost every case without exception, pine tree air fresh-
eners and fabric softener sheets are the number one masking
agents being used to [85] wrap up cocaine, marijuana, heroin.
And in addition to wrapping up the actual controlled danger-
ous substance itself, they will hang pine tree air fresheners
throughout the vehicle to mask the odor-. not from me but
from a drug-sniffing canine.
Q Now. you've indicated that there was a distinctive
odor which you associate with large seizures of cocaine. Can
you deseribe with any greater specificity what that odor ts?
A Your Honor, if | could answer it in a one liner it
would be cocaine itself. It's got its own unique smell. [ve
never smelled anything quite like tt. But if | were to break it
down for you. Your Honor, | would combine it with a
mixture of maybe ether, fuel, maybe a pharmaceutical odor,
kerosene.
[f you've ever walked into a morgue, that odor that you
smell when you walk into a morgue, it’s got tts own unique
odor. It’s something I’ve never smelled before other than with
large cocaine seizures. When I find a Jot of coke, Ul have
that smell almost all the ume.
I can’t tell you when I’ve seized a pound or more of
cocaine where | did moi have that smeli, Pat's tie only way |
can describe it, sir.
Q Now, the other observations that you made of Ser-
geant Lewis. the deep breathing—I'm sorry—of Mr. Seldon,
the deep breathing, failure to make eye contact, and the sum
of money, do you attach any significance to those observa-
tions based on your experience?
[86] A Yes, ma’am. Your Honor, in singular presence, one
of those would not mean a thing to me. But when I started
seeing all these in aggregate or in totality together, coupled
34a
with the fact that | smelled a distinctive odor of cocaine
coming from the vehicle. mixed with fabric softener. mixed
with pine tree air fresheners, | strongly felt without a doubt |
definitely had it inside the vehicle at that point in time. | had a
large amount of cocaine, yes, sir.
Q = Sergeant Lewis, it is correct that you have—let me
ask. Have you ever made a se1zure of cocaine and not smelled
the odor of cocaine?
A Yes, ma’am, | have.
Q ~~ And under what circumstances ts that?
A It would depend on how recent the cocaine had been
manufactured, how long it had been sitting in a warehouse.
MR. KURLAND: Objection, Your Honor. He’s speculat-
ing at best. When something was seized, how long it’s been
sitting around. How do you factor that into the equation?
Mik COURT: 1 don't know. He’s the one saying it so
we'll find out from him.
MR. KURLAND: Yes, Your Honor.
THE WITNESS: In every case, Your Honor, | would
ultimately smell that distinctive smell, whether it came when
! was actually testing with a Becton Dickinson field test kit to
contirm whether it’s cocaine, | would always smell that smell
[87] eventually, but not mutially when | search a vehicle,
absolutely not. There Save been many, many times when |
have searched a vehicle and never smelled cocaine.
Q Sergeant Lewis. on July 13th, 2000, did there come a
time that you did turn your camera on?
A Yes. ma’am.
Q And as a result of that, from the time you tumed the
camera on until the incident was over, were your words and
actions.and those who assisted you on the scene, were those
recorded”
A Yes, ma’am, they were.
35a
Q And have you provided to me a copy of the orginal
tape of that incident.
A Yes. ma’am, | have.
Q = Have you also had occasion to review what I'm going
to show you here is Government's Exhibit Two?
A Yes, ma’am, I’ve reviewed this this moming.
Q = And that exhibit ts a transcript of the audio portion of
your encounter with Mr. Seldon, ts that correct?
A Yes, ma’am. tt ts.
Q = And ts it substantially correct in terms of what
occurred and what was spoken between yourself and Mr.
Seldon?
A Yes. ma'am, i certainty ts. There’s only one item |
saw on here, when we refer to K-9’s, Trooper Chris Force,
F-O-R-C-E, as.opposed to Trooper Chris Ford, F-O-R-D. But
they sound the [88] same, especially with my Eastern Shore
dialect.
Q = Your Honor, at this ume | would request permission
to play the tape of the traffic encounter with the aid of the
transcript.
THE COURT: How long ts it?
MR. KURLAND: [wenty-two minutes, Your Honor.
THE COURT: Forty-two”
MS. WHITE: Twenty-two.
MHE COURT: Why don’t we watch it and then we'll take a
very short recess when it’s over. So it's 20 of. Mary, why
don't you come on back at ten after? There's no reason for
her to be here when we're watching, right? I'm just going to
give Mary a little longer break.
MR. KURLAND: Absolutely. Your Honor.
THE COURT: Okay.
(Tape played.)
36a
THE COURT: Unless somebody needs a break. let's keep
going.
BY MS. WHITE:
Qs Sergeant Lewis, with regard to the video that we just
saw, can you explain to us what the terminology “Annapolis
729” means”
A Your Honor, 729 is my car number.
Q = And when you indicate or the dispatcher indicates to
you that he has seven current, what does that mean?
[89| A That means seven current points on his driving
record, Your Honor.
Q During the videotape, one tme we heard you ask or
say, can [| talk to Kenhart, please. Who ts that?
THE COURT: He's already told me.
Q ~~ And were you talking on your radio or cell phone at
that time?
A My cell phone.
Q Also. there ts, early in the videotape, a portion where
you are speaking. describing that you just left the Waterloo
barracks, you're on your way home, etc.’
A Yes, ma’am.
Q = Why did you include that information?
A - Your Honor, | wanted to narrate to you, 1f you will,
that | had been riding the assistant attorney general around
that day, Sharon Benzil McCann. She had newly come on
board with the Maryland State Police and she wanted a better
perspective as to what we do out there on the highway. She
was actually a ride-along that day. But due to inclement
weather we got rained out.
QQ And this information that you provided, how does
that relate to the fact that your camera was not operating the
entire ume?
A Because | had shut my camera off because of bad
weather, after she rode with me and | was heading home. And
37a
| wanted to [90] let the courts know that that's why my
camera wasn't running when I initially stopped the vehicle.
Q Now, later in the tape, you indicated that you were
ocean king. What does that mean?
A Okay.
Q = At one point, you were still on the cell phone talking
with, is it Detective Kenard?
A Sergeant Mike Kenhart?
Q Sergeant Mike Kenhart?
A Yes, ma’am
Q And you indicated to him that you smelled what you
believed to be cocaine. | believe, you stated, | believe it's
cocaine but | can’t swear to it. Can you tell the Court what
you meant by that?
A Figure of speech. Your Honor.
Q Did you. at the time that you were talking with
Sergeant Kenard, have any doubt about what you were
smelling?
A No, ma‘am.
Q And what is your basis of experience to determine
what you were smelling?
A In several hundred drug arrests I've made over the
years, Your Honor, well over a hundred of those have
involved large amounts of cocaine, in excess of a pound or
more, up to 39 kilos of cocaine on one traffic stop. And it’s a
smell that I’ve only associated with large cocaine setzures.
That's the only way | {Yt} can deseribe it.
Q Initially, you indicated to us that you approached on
the passenger side. But we saw on the videotape that you also
approached on the driver's side?
A Yes, ma‘am. That’s when | returned to ask him to
step out of the vehicle.
Q Did you make any observations of odors at the time
that you approached on—
MR. KURLAND: Objection.
38a
THE COURT: Don't lead here.
BY MS. WHITE:
Q ~~ ~What observations, if any, did you make when you
approached on the driver's side?
A When I opened the driver's door, actually opened
with my left hand to help him get out, | smelled that same
distinctive odor, Your Honor, coming from the driver's side
at that ime.
Q Now. later in the videotape you indicated that you, |
think your words were, “I can see multiple packages were
loaded.” Can you describe for the Court what those packages
looked like as you observed them in the compartment?
A Yes, ma’am. Your Honor, the compartment was lined
with stainless steel walls, reflective walls. And when | looked
down in the compartment with a flashlight, | could see
multiple packages but it looked a lot more that what it really
was. There were three large Saran Wrap packages and |
thought it was [92] a lot of kilos as opposed to the three large
packages.
Q Did there come a time after the roadside inspection
that you had an opportunity to see the packages outside of the
compartment?
A Yes, ma’am.
Q = And can you describe for us how those packages
were wrapped?
A Your Honor, they were wrapped in--the cocaine
itself was in a large freezer bag, Ziploc freezer bag. a large
treezer bag. It was then wrapped with Saran Wrap, fabric
softener sheet. There was a liquid-type detergent that |
thought because of the smell was laundry detergent, and I sull
think that’s what it was, | really don’t know, also wrapped
around these packages. then wrapped with Saran wrap again.
That's how all three packages were.
Q And when you had an opportunity to see the
packages outside of the compartment, was there any odor
associated with--
39a
MR. KURLAND: Objection.
THE COURT: Rephrase.
BY MS. WHITE:
Q What odor, if any, was associated with those
packages?
A The odor of cocaine and air freshener and fabric
softener and sheets all in one. That's the smell [ smelled on
the packages.
Q Other than the actual packages, the three large
packages [93] that you've deserbed, were, did the second
compartment contain any other items?
A There were nine pine tree air fresheners inside the
second empty compartment and twelve pine tree air fresh-
eners inside the compartment with the contraband.
Q Now, with regard to the compartment where you
actually found the packages, you've indicated there were
packages and air fresheners. Do you recall anything else
being in that compartment?
A Yes, ma’am, | do.
Q What else was tn that compartment?
A Your Honor, there was a socket wrench. There was
only one socket wrench with a socket on the end of it that fit
the front seat bolts to open that first compartment.
[94] Q Now, with regard to the other areas of the vehicle.
did you make any observations of air fresheners?
A Yes, ma‘am.
Q And can you deseribe where those air fresheners
were Observed?
A Your Honor, there was one hanging on the left side of
the driver's seat. [There was one hanging by the steering
column, and one hanging down by the center console area.
There were actually three pine tree air fresheners inside the
vehicle and a total of twelve in the first compartment and nine
in the second compartment.
40a
Q = Once the packages were removed from the compurt-
ment, what. if any, observations did you make with respect to
odor associated with that compartment?
A That was the odor that | was smelling on the road-
side. what | smelled coming from those packages.
Q Thank you, Trooper. Nothing further.
THE COURT: Mr. Kurland. You might as well question
from there, in accordance with the usual practice.
MR. KURLAND: Yes. Your Honor. Want me to go right
into 1t? Because I'm going to be quite sometime. Your Honor.
THE COURT: Go right into it.
CROSS EXAMINATION
BY MR. KURLAND:
Q | want to use the podium. if Your Honor please.
Trooper Lewis, let's start out with the October the 29th, 1999
Pohanka visit. You with me?
A Yes, sir.
Q Okay. You gota telephone call from a member of the
Maryland State Police, Wentland, who told you that he had
gotten a call from Pohanka dealership about a suspicious
object in the car, correct?
A No, sir.
Q You got a tell—you got a telephone call trom Went-
land, did you not?
A Yes, sir.
[95] Q To summons you to Pohanka. did you not?
A Yes, sir.
Q And as a result of that, as a result of being
summonsed, you went there, didn’t you”?
A Yes. sir. He's with the sheriff's department.
Q = Okay. He's with the sheriff's department?
A Yes, sir.
Q = Okay. And when vou arrived, you met him where?
tla
A Atthe Pohanka Mazda dealership.
Q Where?
A On the east side of the building.
Q \nd when you got to the east side of the building.
you then walked outside on to a lot, didn't you?
A We walked inside to the service bay area.
Q ~~ And then you walked outside on to a lot. didn't you”
A I don't recall, sir.
QO You don't recall that.
A We actually met on the lot before we went inside.
Q Isn't there a lot at that dealership for cars that had
been completed to be picked up?
A That | don’t know, sir.
Q And isn't that the lot where you met the gentleman
trom Pohanka?
A IE met him on a Jot. | don’t know tf that was the par-
ticular lot where vehicles are put to be picked up.
[96] Q And at that pomt in ume on that lot, you instructed
who happens to be Mr. Wiley or Willey, whichever the case
might be. to drive the vehicle inside, isn't that correct?
A | don't recall instructing anyone to drive the vehicle
inside. No, sir
QO Well. was the velucle outside”
\ That | don't recall.
Q You don’t recall whether the vehicle was inside or
outside?
A 1 know it was brought into a bay. | don t recall where
it Was outside or exactly where it was. | really don’t recall,
sir. Um sorry. [don't recall.
© Don't be sorry. The vehicle was driven in?
A It Was, yes. sir.
Q So obviously, then, it was outside when it was driven
mn, Correct?
A It was driven into the service bay. yes. sir
Q Right. And when it got into the service bay, you and
the sheriff went over to the vehicle. correct?
42a
A The technicians led us to the vehicle.
Q = The technicians led you—did they have to lead, since
they already drove it in at your instructions?
As I didn’t know where they wanted us to look, sir.
Q Did you see the vehicle come in?
As I did, yes, sir.
Q Did tt stop?
[97] A Yes. sir.
Q = So why did they have to lead vou to the vehicle? A |
didn't know where they wanted us to examine. We were there
to look in an area they thought had a compartment.
Q So now you walk up to the vehicle. And a gentleman
by the name of Mr. Fiscus. who happens to be the manager, ts
there. correct, the service manager?
A The service manager, yes, sir.
Q And then Mr. Willey or Wiley~ what? Willey or
Wiley? | keep making that mistake.
A Willey.
Q That's the guy you went to school with? It’s the guy
you ve known’
A Well, [haven't seen him since high school.
Q You went to high school with him?
A Yes, sir
() Did you know him as a liar back then”?
MS. WHITE: Objection.
THE COURT: Sustained.
BY MR. KURLAND:
Q So Mr. Willey and Mr. Fiscus are standing there. |
just want to try to understand your testimony. Maybe you
remember this or maybe you don’t. Is it your testmony that
when you walked up to that vehicle. the seat had already been
pushed back and the bolts had been removed trom the floor?
[98] MS. WHITE: Objection. Mischaracterizes the testi-
mony.
43a
THE COURT: He can say no 1f it didn’t.
A Nov sir. That's not my testimony.
Q When you looked into the vehicle. tell me again what
you saw. I’m talking about that seat, that front seat.
A The technicians were ahead of me in the vehicle,
Your Honor. | was behind them. They had bent down. And |
don't recall if they actually removed the bolts to pull the seat
up or the bolts were removed on the floor. But they pulled the
seat up initially for me to examine it. That they did.
Q ~~ So that’s your testimony. It was the technicians that
removed the bolts?
A Yes, sir, because | didn’t.
Q You didn’t do it?
A No, sir, and neither did Carso'. Wentland, the deputy.
Q Now ithe seat’s pushed back and you look down
inside and you see a well area, correct?
A ft see a specially constructed compartment down in
the gas tank.
Q = Isn'tita well?
A Its a compartment.
Q Right. A compartment. Not a specially— it’s a well or
an area in the floor, myghtv?
A It's a modified compartment.
[99] Q Right. Having seen that, you then went to the back
door, you removed the carpeting, took some type of a pry or a
screwdriver, and you pushed it into the floor board to trv to
pull up an area that you could explore, correct?
A After they led me to that area, yes, sir, | did
Q You did that. That you remember?
A [testified to that earlier, ves, sir.
Q But you don’t remember the condition of the vehicle
when you looked in initially, do you?
A Yes, sir, | do. It was a nice, very clean vehicle, very
spotless
Q Imtalking about the seat.
44a
THE COURT: Don't, he’s already testified to that aspect.
Move along.
Q Yes. Your Honor. Once you completed the examina-
tion, you then, believing that these hidden compartments that
you had seen perhaps might be some type of criminality—is
that what you concluded? Because you know for a fact that
the only reason to have hidden compartments in your car ts
because you're a drug deal or you're hiding money or you're
hiding guns, isn’t that nght?
A Specially constructed compartments like this one, yes.
sir,
Q And there’s no other reason at all in the world why
somebody would have a hidden compartment inside of a car.
is there, unless they're a criminal?
[100] A’ Tve never seen electronically or hydraulically-con-
trolled compartment ---
Q You didn't answer the question.
A Yes, sir. ve never seen one with legitimate items in
it, Never,
Q = But you've seen them with nothing im them, haven't
vou?
A Yes, sir.
Q How do you know what was in there when you didn't
see it Was legitimate or illegitimate?
A Because an ton scan produced a positive level of
cocaine or Mariyuana.
Q Sir, answer my question.
MS. WHITE: Objection.
THE COURT: You're arguing with him. Move on. And
question from, | think | told you, further back. You can get in
front of the table but give him his space.
BY MR. KURLAND:
Q Yes. sir. After you completed the inspection of the
interior of the vehicle. you then went into the office of
Pohanka and started go.ng through records, didn’t you?
45a
A No, sir. | stood in front of the counter and they got the
records for me. sir. | didn’t go through any records.
Q = They brought the records to you?
A Yes, sir, they did.
Q At your request?
J1O1| A Yes, sir, they did.
Q ~~ And in addition to the records that you had seen for
that specific automobile, with Ronald Seldon, | guess the
work order, you looked at other records, didn’t you?
A Later on [ did, yes, sir.
Q = And you saw a record with the name of Derrick
Shrieves on it, didn’t you”
A Yes, sir, | did.
Q And you copied that information down, didn't you”
A I did eventually get photocopies of that, yes, sir.
Q And you sent that over to the narcotics section of
Wicomico County as well as the DEA, didn’t you?
A Yes, sir.
Q Now, that’s the first time you had seen Derrick
Shrieves’s name, isn’t it?
Or Ronald Seldon’s, yes, sir.
Or Ronald Seldon’s name, isn’t that correct?
Yes, sir.
And you sent that information over to the DEA?
Task force. ves, sir.
Whose name was this vehicle in? Who was it titled to
in October then, on October the 29th of 1999”?
A Your Honor. | believe it was a female subject by the
last name of Alburg, A-L-B-U-R-G, out of Crofton, Mary-
land.
Q = Soit’s not fair, ty tt fair to say, then, when you pulled
[102] the vehicle over—strike that.
WPreoret>
Did vou have any further contact with the vehicle betw een
October the 29th of 1999 and July the 13th of the vear 2000”
A None.
46a
Q = Sol guess it’s fair to say, then. 1f you were to put one
and one together. the answer would be that the vehicle was
sull titled to that very same person, correct?
As far as I knew, yes, sir.
You found that it wasn’t, though?
Yes, sir.
All right. And when did you find that out?
The day of the traffic stop.on July the 13th, 2000.
Let’s get up to that date in time, and thanks for
opening up the door for me.
July the 13th, 2000.
THE COURT: He doesn’t have to say “I’m sorry” to you,
you don’t have to say “thank you” to him. Just ask questrons.
BY MR. KURLAND:
Q July the 13th of 2000, Sergeant Lewis. You were
traveling on Route 50 eastbound towards Ocean City, at least
you had been heading in that direction had you gone all the
way to the East Coast, right?
A Yes, sir, that’s true.
Q And you got behind a vehicle that you say was
speeding, doing 71 to 73 ina posted 55, correct?
[103] A Yes, sir.
Q = Okay. And you followed that vehicle. you paced that
vehicle tor a period of, what, maybe a mile. a mile and a half?
A A little over a mile, sir.
Q Okay. And subsequently. you stopped the vehicle for
speeding after you made those observauons. You pulled up,
saw him on the telephone, with his hand on the steering
Wheel. You made those observations and you subsequently
pulled him over on the side of the road. correct?
A Yes, sir.
Q Okay. And you walked up to the vehicle on the
passenger side hecause it’s safer and you learned that’s the
way you're supposed to do it and that’s what you teach the
guys, right?
Der OrQD
47a
A I do, yes, sir.
Q = And when you walked up there, at that point in time
you asked Mr. Seldon for his license and registration, correct?
A Yes, sir.
Q And that’s normal procedure, isn’t it?
A Yes, sir.
Q The purpose of getting a license and registration 1s
because you're going to have, in your possession, if you need
it, certain information as who the driver is, if the vehicle is
owned by someone other than the driver, isn’t that correct?
A Yes, sir.
Q And it aids you in writing out this Uniform Maryland
x* * -«
[142] cocaine coming from the vehicle.
Qs Sir, I'm talking about the traps right now. Please.
let’s try to direct it in that attention, please. You told Kenhart
that this 1s the same vehicle | had the traps in. You told him
that before your backup arrived, didn’t you?
A [don’t recall that, sir.
Q Would you Itke me it read it? Okay.
Court's indulgence, please. Your Honor. Somewhat impor-
tant that I find this. There's a segment on tape. | have no dog.
Mike. Based on the traps that [| Know are in here —did you tell
him that?
A Yes, sir.
Q = You knew that the traps were in there?
A Yes, sir. Strong suspected it was the same vehicle. |
Was putting it all together,
Q = And after you did all this dialogue and vou say, | got
enough to do him because this is the vehicle where | found
the traps, what happens ts you get backup. And you go to the
front. you open the door, watch him. Go to the front, vou look
down. you go to the back. then you say. turn around, you're
under arrest. you're under arrest. or words to that effect.
you ve got hidden compartments in here?
48a
MS. WHITE: Objection. Your Honor.
MR. KURLAND: Did you say that? s
MS. WHITE: Objection. It’s not a question and contains
| 143] several things that are not facts.
MR. KURLAND: Let me read it.
THE COURT: Yeah
BY MR. KURLAND:
Q You told let me back up a little bit, Sergeant. You
told the dispatcher, start another unit on the way. | have what
I believe is a false compartment in the floor. Isn’t that what
you told him?
A Yes, sir.
Q = Okay. But you already knew that, didn’t you?
A\ Yes, sir. :
Q Why didn’t you say madam dispatcher, I'm telling
you right now, | know there are compartments in this floor
because back in October, the 29th of 1999, | went to Pohanka
and I spotted two compartments and | know they're in there?
You didn’t tell her that. You said, | have what f believe are
compartments. How did you make that quantum leap”
A _ Your Honor, sir, when [ was talking to dispatcher in
my car, Mr. Seldon was there as well and | did not want him
to know that [ had visited his vehicle at Pohanka Mazda
dealership. | knew there was a federal probe into his drug
distribution in Wicomico County and | did not want to tamish
that investigation.
Q = Mr. Seldon’s not in your car when you're bending
down and one of your fellow troopers who arrives at the
scene, when you
* *£ *& *
[199] in this case. And that’s not to say that he didn’t, may
not have thought that he smelled it. \
49a
There were two aspects of this. Number one, whether or
not mt could be a proper clement of probable cause. plus the
ancillary effects upon his general credibility, because there
are other things he testifies to that are important.
Unless the government really wants to press the issue, |
really don’t think that, and | know of no case, and the gov-
ernment’s cited me no case, and | really am somewhat serious
about this, this is why there are K-9 units. Humans, you
know, I'm not saying that cocaine does not give out a smell. |
mean. | think it’s obvious that it does, otherwise there
wouldn't be any reason to use air fresheners to disguise the
smell. And actually, the testimony about the patent: was
helptul. That's subjective evidence that there is a smell,
Plus Agent Rivello, | credit him. I'm not saying that
cocaine doesn't emit an odor that is susceptible under some
circumstances to human perception. Based upon what's be-
fore me now. | would not find that the search was justified by
Sergeant Lewis's perception that he smelled cocaine. Now, it
may have been justified by other things, but that would be my
present inclination.
MS. MANUELIAN: Your Honor, actually we did cite a
couple of Fourth Circuit cases that talk about a warrantless
search based upon just the odor of marijuana coming out of a
(200) hotel room. Another Fourth Circuit case talks about it
being one factor. And that’s, | think tn this case, clearly what
it Was. It was a factor in combination wath others. Frankly,
those other factors would have been sufficient for the prob-
able cause. | think the argument that we would put forth --
THE COURT: In the Fourth Circuit cases, was it burning
marijuana?
MS. WHITE: The odor, | can’t remember
THE COURT: You're too young tor this. But remember
MR. KURLAND: I've never inhaled.
50a
THE COURT: You remember Wild Bill Hagy? Memorial
Stadium, used to be up in Section 33. And depending upon
which way the wind was blowing, tickets to Section 32 or 34
Were Very, very popular. People came home. even the best
baseball fans were said to have come home if the Orioles lost.
said, who cares. man?
So [| would, | would distinguish between a burning
marijuana and the other things. It’s a factor.
MS. MANUELIAN: It’s a factor. Your Honor. And | think
there are sufficient other factors in this case. And taking that
factor and combining with the others. or even those other
factors in and of itself is what the government would like
THE COURT: And my question is, I’m perfectly willing
[201] to accept the stipulation of Mr. Willey’s testimony.
That's fine if you don’t want to call him.
And | realize that all he said was that he said to the officers
that something was suspicious. | must say, based upon what |
think common sense was, and it’s now been laid out by
Sergeant Lewis, somebody, when they got there. said, it
wasn't like they just found a suitcase sitting there or some-
thing. Somebody, whether it was Willey or it was somebody
else, somebody elucidated it by verbal act or by something,
that 1t had to do with a secret compartment. | think otherwise
there wasn't anv reason for all of this to unfold.
That ts, to me, that’s what Sergeant Lewis testified to. And
11 would seem to me it's common sense. They didn’t bring
him out for a scavenger hunt.
MS. MANUELIAN: Your Honor, in the transcript it
specifically. during the direct examination, the question was
asked of the. Mr. Willey, after the car was pulled into the
service bay, what did you do”? | talked to Sergeant Lewis for a
few minutes, kind of explained what | had seen, and that was
basically it.
Sta
And there was nothing specific about what he explained to
the officer during the redirect—excuse me—the recross
examination. There was some questioning conceming what tt
was that he had seen actually during redirect. And he said, |
advised him there was something unusual that when | flipped
the [202] seat up, there was like a well there that, you know,
shouldn't have been there and | stopped at that point and
notified him. That's to the service manager. And then he said
he advised the service manager of that when he found it
during the examination.
And then on recross by Ms. Riley, she asks the question, ts
that the same area that you have told Sergeant Lewis about,
correct? And his answer was “correct.”
So Your Honor, | disagree with defense counsel. | think
just on this alone—
THE COURT: | understand.
MS. BLEDSOE: That would be if you are characterizing a
well as a hidden compartment. | mean, | don’t necessarily
characterize a well as a hidden compartment. And | know that
Mr. Willey absolutely positively did not say during his
tesumony that it was a hidden compartment. He said that
there was a well, that there was something suspicious, and
because of that he notified his service manager.
And he also will testify, well, he did testify. that he was the
one that was ordered by Sergeant Lewis to bring the car from
the parking lot where the cars are placed when the repairs are
completed. into the bay, and that he did not show Sergeant
Lewis the hidden, the well, the suspicious item, that Sergeant
Lewis was the one that pulled the seat back, that Sergeant
Lewis was the one that undid, I’m not sure if he said undid.
pulled the carpet up, and Sergeant Lewts was the one that
* * %* *
s?.
{212} reported. And if he had gone out there to see in
response to the report. and he did. exactly what was
suspected, which was a secret compartment, and that itself
would be enough.
I'm going to ask, obviously my ruling, if it sticks, is in
tavor of the government. But before | ask Mr. Kurland or his
co-counsel to tell me where I’m wrong, ts there any other
factor that ['m missing from the government's point of view?
MS. WHITE: No.
MS. M.ANUELIAN: No, Your Honor, no.
THE COURT: Where am | wrong?
MS. BLEDSOE: | can address the bailment issue, Your
Honor. | think factually, if | heard you correctly. you were
saying that it would be okay. And the Court of Special
Appeals also talks about that.
If the sergeant came to Pohanka while the repair or while
the car was being repaired and, certainly, the technician said,
oh, here it ts. and Sergeant Lewis just leaned over and looked
into it, that would be a separate case or different case than
what actually occurred, which was that the car had been
repaired. And Mr. Willey says that in his testimony. The car
had been repaired. [t was completed. It was put back together
again. The bolts were screwed back. The carpet was cut back.
The seat was put back. And then the car was removed from
the service bay into a parking lot which was designated for
vehicles that had already been repaired and were [213]
waiting to be picked up.
So | think if we're talking about information given from a
private party to the government and then the government's
there observing that information, then the Fourth Amendment
wouldn't apply.
But if we're talking about a situation where we actually
have a bailment, where the work was completed, the car was
33a
placed in a parking lot ready to be picked up, and then the
government, through its own actions, brings the car back in
and conducts a second search of the car, then the Fourth
Amendment does apply. And if that’s the situation, then we
have to decide if there was a bailment. was, in fact, was there
consent?
And Mr. Willey says in his testimony, absolutely not. I did
not. nobody from Pohanka said, you can search this car.
Sergeant Lewis directed the whole situation. Bring the car
in, 'm taking the seat up, I’m taking the carpet up. and I'm
inspecting and searching the car. How can that be consent?
Now, Your Honor, if you would even find that Pohanka,
just by their mere inaction. that tt was consent, you have to
look at, well, what was the scope of the consent? And that’s
what the Eldridge case talks about. And the Eldridge case
says, yeah. it’s okay if somebody gives consent and you open
up the trunk and you look into it. But if you're pulling up the
carpet, it might be a completely different story.
[214] THE COURT: But that was the carpet n—let me ask
one question, which | really haven't asked myself, and |
shouldn't do that sitting out here. Its a kind of radical
question.
| realize under the precedence consent becomes the issue.
Constitutionally, why is that the issue”?
The constituuonal standard ts. why to find the search
reasonable does one have to go through the mechanism of
consent?
MS. BLEDSOE: Because if. Mr. Seldon did not have a. |
would concede he didn’t have an expectation of privacy when
the repair man went in and did the repairs. Obviously, if he
had to do the repairs atid go through the pump and remove the
pump and see the hidden compartment or the well. again.
he talks about a well, not a hidden compartment. then Mr.
S4a
Seldon didn’t have an expectation of privacy at that ime and
for that repair.
But the question ts, once that’s completed and put out into
the parking lot, does Mr. Seldon then regain his expectation
of privacy in his car? And if he does regain his expectation of
privacy and the car’s brought back and then it ts re-searched
by the government, | think that violates ..s expectation of
privacy and therefore becomes an unreasonable Search.
TEE COURT: Or course. Mr. Seldon wasn't there.
MS. BLEDSOE: No, he wasn’t there. But when | give my
car to the dealership to be repaired, | understand that I'm
[215] allowing, and I'm allowing somebody to peer into my
privacy to the point of having the car repaired. And if the
police officer, if the sergeant was there when that was occur-
ring. absolutely not. | don’t even think the Fourth Amend-
ment applied. Even if it did, there would be no expectation of
privacy.
But we don’t have that situation. The car was completely
repaired back.
| don’t expect a dealership to search my car twice and to
repair my car twice. They completed the repairs. The car's
placed on the parking lot to be picked up. Therefore, I’ve
regained my expectation of privacy. [| didn’t give them
permission to Iet the police come in and undo the work that
was already done to see what they wanted to see. | think |
have a complete expectation of privacy in that car at that
time. And the Court of Special Appeals does talk about that.
Given that, Sergeant Lewis, all he had to do was, Mr.
Seldon we're not releasing your car, I'm going to go get a
warrant or call somebody up.
THE COURT: Watt a minute. What are you going to get a
warrant for? Mr. Kuriand’s right. The mere fact that there
Sa
‘”A
might be a well or secret compartment doesn’t give you a
right to a warrant.
MS. BLEDSOF: But it gives them the right to search my
car?
[216] THE COURT: Yeah. If in fact you have put it in the
position—for one thing, the whole idea of an expectavion of
privacy- obviously, we know when you search cars. But it’s
not im a private part of the car. You send your car in to be
serviced. This thing is in a place where you've got to
reasonably know that somebody may see It.
MS. BLEDSOE: | agree with that.
THE COURT: But you say once it’s done. But that’s where
[ differ with you, | think. | think if, you don't recover it. It’s
not like, if he had been there and insisted or something, then
that's a whole different involvement. But here, it’s what his
expectation was when he sent it in to the car dealer. And his
expectation had to be somebody may find this.
1 think that once it is found, there’s an intervening event,
whether they finish it up or not. Frankly, | think it's putting
form over substance to say they can’t put it back together
again before the police come. The fact ts they've seen it and it
really is exceptionally good citizenship. And this case really
is exceptionally good police work.
They come in and say. all right, here mts. They look. They
do a little digging under the carpet. look, here it ts. | don’t, |
guess What I’m saying 1s [ understand your distinction. Its a
tair distinction. [t's the one that the Court of Special Appeals
bought.
I think that the expectation of privacy tssue should [217] be
viewed at the rime it goes into the shop. that you don't
recover your -you don’t know what's going to go on at the
shop. You know what's going to go on when vou give them
the car. But what happens at the shop and the sequence of
S6a
things. | don’t think you magically recover your expectation
of privacy.
I think one should reasonably expect that if you send
something in where a public-spirited citizen ts going to see
something suspicious, that they may call in law enforcement
officers to help them look at it. Even if the work had been
finished. | would think that in terms of expectation of privacy
we should live in a world whore, doggone it, you've got
something that’s suspicious, you give up, you send it in where
it could be observed, yes, you might have a citizen informer
say, I’ve seen this, ['m calling in the cops.
MS. BLEDSOE: And | guess my disagreement jactually
with you ts that Mr. Willey only saw something suspicious
and it was a well. He did not see a hidden compartment. He
obviously didn’t see the second hidden compartment. | mean,
that was completely found by --
THE COURT: Weil, the evidence 1s in on that. And 1 find
whatever Mr. Willey said, and this did cause me concern this
morning before you got there, because all the Court of
Special Appeals opinion said they saw something—I'm abso-
lutely persuaded that Sergeant Lewis was, they explained to
him, we've got something here which we think ts a secret
[218] compartment. that’s the only thing that explains why
they brought the car in, what they're looking for. So that, in
fact, sf wasn't just, quote, “something suspicious.” It wasn't
just a well. The course of conduct, what he was told, was we
suspect something here. which ts secret compartment.
So [ understand your point. You won in the Court of
Special Appeals on that issue. You've lost here.
What about, even if he shouldn't have looked, the relevant
thing 1s what he knew he at least would have known. Clearly,
the car dealer was entitled to call him. Clearly, he was
entitled to go to the car dealership. They explained to him
what it was that I find as a fact gave rise to their suspicion
that there were hidden compartments.
37a
For purposes, does that so dilute his knowledge in July of
2000 that it can’t be factored into the probable cause deter-
mination that now he’s got somebody very nervous, lots of air
freshener, known subject of a drug investigation, money. a
wad of money, add to that a citizen complaint, no reason to
lie. called me in, explained to me why it was that they were
suspicious, that there was a secret compartment.
MS. BLEDSOE: And [ think probably Mr. Kurland will
talk to the other factors. Again. Your Honor. my position as
to the secret compartment ts, of course, there wasn't a secret
compartment. It wasnt conveyed there was a secret
compartment.
And t believe that in both Eldridge and tn the Brock [219]
cause. if you see something, you're right, there’s no expecta-
tion of privacy. But if you take something apart, there 1s an
expectation of privacy.
THE COURT: No. No. Let’s assume that that was illegal.
Let’s assume that his looking for it was illegal. He still
knew-—you can excise that—he still knew that he had been
called in and somebody reported to him what. suspicion,
which on the facts | find to be suspicion of secret com-
partment.
MS. BLEDSOE: And | think it weakens the entire probable
cause argument because [ think. and | know Mr. Kurland’s
voing to address those other factors with you. But knowing
that there’s a compartment in a car and having a suspicion or
a hunch that there’s something suspicious in the car. to me in
a very close probable cause case, which this case is, weakens
the ‘government's position and actually strengthens our
position that, in fact. there wasn’t probable cause at that time
to do the search.
THE COURT: Mr. Kurland.
MR. KURLAND: Thank you, Judge, and | will be brief.
Thank you. | know you want me to be brief.
38a
THE COURT: No. No. | appreciate that. | do this because
when | practiced law, I'd much rather know what was on the
Judge’s mind so | could address his or her weakness of
reasoning.
MR. KURLAND: Your Honor, we do know this. Backing
up [220] the tape, if | could just steal a little of my associate's
thunder here. We do know for a fact that when Sergeant
Lewis went to Pohanka and subsequently after that observa-
tion, the observations that he made. went into the office. he
made a determination that the vehicle at that ttme was owned
by a lady by the name of Alburg, not Seldon.
Now. he expects you to believe, | think, Your Honor, that
some eight months later, when he gets the car and he’s told
that Yvonne Seldon is the owner of the car, that it didn’t
make a difference whether it was you Alburg or Seldon, that
the bottom line is, there’s compartments tn there.
THE COURT: Wait a second. On this, | thought, and may-
be I'm wrong, | don’t know whether [ picked it up in the
lesumony this morning or trom the opinions | read, that not
only was he told who the owner was, but who brought it in.
MR. KURLAND: He was told who brought it in.
THE COURT: The name he recognized wasn't Yvonne
Seldon. The name he recognized was Ronnie Seldon.
MR. KURLAND: Ronald Seldon. He recognized that
name. But because he recognized the name, should you infer
that he recognized the vehicle? It was already, it was already
in someone else’s name, Miss Alburg. And now there's quite
a quantum leap, when he’s given the registration and this
vehicle says Yvonne Seldon, how you can put the two
together and say, that’s the same car.
[221] THE COURT: What he put together was that he knew
the name Ronald, Ronald Seldon was the one he had had a hit
with the Wicomico task force.
39a
MR. KURLAND: Yes.
THE COURT: That's the name that hit back min October of
1999, and that’s the name he recognizes.
MR. KURLAND: Right. And he recognized the name, but
the question is, did he recognize the car? Now, | really don’t
know. And | don’t think you can if it was Yvonne Seldon
who's the owner when he sees it in September and it’s
Yvonne Seldon when he sees it in July. then perhaps you can
make that inference.
But | think, Your Honor, when there’s some other owner to
the car and now there’s a different owner to the car, | don't
know how you can tie together that association.
THE COURT: He obviously thought that this car had- -
your very point that he went and pretended to be a very smart
guy in front of his troopers. He knew darn well there was —
MR. KURLAND: Judge, let me also say this in support of
our position.
Whether it’s the State of Maryland under the case of
Charity v. State or Minolfo or Snow or you're talking about
the cases of Mendenhall or Royer, | honestly think, Your
Honor, those cases stand for the proposition that 1f you stop
someone for a violation, you can’t detain that person any
longer than to [222] justify the initial reason for the stop.
We know, Judge Motz. that Sergeant Lewis cailed im a
name, Soundex number name from a driver's license. The
person had a valid license. We know for a fact that there were
no warrants. We know for a tact the vehicle was not stolen.
All of those determining factors were made one minute after
the stop.
Its the obligation, the way [| understand the law. unless
there’s additional probable cause or unless there's a consent
tor the person to remain at the scene and allow the police
officer to continue duing what he’s doing, there was no
60a
consent in this case, | mean, there's self-serving probable
cause that comes forward. he’s scared to death. but Judge. |
don't think that’s enough to justify a second detention that
lasts for another 25 or 30 minutes.
There’s an obligation here of Sergeant Lewis to write out
the ticket, give him back, give him back, and he wrote out the
ticket, give him back the warning and send him on his way
unless there’s something more.
This ts the more. Your Honor. One minute after he gets in
the car and he’s talking, he says. Mike, he’s scared to death.
Nothing else. | got enough to do him.
Judge, there's nothing. He's scared and I got enough to do
him.
THE COURT: But that’s not all he had. He knew, he [223]
knew the relevant—it’s about five factors, putting aside the
smelling the cocaine.
Knowledge or suspicion of secret compartment. He knows
that Seldon ts a subject of a task force investigation. He has
seen the money. He's scared to death. And he smells a lot of
air freshener. That may or may not constitute probable cause.
That is a very fair question. But he knew all of that by the
time he had come back to write the ticket.
MR. KURLAND: Judge, you observed the tape. | know, |
saw you looking at the tape while it was playing. Mr. Seldon
is out of the car, Judge. He's looking directly at the police
officer. He’s responding to the officer's questions.
Do you really think. based upon what you saw, that Mr.
Seldon was scared to death? | don’t know how, how you can
reach that conclusion. The man is talking to a police officer
on the street and when the tape’s not running, you got the
caroud artery, you ve got the chest palpitating. You've got
this severe nervousness, scared to death.
61a
But when Mr. Seldon is on camera, and | don’t even think
he knew he was on camera. they didn’t make it known at that
time, Mr. Seldon ts saying, sir, 'm not nervous, why are you
saying I’m nervous? He looks him right in the eye. He’s
answering his questions. He's not acting in a state that would
indicate that somebody, shuffling the feet and all these
characteristics that | wanted to get into.
(224] But the bottom fine ts, Mr. Seldon ts responding like a
normal citizen would respond. Where did you clock me? He
wants to try to explain. he wants to try to justify. That isn't
the behavioral pattern of somebody that’s pulled over that ts
involved in a criminal interdiction type of stop.
| suggest, Your Honor, that that—Judge, a pictuie’s worth
a thousand words. That photograph of Mr. Seldon being
videotaped, meeting the situation head on, not acting like
somebody that’s—judge, scared to death. Judge, that’s more
than a figure of speech.
| mean, that seems to be the answer here. Its a figure of
speech. When it doesn’t make sense, it becomes a figure of
speech.
He even wrote down, as you pointed out. tense, somewhat
nervous. That’s not a figure of speech. There’s a big differ-
ence between that. Your Honor.
There’s also the issue, Your Honor, when he says, when
Sergeant Lewis says, Mike, this 1s the van that | got the two
compartments. But they're not illegal. as the Court has
already pointed out. So [| know right, mght now, that’s enough
probable cause in and of ttseif,
Judge, there’s no way in the world that Ronald Seldon ts
going to be able to leave that scene. There’s no way tn the
world Ronald Seldon is gomyg to be able to drive away.
There's no way in the world that Sergeant Lewis ts going to
give him back his driver's license or a ucket.
62a
Sergeant Lewis says, look, I’ve got a couple of things here
with the compartment. whether, it flies or it doesn’t. You
know something? ['m going to search this car. [f im right,
I'm going to look like a hero. {f ['m wrong, Mr. Seldon’s
going to be the happiest guy that | let him go.
I think, with all due respect, Judge Motz. | would ask you
to reconsider your position with what you factored into these
equations and the behavior because, frankly, Judge, all this
was simply was an inchoate hunch of Sergeant Lewis that,
you know, what do | have to lose?
Judge, obviously, | wouldn't be here asking you to re-
consider if, in fact, these things were consistent. But you see,
you ve got to look at the credibility of Sergeant Lewis. It’s
really a factor in this case. Is he embellishing? Is he piling
on? | suggest. Your Honor, that he was. Just to say at the very
beginning, Mike, | got him, | got enough to do him, Mike,
that’s probable cause in and of itself. That’s a mindset.
Judge, it doesn’t make any difference whatsoever, Sergeant
Lewis was going to search that car whether anybody liked tt
or not and [ll deal with it later on. So Tl put together an
eleven page report and Ill be able to justuty tt.
He's the best [’ve ever seen. He ts truly experienced, very
competent. His testimony under normal circumstances, Your
Honor. would be so acceptable | wouldn't be [226] able to
even put together an idea or a thought pattern how to cross
examine him. But how many cases have you seen—-I haven't
seen that many in my experience—how many cases have you
seen where a tape is running? And a tape ts running—
THE COURT: | assume from now on we're going to see a
lot. Or at least you all are.
MR. KURLAND: I bet you are.
THE COURT: No. | mean. | think under the consent
decree.
63a
MR. KURLAND: We had the benefit. We had the benefit
of seeing a tape in this case. And | think, Judge. we're talking
about 0 and 180 degrees when you look at the tape versus the
tesumony that you're hearing. All of the self-serving testi-
mony that Sergeant Lewis shouldn’t amount to probable
cause because it’s only self-serving. | don’t want to—Judge.
it was a fait accomph. When he went into the car and tumed
on the tape. | got enough to do him, Mike, | mear, this ts
enough probable cause for me. | know [ got enough probable
cause.
It really shouldn't come down to whether Sergeant Lewis.
Your Honor, thinks that he has enough probable cause
because he didn’t under those circumstances. And to leave
these determinations up to sergeants that say, | got enough to
do him in five seconds, and it’s enough probable cause for
me, and nothing more other than self-serving statements.
Judge, with all due respect to Sergeant Lewis, | think [227]
he was somewhat disingenuous with the Court. [’m not going
to go beyond that. But | honestly think he was somewhat
disingenuous with the Court when he made the self-serving
statements that he made. And once again
THE COURT: No. No. He's skillful. You're tair. He knew
the tape was on. Others didn’t. He was, he was very, very
clever in the way he let his fellow officer know the tape ts
running. ['m not natve about this.
MR. KURLAND: Judge, how about that other thing. when
he gets down? Judge, he really wants, he wants to be put up
on the pedestal. so he says what he wants to say when it
benefits him.
Judge, what about this thing at the roadside when the guy
says, gosh, [’m impressed. how did you know that was there?
Judge
THE COURT: A, the answer to that is twotold. Number
one, there's a perfectly good reason not to let anybody know.
64a
A good law enforeement rule. don't let people know more
than they need to know.
Secondly, that might prove that he’s a braggart. At worse it
proves. it doesn’t prove that he’s lving in court. It proves that
mavbe he enhances his own reputation with a fellow officer.
But in fact there's a perfectly good reason anybody. I suspect.
who's been involved in law enforcement or in defending law
or in anything that’s confidential. vou don't tell people [228]
things they don’t need to know.
MR. KURLAND: If he would do that to a fellow police
officer. Your Honor, [ think he would trv to do it to the Court,
and | think he would try to take facts and manipulate those
facts as | suggest, with all due respect. he did today. trv to
persuade vou that it’s all black and not white.
And | think, Your Honor. there are definitely shades of
gray in this case. It just, it just brothers the heck out of me
when somebody says. five seconds into the show, the show's
over. | got enough to do him.
PHE COURT: But by that point, he either did or he didn't.
| mean, doesn’t it show his good faith to some extent that he
was willing to, he was open to getting the dog. Maybe he
should have thought- maybe his friend, his friend may have
had a better view of the law than he did. that a dog alert
Wis
MR. KURLAND: Do you know why he wanted a dog? [f
vou look at the transcript from Anne Arundel County, he
didn't get the dog there to confirm or verify the fact that he
Was trying to smell cocaine. He brought the dog there to try
to. this gooty thing. He tried to find another compartment on
Route 50.
If you look at the transcript, the dog wasn't brought there.
See. he’s too smart for that. He wouldn't say, | could smell
the definitive odor of covaine so to prove it to myself I had to
65a
bring in a dog. He says in his tesumony under oath [229]
betore Judge Loney, they weren't brought there because |
wanted to contirm what | suspected. because he was already
beyond that. He was absolutely, positively certain. He testi-
fied, | brought the dog there to find other compartments on
the highway.
Judge, the car wasn’t going anywhere. | got enough to do
him. I’m going to book him.
THE COURT: Were the dogs finally brought? According
to what I’ve heard, the dogs, the dogs never got there.
MR. KURLAND: No, they couldn't find a dog. Chris Ford
or Force wasn't available. Another unit wasn't available. But
they were trying t
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