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United States v. McKoy

March 22, 2007

UNITED STATES OF AMERICA,
v.
GEORGE MCKOY, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Before the court is the motion of defendant George McKoy to suppress items which the government intends to introduce in evidence against him in a trial of this case that were taken from the car he was operating in the early morning hours of January 4, 2006, after he was stopped by United States Park Police Officer James Omo. McKoy claims that this evidence must be suppressed because it was seized after, and as a result of, police conduct that violated his rights under the Fourth Amendment. Upon consideration of the motion, the opposition thereto, and the evidence presented at a hearing on the motion, the court concludes that the motion must be denied.

I. FACTS

Based upon the evidence presented at the hearing on McKoy's motion, including the testimony of the witnesses who testified at the hearing, each of whom the court found to be credible, the court finds that the following occurred.

At approximately 11:54 p.m. on January 3, 2006, Officer Omo, a four-year veteran of the United States Park Police, while on patrol operating a marked police vehicle, observed a green 2003 Jaguar being operated northbound on 34th St. S.E. towards a T-shaped intersection at Dubois St. From his vantage point at the intersection of Eli and Minnesota Avenue, S.E., one and one-half blocks away, he saw the operator of the Jaguar bring it to a stop on 34th St., a "tight" two way street, in the only travel lane for the direction in which the car was proceeding and parallel to a parked car. Omo also thought the Jaguar had been brought to a stop in the intersection of 34th and Dubois, but he was mistaken. At the point it was brought to a stop, it was several feet beyond the T-shaped intersection, positioned in relation to the intersection as is the Volkswagen displayed in Defense Exhibit 1.

Shortly after the vehicle stopped, Officer Omo saw a man, dressed only in jeans and a white T-shirt - apparel worthy of note because it was seasonably cold for a January night - run from a nearby residential apartment building and enter the Jaguar through the front passenger-side door. The man remained in the Jaguar for approximately 20 to 30 seconds and then quickly returned to the building from whence he came.

Suspecting that the operator of the car and the man in the T-shirt had engaged in a drug transaction*fn1 and believing that the driver of the Jaguar had committed a traffic offense, Omo effected a stop of the car shortly before midnight, at approximately 11:56 p.m., about four blocks away at 35th and A St., S.E.

After stopping the Jaguar, Omo asked the driver, defendant McKoy, for his driver's license and the vehicle's registration, both of which were produced and then subjected to standard law enforcement checks without anything turning up that would warrant further inquiry. Omo also engaged a nervous and "fidgety" McKoy in conversation that included asking him about the activity of the man with whom he had just had contact at 34th and Dubois, asking him "where he was headed," Tr. 15, and commenting on the complaints residents in the area had made regarding drug trafficking. With respect to the man who had quickly entered and left his car, McKoy told Omo that he (Mckoy) was "just dropping someone off." Tr. 14. McKoy also stated that "he was going to get a haircut up the street." Tr. 15. Omo determined that these statements were improbable and, with respect to the activity of the man who had jumped into the Jaguar at 34th and Dubois, a prevarication. These statements also heightened Omo's suspicion that McKoy had been involved in illegal drug activity.

About six minutes after initiating the stop, at approximately 12:02 a.m. on January 4, 2006, Officer Omo called for a drug detection dog. The dog, Finnegan, accompanied by its handler, Officer Jeff Daugherty, arrived on the scene, in approximately 10 minutes, at approximately 12:12 a.m, approximately 16 minutes after Officer Omo initiated the stop. In the meantime, McKoy had removed himself from the Jaguar, at Omo's direction, and left the driver's side door open.

Shortly after arriving on the scene, Finnegan and Daugherty began to scan the perimeter of the Jaguar to determine whether Finnegan would detect the odor of illegal drugs. With Finnegan on a leash, Daugherty began in the front of the car and proceeded in a counter -clockwise direction. When he arrived at the open driver's side door of the Jaguar, Finnegan jumped into the driver's seat. The dog was immediately removed from the car by Daugherty who continued his scan with Finnegan in a counter clockwise direction. When Finnegan arrived at the left tail lamp, Daugherty noticed that the canine sniffed intensely but he did not alert to the presence of illegal drugs. Daugherty and Finnegan then continued around to the front of the car, completing the initial scan.

After the initial scan, Daugherty and Finnegan reversed their direction, in a clockwise direction. Again, when Finnegan arrived at the left tail lamp he showed some interest, but continued on without alerting to the smell of narcotics. Daugherty and Finnegan continued in a clockwise direction around the car. This time, however, when Finnegan reached the open driver's door, he turned his head, sniffed, and jumped in the vehicle. He went immediately to the center console area, sniffed it intensely, jumped into the front passenger seat, turned to face his handler, and placed his nose back on the center console, indicating to Daugherty an alert to the presence of illegal drugs.

Believing that this alert gave them cause to believe that the car contained an illicit substance, Park Police officers effected a search of the car. A search of the center console revealed a clear sandwich bag containing three zip-locked bags of crack cocaine and a zip-locked bag containing marijuana. A search of the car's trunk yielded, among other items, a backpack near the left rear tail lamp containing zip-locked containers of crack cocaine.

II. ANALYSIS

McKoy claims that his Fourth Amendment rights were violated by unlawful police misconduct at three points in his encounter with the police on January 3--4, 2006. First, McKoy claims that he was illegally stopped by Officer Omo shortly before midnight on January 3, because, he had not committed a traffic offense, "obstruction of traffic," the reason Officer Omo gave for conducting the stop, nor any other infraction sufficiently serious to warrant a "traffic stop." Second, even if properly stopped for a traffic offense, the time that elapsed between the stop and Finnegan's drug alert, was impermissibly extended. Third, the Jaguar was ...


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