                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 07-4529


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

NAIM DAWSON,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:06-cr-00106-CCB)


Argued:   October 31, 2008                  Decided:    December 31, 2008


Before WILLIAMS,   Chief     Judge,   and   TRAXLER    and   KING,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, P.S.C.,
Covington, Kentucky, for Appellant. Charles Joseph Peters, Sr.,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Naim Dawson entered a conditional guilty plea to a firearm

offense, preserving his right to appeal the district court’s

denial of his motion to suppress evidence.                         Dawson relies on

four constitutional bases for suppression:                     (1) that, during his

initial        encounter      with         police            officers,       he      was

unconstitutionally seized; (2) that there was no probable cause

for his subsequent warrantless arrest by those officers; (3)

that    the    officers    conducted       an    unconstitutional          warrantless

search of his residence and only then decided, based on evidence

found, to seek a search warrant; and (4) that the search warrant

ultimately secured by the officers was not supported by probable

cause and could not be relied on by the officers in good faith.

As explained below, we reject Dawson’s contentions and affirm.



                                          I.

       On    March   9,   2006,    the    grand       jury    in   the    District   of

Maryland      indicted     Dawson        for     possession        with     intent   to

distribute       fifty     grams     or        more    of     crack       cocaine,    in

contravention of 21 U.S.C. § 841(a)(1) (the “drug offense”), and

for being a felon in possession of a firearm, in violation of 18

U.S.C.      § 922(g)(1)    (the    “firearm      offense”).         On    October    26,

2006, Dawson filed his motion to suppress evidence, which he

thereafter supplemented three times.                   The district court heard

                                           2
evidence on the suppression motion over the course of three days

in January 2007, and it denied the motion by oral ruling of

February 1, 2007. 1

                                             A.

                                             1.

       During the evidentiary hearing on the suppression motion,

John       Jendrek,      a    detective      in     the    Baltimore    City   Police

Department         detailed     to   the     Drug    Enforcement       Administration

(“DEA”) Task Force, testified that, in January 2005, the DEA

Task       Force   was   in   the    midst   of     an    ongoing   investigation   of

several Baltimore stores, including the Ayrdale Variety Store,

suspected of selling drug paraphernalia. 2                    At that time, Jendrek

knew that the owner of the Ayrdale Variety Store had previously

been convicted of a drug distribution offense, and Jendrek had

information — from confidential informants and from numerous

       1
         The district court followed its February 1, 2007 oral
ruling with a February 5, 2007 written order denying Dawson’s
suppression motion.
       2
         According to Detective Jendrek, he had been with the
Baltimore City Police Department for fifteen years — the last
eight detailed to the DEA Task Force.      Jendrek had made more
than 500 drug-related arrests, prepared more than 200 search
warrants in drug investigations, and testified as an expert on
drug investigations some ten to twenty times in state and
federal courts.    In more than twenty-five of Jendrek’s drug
investigations, only packaging paraphernalia (such as glass
vials or ziplock bags) was initially recovered; but in
approximately seventy-five percent of that subset of cases,
investigators subsequently recovered illegal drugs.



                                             3
arrestees          in    other   drug     cases     —   about   drug    paraphernalia

(particularly glass vials) being sold at the store.                              Jendrek

explained that the illegal purpose for the glass vials is to

package powder and crack cocaine for street distribution, but

acknowledged that there are legal purposes for the vials, and

that the vials’ packaging reflects that they are for storing

perfume.          Jendrek had never been in the Ayrdale Variety Store,

but he could see through the door that it also displayed tee

shirts, presumably for sale.

       The        investigation    of     the   Ayrdale   Variety      Store    included

periodic          surveillance.         Detective   Jendrek     testified      that    the

officers conducting the surveillance watched for customers who

stayed in the store for “a very short period of time” — “not

like they were looking around for different items” — and then

left with a black plastic bag about “the size of a football”

that appeared to have “substantial weight.”                       See J.A. 18-20. 3

Such       bags    had   been    shown    to    contain   approximately        500   glass

vials each, typically packaged in small cardboard boxes, fifty

to a box.          Indeed, by January 18, 2005, the officers had stopped

Ayrdale Variety Store customers fitting the targeted description




       3
        Citations herein to “J.A.     ” refer to the contents of
the Joint Appendix filed by the parties in this appeal.



                                                4
on more than ten occasions, and such customers “always had . . .

glass vials.”    Id. at 22.

     On January 18, 2005, a Tuesday, Detective Peter Sullivan

was conducting surveillance on the Ayrdale Variety Store, and

Detective   Jendrek      was   in    his       car    about   a    block     away.      At

approximately    12:30     p.m.,     Sullivan         informed     Jendrek    by     radio

that he had observed a man — later identified as defendant

Dawson, but unknown to the officers at that time — enter and

soon thereafter leave the store with a black plastic bag about

the size of a football.             It was then decided to follow Dawson

(who drove off in a Dodge Intrepid with Maryland tags) in the

hope that, as in prior cases with other suspects, he would drive

to his “stash house” and police could develop probable cause to

enter such premises.

     Dawson was followed by three officers — Detectives Jendrek,

Sullivan, and Keith Gladstone — driving three separate unmarked

vehicles.       Dawson    drove     through          the   Ayrdale     Variety       Store

neighborhood     (a      residential       and        small       business     area    in

northwestern Baltimore), then headed north on Liberty Heights

Avenue/Liberty Road (the main north-south corridor through the

area),   into   Baltimore      County      and       toward   Interstate      695     (the

Baltimore Beltway).        Just south of Interstate 695, Dawson drove

into another residential neighborhood and then pulled to the



                                           5
side   of   the    road.    Dawson   stopped   for   about   five   minutes,

without leaving his car.       Jendrek testified that

       this is a technique that, with my experience, drug
       dealers or drug traffickers often pull to the side of
       the road to see if anybody is following them, or they
       will see if the same car may drive past them two or
       three times, to find out whether someone is trying to,
       you know, see what they are doing, follow their
       activities or what have you.

J.A. 31-32.

       When Dawson resumed driving, he travelled back through the

residential neighborhood to Liberty Road, and then headed south

on Liberty back to the city.         At a red light at Callaway Avenue

(near the Ayrdale Variety Store), Dawson was stopped next to

Detective Sullivan, who, according to Detective Jendrek,

       thought that Mr. Dawson looked at him and kind of
       shook his head, like acknowledged that [Dawson] knew
       [Sullivan]   was   there.      Whether    [Dawson]  knew
       [Sullivan] or knew he was a police officer, I don’t
       know,   but    Detective   Sullivan    felt    that  our
       investigation had been compromised.      He thought Mr.
       Dawson knew that we were following him.

J.A. 32-33.       Sullivan similarly testified that

       Mr. Dawson looked over at me, stared at me for maybe
       15, 20 seconds. Then when I looked at him, he kind of
       smiled and nodded at me, and I took that as if, in my
       opinion and expertise, I took that as if he believed
       that he had recognized me and figured that I was
       following him.

       . . . .

       I told Detective Jendrek and Gladstone that I believed
       that I had been burnt, which is a term that we use for
       being noticed as part of the surveillance, and told
       him that I was going to back off.

                                      6
Id. at 95-96.

        Next,    Dawson    drove    across   town    to    the   east   side   of

Baltimore, ordered food at a Wendy’s drive-through, and then

parked in the Wendy’s parking lot and ate the food.                     At that

point, DEA Special Agent Bernard Malone joined the surveillance

team.     Dawson thereafter drove to a spot across from the main

entrance to Johns Hopkins Hospital, parking on McElderry Street

at its intersection with Wolfe Street.                By this time, it was

between 1:30 and 2:00 p.m., and the officers had been following

Dawson    for    about    an   hour.     According    to   Detective    Jendrek,

McElderry is a public street, and there was a lot of vehicle and

foot traffic in the area.              Jendrek drove past Dawson, who was

getting out of his car.            The officers then decided to approach

Dawson.        Jendrek parked his vehicle on McElderry three spaces

away    from    Dawson’s    vehicle.      Jendrek    and   Malone   —   both   in

plainclothes with firearms concealed (and Jendrek with a visible

detective badge on a chain around his neck) — approached Dawson

at about the same time.            Detectives Sullivan and Gladstone were

also in the area, but out of Dawson’s sight.

        Detective Jendrek and Special Agent Malone met Dawson at

the corner of McElderry and Wolfe, across the street from the

hospital entrance.         According to Jendrek,

        I said to Mr. Dawson, I said can I speak to you? Sir,
        excuse me, can I talk to you for a minute?     He said

                                         7
     yeah, what’s going on. I explained to him that I was
     a police officer and that I was conducting a narcotics
     investigation and that I thought he might be involved
     in narcotics trafficking.

     . . . .

     He said I don’t have anything to do with drugs.    I
     don’t know what his exact words were, but he said he
     had no involvement with drugs or narcotics.

     . . . .

     At that time I said, sir, can I have consent to search
     your person and your vehicle for narcotics, and he
     said yeah, go ahead.

J.A. 38.    “[E]ither just prior [to] or just after asking” Dawson

for consent to search, Malone asked Dawson “for his ID or his

driver’s license.”        Id. at 40-41.     Dawson handed the officers

his driver’s license, which the officers held for “[m]aybe 30

seconds” prior to Dawson’s giving of consent to the search.            Id.

at 41.     Jendrek described the initial encounter with Dawson as

“very polite.”     Id. at 39 (“Mr. Dawson was very, very polite.

We were very polite.         It was not a hostile situation in any

way.”).    Neither Jendrek nor Malone raised his voice, physically

touched Dawson, or blocked or attempted to block Dawson from

leaving.    The conversation between Dawson and the officers, up

to   the   point   when    Dawson   gave   consent   to   search,   lasted

approximately one to two minutes.           During that time, Jendrek




                                     8
testified, Dawson did not ask to leave or for the return of his

driver’s license. 4

       Detective Gladstone subsequently joined the group at the

corner       of    McElderry      and    Wolfe     Streets.      Detective       Jendrek

informed Gladstone that Dawson had consented to a search of his

car,       and    Gladstone     then    searched    the    vehicle.        The   officers

recovered         the   black    plastic    bag,    five     boxes    of   glass    vials

(apparently containing fifty vials each), and five packages of

vial stoppers/tops.

       Thereafter,        Detective       Jendrek     read    Dawson       his    Miranda

warnings and asked him why he had the glass vials.                                 Dawson

responded that the vials were for oils, which Jendrek understood

to mean perfumes. 5           Jendrek and Special Agent Malone called for a

criminal background check on Dawson, using his driver’s license

(which bore a Gwynn Oak, Maryland address), and learned that

Dawson had been convicted in Maryland of two felonies involving

controlled substances.             Dawson was then arrested for possession




       4
         Special Agent Malone corroborated details of Detective
Jendrek’s testimony about the initial encounter with Dawson.
See J.A. 105-07. Dawson chose not to testify at the hearing.
       5
        According to a later-drafted affidavit in support of the
search warrant for Dawson’s residence, when Dawson was “asked
where the oils were located for the vials[,] he said he didn’t
have any yet.” J.A. 349.



                                             9
of drug paraphernalia in violation of Maryland law and placed in

handcuffs.

       At some point after the search, around the time of the

arrest,      Detective        Sullivan    and     Special     Agent     Paul   Neikirk

arrived at the scene.            Sullivan conducted the search of Dawson’s

person, which led to the discovery of a receipt in Dawson’s

wallet       with   a     Baltimore      address     of     3107     Cresson   Avenue,

Apartment H.        Dawson denied living at that address (a townhouse)

or having any contact with it.                   The officers then drove to the

Cresson       Avenue      townhouse        with     Dawson,        arriving    between

approximately 2:30 and 3:00 p.m.

                                            2.

       The ensuing events are the subject of some dispute between

the    officers     and    witnesses       for    Dawson,     including    his    wife,

Monique Dawson, who was working at Johns Hopkins Hospital at the

time    of    Dawson’s     January       2007    arrest,     and   Monique’s      niece,

LaToya Cooper, who was residing at that time in the Cresson

Avenue       townhouse     with    Dawson,        Monique,     and    their    toddler

daughter Indigo.           It is undisputed, however, that LaToya, then

sixteen years old, was alone in the townhouse when the officers

arrived      there,     and    that   she       answered    the    front   door    when

Detective Jendrek and others knocked on it.                        Meanwhile, Dawson

remained in a vehicle in the driveway with another officer.



                                            10
                                            a.

        According to Detective Jendrek, the officers at the front

door        identified     themselves     to      LaToya,      told    her     they   were

conducting an investigation, and asked her if they could enter

the townhouse and question her.                   LaToya permitted the officers

inside       the      residence   and    agreed    to    answer       their    questions.

During the questioning, LaToya confirmed that Dawson resided in

the townhouse, said that he had left the townhouse that morning,

and    gave       a   description   of    his    car    that   matched        the   vehicle

followed that day by the officers. 6                   Jendrek testified that the

officers, who had taken keys from Dawson, then “tried his keys

in the door.            Once the keys operated the lock, we secured the

location to get a search warrant.”                  J.A. 222.         When asked by the

prosecutor at the hearing if he made “the decision at that point

in time to get the search warrant,” Jendrek responded, “Yes,

sir.”       Id.

        In    describing      how   a    residence       is    “secured,”       Detective

Jendrek explained that “basically you make sure no one else is

home, and anyone who is in that residence is brought down to a

common area . . . and . . . detained there [so that she] can’t

move around and damage any evidence” before a search warrant is

        6
         Monique Dawson subsequently corroborated that Dawson
resided in the townhouse and had left there that morning before
8:30, when he drove Monique to work at Johns Hopkins Hospital.



                                            11
obtained.        J.A.    224.         In    this   case,        Jendrek   and       Detective

Gladstone    directed          LaToya       to     accompany       them     through       the

townhouse for a protective sweep.                    While looking upstairs for

anyone    else   in     the   residence,         Jendrek    testified,         he    found   a

firearm in plain view on a shelf in the closet of the master

bedroom at the front of the townhouse.                     The firearm was left in

place, and the trio returned downstairs.                           At various points,

Detective Sullivan and Special Agent Malone were also in the

residence.        Jendrek       and    Sullivan      began       preparing      a     warrant

application on their laptop computer in the dining room (between

the living room and the kitchen), and LaToya was left in the

living room with Malone.                   A decision was eventually made for

LaToya to call her aunt Monique at work from the house phone;

first    LaToya,      then    Gladstone,         spoke     to    Monique.           Jendrek’s

impression of the conversation was that Monique did not want to

come home, but that “Detective Gladstone made it clear that this

was an important matter and she needed to come home, back to the

location.”       J.A. 230.       According to Jendrek, although there was

no legal requirement for Monique to be present in the residence,

the officers were concerned about being alone there with LaToya,

in light of the fact that she was a juvenile.

     Monique      arrived       home       approximately        thirty    to    forty-five

minutes    after      the     phone    call.        By   that      point,      three     more

officers, including Special Agent Christopher Quaglino, had come

                                              12
to the townhouse.               Quaglino, with Special Agent Malone as a

witness, spoke to Monique first.                       Detective Jendrek overheard

Quaglino identify himself to Monique, give her Miranda warnings,

advise    her    that     she    was     not    under      arrest,          and    ask    for    her

consent to search the residence.                      According to Jendrek, Monique

responded       that     “she    would     [give       consent],            she    didn’t       have

anything    to     hide.”         J.A.    232.         Jendrek         further       testified,

however, that he “actually had no intention of using the consent

to search.”        Id.     Jendrek explained that he “believed that Mr.

Dawson    lived    at     that    location,         and    he    wasn’t          going    to    give

consent,” and that Monique was asked for consent simply as a

means “to find out if she knew anything about any contraband

that might be in the house.”               Id.

     Thereafter,          Detectives           Jendrek         and     Sullivan          continued

working    on     the     search       warrant      application             on    their    laptop

computer    at    the     dining    room       table.          At    some        point,    Jendrek

realized that Monique was on the telephone telling someone that

the police were in her house.                   Jendrek asked her to hang up the

phone,    but    Monique        either    ignored         or    did     not       hear    him,    so

Jendrek pulled the phone from the wall “[a]s a matter of officer

safety.”         J.A.     234.         Around       5:30       p.m.,    once       the    warrant

application       was    complete,       it     was    printed         on    the    residence’s

printer and paper.              Sullivan drove the application to a state

court judge for Baltimore County, and Jendrek left the townhouse

                                               13
to attend to a family matter.                  Special Agent Quaglino, again

with Special Agent Malone as a witness, remained at the premises

and    took    a   written    statement    from       Monique.      The    statement

reflected that it was signed at 6:23 p.m.

       Shortly thereafter, at 6:30 p.m., the state court judge

approved the search warrant.               The warrant application spelled

out    the    expertise     of   Detective      Sullivan,     who   presented     the

application to the court. 7         The application also included a five-

page       affidavit    detailing   the    events       of   earlier      that    day,

including      the     following:    the       surveillance      conducted   on   the

Ayrdale Variety Store and Dawson; Dawson’s suspicious driving

pattern; the initial encounter between Dawson and the officers;

the search of Dawson’s vehicle; Dawson’s arrest and the search

of his person; the discovery of the receipt bearing the Cresson

Avenue       address;    Dawson’s   denial       of    any    connection     to   the


       7
        According to the warrant application, Detective Sullivan
had been with the Baltimore City Police Department for nearly
twenty years and was currently assigned to the Narcotics Section
of the Organized Crime Division.      Sullivan had participated in
more than 1000 drug-related arrests, learned about drug
distribution methods during debriefings of arrestees, and
“recovered substantial quantities of cocaine, cocaine base,
heroin,   marijuana,    and    various    paraphernalia  for   the
distribution,   packaging,    and   manufacturing    of controlled
dangerous substances.” J.A. 345. Sullivan had also assisted in
the preparation of more than fifty search warrants in drug
investigations, and had participated in the execution of more
than 150 such warrants.     Furthermore, he had been qualified as
an expert on drug investigations in state and federal courts.



                                          14
townhouse; the officers’ visit to the townhouse and encounters

with LaToya and later Monique, who both confirmed that Dawson

resided   there;      the   fact   that     Dawson’s     key    fit      the   townhouse

door; and Dawson’s criminal record.                 According to the affidavit,

once the officers confirmed with LaToya that Dawson resided in

the townhouse and that his key fit the front door,

       [a]t this point your Affiant believed, based on Naim
       Dawson’s denial of living at 3107 Cresson Avenue and
       the recovery of the packaging material [i.e., the
       glass vials], Naim Dawson was utilizing 3107 Cresson
       Avenue as a stash house to store CDS [controlled
       dangerous substances] for his CDS enterprise.   Your
       Affiant then secured the location so a search and
       seizure warrant could be prepared.

J.A. 350.       Furthermore, the affidavit asserted that “[i]t has

been    the    experience     of    your    Affiant     that       CDS    distributors

transport     this    CDS   paraphernalia       .   .   .   from      Ayrdale   Variety

Store   to    locations     (stash    houses)       where      they      package   large

quantities of CDS for street level sale.”                   Id. at 347.

       After the officers obtained the search warrant, a search of

the townhouse was conducted.               During that search, Special Agent

Malone retrieved the firearm from the master bedroom closet and

brought it downstairs.             Notably, Malone corroborated Detective

Jendrek’s testimony that the firearm was within plain sight upon

opening the closet door.             The record reflects that a residue-

covered      mirror   was   also     recovered       from    the      master    bedroom

(though it is not clear whether it was first observed during the


                                           15
initial protective sweep of the premises), and that a quantity

of crack cocaine was found in the townhouse during the warranted

search.

                                           b.

       By their hearing testimony, LaToya and Monique indicated

that the officers had engaged in a pre-warrant search of the

townhouse that exceeded the permissible scope of a protective

sweep.     Monique testified that, after arriving at the townhouse

and finding LaToya dressed only in boxer shorts and a tee shirt,

she had been permitted to take LaToya upstairs, accompanied by

an    officer,    to   retrieve     more   clothes   from   the     back   bedroom.

While upstairs, Monique looked into the master bedroom and saw —

in contrast to the neat state of the bedroom when she left the

townhouse that morning — that there were “clothes, shoe boxes,

shoes strewn all over the floor in front of my husband’s closet.

There was actually a mirror at the foot of my bed with a gun

sitting on top of it.”              J.A. 127.     LaToya also testified that

the    officers    had   disturbed      the     master   bedroom,    leaving   the

closet door open, throwing clothes on the floor, and leaving

items on the bed.

       LaToya and Monique also contradicted the officers’ version

of events in other ways.            For example, LaToya testified that she

heard keys jingling in the lock of the front door before the

officers    knocked      on   it,    and   that   the    officers    entered    the

                                           16
premises    without   requesting       her    permission      or    explaining     why

they were there.        Monique asserted that the officers falsely

informed her, or at least suggested, that they had a warrant to

search    the   townhouse     before    they    had      actually    obtained     one.

Monique    also    testified    that    she    gave      consent    to   search   the

premises    only    because    she     was    led   to    believe     the   officers

already possessed a search warrant.

       Finally,    LaToya   and   Monique      testified      that    the   officers

engaged in abusive behavior toward them by, for instance, using

vulgar language and threats of arrest during the phone call to

Monique at work.       According to Monique, when she arrived home,

she found LaToya (who suffers from asthma) visibly upset and

hyperventilating, as well as underdressed.                    Monique described

later making two calls from the house phone to arrange care for

her toddler daughter, Indigo.           During the first call, one of the

officers typing on the laptop computer in the dining room —

presumably Detective Jendrek or Sullivan — told Monique to “shut

the f*** up,” because he could not concentrate.                     J.A. 164.     And,

during the second call, one of the officers “actually ripped

[the phone] from the wall because [Monique] was on the phone

crying.”    Id.

                                        B.

       As set forth above, Dawson’s suppression motion rests on

four     constitutional     grounds.           First,     Dawson     contends      the

                                        17
officers’       conduct       during    their      initial        encounter     with     him

amounted       to      an    unconstitutional         seizure         invalidating       his

purported consent to search his car.                           Second, Dawson asserts

that, though the officers found glass vials in the vehicle, they

did not possess probable cause to arrest him.                               Third, Dawson

maintains that the officers exceeded the scope of a legitimate

protective sweep of his residence and only then decided, based

on evidence (particularly the firearm) found during the illegal

pre-warrant         search,    to    seek    a    search       warrant.      And    fourth,

Dawson       asserts    that   the     search     warrant       was   not   supported     by

probable cause and could not be relied on by the officers in

good     faith,        in    that    the     warrant       application        failed      to

demonstrate a nexus between his residence and any alleged drug

activity.

       By its oral ruling of February 1, 2007, the district court

rejected each of Dawson’s grounds for suppression, concluding

(1) that the officers had not seized Dawson for Fourth Amendment

purposes before seeking his consent to search his car; (2) that

the officers possessed probable cause, in the totality of the

circumstances,          to     arrest       Dawson       for     possession        of   drug

paraphernalia in contravention of Maryland law; (3) that, even

if     the    pre-warrant       search       of    the     townhouse        exceeded     the

legitimate scope of a protective sweep, the officers did not

rely on the firearm or any other evidence found during such

                                             18
search    in    seeking    the    search        warrant,       thus    satisfying   the

independent source doctrine; and (4) that the search warrant was

supported by probable cause, and, even if it was not, the good

faith exception would apply.               In the circumstances, the court

declined to unnecessarily resolve disputed issues about whether

the protective sweep was proper, whether LaToya or Monique gave

valid consent to search the townhouse, and whether LaToya and

Monique accurately described their encounter with the officers.

     Following the court’s ruling, the parties entered a written

plea agreement in which Dawson agreed to plead guilty to the

firearm offense, while preserving his right to appeal the denial

of his suppression motion, and the government agreed to dismiss

the drug offense.         The district court accepted the plea and, by

its judgment of May 23, 2007, deemed Dawson to be guilty of the

firearm offense, dismissed the drug offense on the government’s

motion,   and    sentenced       Dawson    to    210     months       of   imprisonment.

Dawson then timely noted this appeal.



                                          II.

     In   an    appeal,    such    as     this    one,    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. Blatstein, 482 F.3d 725,

730 (4th Cir. 2007).         We assess each of the four aspects of the

                                           19
district court’s ruling — relating to Dawson’s initial encounter

with the officers, his arrest, the pre-warrant search of his

residence,     and   the    subsequent    warranted    search   thereof   —   in

turn.

                                         A.

     First, the district court ruled that the officers had not

seized Dawson for Fourth Amendment purposes before seeking his

consent   to   search      his   car,   i.e.,   that   the   initial   encounter

between the officers and Dawson was consensual.                  In so ruling,

the court largely relied on our decision in United States v.

Weaver, 282 F.3d 302 (4th Cir. 2002).                   There, we recognized

that,

     [g]enerally    speaking,    a   “seizure”   warranting
     protection of the Fourth Amendment occurs when, in
     view of the totality of the circumstances surrounding
     the “stop,” a reasonable person would not feel free to
     leave or otherwise terminate the encounter.    Because
     the test is an objective one, its proper application
     is a question of law. Circumstances where the citizen
     would feel free to go, but stays and has a dialogue
     with the officer, are considered consensual, and
     therefore do not implicate the Fourth Amendment.
     While most citizens will respond to a police request,
     the fact that people do so, and do so without being
     told they are free not to respond, hardly eliminates
     the consensual nature of the response.     In applying
     the totality of the circumstances test, courts look to
     numerous factors including the time, place and purpose
     of the encounter, the words used by the officer, the
     officer’s tone of voice and general demeanor, the
     officer’s statements to others present during the
     encounter,   the   threatening  presence  of   several
     officers, the potential display of a weapon by an
     officer, and the physical touching by the police of
     the citizen.

                                         20
Id. at 309-10 (internal citations and quotation marks omitted).

We further observed that “numerous courts have noted that the

retention         of   a   citizen’s   identification      or   other      personal

property or effects is highly material under the totality of the

circumstances analysis.”            Id. at 310.      We refused, however, to

deem       the    retention   of   identification,      such    as    a    driver’s

license, to be dispositive.                 Id.; see also United States v.

Analla, 975 F.2d 119, 124 (4th Cir. 1992) (observing that there

was    no        seizure   where   Analla    voluntarily    provided       driver’s

license          and   car    registration      to   officer,        and    officer

“necessarily had to keep [the] license and registration for a

short time in order to check” them, because “Analla was free . .

. to request that his license and registration be returned and

to leave the scene”).

       Engaging in the totality of the circumstances assessment

here, the district court made the following findings of fact:

       ●         The encounter occurred in “the middle of                  the
                 day,” at “a busy public area across from                  the
                 Johns Hopkins Hospital,” J.A. 325;

       ●         The officers, Detective Jendrek and Special Agent
                 Malone, “simply parked” their separate vehicles
                 without blocking Dawson’s car, id.;

       ●         The officers “walked up to Mr. Dawson and
                 identified themselves,” without displaying their
                 firearms or using force of any kind, id. at 325-
                 26;



                                        21
     ●       After Jendrek explained to Dawson that the
             officers were investigating drug activities and
             suspected Dawson was involved, and asked Dawson
             for his identification and consent to search,
             Dawson provided his driver’s license and gave
             consent to search, see id. at 326;

     ●       The encounter evidently “took [no] more than a
             minute or two,” there were “no handcuffs, no
             raised voices, no force,” and, although Dawson’s
             “license was taken, it was taken only briefly,”
             id.; and

     ●       Dawson “has at least a high school education
             [and] some familiarity with the criminal justice
             system,” id.

In   these    circumstances,   the   court   concluded,   “this   was    a

consensual encounter between Mr. Dawson and the officers.”              Id.

The court explained that

     [t]here are a number of factors that are to be
     considered, which I think I have addressed generally,
     the time, the place, the purpose, the words, the tone
     of voice and general demeanor.     All of these were
     neutral or innocuous.

          There were several officers present,             but    no
     display of a weapon, no physical touching.

          So I think under the totality of the factors in
     Weaver, this clearly was consensual and not a basis to
     suppress any evidence.

Id. at 327-28. 8


     8
         In addition to deeming the initial encounter to be
consensual, the district court found that Dawson’s consent to
search was valid.   The court explained that “Mr. Dawson is of
reasonable age and intelligence, and not threatened.   There is
no evidence that he was intoxicated or anything of that kind.”
J.A. 328-29.    Dawson does not challenge this aspect of the
district court’s ruling on appeal. In his reply brief, however,
(Continued)
                                     22
       In our assessment, the court committed no error in ruling

that the initial encounter between Dawson and the officers was

consensual.     With respect to the taking of Dawson’s driver’s

license, we emphasize the court’s finding that, like the license

and registration in Analla, “it was taken only briefly.”            J.A.

326.

                                   B.

                                   1.

       Next, the district court ruled that the officers possessed

probable    cause   to   arrest   Dawson   for   possession    of   drug

paraphernalia in contravention of Maryland law.        On this issue,

the court recognized that “[t]he probable cause standard” is “an

objective standard” that requires “more than bare suspicion, but

less than evidence necessary to convict.”        J.A. 330.    Indeed, we

have observed that

       [p]robable cause to justify an arrest arises when
       “facts    and    circumstances  within    the   officer’s
       knowledge . . . are sufficient to warrant a prudent
       person, or one of reasonable caution, in believing, in
       the   circumstances    shown,  that   the   suspect   has
       committed, is committing, or is about to commit an
       offense.”     Michigan v. DeFillippo, 443 U.S. 31, 37
       (1979).     Probable cause requires more than “bare
       suspicion” but requires less than evidence necessary



Dawson mentions that, “[a]lthough not directly relevant for this
appeal, Mr. Dawson stands by his claim that he did not give
consent for the search or did not knowingly consent to the
search.” Reply Br. of Appellant 7 n.2.



                                   23
     to convict. United States v. Gray, 137 F.3d 765, 769
     (4th Cir. 1998).     “It is an objective standard of
     probability that reasonable and prudent persons apply
     in everyday life.” Id. And when it is considered in
     the light of all the surrounding circumstances, even
     “seemingly innocent activity” may provide a basis for
     finding probable cause.”   Taylor [v. Waters, 81 F.3d
     429, 434 (4th Cir. 1996)].

Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998) (some

internal citations omitted) (alteration in original).

     In assessing whether there was probable cause to arrest

Dawson for a Maryland drug paraphernalia offense, the district

court identified the relevant state statute as Maryland Code

Annotated, Criminal Law section 5-619, which, under subsection

(c), prohibits possession with intent to use drug paraphernalia

and deems such conduct to be a misdemeanor.            Subsection (a) of

the statute lists thirteen factors for a court to consider in

determining   whether   an   object    constitutes   drug   paraphernalia.

Such factors include “any statement by an owner or a person in

control of the object concerning its use,” subsection (a)(1);

“any prior conviction of an owner or a person in control of the

object under a State or federal law relating to a controlled

dangerous substance,” subsection (a)(2); and “expert testimony

concerning use of the object,” subsection (a)(13).             Subsection

(a) also authorizes consideration of “other logically relevant

factors.”




                                      24
     The district court made the following relevant findings of

fact with respect to Dawson’s arrest:

     ●    The officers were conducting surveillance on the
          Ayrdale Variety Store and knew from experience
          that bags being carried from there of a certain
          shape   and  weight,   “loosely described  as  a
          football size,” likely contained multiple boxes
          of glass vials, J.A. 324;

     ●    On January 18, 2005, a man later identified as
          Dawson was seen “enter[ing] the store, leav[ing]
          with a bag of this indicated size and shape, and
          depart[ing] in a Dodge Intrepid,” which the
          officers followed in separate cars, id. at 324-
          25;

     ●    Dawson’s route, various stops, and encounter with
          Detective Sullivan “led the officers reasonably
          to interpret that [Dawson] had been driving in a
          manner to detect surveillance and, in fact, had
          detected surveillance, this being behavior that
          the officers in their experience believed is not
          unusual   for   people   involved  in   narcotics
          dealing,” id. at 325;

     ●    The subsequent consented-to search of Dawson’s
          car yielded a bag containing “250 vials and
          tops,” id. at 326-27;

     ●    Such “[v]ials certainly have been recognized as
          falling in [the section 5-619] definition of
          paraphernalia,” id. at 329;

     ●   After being read his Miranda rights, Dawson told
         the officers that he had the vials for oils, but
         “[w]hen he was asked where the oils were, he
         responded to the effect of not having any,” id.
         at 327; and

    ●    The officers then ran a criminal record check of
         Dawson and discovered “that he had two prior
         [state] felony convictions involving controlled
         dangerous substances, . . . which the officers .
         . . reasonably interpreted under state law as
         meaning sufficiently serious to be possession

                               25
            with intent to        distribute          offenses,      as   indeed
            they were,” id.

       More specifically, the district court considered, pursuant

to subsection (a)(1) of section 5-619, Dawson’s statement to the

officers that his vials were “for oils, although he didn’t have

any [oils] with him.”          J.A. 329.          The court also considered, as

subsection (a)(13) expert testimony, or at least as an “other

logically    relevant    factor[],”          the    officers’     testimony        about

their   experiences     with     the    Ayrdale       Variety   Store       and    their

reasons for perceiving Dawson’s behavior to be indicative of

drug    trafficking.       See     id.       at     329-30.       And,      the    court

considered, under subsection (a)(2), Dawson’s two prior state

felony convictions on drug offenses, which the court deemed to

be “very significant.”          Id. at 330.           The court explained that

such convictions “are specifically mentioned as a factor [in the

section   5-619(a)     analysis]       and    also    obviously      make    sense    in

terms of trying to figure out what the intent might be of a

particular   individual     with       these       empty   vials.”        Id.      After

analyzing all of these factors together, the court ruled that

“the officers had probable cause to make the arrest.”                        Id.    That

is, “considering the totality of the circumstances, a reasonable

officer had probable cause to believe . . . that Mr. Dawson

possessed these vials with the intent to use them to store,




                                         26
contain, or conceal [controlled dangerous substances].”                                     Id. at

331. 9

                                                 2.

         We conclude that the district court made no error in its

ruling,      notwithstanding            Dawson’s       contentions        to    the     contrary.

In    asserting         that     his    arrest       was    not    supported       by   probable

cause, Dawson emphasizes the following:                                 the officers merely

“targeted [him] because of the look of the bag he carried out of

the      store,”        with     “absolutely         no    way     of    knowing      what     [he]

purchased”; although the officers “claimed that [he] drove in an

evasive      manner        in    order    to     determine         whether      he    was    being

followed[,] . . . nothing about his driving violated the law or

suggested that [he] might be committing any type of crime”; he

eventually parked near Johns Hopkins Hospital where his wife

worked, not “in a high-crime area or . . . somewhere [else] to

engage       in        illegal     activity”;         “he     was       ‘very     polite’       and

cooperated         completely          with    the    officers,”         and    “did     not    act

nervously         or    suspiciously”;         and,        after   the    glass      vials     were

         9
        The court also observed that, although Dawson’s alleged
offense “was a misdemeanor, . . . it was committed in [the
officers’] presence.”    J.A. 330; see also United States v.
McNeill, 484 F.3d 301, 311 (4th Cir. 2007) (declining to
determine “whether the Fourth Amendment contains an ‘in the
presence’   requirement  for   warrantless misdemeanor  arrests
[where] the officer who arrested McNeill had probable cause to
believe, based on the evidence he witnessed, that McNeill did
commit [a] Maryland misdemeanor offense”).



                                                 27
found in his car, he told the officers, without hesitation, that

he planned to use the vials to store oils, which “is exactly

what the vials are for, as shown [on their] packaging.”                    Br. of

Appellant 24-25.      According to Dawson, at the time his arrest,

“the officers knew only that [he] (1) had a criminal history as

to drug sales, and (2) had in his possession vials that could be

used for drug sales but also had a purely legal purpose.”                     Id.

at 31.      These factors were insufficient, Dawson maintains, to

establish     probable   cause   for    his    arrest.          Dawson    further

contends that his driving was an inappropriate factor in the

probable    cause   determination,      because    he    “was    not     evasive,”

“[h]e did not speed or otherwise violate any law or traffic

ordinance,” and he drove “in a normal, unhurried manner.”                     Id.

at 31 n.3 (internal quotation marks omitted).

     Simply    put,   Dawson’s   version      of   the   facts     ignores    key

findings by the district court — findings well-grounded in the

record — and otherwise focuses on irrelevancies.                  For example,

as the district court found, the officers had experience-based

reasons to believe that Dawson had purchased glass vials from

the Ayrdale Variety Store.        Moreover, Dawson’s absence from a

high-crime area, and his politeness and cooperation with the

officers, did not somehow negate his other suspicious behavior.

And, the officers were not required to take Dawson at his word

that he planned to use the vials for oils, especially in light

                                       28
of his prior state felony drug convictions.                  We therefore agree

with the district court that the totality of the circumstances —

including      the       officers’   experiences    investigating     the    Ayrdale

Variety Store, Dawson’s apparent efforts to detect surveillance,

his    lack    of    a    credible   explanation    for    possessing    the   glass

vials, and his criminal record — gave rise to probable cause for

Dawson’s arrest.            See United States v. Humphries, 372 F.3d 653,

657 (4th Cir. 2004) (recognizing that, in assessing totality of

circumstances surrounding warrantless arrest, it is appropriate

to consider, inter alia, “an officer’s practical experience and

the inferences the officer may draw from that experience”).

       In so concluding, we explicitly reject Dawson’s contention

that it was inappropriate to weigh the manner of his driving

toward the probable cause determination.                   For such contention,

Dawson relies on our decision in United States v. Sprinkle, 106

F.3d 613 (4th Cir. 1997).              There, we recognized that “[e]vasive

conduct can, of course, assist an officer in forming reasonable

suspicion” for an investigative stop.                     Sprinkle, 106 F.3d at

618.     A Sprinkle defendant drove off “right after the officers

walked    by,”      but    also   “right   after   his    passenger   [the     second

defendant] got in the car” and “in a normal, unhurried manner.”

Id.      The     district      court   determined    “that    there     wasn’t   any

evasive conduct.           They did drive off, but they didn’t try to run

away or flee or anything before the initial stop.”                      Id. at 618

                                           29
n.2 (internal quotation marks and alterations omitted).                         We then

concluded that “driving away in a normal, unhurried fashion [did

not]    lend    itself    to   a   finding    of   reasonable       suspicion     here.

[The]       passenger    had   just   gotten     into   the    car,    so   a    prompt

departure could be expected.”                Id. at 618.           Clearly, Sprinkle

was concerned with evasive driving as a means to flee police,

rendering it inapposite to this matter.                 Here, officers surmised

that Dawson was driving in order to detect surveillance (and not

to flee).       Thus, it makes sense that Dawson obeyed traffic laws;

the point is that he was trying to ascertain if he was being

followed by police, without giving the officers any reason to

stop    him.      Accordingly,        Dawson’s     manner     of    driving     was   an

entirely permissible factor in the probable cause analysis. 10




       10
         Dawson further asserts that, “in the vast majority of
state   cases  involving   defendants   convicted  of  violating
paraphernalia laws for possessing vials or similar containers,
the container contains or is otherwise close to drugs.” Br. of
Appellant 27.   According to Dawson, “in a case like this one,
where no indication of drugs are found near the vials, the
presumption seems to shift to that of a legal use and away from
showing any probable cause.”      Id. at 28 (emphasis added).
Dawson does not, however, cite any authority recognizing or
applying such a presumption.        Rather, he simply invokes
decisions deeming objects to constitute drug paraphernalia where
the objects contain drug residue or are found near drugs, and
then extrapolates from there that such evidence is essential, or
nearly so, to a finding of probable cause. As such, we are not
persuaded by Dawson’s “presumption” argument.



                                         30
                                               C.

       The district court next ruled that, even if the pre-warrant

search of Dawson’s residence (including the discovery of the

firearm) exceeded the legitimate scope of a protective sweep,

the independent source doctrine was satisfied.                                In Murray v.

United     States,      the   Supreme         Court       recognized      that        “a    later,

lawful seizure is genuinely independent of an earlier, tainted

one” — and the independent source doctrine applies — unless

“the agents’ decision to seek the warrant was prompted by what

they   had     seen     during    the    initial           entry,    or     if    information

obtained during that entry was presented to the Magistrate and

affected his decision to issue the warrant.”                           487 U.S. 533, 542

(1988) (footnote omitted).

       Here,    according        to    the     district       court,        “[t]he         overall

circumstances      suggest       that    there        is    really     no    evidence           that

anything other than the gun and possibly [the] mirror . . . had

been found before the search warrant was authorized.”                                 J.A. 335.

On   the   issue      of   whether      the    officers’       decision          to    seek     the

search warrant was prompted by what they had found during the

pre-warrant search, i.e., the gun or the mirror, the court found

“that most likely the [officers] made their decision to seek the

warrant before the results of any illegal search and not because

of any illegal search.”               Id. at 339.          Indeed, the court observed

that   the     events      occurring     upon       the    officers’        arrival        at   the

                                               31
townhouse — including LaToya’s statement that Dawson resided

there    and    left    only    that    morning,           and   the   officers’     use    of

Dawson’s key to unlock the front door (all in contradiction to

Dawson’s denial of any connection to the premises) — led the

officers to “decide[] to secure the property and get a warrant,

believing that there would be narcotics, essentially evidence of

what    the     vials    were    going          to    be    connected      with,   in     that

residence.”       Id. at 332-33; see also id. at 338 (finding “that

there was reason to secure the house, given that the officers

were    investigating      and    had       .    .    .    spoken   with    [LaToya],      and

that’s    what    finally       led    to       the   determination        that    they    had

probable cause and should get a warrant”).                          The court concluded

that,

       [c]learly, Detective Jendrek and the others believed
       that there were drugs in the house. They testified to
       the combination of circumstances that led them to
       decide to get the warrant. There is no evidence that
       they had in fact found the narcotics that they
       believed to be in the house before they started
       preparing the warrant.

Id. at 339-40.          Moreover, on the question of whether information

obtained       during    the    pre-warrant           search     was   presented     to    the

state court judge, the district court found that “[t]here was

none.    That’s clear.”          Id. at 339.              Accordingly, the court ruled

“that the independent source rule was satisfied in this case.”

Id. at 340.       We agree.



                                                32
                                                  D.

      Finally, the district court ruled that the search warrant

was supported by probable cause, and, even if it was not, the

good faith exception would apply.                      As we have recognized,

      [w]hen issuing a warrant and making a probable cause
      determination, judges are to use a “totality of the
      circumstances analysis.”  Illinois v. Gates, 462 U.S.
      213, 238 (1983).    This standard “is not defined by
      bright lines and rigid boundaries.        Instead, the
      standard allows a magistrate judge to review the facts
      and circumstances as a whole and make a common sense
      determination of whether ‘there is a fair probability
      that contraband or evidence of a crime will be found
      in a particular place.’”     United States v. (David
      Wayne) Williams, 974 F.2d 480, 481 (4th Cir. 1992)
      (quoting Gates, 462 U.S. at 238).       The magistrate
      judge’s decision in this regard is one we review with
      great deference. Id.

United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005).

Moreover, the Supreme Court has instructed that “a court should

not     suppress     the    fruits       of        a     search   conducted        under   the

authority       of   a     warrant,          even      a   ‘subsequently       invalidated’

warrant, unless ‘a reasonably well trained officer would have

known    that    the      search       was    illegal        despite    the    magistrate’s

authorization.’”          United States v. Bynum, 293 F.3d 192, 195 (4th

Cir. 2002) (quoting United States v. Leon, 468 U.S. 897, 922

n.23 (1984)).            “[U]nder Leon’s good faith exception, evidence

obtained    pursuant        to     a    search         warrant    issued      by   a   neutral

magistrate      does      not    need        to     be     excluded    if   the     officer’s

reliance on the warrant was ‘objectively reasonable.’”                                 United


                                                  33
States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004) (quoting

Leon, 468 U.S. at 922).

       Dawson asserts that the search warrant for his residence

was not supported by probable cause and could not be relied on

by the officers in good faith, in that the warrant application

failed      to   demonstrate   a    nexus   between   the   townhouse   and   any

alleged drug activity.             The district court disagreed, observing

that

       [t]he evidence that is contained in the affidavit
       [supporting the warrant application] recites not only
       the finding of the vials, the evasive driving, the two
       prior convictions, the experience of the officers, and
       the likely connection in their experience to vials to
       a house where narcotics might be found, there is in
       addition the receipt indicating a connection with
       Cresson Avenue, Mr. Dawson’s denial of a connection to
       that house, contradicted then by the resident of the
       house, Miss [LaToya] Cooper, giving [Dawson] a very
       recent connection to the house that morning, in the
       same car in which the vials were found, I think making
       it likely and reasonable for the officers to believe
       that he was in fact concealing contraband in the
       house.

J.A. 337-38. 11      In these circumstances, the court concluded, “the

affidavit provides . . . a sufficient reason . . . to think that


       11
         Notably, Detective Sullivan’s affidavit in support of
the warrant application reflects his belief that “Dawson was
utilizing 3107 Cresson Avenue as a stash house to store CDS for
his CDS enterprise,” and asserts that “[i]t has been the
experience of your Affiant that CDS distributors transport this
CDS paraphernalia . . . from Ayrdale Variety Store to locations
(stash houses) where they package large quantities of CDS for
street level sale.” J.A. 347, 350.



                                         34
narcotics might be found at that particular location.”                           Id. at

337.         Alternatively,      the    court   ruled    that    “the     good     faith

exception under Leon would apply, even if there was not probable

cause.”       Id. at 338.

       In ruling that the search warrant was supported by probable

cause, the court relied on our decision in Grossman, wherein we

reiterated the principle that “it is reasonable to suspect that

a drug dealer stores drugs in a home to which he owns a key.”

400 F.3d at 218.        Indeed,

       [w]e have consistently determined that there was
       probable cause to support . . . warrants to search
       suspects’ residences and even temporary abodes on the
       basis of (1) evidence of the suspects’ involvement in
       drug trafficking combined with (2) the reasonable
       suspicion (whether explicitly articulated by the
       applying officer or implicitly arrived at by the
       magistrate judge) that drug traffickers store drug-
       related evidence in their homes.

United States v. (Darnell) Williams,                     F.3d          , No. 08-4014,

2008 WL 5077821, at *7 (4th Cir. Dec. 3, 2008) (citing Grossman,

400 F.3d at 217-18; United States v. Servance, 394 F.3d 222, 230

(4th    Cir.),    vacated     on   other   grounds,      544    U.S.    1047   (2005);

(David Wayne) Williams, 974 F.2d at 481-82; United States v.

Suarez, 906 F.2d 977, 984-85 (4th Cir. 1990)).                           Because the

district court similarly did not err in finding probable cause

for    the    warrant   to   search     Dawson’s    residence,     we     affirm     the

probable       cause    aspect     of   its     ruling   without        reaching     the

alternative good faith aspect.

                                           35
                         III.

Pursuant to the foregoing, we affirm the district court.

                                                    AFFIRMED




                          36
