UNITED STATES v. MICKENS (2025)

Memorandum Opinion and Order

Paul Dixon Mickens moves to suppress items the government seized from his car, arguing the government's warrantless seizure and search of the car violated the Fourth Amendment. After considering the testimony and evidence presented over two days of hearings, the court agrees the government has not met its burden to justify the warrantless seizure or search and grants the motion to suppress.

I. Background 1

On the evening of November 26, 2024, Metropolitan Police Department (“MPD”) officers patrolling in a marked police car saw a car park across the street from a house on the 700 block of Adrian Street Southeast. Def. Ex. 5 at 17:51:44–17:51:46, 17:53:30–17:53:45, 17:56:16–17:56:44; Def. Ex. 6 at 17:53:47–17:54:00, 17:54:38–17:55:07. Mickens and another person, Ivan Jones, got out of the car, took a toolbox from the trunk, and walked toward the house, where Jones’ uncle lived. Def. Ex. 3 at 18:06:06–18:06:24, 18:06:41–18:06:54, 18:09:40–18:09:57, 18:11:36–18:12:00; Def. Ex. 5 at 17:56:16–17:56:44; ECF No. 28-38 at 1–2. As Mickens and Jones waited for Jones’ uncle to open the door, the officers pulled up next to them and asked what they were doing. ECF No. 28-38 at 2; Def. Ex. 3 at 18:06:41–18:06:54. Mickens said they were going to “Unc's” house, referring to Jones’ uncle. ECF No. 28-38 at 2; Def. Ex. 3 at 18:06:41–18:06:54; see also Def. Ex. 3 at 18:17:12–18:17:18. The officers asked Mickens what he had in the toolbox and Mickens showed them there was a drill inside. ECF No. 28-38 at 2; Def Ex. 3 at 18:11:20–18:12:00; see also Def. Ex. 3 at 18:00:30–18:00:39. Jones’ uncle then opened the front door of the house, and the two men went in. ECF No. 28-38 at 2; Def. Ex. 3 at 18:06:40–18:06:54; Def. Ex. 6 at 17:53:47–17:54:00, 17:54:38–17:55:07.

The officers parked their patrol car in the middle of the street, alongside and slightly ahead of Mickens’ car, and then said “700 Adrian Street” over police radio to call more officers to the block. Def. Ex. 5 at 17:51:44–17:51:50, 17:52:37. The officers shined flashlights into the car, where they saw keys on the driver-side floorboard and a prescription pill bottle in the center console. Def. Ex. 3 at 17:52:27–17:52:31, 17:52:45–17:52:53; ECF No. 25 at 34, 36–37. An officer asked for a gun-detection dog over the radio, explaining that the officers had seen two individuals park and get out of the car. Def. Ex. 5 at 17:53:30–17:53:45, 17:56:16–17:56:44; ECF No. 25 at 150–53. Shortly after, three more patrol cars arrived, including Officer Aaron Dabney and his partner, and parked behind Mickens’ car. ECF No. 25 at 38–39, 68–69, 150–51; ECF No. 28-7; Def. Ex. 5 at 17:53:26–17:53:51, 17:54:17; Def. Ex. 9 at 17:54:35. Mickens watched from the house window as eight police officers surrounded his car, with several of them leaning onto it at various points to get a better view inside of the car. ECF Nos. 28-11, 28-12, 28-13, 28-14, 28-16, 28-18, 28-19, 28-20; ECF No. 25 at 38–39, 71–76, 79–81; ECF No. 28-38 at 2; Def. Ex. 3 at 17:49:36–18:15:55; Def. Ex. 4 at 18:17:20–18:17:28.

Officer John Thurman, a K-9 handler, traveled to the scene with his drug-detection dog, Oleg, because they were nearby. ECF No. 27 at 92–93. Officer Thurman asked the other officers if they wanted to “bail out on the gun dog” and have his dog search for drugs instead. ECF No. 27 at 96; Def. Ex. 5 at 18:12:01–18:12:08. The officers agreed and moved their patrol cars to block off both sides of Mickens’ car. ECF No. 25 at 70–71; ECF No. 27 at 96–97; Def. Ex. 5 at 18:12:08–18:12:15; Def. Ex. 3 at 18:15:55–18:16:35. Officer Thurman led Oleg through a sweep around the car's exterior and Oleg sat near the front driver-side wheel, which was relied on as a positive alert for drugs. ECF No. 25 at 49; ECF No. 27 at 105–06; Def. Ex. 10 at 18:18:05–18:19:05. Officers then forced entry into the car and found a prescription pill bottle with a substance that tested positive for cocaine base, a scale, a backpack with a loaded handgun and laser attachment, as well as a credit card bearing Mickens’ name. ECF No. 25 at 48–49, 52–54, 62–64.

The government charged Mickens with unlawful possession of a firearm under 18 U.S.C. § 922(g)(1). ECF No. 1. Mickens moves to suppress the items taken from his car, arguing they were the fruits of an unlawful seizure and unlawful search of his car. ECF No. 9. After the parties’ initial briefing, the court held two evidentiary hearings and allowed the parties to submit additional post-hearing briefing and evidence.

II. Discussion

The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend. IV. “[S]earches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (quotation marks and citations omitted). “If the government oversteps that constitutional boundary, the remedy is generally exclusion—courts must suppress the unlawfully obtained evidence and any derivative evidence tainted by the violation unless an exception applies.” United States v. Green, 149 F.4th 733, 743 (D.C. Cir. 2025). “[W]hen a search or seizure is warrantless the government carries the burden of justifying the agent's actions.” United States v. Singleton, 759 F.2d 176, 181 (D.C. Cir. 1985).

Here, Mickens argues that the items taken from his car should be suppressed as the fruits of an unreasonable seizure and unreasonable search of his car. The government argues that it has satisfied its burden to justify the warrantless seizure and search of Mickens’ car; however, it does not dispute suppression is appropriate if either the seizure or the search was unreasonable.

A. The Officers Seized Mickens’ Car Without Reasonable Suspicion

Mickens’ first argument is that the government seized his car without the requisite suspicion for doing so. See ECF No. 29 at 25–42. In defending the seizure, the government relies principally on the testimony of Officer Dabney, who testified that he had seen Mickens engage in a possible drug transaction with someone at his driver window and then run away into the house across the street. See ECF No. 25 at 25–27, 41–42. The court finds that Officer Dabney's account of what happened between the time Mickens parked his car and entered the house is not credible and concludes the government has failed to otherwise justify its seizure of the car.

The government seizes personal property within the meaning of the Fourth Amendment “when ‘there is some meaningful interference with an individual's possessory interests in that property.’ ” Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). The “general rule” is that “Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); see also United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (“In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.”). However, certain brief seizures of personal property for the purpose of conducting a limited investigation may be justified based on “reasonable, articulable suspicion, premised on objective facts, that the [property] contains contraband or evidence of a crime.” Place, 462 U.S. at 702, 103 S.Ct. 2637; cf. United States v. Delaney, 955 F.3d 1077, 1085 (D.C. Cir. 2020) (applying the reasonable and articulable suspicion standard to a seizure of a person involving the partial blocking of a vehicle). In determining whether the government has satisfied its burden, the court looks to the totality of the circumstances, considering only “the facts available to the officer at the moment of the seizure.” United States v. Castle, 825 F.3d 625, 635 (D.C. Cir. 2016) (quoting Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

As an initial matter, the parties dispute precisely when officers seized Mickens’ car within the meaning of the Fourth Amendment. Mickens argues that the officers seized his car when they surrounded it with their patrol cars and their persons, restricting its movement. See ECF No. 29 at 27–30. The government argues this was not enough to seize the car, relying on Officer Dabney's testimony that Mickens had enough physical space to squeeze his car past the double-parked patrol vehicle and that officers would have let Mickens do that if he tried. ECF No. 25 at 77, 172. Mickens has the better argument here. The D.C. Circuit has recognized, in the context of seizing a person, that “blocking a vehicle can be the kind of application of physical force that constitutes a seizure.” Delaney, 955 F.3d at 1083 (quoting United States v. Johnson, 212 F.3d 1313, 1317 (D.C. Cir. 2000)). Courts have applied the same principle to seizures of cars. See, e.g., United States v. Harger, 313 F. Supp. 3d 1082, 1087 (N.D. Cal. 2018) (holding and discussing another case that held the government seized a vehicle because they blocked it in and “intentionally terminated the vehicle's freedom of movement”). Here, the evidence shows that after Mickens left his car, eight armed, uniformed officers stood near or around his car, with one patrol car parked in the middle of the street alongside and just ahead of it and other patrol cars behind it, for over twenty minutes while waiting for a gun-detection dog to arrive. ECF No. 25 at 69, 71–75, 81–82; ECF Nos. 28-11, 28-12, 28-13, 28-14, 28-16, 28-18, 28-19, 28-20; Def. Ex. 3 at 17:49:36–18:18:07. Mickens could see the officers surrounding his car from the house across the street. ECF No. 28-38 at 2; Def. Ex. 4 at 18:17:20–18:17:28; ECF No. 25 at 79–81. The court finds it difficult to credit Officer Dabney's testimony that, in these circumstances, officers would have simply allowed Mickens to get into his car and drive away. Cf. Delaney, 955 F.3d at 1083 (that the defendant was placed in a spotlight and the focus of police attention supported that there was a seizure). And courts have generally rejected arguments that there is no seizure simply because movement is not entirely blocked. Id. at 1083, 1085 (holding seizure occurred where officers “park[ed] their cruiser within a few feet of the [defendant's] Jeep's nose,” even though “the marked police car did not completely block the Jeep from exiting the parking lot”); United States v. Wood, 981 F.2d 536, 540 (D.C. Cir. 1992) (finding a seizure where “Officer Webb's positioning ․ significantly restricted [the defendant's] movements”); United States v. Mabry, 997 F.3d 1239, 1245 (D.C. Cir. 2021) (finding a seizure where “[the defendant's] avenues of egress were at least partially restricted by the officers, their car, and a fence”).

In any event, the court need not decide whether the officers seized Mickens’ car by surrounding it with patrol cars and bodies while they waited for a gun-detection dog because they unquestionably seized the car when Officer Thurman deployed his drug-detection dog to conduct the sweep. At that point, officers moved their patrol cars to block off both sides of Mickens’ car and restrict any movement during the deployment. ECF No. 25 at 70–71, 79; ECF No. 28-10; Def. Ex. 3 at 18:15:55–18:16:35. As Officer Dabney acknowledged at the evidentiary hearing, once this process began, there is no question the officers would not have allowed Mickens to take his car and leave. ECF No. 25 at 174 (acknowledging that Mickens would not be able to move his car “if he had come out while the K9 was in the process of beginning the track of the vehicle”). The officers accordingly seized Mickens’ car in order to conduct the dog sniff under the accounts of both parties, raising whether the government was justified in doing so.

On this record, the court cannot conclude the government has shown reasonable suspicion. The government premises its showing on Officer Dabney's testimony that, when he arrived at the location, he watched Mickens participate in a possible drug transaction before fleeing into the house across the street. See ECF No. 25 at 25, 41–42, 149–50. Officer Dabney testified that he saw Mickens park his car, and saw an unknown person leave the house, approach the car, and chat with Mickens. ECF No. 25 at 21–22, 25. While watching the conversation, officers ran the car's tags and a background check to learn the car was registered to Mickens, who had prior “police interactions.” ECF No. 31 at 2; ECF No. 25 at 22–24. According to Officer Dabney, he could not hear the conversation between Mickens and the other person, but “believed that there may possibly be a drug transaction occurring” based on what he saw. ECF No. 25 at 25. He testified that the officers then tried to investigate and, when they pulled up behind Mickens’ car, Mickens ran into the house. ECF No. 25 at 25–27. Officers then used their flashlights to look into the car, seeing a prescription pill bottle on the console and keys on the driver-side floorboard. ECF No. 25 at 36–37, 40–41. According to the government, the combination of seeing Mickens participate in a possible drug transaction and then flee at the sight of police, plus the keys and pill bottle in the car, would provide the requisite reasonable suspicion to temporarily seize the car. ECF No. 25 at 41–42, 149–50.

Maybe so, but given the record before the court, there is little reason to think that is what actually happened here. Officer Dabney's account of what happened between the time Mickens parked his car and entered the house conflicts with the record in many ways that lead the court to find it is not credible. First, the evidence indicates Officer Dabney was not even there at the relevant time. Although no body worn camera was turned on at the time Mickens parked and went into the house, the footage from officers who arrived first at the location shows that Officer Dabney did not arrive until after Mickens had already gone into the house. Def. Ex. 5 at 17:49:35–17:54:00; see also Def. Ex. 3 at 17:49:36–17:53:30; Def. Ex. 6 at 17:49:37–17:53:30; Def. Ex. 7 at 17:49:35–17:53:30. When asked about this at the hearing, Officer Dabney claimed he had been there earlier and left temporarily to drive around the block to see if anyone went out the back of the house. ECF No. 25 at 33, 119. But that explanation has many problems. It contradicts Officer Dabney's testimony at the preliminary hearing that he did not leave to drive around the block. ECF No. 25 at 108–09. It also contradicts video footage, which shows Officer Dabney's patrol car arriving from a direction that is inconsistent with his description of circling the block. ECF No. 25 at 90–91; 114–16; Def. Ex. 5 at 17:53:22–17:53:30. And it contradicts the fact that when Officer Dabney and his partner arrived, they had to ask other officers about what happened—something that would make little sense if Officer Dabney had been there. See ECF No. 25 at 132–35, 153–58; Def. Ex. 8 at 17:59:30–17:59:37 (Officer Dabney asking the other officers whether any of the people who got out of the car were wearing a camouflage jacket); Def. Ex. 3 at 18:17:03–18:17:33 (Officer Dabney asking other officers, “Black male, gray pants?” and another officer responding, “No, that's Unc. That's who they were waiting for.”); Def. Ex. 6 at 17:54:38–17:55:07 (Officer Dabney asking other officers, “Where did they go?” and being told that Mickens went into the house across the street); Def. Ex. 8 at 18:19:50–18:20:00 (Officer Dabney's partner asking an officer if he saw who the driver was). The court accordingly finds that Officer Dabney's account of Mickens engaging in a possible drug transaction and then fleeing at the sight of police is not credible.²

The court finds that the evidence supports a different story. Audio captured on body worn camera footage indicates that the officers who first arrived saw two people arrive in Mickens’ car and park across the street from a house. Def. Ex. 5 at 17:56:16–17:56:44; Def. Ex. 6 at 17:53:26–17:55:07; see also ECF No. 28-38 at 2. The men got out of the car, got a toolbox out of the trunk, and walked toward the house. Def. Ex. 3 at 18:00:30–18:00:39, 18:06:06–18:06:54, 18:09:40–18:09:57, 18:11:20–18:12:00; Def. Ex. 5 at 17:56:16–17:56:44; see also ECF No. 28-38 at 2. For example, Officer Gaton-Garcia, who was present at the scene from the beginning, can be heard explaining to Officer Thurman, “he was at the trunk, doing something real quick when he saw us and he put something down and took a toolbox, but there was nothing in the toolbox.” Def. Ex. 3 at 18:11:35–18:11:45. The officers then pulled up next to the men and asked what they were doing. ECF No. 28-38 at 2; Def. Ex. 3 at 18:06:41–18:06:54. The men said they were going to “Unc's” house, referring to Jones’ uncle. ECF No. 28-38 at 2; Def. Ex. 3 at 18:06:41–18:06:54; see also Def. Ex. 3 at 18:17:12–18:17:18. The officers asked Mickens what was in the toolbox and Mickens showed them there was a drill inside. ECF No. 28-38 at 2; Def Ex. 3 at 18:11:20–18:12:00; see also Def. Ex. 3 at 18:00:30–18:00:39. Jones’ uncle then opened the front door of the house and the two men went in. ECF No. 28-38 at 2; Def. Ex. 3 at 18:06:41–18:06:59; Def. Ex. 6 at 17:53:47–17:54:00, 17:54:38–17:55:07. As Officer Gaton-Garcia can be heard summarizing, “he didn't even bother saying anything about the car. He just went inside. He mind his own business. He was like ‘I'm just waiting for Unc to open the door.’ They must have been there for like five minutes before anyone opened the door.” Def. Ex. 3 at 18:06:41–18:06:54.

In addition to the credibility problems discussed above, Officer Dabney was not able to plausibly reconcile his account with what other officers described in the body worn camera footage. Asked why the officers can be heard describing Mickens park, retrieve a toolbox, and go into the house—and do not describe anything resembling Officer Dabney's account of a possible drug transaction—Officer Dabney hypothesized that the officers were referencing a “toolbox” being used by another officer. ECF No. 25 at 162, 166. That explanation is belied by the audio, in which the officers clearly mention the toolbox when explaining what they had seen, including that there was nothing concerning in the toolbox. ECF No. 25 at 164–65; Def. Ex. 3 at 18:11:36–18:11:47. The officers’ description of what happened on the body worn camera audio is also consistent with the affidavit of Tyrees Smith, who interviewed Ivan Jones, the person who arrived in the car with Mickens. See ECF No. 28-38 at 1–2 (describing that Mickens and Jones parked, Mickens retrieved his toolbox from the trunk, they walked toward the home of Mr. Jones’ uncle, waited for Jones’ uncle to open the door, told officers they were going to “Unc's” house, showed them the drill in the toolbox, and went inside).³

The government does not argue that the actual events here—Mickens parking, obtaining a toolbox from the trunk, showing its contents to the officers, and walking into the house—provide any basis for reasonable suspicion, instead relying exclusively on Officer Dabney's inaccurate account. Nor does the government suggest that the other facts known by the officers—that Mickens had prior “police interactions” and had a prescription pill bottle in his car—could alone provide reasonable suspicion to seize his car for any period. To the extent the officers had some other reason to be suspicious of Mickens—perhaps based on his association with this house or otherwise—the government has not explained or proven it, and the Fourth Amendment does not permit the court to make it up. The government has therefore not satisfied its burden to show the officers had reasonable suspicion to seize Mickens’ car in order to conduct the drug sweep.⁴

B. The Officers Unlawfully Searched Mickens’ Car Without Probable Cause

Mickens also argues the government has not satisfied its burden to justify the forced entry and search of his car. ECF No. 29 at 3–25. The government argues its search was reasonable, relying on a positive alert from Officer Thurman's drug-detection dog, Oleg. ECF No. 31 at 5–12.

As described above, the Supreme Court has recognized that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Here, the government relies on the automobile exception, which allows officers to “conduct a warrantless search of a motor vehicle if they have probable cause to believe it contains contraband or evidence of a crime.” United States v. Lawson, 410 F.3d 735, 740 (D.C. Cir. 2005). It is well established that a dog's alert can provide the requisite probable cause when “all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Florida v. Harris, 568 U.S. 237, 248, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013). Where “the defendant has challenged the State's case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.” Id.

The government argues it has satisfied its burden to show that Oleg's alert in this case was reliable, relying on the testimony of his handler, Officer Thurman. Officer Thurman explained that he responded to the location of Mickens’ car because he was close by when he heard the radio call for a gun-detection dog. ECF No. 27 at 92–93. When he arrived, an officer told him that Mickens had parked his car and obtained a toolbox from his trunk, and had a prior arrest related to narcotics. ECF No. 27 at 96; Def. Ex. 5 at 18:11:35–18:11:59. Officer Thurman asked the other officers if they wanted to “bail out on the gun dog” and deploy his drug detection dog instead. ECF No. 27 at 96; Def. Ex. 5 at 18:12:01–18:12:08. The officers agreed, and Officer Thurman called off the gun-detection dog. ECF No. 27 at 96–97; Def. Ex. 5 at 18:12:01–18:12:15. Officer Thurman then went to his car to get a flat collar, which signals to Oleg that he will be finding drugs, and a toy, which Officer Thurman's partner gives to Oleg as a reward upon a positive alert. ECF No. 27 at 38, 97–101; Def. Ex. 10 at 18:16:49–18:17:41. Officer Thurman then brought Oleg to the passenger side of Mickens’ vehicle, told him to “sit,” and then said, “find drugs.” ECF No. 27 at 38–39; Def. Ex. 10 at 18:18:16–18:18:40. Oleg then walked around the car to the front driver-side and sat. ECF No. 27 at 39–40; Def. Ex. 10 at 18:18:40–18:18:48. Officer Thurman then said to Oleg “come” and, when Oleg continued to sit, his partner rewarded Oleg with the toy. ECF No. 27 at 41–43; Def. Ex. 10 at 18:18:49–18:19:20; Def. Ex. 6 at 18:18:49–18:18:59. The government also introduced evidence of an eight-week MPD training course that Officer Thurman and Oleg completed in May 2022, as well as regular MPD recertifications since then. ECF No. 27 at 10–13, 17–20, 69; ECF Nos. 31-1, 31-2.

Mickens disputes the reliability of Oleg's positive alert, relying on testimony from Dr. John Sagebiel, who provided extensive testimony at the court's second hearing.⁵ The parties debate reliability at different levels of generality. Some of their exchange concerns the efficacy of MPD's drug-detection training generally—that is, whether MPD's training and recertification processes are designed such that they can be expected to produce reliable alerts. See Harris, 568 U.S. at 246–47, 133 S.Ct. 1050 (explaining that courts can presume probable cause when “a bona fide organization has certified a dog after testing his reliability in a controlled setting” or “the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs,” but a defendant “must have an opportunity to challenge such evidence of a dog's reliability,” including to “contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty”). The government argues Oleg's positive alert should be presumed reliable based on his May 2022 training certificate indicating successful completion of a narcotics training program and Officer Thurman's testimony that his training met the standards of the United States Police K9 Association (“USPCA”). ECF No. 27 at 9–14, ECF No. 31 at 5–9; ECF No. 31-1. Mickens argues Oleg was not trained or certified by a “bona fide organization” because all of Oleg's training was conducted by MPD itself, not the USPCA, and certain aspects of Officer Thurman's testimony and Dr. Sagebiel's review indicate that MPD's training does not meet the basic standards set by the USPCA or more rigorous standards of the American Academy of Forensic Sciences and the Scientific Working Group on Dog and Orthogonal Detector Guidelines. ECF No. 27 at 49, 72–86, 165; ECF No. 29 at 5–11. The record indicates that, in addition to lacking independent character, there are multiple ways that MPD's initial training or recertifications may fall short of accepted standards, including not testing the prescribed number of vehicle detections, inconsistency in whether time limitations are imposed, and failure to complete full annual recertifications that comply with usual standards in favor of more regular but less rigorous recertifications. ECF No. 27 at 68–75, 79–80, 85–86; see ECF Nos. 28-3, 28-6.

But the court need not reach any conclusion on the broader dispute about MPD's training or certification in this case because, considering all the facts and weighing competing evidence about the specific alert in this case, including the particular deployment as analyzed by witnesses at the court's hearing, the court finds the positive alert was not reliable. Harris, 568 U.S. at 248, 133 S.Ct. 1050. First, without needing to make any findings as to whether these deficiencies are common to MPD's trainings in general, the court finds the government's training documentation for Oleg in this case lacks sufficient detail to infer the adequacy of the standards used. See United States v. Jordan, 455 F. Supp. 3d 1247, 1255 (D. Utah 2020) (explaining that “courts have consistently recognized that that [sic] the training necessary to support certification must be completed successfully, that the certification must be current and updated through ongoing training, and that both must be supported by accurate and timely kept records”). The government provides only a copy of Oleg's May 2022 training certificate and brief descriptions of the certification and subsequent recertifications. See ECF Nos. 31-1, 31-2. Although Officer Thurman testified about his understanding of the trainings based on his experience as a participant, he was not in a position to offer details about their adequacy and rigor in relation to accepted standards. The court finds credible Dr. Sagebiel's testimony about the apparent shortfalls from the limited documentation and Officer Thurman's testimony, and the government opted not to offer any rebuttal expert. For example, the government's documentation lacks basic details such as whether Oleg's certification involved testing on vehicles, ECF No. 27 at 61, 69, 75; see ECF No. 13-1 at 49; the distance from the target odor required for an alert to count and how close to the target odor the dog was at the time of the alert, ECF No. 27 at 163, 213–14; as well as the quantity of drugs used in trainings, which impacts the threshold amount of material the dog can reliably detect, ECF No. 27 at 160–61, 213–14. Dr. Sagebiel also testified that Officer Thurman's testimony and the records that do exist about Oleg's training provide reason to question the training's rigor. This includes that Oleg was not trained on vehicles as regularly as one would expect given that the “overwhelming majority” of his deployments were on vehicles, ECF No. 27 at 159, 164–65; and he was not trained in a double-blind manner, in which the handler and anyone else in the vicinity do not know the number or location of target odors, which rendered the training “less valuable,” ECF No. 27 at 155, 164, 214.

Second, the record contains reason to doubt the efficacy of Oleg's historical reliability in the field, including a high false-positive rate. See Harris, 568 U.S. at 247, 133 S.Ct. 1050 (recognizing that “evidence of the dog's (or handler's) history in the field” may be relevant in assessing reliability). Although Officer Thurman testified that Oleg's positive alerts led to drugs being found in “a majority” or even “80 to 90 percent” of occasions, his deployment records show that, out of fifty instances in which he was deployed, he alerted, and officers conducted a search, only five resulted in field tests that identified a drug Oleg had been trained to detect. ECF No. 27 at 26, 175; ECF No. 29-2; see ECF No. 28-2 at 22, 31, 41, 44–45. The other forty-five alerts yielded no indication of any field test, the presence of a drug that Oleg was not trained to detect, or no narcotics. See generally ECF Nos. 28-2, 29-2. Even assuming that Oleg's success rate would have been higher if officers had conducted field tests, the record before the court would still indicate a success rate of 10-20%, significantly lower than what the government has routinely been able to demonstrate in other cases. ECF Nos. 28-2, 29-2; ECF No. 27 at 176–77; see United States v. Ludwig, 641 F.3d 1243, 1252 (10th Cir. 2011) (finding an accuracy rate of 58%, excluding alerts in which police found drug residue or paraphernalia); United States v. Koon Chung Wu, 217 F. App'x 240, 246 (4th Cir. 2007) (reasoning that “an accuracy rate of 60% is more than reliable enough”).⁶

Third, the court finds that Oleg's alert in this case was not made in response to the presence of drugs, but rather to be rewarded. See Harris, 568 U.S. at 247, 133 S.Ct. 1050 (explaining that “even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions”). The court finds credible Dr. Sagebiel's evaluation that, during Oleg's sweep of Mickens’ car, Oleg appears disengaged and uncertain about his role. ECF No. 27 at 168–70; see also Def. Ex. 10 at 18:18:38–18:18:59; Def. Ex. 6 at 18:18:38–18:18:59. Dr. Sagebiel testified that body worn camera footage shows that Oleg was not acting in response to Officer Thurman's commands and multiple times, including in the midst of the sweep, wandered away from the car before returning to the driver-side door to alert and receive his reward. ECF No. 27 at 169; see also Def. Ex. 10 at 18:18:05–18:18:59. Officer Thurman contrasted this with the video of an adequately trained drug detection dog who is attentive to its handler and focused on sniffing the subject car. ECF No. 27 at 166–67; see also Def. Ex. 100. Dr. Sagebiel explained that Oleg's behavior during the sweep reflects patterns in his training. He testified that because Officer Thurman routinely rewarded Oleg after each positive alert, without confirmation of whether the alert was connected to one of the narcotics Oleg was trained to detect, Oleg was trained that he would be rewarded for alerts rather than successful drug detection. ECF No. 27 at 88–89, 157–58, 171–72. Moreover, Oleg's deployment records demonstrated a general pattern of starting at the right passenger door, moving counterclockwise around a car, and then alerting at the driver-side door where he then obtains a reward. ECF No. 27 at 89–90, 105, 172–73. Dr. Sagebiel explained that when dogs are repeatedly deployed in the same patterns, they learn those patterns and fail to “truly work odor.” ECF No. 27 at 158–59.⁷

The court accordingly finds, based on the totality of the evidence, that Oleg's positive alert was not a reliable indicator of the presence of narcotics. The government does not dispute that suppression is the appropriate remedy in the event Oleg's alert failed to provide probable cause, and does not argue any other basis for probable cause to search Mickens’ car. The court accordingly concludes that the search of Mickens’ car was unreasonable, and the items seized must be suppressed.

III. Conclusion

For these reasons, the court grants Mickens’ motion to suppress the items seized from his car, ECF No. 9.

FOOTNOTES

2.   There are other reasons to doubt the credibility of Officer Dabney's account of what happened between the time Mickens parked his car and entered the house. For example, Officer Dabney testified he could see Mickens engage in a possible drug transaction from the driver seat of his patrol car before he drove around the block. ECF No. 25 at 67. But body worn camera footage shows his partner was in the driver seat, and Officer Dabney was on the passenger side. ECF No. 25 at 116–17; Def. Ex. 5 at 17:53:26–17:53:49; Def. Ex. 8 at 17:51:38–17:53:37. When asked about this, Officer Dabney testified he “transitioned to being the passenger” when they had gone around the block, even though, according to his testimony, he had never gotten out of the car. ECF No. 25 at 19–20, 115.Similarly, when confronted with evidence that he arrived from a direction that was inconsistent with going around the block, Officer Dabney suddenly recalled he had not only gone around the block, but drove too far on the way back, made a U-turn, and therefore arrived from the opposite direction. ECF No. 25 at 114, 127–28. But body worn camera footage from his partner shows them arrive after driving a path that is inconsistent with his description of going around the block and shows no U-turn. See Def. Ex. 8 at 17:52:02, 17:52:20, 17:52:27, 17:53:07; ECF No. 25 at 90–91; ECF No 28-38 at 3.In addition, Officer Dabney failed to turn on his body worn camera until more than five minutes after arriving to the 700 block of Adrian Street and getting out of his car. ECF No. 25 at 101–03. This contradicts Officer Dabney's testimony at the preliminary hearing that he activated his body worn camera as soon as he got out of the car. Id. at 102–03. Officer Dabney acknowledged that he was in violation of the MPD policy requiring officers to activate their body worn cameras as soon as police action is taken. Id. at 103–05. Officer Dabney has several previous infractions for violations of the body worn camera policy. Id. at 105.

3.   The court reaches its findings as to what did and did not occur based on what can be seen and heard on the body worn camera footage and the testimony presented at the suppression hearings, including the significant problems with the government's account. Although not necessary to the court's finding, Smith's affidavit provides further support for it.The court notes that the government has forfeited any challenge to reliance on Smith's affidavit by not properly lodging any objections, despite an invitation to do so from the court. At the court's second evidentiary hearing, counsel for Mickens previewed they would submit Smith's affidavit with their supplemental briefing. ECF No. 27 at 215–18. The government indicated that it may have objections to that testimony, and the court advised the government that it could make such objections at the appropriate time. Id. at 218–19. The government then made a blanket demand for an evidentiary hearing “regardless of the contents” of the affidavit and supplemental briefing. Minute Order (July 24, 2025). The court again advised the government that any such requests should be made after reviewing the affidavit, with reference to the applicable legal standards. Id. Having received Smith's affidavit, the government has not made any such motion for an additional hearing or otherwise objected to reliance on Smith's affidavit in its responsive briefing, and accordingly forfeits any such argument.

4.   Because the government has not shown reasonable suspicion, the court need not decide whether Mickens’ car was seized for a duration that required probable cause. See Gomez v. Turner, 672 F.2d 134, 139 n.9 (D.C. Cir. 1982) (observing that “[t]he law is unsettled concerning the point at which a ‘stop’ ripens into a detention that requires probable cause”).

5.   While “the court is not bound by evidence rules, except those on privilege,” when ruling on admissibility, Fed. R. Evid. 104(a), the principles set forth under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) may be relevant in determining the weight to afford an expert's testimony at a suppression hearing. See United States v. Ozuna, 561 F.3d 728, 736 (7th Cir. 2009) (“We see no persuasive reason to disregard the Rules of Evidence and impose a new requirement on district court judges to conduct a Daubert analysis during suppression hearings.”). Under Rule 702, a witness may be qualified as an expert based on “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Factors courts should consider in assessing the admissibility of expert testimony “include whether the expert's theory or technique (i) can be (and has been) tested, (ii) has been subjected to peer review and publication, (iii) has a high known or potential rate of error, and (iv) enjoys general acceptance within a relevant scientific community.” United States v. Morgan, 45 F.4th 192, 200 (D.C. Cir. 2022) (quotation marks omitted) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593–94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The court finds Dr. Sagebiel qualified to offer expert testimony on detector dog training, deployment, and reliability. Dr. Sagebiel has a Ph.D. in environmental chemistry and has studied the science of olfaction and detector dogs since 2000 or 2001. ECF No. 27 at 148–49. He has taught about the science of olfaction and published articles related to detection dogs in peer reviewed scientific literature. Id. at 148–49, 151–52. Dr. Sagebiel has also been involved in setting standards for training and certification of detector dogs, and he has given lectures to dog handlers and trainers on the use of detector dogs. Id. at 152. In addition, Dr. Sagebiel has participated in the training of detector dogs by setting up challenges and hiding narcotics for the dogs. Id. at 150–52. The government challenges Dr. Sagebiel's qualifications on the basis that some of the prior cases in which he has served as an expert and submitted expert reports did not proceed far enough for him to testify or be qualified as an expert. ECF No. 31 at 12–13; ECF No. 27 at 184–92. However, the government does not provide any persuasive reason why Dr. Sagebiel's qualifications do not allow him to testify on topics within his expertise in this case.The government did not offer any expert testimony to support the reliability of the positive alert in this case, even though the government has often provided such evidence in cases where reliability is contested, and courts have relied upon that evidence in upholding searches. See, e.g., United States v. Bentley, 795 F.3d 630, 636 (7th Cir. 2015) (noting that the district court “decided to credit the government's experts over [the defendant's], and decided that [the dog's] alert was reliable enough to support probable cause”); United States v. Simeon, 115 F. Supp. 3d 981, 1001–03 (N.D. Iowa 2015) (relying on the government expert's testimony regarding the dog's training, certification, and deployment to hold that car search was supported by probable cause); United States v. Robinson, No. 15-cr-00178, 2017 WL 806655, at *8 (D. Neb. Mar. 1, 2017) (holding that car search was supported by probable cause where “the Government's expert witness opined that [the officer] successfully deployed [the dog] and followed proper procedure”). While such expert testimony may not be necessary to uphold a search, the result is that Dr. Sagebiel's testimony regarding standards, practices, and reliability is largely unrebutted.

6.   The government argues Oleg's false positive rate may be lower because he may have been alerting as to residual odors. See ECF No. 27 at 24–25. But the court finds on this record that Oleg was not trained to alert on residual odor inside a car. Dr. Sagebiel testified that detection dogs develop threshold amounts they can detect based on their training. ECF No. 27 at 160. Because record evidence indicates Oleg was trained on at least a five-gram threshold, he likely would not alert to very low levels of narcotics, such as residue and residual odor. ECF No. 27 at 160–61, 176, 212.

7.   Before the deployment, Officer Thurman can be seen tossing the toy to his partner in front of Oleg's car window. ECF No. 27 at 97, 99–100; Def. Ex. 10 at 18:17:10–18:17:17; Def. Ex. 11 at 18:17:10–18:17:17.There is also evidence that Officer Thurman expected Oleg to generate the positive alert before he began the deployment. On body worn camera footage, Officer Thurman asks other officers if they wanted to “bail out on the gun dog” and calls off the gun-detection dog—the type of dog that had been called to the scene—before knowing whether Oleg yielded a positive alert. ECF No. 27 at 96–97; Def. Ex. 5 at 18:12:01–18:12:15.

AMIR H. ALI, United States District Judge