Baltimore drug probe crumbles after court challenge

Baltimore drug probe crumbles after court challenge

On a cool evening in April 2012, a Range Rover drove away from a home in the Arlington section of Northwest Baltimore. When the car parked a few miles away, police finally tied a suspected drug dealer to a stash house, Detective Ramon Lugo wrote in a search warrant application.

Within days, heavily armed officers raided three homes and charged Devin Leroy Jones with 20 drug and gun crimes. State and federal judges ordered that he be held without bail in the city jail and the Chesapeake Detention Facility. And that's where Jones, who had a previous conviction for second-degree murder, stayed — for two years.

But the prosecution crumbled when questions were raised in court about inconsistencies in Lugo's search warrant application. After the detective acknowledged those inconsistencies, a federal judge expressed concern about "the reckless disregard for the truth." The next day, all of the charges against Jones were dismissed and he was freed.

Now the 32-year-old Jones is seeking damages in excess of $75,000 in a lawsuit that accuses Lugo and the Baltimore Police Department of false arrest and false imprisonment — the latest legal challenge to the agency's tactics.

Even as city police face criticism over allegations of brutality and other misconduct in questionable arrests, Jones' lawsuit raises questions about the thoroughness of an investigation. It highlights procedural problems that undercut a weeks-long drug probe — and allowed Jones to go free despite the seizure by police of drugs and guns.

It could spawn similar challenges. Public defenders have featured the ill-fated police probe in a 28-slide PowerPoint presentation called "Case study in attacking a [Baltimore Police Department] search warrant affidavit."

David Gray, a criminal law professor at the University of Maryland School of Law, said judicial standards are clear: "If a law enforcement officer makes a material misrepresentation in a search warrant affidavit, it puts an entire search at risk. The evidence can be suppressed."

Baltimore police spokesman Capt. Eric Kowalczyk, speaking on Lugo's behalf, defended the detective's role in the investigation. The agency examined records and databases from the investigation to confirm what Lugo wrote in his affidavit, and determined that he acted properly. Kowalczyk noted that the state's attorney's office reached the same conclusion.

"It is clear that Officer Lugo did nothing wrong," Kowalczyk said.

Federal prosecutors, while acknowledging that "a lot of mistakes" were made, have said they were confident Lugo did not knowingly provide false information.

But Jones' lawsuit noted the inconsistencies in Lugo's testimony before U.S. District Judge George L. Russell III.

"On more than one occasion, testimony and evidence proved that [Detective] Lugo lied and misrepresented the facts," Jones' civil attorneys, Larry Rogers and Nedra Ayers, wrote in the lawsuit. They added that Lugo "knew a judge would rely on [his words] in determining there was probable cause to grant the warrant."

It's likely that such misrepresentations happen from time to time, Gray said, but there are no statistics detailing how often police present judges with inaccurate statements when seeking search warrants. Such issues usually only surface after defense attorneys challenge evidence, he said.

"Judges have to presume law enforcement officers are being truthful," Gray said. "There's an abundance of opportunity to stretch the truth in the probable cause to get the warrant."

Jones' case was listed in records that The Baltimore Sun requested from the city detailing dozens of lawsuits filed against officers in 2013 and 2014.The request came after a Sun investigation last fall showed the city had paid $5.7 million since 2011 in court judgments and settlements in lawsuits alleging brutality and other misconduct.

Responding to community anger over those revelations, Mayor Stephanie Rawlings-Blake and Police Commissioner Anthony W. Batts said the actions of those rogue officers occurred long before they took office in February 2010 and September 2012, respectively. They asked the U.S. Department of Justice to make a comprehensive review of the Police Department and vowed to take action against any officers who violate rules.

A tip, an investigation

The events surrounding Jones and Lugo unfolded as the detective investigated a confidential tip.

Lugo wrote in a search warrant application that he received anonymous information about a "black male driving a maroon Cadillac selling illegal narcotics" at a house on North Augusta Avenue. Lugo started watching the location.

In the third week of April, Lugo wrote, he witnessed Jones and another man exchange cash for a "zip lock bag containing white rock." The men separated; Jones went into a nearby apartment.

During another surveillance session on North Augusta Avenue, Jones conducted similar sales "throughout the evening by repeating his actions," Lugo wrote. After describing similar observations over the course of several days, Lugo wrote that another detective took a plastic bag that had been placed near the steps, where Jones had been. It contained 12 bags of cocaine and heroin.

Later that week, Lugo spotted the Cadillac at a home on West Rogers Avenue. "Being the evening time," Lugo wrote, the residence was dark. He watched a woman leave in the Range Rover; Jones followed minutes later in the Cadillac and went to a house on Walden Birch Court. The Range Rover was also there, Lugo wrote.

Lugo believed Jones kept proceeds from the drug sales at Walden Birch Court, and applied for a search warrant.

District Judge Jack Lesser approved the warrant on May 4, 2012. Five days later, detectives and SWAT officers raided three residences. Officers arrested Jones, while seizing two guns and more than 60 bags of suspected cocaine and heroin.

Jones, who had served six years in prison for the 2000 murder charge, was denied bail on the drug and gun charges.

As Jones sat in jail, an investigator working for the federal public defender examined arrest records and Lugo's affidavit, and interviewed witnesses.

Inconsistencies found

That investigator, William Kanwisher, concluded that it would have been hard for Lugo to watch the North Augusta Avenue home and see inside the nearby apartment from the same spot, as he had described in the search warrant application. Kanwisher took pictures of the one possible sight line, but a similar photo taken in 2012 showed bushes in the way. The homeowner told Kanwisher that the bushes came down in May 2012 — after the police surveillance.

Jones' lawyer, assistant federal public defender Deborah Boardman, requested a hearing to determine whether the affidavit for the search warrant contained false statements.

On March 9, 2014, Michael Hanlon, chief of the violent crimes section in the U.S. attorney's office, wrote in court documents that prosecutors didn't believe Lugo made any false or misleading statements in the affidavit. Still, the best way to determine that was for the detective to testify, Hanlon told judge Russell.

The next day, Lugo took the stand.

Boardman noted that Lugo had arrested Jones 18 months earlier in a drug case, according to a transcript of the hearing. "I think the court can take from that that Detective Lugo was driven to find a home to search that he claims was associated with Mr. Jones," she said.

Asked about his surveillance, Lugo said he didn't take any notes. Boardman then quizzed him about his work schedule in April 2012. Lugo said he worked 7 a.m. to 3 p.m. on most days.

Referring to the affidavit, Boardman asked, "So why in here are you telling [the judge who issued the search warrant] that you continued to observe him doing these actions repeatedly throughout the evening?"

"Just a word that I used," Lugo replied. "I mean, it was late in the afternoon. It's what I used when I typed this up. I typed it up in the evening. That's the first word that popped in my head, 'evening.'"

When Boardman pressed further, Lugo acknowledged several times that he conducted surveillance during the day or afternoon.

Boardman then played a recording of Lugo talking to officers on a police radio. Under her questioning and after reading a transcript of the conversation, Lugo admitted three times that the tape and affidavit didn't match. For example, the affidavit states that after a suspected drug transaction, Lugo radioed for an arrest team, and provided descriptions of a Volkswagen and Jones, but the tape does not mention any of those details.

Boardman then handed Lugo a document showing when he checked the registration of the Range Rover: April 27, 2012 at 2:27 p.m. But on the search warrant application, Lugo wrote that he performed the check in the evening of April 30.

Boardman asked Lugo to explain the different dates.

"I can't," he replied.

Boardman asked again about the evening surveillance — but Russell interrupted.

"I'm becoming increasingly concerned about this detective," the judge said. "And he's bordering very close to admitting that he perjured himself in an affidavit … and I'm not liking what I'm hearing."

Hanlon, the prosecutor, asked for a delay to consult with superiors. The government does not believe "that this detective said anything that was knowingly false in this affidavit," he told Russell. "There are a lot of mistakes."

"I am concerned at the very least the reckless disregard for the truth," Russell replied, adding: "That's sticking out in my mind. … Because I am not quite sure I see it the way the government sees it."

The next day, prosecutors dismissed all charges; Russell released Jones.

A case study

Within weeks, Boardman presented the 28-slide PowerPoint presentation to state public defenders and to federal court-appointed defense lawyers in training sessions, as a case study in getting a case dismissed.

Slides designed to highlight Lugo's inconsistencies showed his time card for April 2012, overtime reports and other records used in the case. Among them: sunrise and sunset times for the month, and information requests to BGE and the Maryland Motor Vehicle Administration.

Although the drug investigation crumbled and Jones went free, the Police Integrity Unit under former Baltimore City State's Attorney Gregg L. Bernstein found no wrongdoing by Lugo, according to a summary report of the investigation obtained by The Baltimore Sun.

Even though Boardman exposed "several seeming inconsistencies" in the affidavit, the "most glaring" issue centered on the check of the license plate, the report said.

"This investigation revealed additional information which corroborated Det. Lugo's recollection when he ran the [license plate] search," the report said. "As a result, the State's Attorney's Office has declined to prosecute Det. Lugo, as no falsehood is indicated on Det. Lugo's part."

Tammy Brown, a spokeswoman for State's Attorney Marilyn Mosby, who took office in January, declined to provide specifics on the evidence prosecutors found to corroborate Lugo's affidavit, saying: "Officer Lugo did nothing wrong."

State prosecutors recently dismissed six drug-related charges filed against Jones in early 2010; Lugo was the arresting officer. The federal case had nothing to do with that dismissal; too much time had passed while Jones battled the federal charges, Brown said.

Lugo, who remains on the force, earns about $65,000 annually.

Legal experts said it's rare for a defense team to successfully mount such a challenge to a search warrant application.

Professor Doug Colbert of the University of Maryland School of Law said it's difficult persuade a judge to hold a hearing in federal court to challenge a possible false affidavit from an officer. "The burden is very high. The defense attorney must show evidence of police falsities before the hearing," he said.

Ty Kelly, a former federal prosecutor in Baltimore, said she could not recall facing any such challenges to the truthfulness of a search warrant in the nine years she prosecuted violent and white-collar crimes and police corruption cases.

Kelly added, "And it's even more rare for the U.S. attorney's office to dismiss a case. It rarely happens."

Still, federal prosecutors must follow the law when deciding whether to dismiss a case, regardless of whether the defendant has a criminal past, she said.

"The U.S. attorneys have to balance the importance of doing their job in ensuring that criminals are prosecuted with the importance of guaranteeing that no person's rights are violated in that process," said Kelly, now a defense attorney at the Biran Kelly law firm. "It's a delicate balance."

mpuente@baltsun.com

twitter.com/MarkPuente

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