United States District Court, E.D. Kentucky, Northern Division
REPORT AND RECOMMENDATION
CANDACE J. SMITH, UNITED STATES MAGISTRATE JUDGE.
Trontez Mahaffey and Tyra Nelson have filed Motions to
Suppress all evidence seized from their luggage at the
Cincinnati/Northern Kentucky International Airport
(“CVG”) on September 8, 2017. (R. 38; R. 40).
Defendants allege that the officers lacked either probable
cause or reasonable suspicion with respect to their initial
detention in the CVG parking garage, and that the officers
lacked probable cause for Defendants' subsequent
detention and transportation to the airport police station.
(R. 38, at 2-3; R. 54, at 1-2).
evidentiary hearing on the suppression motions was held on
August 3, 2018. (See R. 46). Defendants each filed a
supplemental brief following the evidentiary hearing (R. 54;
R. 55) to which the United States filed a response. (R. 56).
Accordingly, the Motions are now ripe for consideration and
the undersigned's preparation of a Report and
Recommendation pursuant to 28 U.S.C. §
636(b)(1)(B). For the reasons set forth herein, it will
be recommended that Defendants' Motions to Suppress (R.
38; R. 40) be denied.
evidentiary hearing, three witnesses testified on behalf of
the United States: DEA Task Force Agent Eli Sautter,
Detective Ken Coyle, and K-9 Detective Rob Minter, all
employed with the CVG Airport Police Department. (R. 49, at
5, 64, 84). Prior to Defendants' encounter with the
airport police on September 8, 2017, three sets of abandoned
suitcases were found in the short-term parking garage at CVG,
which spurred an investigation into Frontier Flight 1870 from
Phoenix, Arizona for potential narcotics trafficking.
(Id. at 13, 35, 74, 90). In the afternoon of July
27, 2017, officers first discovered two abandoned suitcases
in the short-term parking garage in row A36. (Id. at
6). A narcotics canine, Faith, was deployed and
“alerted” on the suitcases, indicating the
presence of narcotics. (Id. at 6-7; 89-90). However,
the bags were opened and found to be empty. (Id. at
26). Officers were able to determine by review of CCTV
footage that the bags had been left in the garage on the
previous day. (Id. at 7). Later in the evening on
the same day-July 27, 2017-officers discovered a second set
of two abandoned suitcases in the short-term parking garage
in the “same area.” (Id. at 7). The
narcotics canine, Faith, was again deployed and alerted on
the suitcases, indicating the presence of narcotics.
(Id. at 7, 27, 89-90). As with the first set of
suitcases, officers opened the second set and found both
suitcases to be empty. (Id. at 27).
found a third set of abandoned suitcases in the short-term
garage in row A35 on August 24, 2017. (Id. at 9).
The officers did not use a canine to test this set of
luggage, as the canine was not available that day.
(Id. at 30). Again, officers opened the bags and
found them to be empty. However, Officer Coyle testified that
he could smell the scent of marijuana emanating from the
third set of bags. (Id. at 77). None of the
witnesses testified as to whether further testing was done on
the bags that would indicate whether they ever contained
narcotics. With respect to the third set of suitcases,
officers were able to use CCTV footage to determine that the
luggage was abandoned by Timaya Smith, Raniza Anderson Irby,
and Ashley Drake after arriving at CVG on Frontier Flight
1870 from Phoenix, Arizona. (Id. at 10, 17, 72-73).
Officers observed Smith, Irby, and Drake initially enter CVG
on August 22, 2017 with all three proceeding to Gate A7 for a
flight to Chicago. (Id. at 17, 72-73). Officer
Sautter testified he believed the flight to Chicago was a
connecting flight to Phoenix, although no footage from
Phoenix was requested. (Id. at 33). Officer Sautter
also testified the three individuals did not walk together,
but rather, “attempted to separate themselves when
walking through the Baggage Claim area.” (Id.
CCTV footage shows the three women arriving back at CVG on
August 24, 2017. (Id. at 11-13). Timaya Smith and
Raniza Irby are pictured retrieving luggage from baggage
claim matching the luggage that was later found abandoned in
the parking garage (one purple iFLY roller suitcase and one
black Protégé roller suitcase). (Id.
at 12, 69-70). The third individual, Ashley Drake, appears in
the video footage to be walking near Timaya Smith and Raniza
Irby through the airport and into the short-term parking
garage near where officers later found the abandoned luggage.
(Id. at 13-14). The women appear to be walking
together at times, and at other times, separated. (Exhs. B-4
to B-12; R. 49, at 67-68). Officer Sautter testified Ashley
Drake may have been acting as a lookout for the other two
women. (R. 49, at 13). After all three women entered the
short-term garage, a red Chevrolet car can be seen exiting
the garage. (Id. at 14-15). Video of the car as it
stopped at the ticket booth shows a partial image of the
driver, who Officers Sautter and Coyle testified appears to
be an individual wearing a grey sweatshirt matching that of
Ashley Drake as seen earlier in the footage. (Id. at
14-16, 71). The images taken from the CCTV footage show only
the forearm and hands of the driver. However, Officers
Sautter and Coyle testified the video presents a clearer
image. (Id. at 16, 71; Exhs. B14-1, B14-2). Upon
subsequently running the license plate of the red car seen
departing the garage, officers discovered the car was
registered to Ashley Drake's mother. (R. 49, at 16).
Next, Irby and Ranzina are seen exiting the garage without
the luggage, retrieving their personal items from inside the
airport, and departing in separate cars at the passenger
pickup area. (Id. at 16-17).
point, the airport police began investigating Frontier Flight
1870 from Phoenix, Arizona, targeting “brand new
bags” identified by the wheels showing little wear and
the bags having the price tag or plastic ring that holds a
price tag still attached to the bag. (Id. at 34, 75,
90). Detective Coyle testified Phoenix is considered a
“source city” of narcotics for the Cincinnati
area. (Id. at 78). However, on cross examination, he
answered affirmatively when asked “whether it would be
easier to say what cities are not source cities” and
stated that source cities include multiple cities in
California and Arizona, as well as “[a]nything [ ] that
borders Mexico” and “anywhere [ ] you have a
harbor.” (Id.). Officer Sautter described the
first set of suitcases found on July 27 as “newer,
” however none of the witnesses specified the brand or
color of the bags. (Id. at 25). The second set of
bags found later in the day on July 27 consisted of a black
Protégé roller suitcase and a Coleman roller
suitcase of an unspecified color. (Id. at 7). Officer
Sautter testified some of the bags appeared to be the same
brand of bags as the first set. (Id.). He further
testified “I believe some of them still had the tags
remaining of where they just were purchased at the
store.” (Id.). As previously stated, the third
set, recovered on August 24, were a black
Protégé roller suitcase and a purple iFLY
suitcase. (Id. at 12). The Protégé
suitcase still had the price tag on it and both bags appeared
to be new. (Id.). In sum, officers found abandoned
in the short-term garage, two unspecified “newer”
bags, two black Protégé roller suitcases, one
Coleman suitcase of an unspecified color, and one purple iFLY
roller suitcase. They “all appeared to be brand-new
bags with some even still having the tags [ ]
attached.” (Id. at 18).
September 8, 2017, the day the two Defendants in the present
case, Trontez Mahaffey and Tyra Nelson, were apprehended, the
airport police officers were monitoring Flight 1870 from
Phoenix. (Id. at 19). Officer Minter, and a fourth
officer who did not testify at the evidentiary hearing,
Lieutenant Kopp, were located “plane-side” where
they identified three bags they believed “matched the
description of the brand-new bags as the previous abandoned
bags.” (Id. at 18). They appeared “brand
new, ” having either a price tag or plastic ring of a
price tag attached and little to no signs of wear on the
wheels. (Id. at 18, 91). The first two suitcases
pulled were Protégé rollers, which had Tyra
Nelson's name on the bag tags. (Id. at 18-19).
The third suitcase pulled was either a Protégé
or Coleman, which had Trontez Mahaffey's name on the bag
tag. (Id. at 19). One of the Protégé
bags with Nelson's name on the bag tag still had a price
tag attached. (Id. at 18).
the bags were initially identified, they were loaded onto
carts and taken into a bag sorting room in Concourse A.
(Id. at 91). Officer Minter and Lieutenant Kopp
pulled the three previously identified bags, as well as three
other random bags. (Id. at 92). All six bags were
separated from each other within the room, and the officers
deployed narcotics canine Faith on the bags. (Id.).
Faith alerted, signaling the presence of narcotics, on the
three identified bags, but not on the three random bags.
(Id.). The officers then placed the three identified
bags on the conveyor belt that feeds into baggage claim,
putting a plastic tub on either side of the bags to indicate
to Officer Sautter and other officers who were located in the
separate baggage claim area which bags the dog alerted on.
(Id.). Officer Minter testified he would have made a
phone call at that point to inform the officers in baggage
claim about the positive alert and the description of the
bags. (Id. at 41, 104).
Sautter, positioned in baggage claim, observed Tyra Nelson
and Trontez Mahaffey retrieve the three identified bags.
(Id. at 20). Mahaffey also retrieved a fourth bag
that the officers had not previously identified, but which
matched the description of the other bags. (Id.).
Officer Sautter observed Mahaffey read the name tags on his
bags when he pulled them off the conveyor belt.
(Id.). At this point, Officer Minter and Lieutenant
Kopp had read the name tags on the bags, but the officers
positioned in baggage claim, including Officer Sautter, did
not know the identity of either Nelson or Mahaffey.
(Id. at 43).
Mahaffey and Nelson retrieved the luggage, they proceeded to
the short-term parking garage, walking down row A34-35, the
same area the previously abandoned bags were found.
(Id. at 20). At least four officers-Officer Minter,
Officer Sautter, Lieutenant Kopp, and Officer Moyer-followed
Defendants from baggage claim into the short-term garage,
keeping at a distance. (Id. at 43, 105). Defendants
stopped at a white Chevrolet car that was backed into a
parking space and walked towards the rear of the vehicle with
the luggage. (Id. at 21, 49, 94). When the
Defendants stopped at the car, the officers also paused more
than a courtroom's length away, observing Defendants walk
to the back of the car. (Id. at 47, 51, 107). The
officers could not see what Defendants were doing at the back
of the car. (Id. at 51, 106). When Defendants began
walking out from the back of the car without the bags, the
officers approached. (Id. at 48, 51).
Sautter testified that as he approached the Defendants, he
said, “Hello, I'm TFO Sautter from the DEA. Can I
speak to you for a minute?” (Id. at 51). He
further testified that Mahaffey “appeared like he was
going to run” and that is when the other officers began
shouting orders. (Id. at 49-50, 52). K-9 Officer
Minter testified he could not see Defendants behind the car,
but when the officers started identifying themselves as
police officers, Mr. Mahaffey came out in front of the car
and “looked like he was about to run in some direction
or something like that.” (Id. at 106-107,
110). Officer Minter further testified that the officers were
“shouting orders as we were coming up, identifying
ourselves and shouting orders” and that he was
“running and [ ] shouting out [ ] Police” with
“our badge out and everything.” (Id. at
107). The orders Officer Minter shouted were “show me
your hands” and “get on the ground.”
(Id. at 108). Both Defendants complied with the
orders and lay face-down on the ground. (Id. at 52,
108). Officer Minter testified that after ordering Defendants
to the ground, the officers “detained” and
identified Mahaffey, asking some basic questions and
“shortly thereafter called a transport unit.”
(Id. at 94, 108). Officer Minter testified that he
may have asked the basic identification questions while
Mahaffey was still on the ground. (Id. at 108).
Officer Sautter testified that Nelson remained on the ground
for approximately ten to fifteen seconds and then she was
“removed [ ] after laying on the ground” and
asked about the luggage. (Id. at 53-54). Nelson
verbally consented to a search of her luggage, and Mahaffey
denied consent. (Id. at 21, 54). When asked during
cross-examination if Nelson “was free to leave”
when ordered to the ground, Officer Sautter testified that
she was not free to leave. (Id. at 54-55).
the officers ordered Defendants to the ground, the officers
saw the luggage near the rear of the car. (Id. at
21). The bag tags had been removed and were laying on the
back of the car. (Id.). Officers matched two of the
bag tags to the stickers that remained on two of the
suitcases. Id. at 21). However, officers were not
able to find tags with Mahaffey's name, and the stickers
had been removed from the other two pieces of luggage.
(Id. at 22). Before Defendants were removed to the
Airport Police Station, officers ran the license plate of the
car and found it to be registered to Ashley Drake.
(Id. at 21).
were then transported to the Airport Police Station where
they were read their Miranda rights. (Id. at 22).
The United States concedes that when Defendants were removed
to the Airport Police station, they were taken under arrest.
(Id. at 7). Nelson signed a consent form granting
permission to search her two Protégé bags which
contained 43 pounds of marijuana. (Id. at 22).
Mahaffey refused consent to search his suitcases.
(Id.). Officers obtained a warrant to search
Mahaffey's two suitcases and found four pounds of
methamphetamine and 37 pounds of marijuana. (Id. at
23). On December 14, 2017, a federal grand jury returned an
Indictment against Defendants Nelson and Mahaffey for
conspiracy to possess with intent to distribute 500 grams or
more of a mixture or substance containing a detectable amount
of methamphetamine, a Schedule II controlled substance (Count
1), aiding and abetting each other to knowingly and
intentionally possessing with intent to distribute 500 grams
or more of a mixture or substance containing a detectable
amount of ...