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United States v. Muhaffey

United States District Court, E.D. Kentucky, Northern Division

November 2, 2018




         Defendants 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).[1]

         An 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).[2] For the reasons set forth herein, it will be recommended that Defendants' Motions to Suppress (R. 38; R. 40) be denied.


         At the 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).

         Officers 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. at 17).

         The 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).

         At this 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.[3] (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).

         On 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).

         After 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).

         Officer 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).

         After 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).

         Officer 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).

         After 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).

         Defendants 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 ...

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