United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING REPORT AND RECOMMENDATION
L. BUNNING UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant Tyra Nelson's
Motion to Suppress (Doc. # 38), in which Defendant Trontez
Mahaffey has joined (Doc. # 40), and Magistrate Judge Candace
J. Smith's Report and Recommendation
(“R&R”), wherein she recommends that
Defendants' Motions be denied. (Doc. # 57). Defendants
each having filed Objections to the R&R (Docs. # 58 and
59), the Motions are ripe for the Court's review. For the
reasons that follow, Defendants' Objections are
overruled, the R&R is adopted, and Defendants'
Motions to Suppress (Docs. # 38 and 40) are denied.
FACTUAL AND PROCEDURAL BACKGROUND
a one-month span in the summer of 2017, airport police found
three sets of abandoned suitcases in the short-term parking
garage at Cincinnati/Northern Kentucky International Airport
(“CVG”)-twice on July 27, 2017, in row A36, and
once again on August 24, 2017, in row A35. (Doc. # 57 at 2).
Officers deployed a narcotics canine to test the two sets of
luggage found on July 27, and the canine “alerted,
” indicating the presence of narcotics; however, the
bags were opened and found to be empty. Id. at 2.
Although a canine was not available to test the third set of
luggage found on August 24; officers opened the suitcases and
again found them to be empty, but could smell the odor of
marijuana inside. Id. at 2-3. The luggage all looked
new, and some of the bags had pieces of the price tag still
attached as if recently purchased. Id. at 4. 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. Id. Some of the bags
found on August 24 appeared to be the same brand; the second
set of bags found on July 27 and the set recovered on August
24 each included a black Protégé roller
suitcase. Id. This pattern of suspicious luggage
found abandoned in the same area of the short-term parking
garage spurred a narcotics investigation by DEA task force
agents with the CVG Airport Police Department, and culminated
with the arrest of Defendants Nelson and Mahaffey on
September 8, 2017. Id. at 2-8.
traced closed-circuit television (CCTV) footage to connect
the August 24 luggage with three passengers who arrived at
CVG on Frontier flight 1870 from Phoenix, Arizona-Timaya
Smith, Raniza Anderson Irby, and Ashley Drake. (Doc. # 57 at
3). The women can be seen walking through the airport-at
times, walking together, and at other times, separated as if
they do not know each other-and into the short-term parking
garage near where the officers found the abandoned luggage.
Id. CCTV footage then shows Drake driving out of the
garage in a vehicle registered to her mother, while Smith and
Irby exit the garage on foot without the luggage and depart
in separate cars at the passenger pickup area. Id.
at 4. Identifying Phoenix, the women's inbound flight
origin, as one of many “source cities” of
narcotics for the Cincinnati area, airport police began to
track inbound Frontier flights from Phoenix to target luggage
that appeared to be recently- purchased. Id. at 4.
September 8, 2017-the day of the subject arrest-officers
monitoring the inbound Phoenix flight observed the flight
crew unload all the baggage from the plane. (Doc. # 57 at 4).
The officers identified three bags similar in appearance to
the abandoned luggage. Just like the prior three sets of
abandoned luggage, the three bags identified on September 8
looked “brand new, ” with portions of the price
tags still attached, and little sign of wear on the wheels.
Id. The September 8 bags were made by the same
brands as some of the abandoned luggage-namely, two
Protégé bags and one Coleman. Id. Of
the three September 8 bags pulled, Defendant Tyra
Nelson's name was affixed to two of the tags, and
Defendant Trontez Mahaffey's name was affixed to a tag on
officers gathered the three September 8 bags, selected three
additional, random bags from the flight, and arranged them in
a bag sorting room. Id. The officers deployed the
same narcotics canine. Id. The canine
“alerted, ” signaling the presence of narcotics,
on the three identified bags, but not the three random bags.
Id. The officers then placed the three identified
bags back onto the baggage system with the other luggage.
Id. Subsequently, the officers observed Defendants
Nelson and Mahaffey retrieve the three bags at baggage claim.
Id. Defendant Mahaffey also retrieved a fourth bag
that the officers had not previously identified. Id.
Mahaffey was observed reading the name tags on his bags when
he pulled them off the conveyor belt.
least four officers observed from a distance as Defendants
Nelson and Mahaffey rolled the identified bags from baggage
claim to the short-term parking garage and walked down row
A34-35, near the same area the previous sets of abandoned
bags had been found. (Doc. # 57 at 6). Defendants stopped at
a white Chevrolet vehicle that was backed into a parking
space and rolled their bags toward the rear of the vehicle,
where the officers were unable to see what Defendants were
doing. Id. The Defendants began walking out from the
back of the vehicle without the bags, and the officers
approached and identified themselves. Id.
Mahaffey's body language indicated to the officers that
he was going to try to run, so the Defendants were ordered to
the ground. Id. at 6-7. Both Defendants complied.
Id. at 7. Locating the luggage near the rear of the
white Chevrolet, the officers observed that the tags had been
removed from the bags and discarded on the back of the
vehicle. Id. Two of the discarded tags-marked with
Nelson's name-corresponded with bag identification
stickers the airline had placed on two of the suitcases;
however, the 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. Before
Defendants were transported to the airport police station,
officers ran the license plate of the white Chevrolet and
found it to be registered to Ashley Drake-one of the three
women that the officers had observed on August 24, 2017,
arriving from Phoenix on the Frontier flight and entering the
parking garage with the abandoned bags. Id. at 8.
officers then transported Defendants Nelson and Mahaffey to
the airport police station and read the Miranda warnings to
them. (Doc. # 57 at 8). Defendant Nelson signed a consent
form granting permission to search her two bags, which were
found to contain forty-three pounds of marijuana.
Id. Mahaffey refused to consent to the search of the
third bag. Id. The officers obtained a search
warrant to search both of Mahaffey's two suitcases,
finding four pounds of methamphetamine and thirty-seven
pounds of marijuana. Id.
December 14, 2017, a federal grand jury returned an
Indictment against the Defendants, charging them with
conspiracy to possess with the intent to distribute 500 grams
or more of a substance containing methamphetamine, in
violation of 21 U.S.C. § 846 (Count One). (Doc. # 1 at
1). Defendants were also charged with aiding and abetting
each other to knowingly and intentionally possess with the
intent to distribute 500 grams or more of a substance
containing methamphetamine (Count Two), and a detectable
amount of marijuana (Count Three), all in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Doc. # 1 at
18, 2018, Defendant Nelson filed a Motion to Suppress,
arguing that the officers lacked probable cause to arrest
her. (Doc. # 38). Defendant Mahaffey joined in Nelson's
Motion, echoing that his arrest was not supported by probable
cause. (Doc. # 40). After the United States filed its
Response (Doc. # 41), Judge Smith held an evidentiary hearing
on August 3, 2018. See (Docs. # 46 and 49). The parties then
submitted post-hearing briefing, see (Docs. # 54, 55, and
56), and Judge Smith subsequently issued an R&R,
recommending that Defendants' Motions be denied. (Doc. #
57). Defendants each having filed Objections to the R&R
(Docs. # 58 and 59), the Motions to Suppress are ripe for the
Standard of Review
to 28 U.S.C. § 636(b)(1)(B) and Rule 59 of the Federal
Rules of Criminal Procedure, a district court may refer a
motion to suppress to a magistrate judge for the preparation
of a report and recommendation. “The magistrate judge
must promptly conduct the required proceedings and enter on
the record a recommendation for disposing of the matter,
including any proposed findings of fact.” Fed. R. Crim.
P. 59(b)(1). If a party files timely objections to the
recommendation, the district court must consider those
objections de novo and accept, reject or modify the