United States District Court, D. Minnesota
Calhoun-Lopez, Esq., United States Attorney's Office,
counsel for Plaintiff.
Shannon R. Elkins, Esq., Office of the Federal Defender,
counsel for Defendant.
REPORT AND RECOMMENDATION
R. THORSON UNITED STATES MAGISTRATE JUDGE
Gadelle Dante Ferguson was charged with two counts of
possession with intent to distribute methamphetamine. (Doc.
No. 1, Criminal Compl.) On September 11, 2017, Defendant
moved to suppress the contents of Federal Express Package
78678846519 that was mailed to him and seized by
Minneapolis-St. Paul (“MSP”) Airport Police
Department Detective Mark Meyer on or about April 28, 2017.
(Doc. No. 20.) This Court held a hearing on this motion on
October 3, 2017. (Doc. No. 24.) At the hearing, Detective
Meyer testified about his duties as a narcotics K-9 handler,
use of a drug-sniffing dog named Whinny, and how he came to
seize the FedEx package at issue in this case. (Doc. No. 30,
10/3/17 Mot. Hr'g Tr. (hereinafter “Tr.”)
4-46.) The Government also introduced the following exhibits:
(1) a photograph of the FedEx label on the outside of the
seized package; (2) a Hennepin County search warrant
application, search warrant, and return; (3) a photograph of
the inside of the seized package; (4) a photograph of a
wrapped item inside of the seized package; (5) a photograph
of the wrapped item on a scale; and (6) three certificates
from the United States Police Canine Association, Regional
Narcotic Detection, for Detective Meyer and Whinny. (Doc. No.
25, Exhibit List, Gov't Exs. 1-8.) Defendant introduced
one exhibit, a series of canine activity logs for Detective
Meyer and Whinny spanning from 1/20/15 to 4/26/17.
(Id., Def. Ex. 1.)
on the evidence presented at the hearing, and for the reasons
detailed below, this Court recommends that Defendant's
Pretrial Motion to Suppress Search and Seizure Evidence (Doc.
No. 20) be denied.
Detective Meyer and Whinny
Meyer began working for the MSP airport police in 1990 as a
patrol officer. (Tr. 4.) In 1997, Detective Meyer became a
narcotics K-9 handler after going through a month-long
training program at the St. Paul Police K-9 handler school.
(Tr. 5.) Detective Meyer has also been trained in the
interdiction of narcotics, taking classes such as parcel
interdiction, bus interdiction, and train interdiction.
(Id. at 6.) Detective Meyer also teaches parcel
interdiction, and he trains law enforcement agencies in the
use of K-9s. (Id. at 6, 23.) Detective Meyer has
handled four dogs in his career as a K-9 handler.
(Id. at 7.) He has been handling his current dog, a
female lab mix named Whinny, for three years. (Id.
at 7-8.) Detective Meyer's day-to-day duties
with Whinny involve parcel interdiction at the airport.
(Id. at 8.)
is certified by the United States Police Canine Association
to detect narcotics, including marijuana, cocaine, crack,
heroin, methamphetamine, ecstasy, mushrooms, and opium.
(Id. at 17-18, 22; Gov't Exs. 6-8.) Whinny is
also trained to detect the odor of narcotics on U.S.
currency. (Id. at 33.) Whinny is trained primarily
by Officer Meyer, but she occasionally trains with a person
outside the airport police, a former K-9 handler for the
Minnetonka Police Department, twice a year for a couple of
hours. (Id. at 35.)
become certified, a handler has to show during a timed test
that his or her dog can find narcotics hidden in three rooms
in a house and five cars. (Tr. 22.) In the car portion of the
test, the dog has ten minutes to search through five cars.
(Id. at 34.) In the house portion of the test, there
are two “hides” spread over three rooms, and the
dog is allowed twelve to fifteen minutes depending on the
square footage of the house. (Id.) Whinny was first
certified in 2015 and has maintained her certification on a
yearly basis. (Id. at 23; Gov't Exs. 6-8.)
Detective Meyer gauges Whinny's reliability as above
average, as she is generally able to find narcotics and
generally does not falsely alert. (Tr. 23.) Whinny does
falsely alert on occasion, as do all narcotics dogs, but
Detective Meyer believes that Whinny's mistakes are
“within an acceptable tolerance.” (Id.
at 24, 36-40; Def.'s Ex. 1.) Whinny has, for example,
falsely indicated on parcels touched by Detective Meyer and
another handler. (Tr. 37-38.) Detective Meyer attributed
these instances to “handler error, ” either
“going too slow” or the handler's odor.
(Id. at 37.) Detective Meyer testified that
Whinny's errors have primarily been with room hides,
which Detective Meyer attributes to “a trainer issue
that needs to be worked out.” (Id. at 39.)
Whinny has not had long-term or chronic falsing issues with
parcels. (Id. at 45.)
Parcel Intercepted at MSP on April 28, 2017
morning of April 28, 2017, Detective Meyer was watching
inbound parcels at the airport's Federal Express
warehouse site. (Id. at 8.) In order to “check
for incoming narcotics, ” Detective Meyer was
“looking mainly for air parcels, Priority Overnight,
person to person.” (Id. at 9.) He was
stationed towards the end of a conveyer belt, which runs the
length of the building, watching packages that had been
unloaded from two aircrafts. (Id. at 8-9.) Whinny
was in Detective Meyer's car outside of the warehouse.
(Id. at 30-31.)
a.m., Detective Meyer observed a package shipped Priority
Overnight from Torrance, California. (Id. at 10, 15;
Gov't Ex. 1.) Detective Meyer took the package off the
conveyer belt for further inspection and placed the package
on the ground. (Tr. 15-16.) The package caught Detective
Meyer's attention because Priority Overnight is a very
expensive way to ship a parcel; this parcel cost $188.00 to
ship. (Id. at 10-11.) The package was also
suspicious because it came from California, which is
considered a “source state” and a hot spot for
narcotics. (Id. at 12.) These were the two
reasons--cost of shipping and origin--that caused Detective
Meyer to remove the package from the conveyer belt and place
it on the ground at his feet. (Id. at 27, 29.)
Detective Meyer handled the package with his bare hands and
wore no gloves. (Id. at 31-32.)
further inspection, Detective Meyer discovered that according
to the air bill, the package was shipped from a company
called Candle Craft Center LLC to an individual at a
residence named “Bulow Todd, ” which Detective
Meyer presumed to mean first name Todd, last name Bulow.
(Id. at 11; Gov't Ex. 1.) This was considered
unusual because in Detective Meyer's experience, Priority
Overnight is usually used to ship from company-to-company.
(Id.) Detective Meyer also thought it unusual that
someone would need candles so quickly that they would pay the
cost for Priority Overnight. (Id. at 12.) A quick
Google search on his phone, moreover, suggested that Candle
Craft Center was a fictitious company. (Id.)
Meyer took a picture of the air bill on the package with his
phone and texted it to his analyst with the airport police
department. (Id. at 13.) Analysts are on loan from
the Air National Guard, have access to law enforcement
databases, and are “very efficient with the computer as
far as looking up names and addresses and being able to
figure out if the people live there, if they have a drug
history or, in this case, whether Candle Craft
existed.” (Id. at 13-14.) Using a law
enforcement database called CLEAR, and also a California
business database,  the analyst could not find any listings
for Candle Craft Center. (Id. at 14,
The analyst found no records in Minnesota associated with a
person named Todd Bulow. (Id. at 14.) There was also
a phone number on the air bill, and the analyst determined
that there were three narcotics investigations associated
with that number. (Id. at 14-15.) The analyst could
not describe what those investigations were, or where the
number fit in with those investigations. (Id. at
a.m., Detective Meyer moved the package from the conveyer
belt area onto a FedEx truck in the warehouse. (Id.
at 16.) The truck was about forty feet from the conveyer belt
inside the warehouse. (Id. at 31.) Detective Meyer
touched other boxes on the truck, and then he went into two
or three other FedEx trucks and touched parcels on those
trucks. (Id. at 16, 32, 46.) Detective Meyer touched
boxes with various parts of his body, including his hands,
his thigh, and the back of his arm. (Id. at 32.)
Detective Meyer did this because he did not want his dog to
key on his scent, and to minimize the possibility of
suggesting a particular box. (Id. at 16-17.)
Detective Meyer then retrieved Whinny from his car and had
Whinny run over the boxes in the trucks that he entered.
at 17, 32, 46; Gov't Ex. 2 at 2.) Detective Meyer
estimated that there were about ten to fifteen boxes in each
truck. (Id. at 32.) After going through three other
trucks, Whinny alerted to a box on the fourth truck, the box
pictured in Government Exhibit 1, by going into a
“sit.” (Id. at 17, 46; Gov't Ex. 2
at 2.) After Whinny alerted, Detective Meyer wrote a receipt
to FedEx for the package, brought the box back to his office,
and submitted an application for a search warrant.
(Id. at 18; Gov't Ex. 2.) The warrant
application did not include any information regarding
Whinny's false alert issues or Detective Meyer's
actions in touching the subject package and the other
packages in the trucks. (Gov't Ex. 2.) The search warrant
was issued at 9:30 a.m. (Tr. 20; Gov't Ex. 2 at 5.)
to the warrant, Detective Meyer opened the package with his
sergeant and lieutenant. (Id. at 20.) Inside, the
officers discovered a wooden box surrounded by an outer white
portion of Styrofoam. (Id.; Gov't Ex. 3.) A 5.1
pound, shrink-wrapped package was inside the box. (Tr. 20-22;