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United States v. Ferguson

United States District Court, D. Minnesota

November 28, 2017

United States of America, Plaintiff,
v.
Gadelle Dante Ferguson, Defendant.

          Thomas 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

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE

         Defendant 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.)

         Based 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.

         I. Factual Background

         A. Detective Meyer and Whinny

         Detective 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.)[1] Detective Meyer's day-to-day duties with Whinny involve parcel interdiction at the airport. (Id. at 8.)

         Whinny 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.)

         To 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.)[2]

         B. Parcel Intercepted at MSP on April 28, 2017

         On the 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.)

         At 6:29 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.)

         Upon 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.)

         Detective 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, [3] the analyst could not find any listings for Candle Craft Center. (Id. at 14, 30.)[4] 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 15.)

         At 6:45 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.

         (Id. 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.)

         Pursuant 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; ...


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