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United States v. Ferguson

United States District Court, D. Minnesota

January 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GADELLE DANTE FERGUSON, Defendant.

          Gregory G. Brooker and Thomas Calhoun-Lopez, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

          Shannon R. Elkins, OFFICE OF THE FEDERAL DEFENDER, for defendant.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN R. TUNHEIM CHIEF JUDGE

         Defendant Gadelle Dante Ferguson has been charged with two counts of possession with intent to distribute methamphetamine. He moved to suppress the contents of a FedEx package that was mailed to him and seized by Minneapolis-St. Paul Airport Police Detective Mark Meyer. Magistrate Judge Becky R. Thorson held a hearing on Ferguson's motion and issued a report and recommendation (“R&R”) recommending that the motion be denied because Meyer had reasonable suspicion to seize the package, the search warrant was supported by probable cause, and - even if the warrant were not supported by probable cause - the good-faith exception applies. Presently before the Court are the R&R and Ferguson's Objections to the R&R. Because Meyer had reasonable articulable suspicion to seize the package and probable cause supported a subsequent search warrant, the Court will overrule Ferguson's Objections, adopt the Magistrate Judge's R&R, and deny Ferguson's Motion to Suppress.

         BACKGROUND

         I. FACTUAL BACKGROUND

         Meyer testified to the following facts at a hearing before the Magistrate Judge on October 3, 2017. (See generally Mot. Hr'g Tr. (“Tr.”), Oct. 16, 2017, Docket No. 30.)

         A. Parcel Intercept at Minneapolis-St. Paul Airport

         On April 28, 2017, Meyer was stationed at the airport watching in-bound parcels at FedEx. (Id. at 8.) With the goal of catching incoming narcotics, Meyer was “looking for mainly air parcels, Priority Overnight, person to person.” (Id. at 9.) At about 6:29 A.M., a package caught his attention because it was shipped Priority Overnight, which cost approximately $188, and appeared to be going to a residence. (Id. at 10-11, 15.) Meyer thought it was unusual that the package was going to a residence, because Priority Overnight is expensive and usually used to ship “company to company.” (Id. at 11-12.) The package was shipped from “Candle Craft Center, ” which Meyer assumed was a company, to “Todd Bulow” or “Bulow Todd, ” which Meyer assumed was an individual. (Id. at 11.) Meyer thought it odd that someone would have needed candles so quickly that they would pay for Priority Overnight shipping. (Id. at 12.) He also thought the package was suspicious because it came from Torrance, California; he considered Torrance a “hot spot for narcotics” and California a “source state.” (Id. at 12-13.)

         Meyer performed a Google search for “Candle Craft Center, ” which returned no results. (Id. at 12.) He then took a picture of the air bill and texted it to an analyst that was working for the airport police. (Id. at 13.) The analyst searched a database called CLEAR and a California business database and told Meyer that Candle Craft Center did not exist. (Id. at 14.) The analyst then looked up “Todd Bulow” and found no result in Minnesota. (Id.) Finally, the analyst searched the phone number below the recipient's address on the air bill and reported that it was tied to three narcotics investigations, although he did not say how it was related to those investigations. (Id. at 14-15.)

         At approximately 6:45 A.M., Meyer took the package and placed it in a FedEx truck. (Id. at 16.) He touched other boxes on that truck, as well as several boxes in two or three other FedEx trucks. (Id.) He touched the boxes with various parts of his body, including his hands, his thigh, and the back of his arm. (Id. at 32.) Meyer intended to run his narcotics K-9, Whinny, on the boxes. (Id. at 7, 16.) He touched multiple boxes because he did not want Whinny to “key off of [his] scent.” (Id. at 16-17.) Meyer testified: “I don't want my odor only on one box because [Whinny] may . . . smell my odor on just that one box and not on any of the others and she may alert.” (Id. at 17.)

         Meyer then had Whinny “run the boxes.” (Id.) Meyer ran Whinny through several trucks where he had touched boxes; each truck contained ten to fifteen boxes. (Id. at 32, 46.) When they arrived at the fourth truck, Whinny alerted to the package at issue by going into a “sit.” (Id. at 17, 46.) Meyer wrote out a receipt to FedEx for the box and brought the box back to his office. (Id. at 18.) He then applied for a search warrant, which issued at 9:30 A.M. (Id. at 18, 20.) Meyer opened the FedEx box with his sergeant and lieutenant, and they found methamphetamine inside. (Id. at 20-21.)

         B. Meyer and Whinny's Background and Training

         Meyer has worked with the airport police since 1990, became a narcotics K-9 handler in 1997, and became a K-9 trainer in 2005. (Id. at 4-5.) He has been trained in handling K-9s and in narcotics interdiction. (Id. at 5-6.) He also teaches parcel interdiction and trains law enforcement agencies in the use of K-9s. (Id. at 6, 23.) Meyer has handled four dogs since becoming a K-9 handler and has been handling Whinny for about three years. (Id. at 7-8.)

         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.) Whinny has been consistently certified since 2015. (Id. at 22-23.) Certification involves showing that the dog can find narcotics hidden in several locations inside a house and in several cars during a timed test that lasts less than 30 minutes. (Id. at 22, 40.) In Meyer's opinion, Whinny's reliability is above average because she is generally able to find narcotics and generally does not falsely alert. (Id. at 23.) She has falsely alerted in the past, as do all narcotics dogs, but Meyer opines that Whinny's false alerts are “within an acceptable tolerance.” (Id. at 24.) Whinny's errors are not reported to certification authorities; Meyer is the only person who keeps track of them. (Id. at 35-36.) In the past, she has given false indications on boxes touched by Meyer or another handler. (Id. at 36-37.) She falsely reported on a box touched by another handler in January of 2017, which Meyer attributed to “handler error.” (Id. at 37.) Whinny also had about a month of false reporting problems in May of 2016. (Id. at 38.) Meyer noted that these issues were with “hides, ” or hidden locations in a room, not parcels. (Id. at 44-45.) Meyer opined that Whinny has never had long-term or chronic false alerting with parcels. (Id. at 45.)

         II. PROCEDURAL BACKGROUND

         Ferguson was charged on July 18, 2017, with two counts of possession with intent to distribute methamphetamine. (Compl. at 1, July 18, 2017, Docket No. 1.) On September 11, he moved to suppress the contents of the FedEx package seized by Meyer. (Mot. to Suppress, Sept. 11, 2017, Docket No. 20.) Ferguson's Motion alleged that: (1) he had a reasonable expectation of privacy in the package; (2) law enforcement lacked probable cause to seize and search the package; (3) the “dog alert” did not justify the continued detention of the package because the dog was not reliable; (4) without the “dog alert, ” Meyer lacked probable cause to support a search warrant; and (5) Ferguson was entitled to a hearing to challenge the validity of the search warrant. (Id. at 1-2.)

         The Magistrate Judge held a hearing on the Motion to Suppress on October 3, and Meyer testified to the facts surrounding the search and seizure of the package. (See generally Tr.) The Magistrate Judge recommends that Ferguson's Motion to Suppress be denied because Meyer had reasonable suspicion to seize the package, probable cause supported the search warrant, and - even if the warrant were not supported by probable cause - the good-faith exception applies. (R&R at 8, 14, 18, 20, Nov. 29, 2017, Docket No. 36.) Ferguson objects to the R&R, arguing that Meyer lacked reasonable articulable suspicion to seize the package, that Meyer lacked probable cause to justify searching the package, that the good-faith exception does not apply, and that ...


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