Opinion
2:22-CR-20320-TGB-APP
2023-06-16
UNITED STATES of America, Plaintiff, v. Deante Steven MCCANTS, Defendant.
John N. O'Brien, II, Benjamin Coats, David J. Portelli, U.S. Attorneys, United States Attorney's Office, Detroit, MI, for Plaintiff. Federal Community Defender, Public Defender, Detroit, MI, Celeste Kinney, Public Defender, Federal Community Defender, Detroit, MI, Andrew Densemo, Public Defender, Federal Defender Office, Detroit, MI, Colleen P. Fitzharris, Public Defender, Federal Public Defender, Seattle, WA, for Defendant.
John N. O'Brien, II, Benjamin Coats, David J. Portelli, U.S. Attorneys, United States Attorney's Office, Detroit, MI, for Plaintiff. Federal Community Defender, Public Defender, Detroit, MI, Celeste Kinney, Public Defender, Federal Community Defender, Detroit, MI, Andrew Densemo, Public Defender, Federal Defender Office, Detroit, MI, Colleen P. Fitzharris, Public Defender, Federal Public Defender, Seattle, WA, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION SUPPRESS
(ECF NO. 39)
TERRENCE G. BERG, United States District Judge
Deantae McCants was stopped, detained, and searched by a federal-state drug interdiction task force at the Detroit Greyhound Bus Station in June of 2022. Found to be in possession of a substantial quantity of illicit narcotics, McCants was charged with conspiring to possess controlled substances with intent to distribute, 21 U.S.C. §§ 814(a)(1), 846, and possessing methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1). He now moves to suppress the evidence gathered and the statements he made as a result of the seizure and subsequent search, contending that task-force officers violated his rights under the Fourth Amendment. ECF No. 39.
In his motion, McCants notes that his first name is misspelled in the indictment.
The government filed a brief in opposition (ECF No. 44), and the Court held an evidentiary hearing on January 4, 2023. Having considered the relevant case law, the sworn testimony of the witnesses and the exhibits presented at the evidentiary hearing, and the arguments of the parties advanced in their briefs and at oral argument, the motion will be GRANTED IN PART and DENIED IN PART.
I. FACTUAL FINDINGS
At approximately 6:35 p.m. on June 14, 2022, a video surveillance camera recorded a dark-colored SUV arriving at the Greyhound Bus Station in Detroit and dropping off McCants and his co-defendant, Teon Holland. Gov't Video Ex. 73, 00:10-00:19; Gov't Video Ex. 94, 00:23. Each man carried a backpack. A multi-jurisdictional team of uniformed investigators, including FBI Agent Bradley Cioma and Michigan State Troopers Joshua Olszewski and Matt Kiser, were observing the station that day as part of a drug interdiction effort. Cioma Aff., ¶ 5, ECF No. 1, PageID.3; Incident R., ECF No. 48-2, PageID.234. According to Cioma, taskforce investigators saw the two men arrive together on surveillance camera feeds and communicated about them over radio.
McCants and Holland entered the station's boarding area for a 6:40 p.m. bus departing to Louisville, Kentucky about two-and-a-half minutes after boarding began. Gov't Video Ex. 75, 00:06-02:34. According to an affidavit Cioma later prepared, investigators knew "from training and experience [that] it is common among narcotics traffickers to arrive at the last minute or shortly before their departing bus is set to leave." Aff., ¶ 5, ECF No. 1, PageID.3. At the hearing, Cioma further testified that, from his experience, he knew traffickers are often armed and sometimes travel in pairs because a companion provides "another set of eyes" to assess the risk of law enforcement involvement. He also stated that investigators were focusing on the bus departing to Louisville because they knew Detroit to be a source city for the narcotics trade in Kentucky.
Bus station surveillance footage shows that MSP Trooper Kiser was standing close to the boarding line and asked to see McCants and Holland's tickets and IDs as they tried to get in line. Gov't Video Ex. 75, 02:48. According to a report Kiser later prepared, the pair "had a visible break in their stride" when they made eye contact with him; "their eyes widened and [McCants] looked down at the ground." Incident R., ECF No. 48-2, PageID.234; Aff., ¶ 5, ECF No. 1, PageID.3. Nonetheless, both McCants and Holland presented Kiser with their mobile tickets and IDs while another taskforce investigator approached and stood nearby. Gov't Video Ex. 75, 02:45-03:11. Holland began "visibly perspiring" and "displayed general increasing nervous mannerisms"—such as shifting his weight, breaking eye contact, and speaking with a voice tremble—during the interaction. Incident R., ECF No. 48-2, PageID.235.
After Kiser inspected his ticket and ID, McCants boarded the bus with his backpack. Gov't Video Ex. 75, 03:18. But Kiser continued speaking with Holland. Incident R., ECF No. 48-2, PageID.235. A third officer approached and took Holland's ID to run a check on it. Incident R., ECF No. 48-2, PageID.235; Gov't Video Ex. 77, 00:03-00:10. After the officer discovered that Holland had an outstanding felony warrant for drug trafficking, he radioed the taskforce team about it, and a total of five investigators—including Cioma and Olszewski—responded to the scene. Gov't Video Ex. 81, 00:32. Kiser continued talking to Holland for a few moments, asking whether he had previously been arrested. When Holland said no, Kiser took his backpack from him, handcuffed him, and began to pat him down while the others observed. Id. at 00:32-00:51. Kiser found a cellophane-wrapped package concealed on Holland's chest, which investigators suspected contained drugs. Id. at 00:37-59.
Following the discovery of the package on Holland, Kiser signaled for the bus to open its doors, which had closed in preparation for departure. Id. at 01:21-01:27. Four investigators—including Cioma and Olszewski—then boarded the bus while Kiser continued searching Holland. Id. at 01:27-01:32.
The task force agents were not equipped with body cameras, so there is no video footage showing what took place on the bus. At the evidentiary hearing, Cioma and Olszewski both testified that when investigators approached McCants, Cioma calmly asked him to step off the bus; neither remembered the exact words he used. According to Olszewski, the interaction was "pleasant" but otherwise "extremely unrememberable;" McCants did not resist in any way and no voices were raised. Cioma and Olszewski testified that McCants got out of his seat on his own power and picked up his backpack. Both recalled, however, that as he walked off the bus McCants started looking around, as if he were scanning for an exit. They testified that, based on their training and experience, they knew this behavior could signal an intention to flee. (Indeed, Agent Cioma recalled that, at that particular bus station, similar scanning behavior had preceded dangerous situations in which suspects fled, even running onto the nearby freeway.) Olszewski then grabbed McCants by the arm and firmly advised him not to run. Cioma grabbed McCants by his other arm and, at some point before they stepped off the bus, acquired McCants's backpack.
Bus station surveillance footage records McCants, with the officers just behind him, stepping out of the front door of the bus approximately twenty seconds after officers boarded. Gov't Video Ex. 82, 00:16. Although the quality of the video recording is poor because of its perspective and somewhat grainy focus, it appears that McCants is moving freely as he emerges from the bus's entrance; it cannot be seen clearly whether he is carrying his backpack or not. Id. at 00:16-00:23. At the top step, he pauses and looks back onto the bus, as though reacting to a signal from the officers behind him. Id. at 00:16-00:23. As he continues down the steps, it becomes clear that—at some point—Cioma and Olszewski grabbed his arms and are holding them behind his back to lead him off the bus, and Cioma has possession of his backpack. Id.
Bus station surveillance footage further shows Cioma and Olszewski leading McCants to a counter a few feet away from where Kiser was detaining Holland. Id. at 00:30-01:00. Cioma tosses the backpack on the ground and handcuffs McCants, while Olszewski appears to take McCants's cellphone and place it on the counter. Id. Three officers then leave the platform (apparently to chase another, unrelated individual) while Kiser and Cioma remain with Holland and McCants. Kiser can be seen continuing to search Holland and removing packages from his person. Gov't Video Exs. 82-91.
Cioma testified that, after handcuffing McCants, he asked for and received consent to search McCants's person. See also Aff., ¶ 7, ECF No. 1, PageID.5. Video shows him exchange a few words with McCants before squeezing his pockets. Gov't Video Ex. 82, 00:50-00:58. According to Cioma, he detected "unnatural foreign objects" in McCants's groin area during the search. Based on their plain feel, he suspected they were drugs. Cioma further testified that, when he asked McCants about the objects, McCants insisted repeatedly and unconvincingly that they were merely his own anatomy. Some two minutes later, Cioma again began patting McCants down below his belt. Gov't Video Ex. 86, 00:16; see also Gov't Video Exs. 89 & 90. Video footage appears to show Cioma remove objects from McCants's pockets (Gov't Video Ex. 86, 00:22-00:31), but at the hearing Cioma testified that it was Kiser who did so later.
Some minutes later, Cioma signaled to Kiser to bring Holland over to him. Gov't Video Ex. 90, 00:10-00:20. Kiser did so and gathered McCants and Holland's belongings—including their backpacks and other objects seized from them. Gov't Video Ex. 93. Kiser and Cioma then led McCants and Holland to another area of the bus station, out of view of cameras, where (according to Olszewski) investigators placed their bags against a terminal wall. Olszewski testified that he then arrived on scene with a narcotics-detecting police dog, who sniffed the bags and alerted for the presence of drugs. Aff., ¶ 8, ECF No. 1, PageID.8
After subjecting the bags to a dog sniff, investigators opened and searched both backpacks. Cioma testified that, under Michigan State Police and Federal Bureau of Investigation policy, a suspect's bag must be opened and inventoried after an arrest. Olszewski, meanwhile, stated that there was no specific inventory search policy, but that "if you're going to take someone to jail, you have to inventory what's in their property before you can bring it to jail." In total, agents seized five large cellophane-wrapped packages from McCants, three from his backpack and two from his person. Aff., at ¶ 8. Following these discoveries, they transported McCants and Holland to the Michigan State Police Detroit Detachment, where they tested the packages and interviewed McCants before taking him to Macomb County Jail. Aff., at ¶ 9; ECF No. 39, Mot. to Suppress, PageID.157-58; Incident R., at PageID.237. Four of the packages McCants had were marijuana (total of 515.9 grams), and one tested positive for methamphetamine/MDMA (402.6 grams).
II. LEGAL STANDARD
The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. amend. IV. Evidence found and statements made after an illegal seizure must be suppressed. Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The government bears the burden of establishing that any search or seizure was justified by adequate legal cause. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). It also bears the burden of proving, through "clear and positive testimony," that any consent given to a search was truly voluntary. United States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011) (internal quotation omitted).
McCants moves to suppress the evidence gathered during the detention and search, contending that task-force officers violated his rights under the Fourth Amendment.
III. DISCUSSION
A. The Detention of McCants and Search of his Person
The parties agree that McCants was seized when officers escorted him off the bus. But they disagree whether that initial seizure amounted to a full-blown arrest—requiring probable cause—or merely an investigative detention, which is permissible on reasonable suspicion. McCants maintains that he was subjected to a full-blown arrest in the absence of probable cause. He further argues that investigators lacked even reasonable suspicion to detain him for a brief investigatory stop. ECF No. 39, at PageID.161. According to McCants, he was detained on a mere "hunch;" officers impermissibly transferred suspicion of Holland onto him and effectively found him "guilty by association."
The government responds that the totality of the circumstances—including McCants's late arrival to the bus stop, his nervousness on speaking with investigators, his travel from Detroit to Kentucky, and the fact that his companion had an active felony drug warrant and drugs on his person—combined to give officers reasonable suspicion that McCants was also involved in drug trafficking and "likely" provided probable cause for a full-blown arrest as well. ECF No. 44, PageID.185.
1. Reasonable Suspicion
Whether investigators had reasonable suspicion or probable cause turns on an evaluation of the totality of the circumstances. United States v. Brignoni-Ponce, 422 U.S. 873, 885 n.10, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Satisfaction of a "drug courier profile," by itself, does not establish probable cause or reasonable suspicion; investigators must be able to point to additional, articulable facts indicating that a suspect is or has engaged in criminal activity. United States v. McCaleb, 552 F.2d 717, 720 (6th Cir. 1977); cf. United States v. Smith, 574 F.2d 882, 885 (6th Cir. 1978) (drug courier profile plus officer's observations of abnormal abdominal bulge provided reasonable suspicion); United States v. Pope, 561 F.2d 663, 667-68 (6th Cir. 1977) (flight plus drug courier profile supplied reasonable suspicion).
Several of the observations cited by the government as providing reasonable suspicion have been held to be insufficient on their own to establish legal cause for a detention or arrest. While "nervous, evasive behavior is a pertinent factor" in the analysis, Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), "[n]ervous behavior, standing alone, is not enough to justify a Terry search." United States v. Wilson, 506 F.3d 488, 495 (6th Cir. 2007). Other courts additionally recognize that, "[g]iven the tensions between the black community and the police," nervousness exhibited by black individuals upon being contacted by law enforcement can be entirely understandable. See United States v. Jordan, No. 16-00036, 2017 WL 9516819, at *11 (W.D.N. Y July 14, 2017), report and recommendation adopted, 2017 WL 4784317 (W.D.N.Y. Oct. 24, 2017).
McCants's travel itinerary from Detroit to Louisville by itself is also not enough to create reasonable suspicion. While officers testified that Detroit is a drug source city for Louisville, the Sixth Circuit has suggested that such information may deserve little weight. The Court of the Appeals questioned "whether there exists any city in the country which [agents] will not characterize as either a major narcotics distribution center or a city through which drug couriers pass on their way to a major narcotics distribution center." United States v. Andrews, 600 F.2d 563, 566-67 (6th Cir. 1979). And the incident report notes that McCants had a Michigan ID and that Holland had a Kentucky ID. Incident R., ECF No. 48-2, PageID.235. Merely using the bus system to travel from one of these cities to another would not be sufficient by itself to raise suspicion. See United States v. Cottrell, 636 F. Supp. 3d 797, 804 (E.D. Mich. Oct. 21, 2022) (Parker, J.) ("While the officers may be aware that there is drug trafficking facilitated by some individuals who are at the bus station, this trafficking by certain persons does not characterize the entire bus station as a location of drug trafficking. Defendant's mere presence at the bus station, without more, is not enough to rise to the level of reasonable suspicion.").
But determining the existence of reasonable suspicion requires a cumulative analysis of the totality of the circumstances. After conducting such an analysis, the Court concludes there was reasonable suspicion for an investigatory detention of McCants. The information available to the officers was not limited to observing McCants's last-minute arrival on a suspicious route and nervous behavior upon encountering law enforcement. They also learned that Holland had an active warrant and, upon arresting and searching him, discovered that he had a substantial quantity of drugs on his person. The discovery of drugs on Holland provided a direct link to criminal activity and articulable facts in addition to the other behaviors and circumstances observed by investigators.
And here, McCants and Holland appeared to be travel companions. The Court recognizes that the Supreme Court has cautioned that "[p]resumptions of guilt are not lightly to be indulged from mere meetings" and associations. United States v. Di Re, 332 U.S. 581, 593, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (mere presence of defendant in car where informer and another individual transacted counterfeit coupons did not sustain inference of common criminal enterprise); see also Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) ("mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person"). But while companionship does not "of itself" justify a search or seizure it is a factor to be considered in determining whether an investigator's actions were justified. United States v. Bell, 762 F.2d 495, 500 (6th Cir. 1985). And when it is reasonable to believe that two individuals are acting in concert, officers may use evidence of contraband found on one to support a seizure of the other. United States v. Williams, 949 F.2d 220, 221 (6th Cir. 1991); see also United States v. Akins, 995 F. Supp. 797, 811 (M.D. Tenn. 1998).
The Court acknowledges that McCants challenges the reasonableness of the inference that he and Holland were companions. But video footage clearly shows them exiting the same vehicle when they arrived at the station. Agent Cioma also testified that investigators saw their arrival on live surveillance feed. While the existence of rideshare technology raises the possibility that complete strangers may meet for the first time only while sharing a brief ride, this does not render unreasonable an inference that two individuals exiting the same vehicle, walking together in a bus station, and seeking to board a bus at the same time are probably traveling together. Nor does it render unreasonable a suspicion that such individuals may be engaged in a common enterprise when one of them is found to be in possession of a large quantity of drugs. See Maryland v. Pringle, 540 U.S. 366, 373, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (inference of common enterprise permissible from defendant's presence in a "relatively small automobile" where large quantity of drugs was discovered).
McCants additionally argues that Trooper Kiser's decision to allow him to board the bus after inspecting his ticket and ID shows that investigators lacked reasonable suspicion to detain him. In other words, he asserts that any suspicion investigators may have harbored about him initially was apparently dispelled because they allowed him to board the bus, so that any second encounter would have no basis. But there is no dispute that McCants's initial encounter with Kiser was consensual. And while successive stops may in some instances violate the Fourth Amendment, see United States v. Foreste, 780 F.3d 518, 524-25 (6th Cir. 2015), investigators here had new information—i.e., the discovery of drugs on Holland—when they boarded the bus to detain McCants. Investigators were not required to ignore this information and cease investigating McCants after they found drugs on Holland.
The government suggests that the discovery of drugs on Holland was enough to provide investigators with probable cause for an arrest of McCants. Relying on two decisions from district courts out of circuit that upheld the arrests of defendants following the discovery of drugs on their companions, United States v. Hospedales, 247 F. Supp. 2d 530 (D. Vt. 2002), and United States v. Archeval-Vega, 883 F. Supp. 904 (W.D.N.Y. 1994), the government contends that the discovery of drugs on one member of a group is, "virtually standing alone," enough for an arrest. ECF No. 44, PageID.190.
But this interpretation goes too far. The arrests described in those cases were supported by additional suspicious behavior not observed here. In Hospedales, investigators observed the defendant behaving nervously in a bus station parking lot before he met with and spoke to an arriving passenger. 247 F. Supp. 2d at 538. When they subsequently detained the defendant for questioning, he denied knowing the passenger he had been speaking to, told them he was there to meet his girlfriend but could not provide her name, became belligerent, and provided an unverifiable ID. Id. And in Archeval-Vega, the defendant's companion expressly told investigators that she was traveling with him and that they were being paid $800 to deliver cocaine. 883 F. Supp. at 908.
Here, by contrast, all investigators knew when they took McCants off the bus was that he was nervous, his travel fit a drug-courier profile, and he appeared to be traveling with somebody who had an active drug warrant and was in possession of drugs. These facts gave rise to reasonable suspicion supporting a brief investigative detention. On their own, however, they are insufficient to allow a prudent person to conclude that McCants had committed, was committing, or was about to commit a criminal offense. Cf. Williams, 949 F.2d at 221 (association with person observed handling drugs plus flight amounted to probable cause).
2. Scope of the Detention
McCants next challenges the scope of the detention. A temporary investigative detention—sometimes known as a Terry stop—is permissible based on reasonable suspicion of criminal activity if it is "reasonably related in scope to the justification for [its] initiation." Brignoni-Ponce, 422 U.S. at 881, 95 S.Ct. 2574 (internal quotations omitted). A frisk for weapons is allowable if an officer reasonably suspects that the individual he is investigating is armed and dangerous. Terry, 392 U.S. at 23, 88 S.Ct. 1868. The use of handcuffs does not necessarily automatically transform a Terry stop into an arrest, but an officer must be able to articulate circumstances warranting the precaution of using such restraints. Houston v. Clark Cty. Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir. 1999).
Detentions may be "investigative" but because of their extended duration or scope nonetheless violate the Fourth Amendment if they lack probable cause. There is no "litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop." Royer, 460 U.S. at 506, 103 S.Ct. 1319. The scope of the intrusion permitted varies based with the particular facts and circumstances of each case. United States v. Nembhard, 676 F.2d 193, 202 (6th Cir. 1982). But an investigative detention generally must last no longer than necessary to effectuate its purpose and be the least intrusive means reasonably available to verify or dispel the officer's suspicion. Embody v. Ward, 695 F.3d 577, 580 (6th Cir. 2012). The government has the burden of establishing that the stop was sufficiently limited in scope and duration. Royer, 460 U.S. at 500, 103 S.Ct. 1319.
As the Court has concluded that investigators had reasonable suspicion to briefly detain McCants, the next inquiry is whether and at what point the stop developed into a full-blown arrest. McCants urges that the presence of four uniformed officers, plus the fact that they physically grabbed him and separated him from his cellphone and backpack, amounted to a full-blown arrest. According to McCants, the use of handcuffs and pat-down search provide further evidence that the encounter immediately escalated past a stop into an arrest.
But the Court must review the sequence of events and the additional behaviors officers observed during the encounter because they are critical to this analysis. McCants appears to suggest that he was intimidated into leaving the bus by overwhelming police presence. But he was not free to leave at that point in the first place because he was under investigatory detention. Additionally, Agent Cioma and Trooper Olszewski both testified that, when asked, McCants got out of his seat on his own power; they did not immediately place their hands on him. Although neither could remember the exact words used to order McCants off the bus, Olszewski described the beginning of the encounter as "pleasant" but otherwise "extremely unrememberable." And available video shows that none of the investigators were more heavily armed than a normal police officer. That footage further appears to show that, at least when he was beginning to exit the bus, McCants was still moving freely.
McCants urges that investigators had several less intrusive investigative means readily available for dispelling their suspicions than immediately ordering him off the bus—they could have, for instance, asked him on the bus whether he knew Holland. But the fact that other less intrusive means of investigation can be imagined does not necessarily render an investigator's chosen methods unreasonable. United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Asking McCants to accompany investigators off the bus so they could question him more privately does not strike the Court as unreasonable. See United States v. Wiggins, 828 F.2d 1199, 1202 (6th Cir. 1987) (although "interrogation of defendant on the concourse would have been less intrusive," investigators did not act unreasonably in asking defendant to go to private office).
And as the encounter continued, investigators observed additional behaviors justifying further intrusions. Cioma and Olszewski both testified that, as McCants was walking off the bus, he appeared to be looking around and scanning for exits—a behavior which, based on their training and knowledge, they knew could indicate an intention to flee. Officers are entitled to rely on such training and knowledge. United States v. Branch, 537 F.3d 582, 589 (6th Cir. 2008). Aware that such behavior presented a safety risk because it had previously led to suspects running onto a nearby freeway (indeed, at the hearing there was evidence that such a flight incident was in progress during McCants's detention), the officers were therefore entitled to use reasonable measures to maintain the status quo while they investigated the circumstances that initially provoked their suspicion. United States v. Jacob, 377 F.3d 573, 579 (6th Cir. 2004) (collecting cases). Under these circumstances, the Court cannot conclude that the investigators' actions in placing their arms on McCants to escort him off the bus and subsequently handcuffing him exceeded the bounds of a permissible investigatory stop.
McCants also challenges the search of his person as unreasonable, asserting that officers knew him to be cooperative from his interaction with Kiser and had no reason to suspect that he was armed or dangerous. ECF No. 39, at PageID.162. But Cioma testified that he asked for and obtained McCants's consent for the search of his person, and consent is a well-established justification for a search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To the extent McCants intends to argue that his consent was not voluntary, the totality of the circumstances does not support a finding of involuntariness. Video footage shows Cioma and McCants exchange a few words when the two were left alone before Cioma briefly squeezes McCants' pockets. Gov't Ex. 88, at 00:47-1:00. Aside from the fact that McCants was in handcuffs, nothing suggests coercive police conduct. McCants does not argue that anything about his age, intelligence, or demeanor should have indicated to investigators that he was incapable of giving voluntary and knowing consent. United States v. Wilson, 806 F. App'x 450, 453 (6th Cir. 2020).
The pat-down search yielded additional information that justified turning a lawful investigative stop into a lawful arrest. Cioma testified that, once he conducted the pat-down search of McCants's person, he detected "multiple, unnatural objects" in McCants's groin area. He further testified that, when he asked McCants what those objects were, McCants's answers were unconvincing and not credible. As McCants was suspected of trafficking drugs, the totality of the circumstances—including his late arrival to the bus station, his nervous behavior on encountering law enforcement, the discovery of a large quantity of drugs on his travel companion, the discovery of suspicious objects concealed on his person, and his unsatisfactory explanation for those objects—combined to give investigators probable cause to believe that he was engaged in criminal activity. See United States v. Pacheco, 841 F.3d 384, 395 (6th Cir. 2016) (conclusion that defendant possessed drugs was permissible where officer felt abnormal package in defendant's pocket and defendant muttered that it was "tortillas"); United States v. Southard, 20 F. App'x 304, 306-07 (6th Cir. 2001) (probable cause existed for arrest after officer conducted pat-down search and felt rock of crack cocaine in defendant's pocket).
At oral argument, McCants asked the Court to consider Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), apparently intending to argue that Cioma impermissibly rummaged through his pockets during an investigatory stop. In Dickerson, the Supreme Court held that law enforcement may seize non-threatening contraband detected during a protective pat-down search if the incriminating character of the contraband seized is readily apparent through its plain feel. Id. at 379, 113 S.Ct. 2130. The concern in that case was that the officer kept manipulating a suspect's pocket even though the circumstances justified only a frisk for weapons and his testimony "belie[d] any notion that he 'immediately' recognized the lump" in the pocket as illicit contraband. Id. at 378, 113 S.Ct. 2130. But again, evidence from the hearing establishes that McCants consented to the search. Even if he did not, video footage shows that Cioma did not manipulate or rummage through McCants's pocket but only quickly squeezed it. And Cioma provided testimony at the hearing that it was immediately apparent to him through plain feel that the objects were illicit narcotics. The Court concludes in this case that Cioma's search of McCants falls comfortably within the "plain feel" doctrine.
Accordingly, the Court concludes that the detention, pat-down search, and subsequent arrest of McCants were justified. His motion to suppress the evidence obtained from the search of his person and any statements he made as a result of his arrest is therefore DENIED.
B. The Search of the Backpack
McCants also challenges the search of his backpack as unconstitutional, asserting that he did not consent to it. ECF No. 39, PageID.168. There is an exception to the warrant requirement for searches of a person incident to arrest. When investigators arrest a suspect on foot, they have a right to search his person and any open containers, like wallets, that they find. United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). But the law generally recognizes that travelers have legitimate expectations of privacy in their luggage, and that a warrantless search of luggage violates the Fourth Amendment unless it falls within one of a carefully defined set of exceptions. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); see also United States v. Grant, 920 F.2d 376, 389 (6th Cir. 1990).
The government concedes that it did not have a warrant to search McCants's backpack. And there is no evidence that McCants consented to the search either. The government suggests in a footnote (ECF No. 44, PageID.194 n.1) that McCants somehow waived his lack-of-consent argument by not asserting it in greater force, but the government has the burden of showing that the search was justified. During oral argument, the government briefly referenced one exception to the warrant requirement, the exception for searches incident to arrest, in an effort to justify the search of the backpack. It also mentioned in passing the doctrine of inevitable discovery—an exception to the exclusionary rule. The Court will consider each of these legal justifications for the warrantless search of the backpack.
1. Search Incident to Arrest
The search-incident-to-arrest exception allows investigators to search areas within the "arrestee's 'immediate control,' meaning 'the area from within which he might gain possession of a weapon or destructible evidence' " without a warrant. Arizona v. Gant, 556 U.S. 332, 335, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). As the Supreme Court explained in Chimel v. California, its seminal decision recognizing the exception, dual concerns for officer safety and the preservation of evidence both justify and provide limiting principles for this exception:
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. . . .Chimel, 395 U.S. at 762-63, 89 S.Ct. 2034.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The "adherence to judicial processes" mandated by the Fourth Amendment requires no less.
The Court's most-recent summary of the contours of search-incident-to-arrest exception in the decades since Chimel may be found in Riley v. California, 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). There, the Court explained that the exception is generally limited to "personal property . . . immediately associated with the person of the arrestee." Id. at 384, 134 S.Ct. 2473 (quoting United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)). In the vehicle context, officers may also search the passenger compartment of an automobile "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle" because of "circumstances unique to the vehicle context." Id. at 385, 134 S.Ct. 2473 (quoting Gant, 556 U.S. at 343, 129 S.Ct. 1710). Otherwise, however, courts must take care not to "untether the rule from the justifications underlying the Chimel exception." Id. at 387, 134 S.Ct. 2473 (internal quotations omitted).
Put another way, a lawful search-incident-to-arrest extends to two circumstances: (1) if the arrestee was unrestrained and within reaching distance of the area at issue at the time of the search, or (2) it was reasonable for the arresting officers to believe that evidence relevant to the crime of arrest might be found in the vehicle. United States v. Buford, 632 F.3d 264, 269 (6th Cir. 2011) (citing Gant, 556 U.S. at 351, 129 S.Ct. 1710); see also United States v. Vining, No. 21-20715, 675 F. Supp. 778, 795-97 (E.D. Mich. May 30, 2023) (summarizing recent search-incident-to-arrest case law).
McCants was not in a vehicle, so whether the search-incident-to-arrest exception applies comes down to whether he was both "unrestrained" and "within reaching distance" at the time of the bag search. Buford, 632 F.3d at 269. As the Sixth Circuit has explained, the fact an arrestee is handcuffed does not necessarily mean that he is entirely restrained. United States v. Dillard, 78 F. App'x 505, 512-13 (6th Cir. 2003). But the more tightly "restrained" a suspect is, the shorter the possible reaching distance. United States v. Mincy, No. 20-00061, 2022 WL 17176398, at *5 (S.D. Ohio Nov. 23, 2022).
In this case, although the government has argued that the backpack search was a valid search incident to arrest, there is little doubt that McCants was fully restrained and unable to reach his backpack. Video footage shows that McCants was separated from his bag even before he was handcuffed. He remained separated from the bag in the boarding zone of the bus station. And the testimony from the evidentiary hearing was that McCants and Holland were led away to a non-public area and continued to be restrained and separated from their bags, which were placed against a terminal wall to be subjected to a dog sniff. The Court thus finds that McCants would have been wholly unable to access the bag at the time the investigators opened and searched it. The search-incident-to-arrest exception to the warrant requirement is therefore inapplicable. Cf. United States v. Shakir, 616 F.3d 315, 321 (3d Cir. 2010) (warrantless search of suspect's bag was justifiable as search incident to arrest where suspect's bag was at his feet while he was handcuffed and officers were concerned he could still access a weapon or destructible evidence); Mincy, 2022 WL 17176398, at *5-*6 (same where handcuffed suspect's bag was on his person).
2. Inevitable Discovery
The exclusionary rule is an evidentiary rule that seeks to deter unconstitutional searches and seizures by barring the admission of evidence gathered unlawfully. The doctrine of inevitable discovery creates an exception to the exclusionary rule; it is not an exception to the warrant requirement. See Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Supreme Court has explained that the doctrine of inevitable discovery flows from the deterrence goals underpinning the exclusionary rule itself:
[T]he cases implementing the exclusionary rule begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity. Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (internal quotations omitted). The exception is meant to ensure that the exclusionary rule puts the government in the same position it would be in absent the illegality, not a worse one. Murray v. United States, 487 U.S. 533, 541, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). It "involves no speculative elements but focuses on demonstrated historical facts" and does not "depart[ ] from the usual burden of proof at suppression hearings." Nix, 467 U.S. at 444 n.5, 104 S.Ct. 2501.
In the Sixth Circuit, the doctrine applies when there is an "independent, untainted investigation" that would have uncovered the same evidence or when "other compelling facts" demonstrate that discovery was inevitable. United States v. Kennedy, 61 F.3d 494, 499 (6th Cir. 1995). Paradigmatic examples of "other compelling facts" include situations in which the evidence would have been discovered pursuant to a "routine procedure" or when an illegal search is followed by a legal one conducted in accordance with a valid warrant based on probable cause developed before the illegal search. See id. at 500; United States v. Bowden, 240 F. App'x 56, 61 (6th Cir. 2007).
Some examples are useful to illustrate the scope of the doctrine. In Kennedy, the Sixth Circuit concluded that the doctrine was applicable when an airport police officer opened luggage at an airline employee's request. The airline misrouted and mislabeled the defendant's two checked bags with the name of another traveler. Kennedy, 61 F.3d at 496. When the bags turned up at the wrong destination, an airline employee tried to open them in accordance with the airline's lost luggage policy—which was to open lost bags to check for identification and, if there was none, to inventory the contents. Id. In one of the bags, the employee found $176,000, which she promptly reported to airport police; the other bag had a combination lock. Id. Police arrived and x-rayed the second bag, discovering several dense, rectangular objects. Id. As they were arranging to move the bags to the airport police station, the employee obtained permission from her supervisor to force the lock, found a hammer and a screwdriver, and asked an officer to open it for her. Id.
In affirming the decision to allow the government to use the contents of the bag at trial, the court wrote that "the existence of a routine procedure such as [the airline]'s policy regarding lost luggage satisfies the requirement that there be compelling facts illustrating that the disputed evidence inevitably would have been discovered." Id. at 500. It emphasized that the airline employee had testified at an evidentiary hearing that, even before the police arrived on scene, she had made the decision to open the suitcases pursuant to the lost luggage policy and would have forced the lock on the suitcase or asked another employee to do so if the officer had not opened it for her. Id. Because the private search was inevitable, regardless of the involvement of the police, no deterrent value would be achieved by penalizing the government for the officer's act of opening the luggage without a warrant at the employee's direction.
Similarly, in United States v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002), the court concluded that the doctrine rendered admissible illegally-seized evidence that would have been located during a later search. After conducting several controlled drug buys, agents arrested the defendant and obtained a warrant to search his home. Id. at 562-63. They found no drugs. Id. at 563. A day later, an agent who had not been part of the search team but "felt very strongly that there was something there that had not been located" decided to re-enter the residence illegally and found cocaine hidden behind an oven. Id. Meanwhile, other agents were interviewing additional witnesses. Id. Using only information from those interviews agents obtained a second warrant and searched the defendant's house for a third time. Id. at 563-64. Because the third search team involved the same agent who had found the cocaine behind the oven and would have occurred irrespective of his warrantless entry into the home, the court concluded that the cocaine inevitably would have been discovered lawfully after the second warrant was obtained. Id. at 565.
But in United States v. Haddix, 239 F.3d 766 (6th Cir. 2001), the Sixth Circuit rejected application of the doctrine when officers conducted a search of a defendant's home without obtaining a warrant. The fact that they easily could have done so was not considered the kind of inevitable discovery that would excuse application of the exclusionary rule. From a helicopter, state police and the United States Forest Service officials saw marijuana plants growing behind the defendant's house. Id. When officers later went to the home, they heard the sounds of motors emanating from the home, saw electric lines leading to outbuildings, and observed sixty-seven marijuana plants. Id. at 766-67. Through the back porch storm door, officers noticed a semi-automatic rifle, seized the firearm from the porch, continued inside the house, and arrested the defendant after finding him asleep on top of some guns and marijuana. Id. at 767. It was only after the arrest that they obtained a warrant. Id.
The Sixth Circuit rejected the government's argument that the inevitable discovery doctrine could be used to admit evidence when the police could have obtained a warrant but did not. Id. at 768. As it explained, such a proposition would render the warrant requirement completely meaningless:
Let it be absolutely clear: this is untenable. As we have noted before, this position of the United States would completely obviate the warrant requirement and would constitute, to say the least, a radical departure from the Fourth Amendment requirement precedent. Today, we again hold that the warrant requirement is at the very heart of the Fourth Amendment, and that judicial exceptions to it are only exceptions.Id. at 768 (internal quotations omitted).
Here, during oral argument, the government briefly adverted to the inevitable discovery rule by asserting that "one way an item can be said to be inevitably discovered is if the officers were on a course that would have required them to conduct an inventory search." The government did not cite any case law or offer evidence that the search of McCants's bag could be justified as an inventory search. Instead, it stated it was asserting the inevitable-discovery doctrine "as [a] backup" argument.
The government has the burden of showing that the inevitable-discovery doctrine should be applied. To avail itself of the inevitable-discovery doctrine by invoking the inventory-search exception, it needed to prove three things: "(1) that the police had legitimate custody of the vehicle or other property being searched, so that an inventory search would have been justified; (2) that when the police in the police agency in question conducted inventory searches, they did so pursuant to 'established' or 'standardized' procedures; and (3) that those inventory procedures would have 'inevitably' led to the 'discovery' of the challenged evidence." United States v. Mendez, 315 F.3d 132, 138 (6th Cir. 2002) (internal quotations omitted); accord United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989) ("The government can meet its burden by establishing that, following routine procedures, the police would inevitably have uncovered the evidence."); see also United States v. Avendano, 373 F. App'x 683, 685 (9th Cir. 2010) ("Because of the government's failure of proof, we cannot affirm the district court on the alternative ground of inevitable discovery.")
In this case, the government did not present adequate proof of an "established" or "standardized" search procedure. The Sixth Circuit has been clear that evidence of a written policy is not necessarily required in this context. United States v. Alexander, 954 F.3d 910, 916 (6th Cir. 2020). And police departments have wide latitude in devising such policies. Id. But the government nonetheless must establish that some set of guiding principles governing the scope of the search and its execution exist for this exception to apply. Id. This is because the exception exists "to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger," Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); it is not "a ruse for a general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).
The evidence before the Court concerning the existence of any policy guiding the discretion of the officers here is paper-thin and full of contradictions—unlike the testimony presented about the airline lost luggage search policy in Kennedy. There is no evidence of a written policy in the record. Cioma testified that the FBI and Michigan State Police have a policy requiring investigators to inventory the contents of a bag that a person is carrying when they are arrested and "write it down in some way" but provided no additional details. According to Olszewski, meanwhile, there was "[n]ot a specific policy" but "if you're going to take someone to jail, you have to inventory what's in their property." (He added that "[y]ou have to take everything out, look inside of it, make sure that they're not bringing any weapons, any contraband or anything there's not allowed into the correctional institution" but did not mention whether the purpose of this was to generate a list or to exclude contraband items from jail.) From this testimony it is not clear that any department-wide policies governed how officers conducted a search of the bags, let alone whether any policy existed at all. See Alexander, 954 F.3d at 916 (declining to apply inventory-search exception where testimony established that "there existed regulations governing when inventory searches were permissible" but not "how the inventory searches were to be conducted"). Nor did the government present any evidence of what inventory-search policies existed at the correctional facility to which McCants was later taken. As the Sixth Circuit has held, "[t]he Constitution requires stricter limits." Id.
Moreover, the reality here is that McCants's backpack was not searched to take an inventory of what property it contained. It was searched because a drug-sniffing dog alerted to the presence of narcotics in the bag. Were this a legitimate inventory search, the mere fact that an officer suspected contraband could be found would not invalidate the search. United States v. Snoddy, 976 F.3d 630, 634 (6th Cir. 2020). But the Constitution does not permit law enforcement to camouflage an investigative search under the cloak of an inventory search. Id.
Although the dog sniff together with all of the other evidence would have likely supported the issuance of a warrant, the Supreme Court has held that "the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority." Chadwick, 433 U.S. at 15, 97 S.Ct. 2476, overruled on other grounds, Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619; United States v. Quinney, 583 F.3d 891, 894 (6th Cir. 2009) (collecting cases "demonstrat[ing] this circuit's commitment to the Fourth Amendment's warrant requirement, and . . . reject[ing] the government's attempt to circumvent the requirement via the inevitable-discovery doctrine"); see also United States v. Johnson, 43 F.4th 1100, 1111 (10th Cir. 2022) (concluding that, while officer had probable cause to seize bus passenger's backpack and arrest passenger based on suspected narcotics trafficking, officer could not search backpack without a warrant).
The goal of the exclusionary rule is to discourage officers from ignoring their obligation to obtain a search warrant when they wish to search a place where a person has a reasonable expectation of privacy. When it comes to searching a passenger's luggage, this deterrent effect would be weakened to the point of non-existence if officers knew that once they had probable cause (either to arrest the person or search his bag), they could forego a warrant and search luggage immediately—safe in the assumption that, eventually ("inevitably"), the bag would be subjected to an inventory search once the suspect was in custody. For the evidence to be admissible, the government needed a warrant or more exacting proof of firmly-established department-wide policies. The proper procedure here would have been to seize the bag and seek a warrant to search it.
Accordingly, the drugs recovered from McCants's bag will be suppressed. McCants also asks the Court to suppress any statements he may have made. While the record shows that, after investigators searched his bag, McCants was taken to the MSP Detachment and questioned, neither party has provided any information about the statements made during that interview. Consequently, the record is insufficient to permit the Court to evaluate whether those statements have any causal connection to the illegal search.
IV. CONCLUSION
For the reasons explained above, McCants's motion to suppress is GRANTED in part and DENIED in part. The government has satisfied its burden of showing that the seizure of McCants's person was justified and may use evidence discovered on his person and any statements he made as a consequence of his arrest at trial. But the government has not met its burden to justify that the search of his backpack was lawful, so any evidence uncovered during the search of his bag must be suppressed.
The Court sets this matter for trial to commence on July 25, 2023.
The Court is cognizant that more than 30 days have elapsed between when this matter was argued, on January 4, 2023, and today's decision. Although neither party has raised any concerns regarding the Speedy Trial Act, that statute provides pursuant to 18 U.S.C. § 3161(h)(1)(D), that 30 days are excludable for the Court's consideration of a motion after a hearing. After that, for the period between February 3, 2023 until the new trial date set out in this Order, the Court finds that the ends of justice served by this delay outweigh McCants's and the public's interest in a speedy trial due to the complexity of the legal and factual questions raised in the Defendant's motion to suppress. 18 U.S.C. § 3161(h)(7)(A). The necessity of spending sufficient time thoroughly evaluating these issues and reaching a correct legal conclusion clearly served the interests of justice. 18 U.S.C. § 3161(h)(7)(B)(i)-(iv). Accordingly, the Court finds that the time period between March 19, 2023 and the new trial date set out in this Order constitutes excludable delay.
IT IS SO ORDERED this 16th day of June, 2023.