United States v. McCants

677 F.Supp.3d 698

UNITED STATES of America, Plaintiff, v. Deante Steven MCCANTS, Defendant.

2:22-CR-20320-TGB-APP

United States District Court, E.D. Michigan, Southern Division

Signed June 16, 2023

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

Deantae¹ 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.

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,...