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United States v. Eymann

United States District Court, C.D. Illinois, Springfield Division

October 5, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JONATHAN EYMANN and GARY LYONS, Defendants.

          ORDER AND OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         Just after midnight on July 21, 2013, Defendant Jonathan Eymann and his uncle, Defendant Gary Lyons, landed a small, private airplane in Litchfield, Illinois. Suspecting drug trafficking, police followed Eymann and Lyons to a nearby hotel and confronted them in the hotel's parking lot. The encounter culminated in their arrests, and Eymann and Lyons were charged with conspiring to distribute marijuana and possessing marijuana with intent to distribute. Lyons was also charged with possessing a firearm during a drug trafficking crime.

         Eymann and Lyons have filed a motion to suppress the evidence against them. They argue that they were either unconstitutionally detained or unconstitutionally arrested and that the Court should suppress both the evidence found during the encounter in the parking lot and the evidence found later in the airplane itself.

         The Court presided over six full days of evidentiary testimony and granted the parties leave to file post-hearing briefs. The Court has now reviewed the parties' briefs and the evidentiary record. For the reasons below, the motion to suppress (d/e 26) is DENIED.

         I. BACKGROUND

         The parties agree on the broad outline of what happened on the night of the arrest, though they disagree on many of the specifics. On May 24, 2013, and again on the weekend of June 21, 2013, the aircraft at issue in this case made two trips from California to Pittsburgh and returned after spending only a few hours at the destination and after landing to refuel late at night at desolate airports. The Air and Marine Operations Center (AMOC), a federal law enforcement agency within U.S. Customs and Border Protection, tracked these flights and found them suspicious. On June 24, 2013, Robert Keller, an AMOC intelligence research specialist, emailed AMOC law enforcement officer Jeff Spencer regarding those flights, as well as other factors that AMOC considered suspicious. On July 20, 2013, AMOC monitored the plane on its third eastbound trip from California and eventually anticipated that the plane would be landing in Litchfield, Illinois, around midnight. Jeff Spencer called Department of Homeland Security (DHS) Special Agent Glen Harrington to inform him about the incoming plane and its related history. Jeff Spencer is now deceased and did not testify. Several DHS officers, together with several officers of the Litchfield Police Department (LPD), convened and headed to Litchfield's small airport.

         Shortly after midnight, the plane landed in Litchfield as expected. Eymann and Lyons parked the plane, loaded their bags and a box into an airport courtesy car, and drove away at around 12:25 a.m. The officers followed.

         Eymann and Lyons drove for about a mile and arrived at a nearby Quality Inn at around 12:30 a.m., with the officers close behind. (Tr. at 252, 882, 1260-62.) In the parking lot, Eymann and Lyons parked and exited the courtesy car, but the officers-who had boxed in the courtesy car by parking their vehicles on either side of it-approached the pair and initiated an encounter. The agents were armed and wore uniforms bearing law enforcement insignia, and the lights on at least two of the police vehicles were flashing. A total of 7-9 officers were on the scene, along with several police vehicles.

         Agent Harrington and DHS Resident Agent in Charge Michael Mitchell approached Eymann and Lyons in the parking lot. Agent Mitchell identified himself and asked Lyons questions about the nature of his trip. Lyons responded that he was going from California to Pittsburgh on business.

         Agent Harrington asked Lyons for his identification. Lyons turned over his identification, and Agent Harrington then approached Eymann, who also turned over his identification. Agent Harrington returned to his police vehicle to check for warrants on the pair.

         As Agent Mitchell and Lyons spoke, Lyons began to feel lightheaded. The parties dispute whether Lyons fainted and started falling into Agent Mitchell, or whether Lyons simply bent over with his hands on his knees. But the parties agree that Lyons began experiencing some sort of physical episode, and that the officers brought Lyons to the front passenger seat of Litchfield Police Chief Byron Wilkinson's vehicle. Lyons sat in the front seat with the air conditioning on, and the officers provided Lyons with water.

         While the other officers dealt with Lyons, Agent Harrington learned that the suspects had no outstanding warrants. Agent Harrington approached Eymann again and asked whether Eymann had any marijuana. Eymann admitted that he had a small amount of personal use marijuana in the courtesy car.

         The Government says that Arie, a drug-detection dog, arrived shortly after Eymann admitted to having marijuana in the courtesy car. In the Government's telling, the dog alerted to the courtesy car and then alerted to Eymann's backpack after officers removed the bags from the car. The officers found marijuana in the backpack and arrested Eymann and Lyons. Eymann and Lyons, by contrast, say that the officers searched the car and the bags and arrested them before the drug-detection dog.

         After the officers recovered the marijuana from the car, they handcuffed and formally arrested Eymann and Lyons. The officers then transported the suspects back to the Litchfield airport. The officers deployed Arie around the plane, and Arie alerted. The officers opened the plane using a key obtained from Lyons during the arrest. Upon opening the plane, “there was an overwhelming smell of marijuana.” (Tr. 684.) The officers searched the bags that were in the plane, which contained 65 pounds of marijuana. (Tr. at 690.) The officers also found a handgun in the plane. (Tr. 690.)

         After the officers seized the marijuana and the firearm, they advised both Eymann and Lyons of their Miranda rights, then interviewed both Eymann and Lyons. Lyons admitted to making two previous trips from California to Pennsylvania during which he would drop Eymann off with some luggage, Eymann would meet with a subject, then Lyons would pick Eymann up without the luggage. Lyons stated he suspected the luggage contained narcotics. (Tr. 704.) Eymann admitted to organizing the marijuana deals.

         State prosecutors charged Eymann and Lyons in Montgomery County Circuit Court with possessing marijuana, and Eymann and Lyons sought to suppress the evidence. The court held that Arie's alert to the plane did not establish probable cause to search because Arie was not technically certified on the date of the events. Thus, the court found that the search of the plane was unlawful. The court also found that the encounter at the hotel was a warrantless search and that the inevitable discovery doctrine did not apply. The court therefore suppressed the evidence obtained from the searches. The state prosecutors chose to nolle prosequi, and the case was dismissed without prejudice.

         In 2015, the U.S. Attorney's Office filed federal charges against Eymann and Lyons. Eymann and Lyons filed a motion to suppress the evidence against them based on a variety of grounds.

         II. ANALYSIS

         A. The Encounter Outside The Hotel Was A Terry Stop

         Eymann and Lyons argue that the evidence must be suppressed because the encounter in the hotel parking lot was, at a minimum, an impermissible Terry stop not supported by reasonable suspicion. The Government contends that the encounter began as “consensual” and later became a Terry stop supported by reasonable suspicion (Gov. Post-Hrg. Br. at 27).

         Police may briefly detain a person for investigatory purposes in what is known as a “Terry stop.” Terry v. Ohio, 392 U.S. 1 (1968). An officer may conduct such a Terry stop when the officer has a reasonable, articulable suspicion that the person has been or is about to be engaged in criminal conduct. United States v. Breland, 356 F.3d 787, 791 n.1 (7th Cir. 2004). Though a Terry stop may temporarily deprive an innocent person of his freedom of movement, a Terry stop is “a far more minimal intrusion” than an arrest, “simply allowing the officer to briefly investigate further.” Illinois v. Wardlow, 528 U.S. 119, 126 (2000).

         To determine whether a given interaction with police was a Terry stop or a consensual encounter, the question is whether a “reasonable person” would feel free “to disregard the police and go about his business.” United States v. Williams, 945 F.2d 192, 196 (7th Cir. 1991) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). If so, the interaction was merely a consensual encounter.

         In assessing whether a Terry stop occurred here, the Seventh Circuit's recent decision in United States v. Smith proves illuminating. 794 F.3d 681 (7th Cir. 2015). In Smith, two officers on bicycles were investigating gunshots at night when they saw the defendant crossing the street toward an alleyway. The officers rode ahead of the defendant into the alley and stopped five feet from the defendant. One officer dismounted, approached the defendant, and asked whether he had any weapons in his possession. The defendant said he did, and the officers arrested him.

         The Seventh Circuit found that “in light of all the circumstances surrounding the encounter” the incident was a Terry stop requiring reasonable suspicion. Id. at 682. In so holding, the Seventh Circuit focused on several factors: “the location of the encounter in a dark alley, the threatening presence of multiple officers, the aggressive nature of the questioning, and the fact that [the defendant's] freedom of movement was physically obstructed by the positioning of the officers and their bicycles.” Id. at 685. Given those factors, the court held that a reasonable person in the defendant's shoes “would not have felt at liberty to ignore the police presence and go about his business.” Id.

         Here, the officers approached Eymann and Lyons in a hotel parking lot after midnight and placed themselves between Eymann and Lyons and the hotel. The officers parked their vehicles behind the courtesy car Eymann and Lyons had used, restricting its ability to exit the lot. Police lights were flashing on at least two of the vehicles. (Tr. at 365, 1022-23.) In such circumstances, a reasonable person in Eymann's and Lyons' shoes would not have felt at liberty to ignore the police presence and go about his business. Thus, the officers initiated a Terry stop, not a consensual encounter, when they approached Eymann and Lyons in the parking lot.

         B. The Terry Stop Was Supported By Reasonable Suspicion.

         However, the officers had reasonable suspicion to justify the Terry stop. A Terry stop is a form of seizure. United States v. Shoals, 478 F.3d 850, 853 (7th Cir. 2007) (seizure is “an intrusion that is necessarily present in every Terry stop”). To justify such a seizure, police “must be able to point to specific and articulable facts which, taken together with rational inferences drawn from those facts, reasonably warrant that intrusion.” United States v. Rivers, 121 F.3d 1043, 1045 (7th Cir. 1997). This “reasonable suspicion” requirement presents a “less demanding” standard than probable cause, but the Fourth Amendment requires “at least a minimal level of objective justification for making the stop, ” and something more than a mere hunch. United States v. Breland, 356 F.3d 787, 791 n.1 (7th Cir. 2004); United States v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999). There must be “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Ienco, 182 F.3d at 523.

         In assessing whether a Terry stop was supported by reasonable suspicion, courts consider “the totality of the circumstances as they were presented to the officer at the time of the encounter.” United States v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995) (quotations omitted).

         a. The AMOC tip, the late arrival to a desolate airport, and unloading a box from the plane are factors supporting reasonable suspicion.

         First, Eymann and Lyons argue that the tip from AMOC lacked corroborating support, and thus the tip could not contribute to reasonable suspicion. To the contrary, the tip included specific information about the plane's past flight patterns that supported suspicion. AMOC told DHS that in May 2013, the plane flew from Los Angeles to Pittsburgh, stayed 15 hours, and returned. AMOC also said that in June 2013, the plane did the same thing again, this time staying in Pittsburgh only 5 hours. AMOC said that during both the May and June trips the plane had landed at small, rural airports late at night to refuel. On the night at issue here, the officers directly observed the plane make such a landing at Litchfield, further corroborating the tip. See United States v. Harris, 585 F.3d 394, 401-02 (7th Cir. 2009) (inclusion of specific details in tip about suspects' residence, car, and interactions with others, which then turn out to be correct, supported contention that tip gave probable cause to stop and search suspect's vehicle).

         In his email, Mr. Keller also said that in January 2013, the plane had been in Watsonville, California, where marijuana planes had departed from, and Cloverdale, California, which is near Ukiah, a “known marijuana area.” Gov't Ex. 2A. Eymann and Lyons point out that AMOC did not provide any support for this proposition. Mr. Keller testified that AMOC has caught people using the Watsonville airport to transport marijuana in the past and that the Cloverdale airport is very close to the Emerald Triangle, which is an area “notorious” for marijuana growing and trafficking. (Tr. 64-66). Agent Harrington testified that the recent trip to Watsonville and Cloverdale suggested a connection to potential drug trafficking.

         In his email, Mr. Keller also said the plane landed at “closed” airports to refuel. The Fixed Base Operators (“FBO”) (the main building at many airports) close at night in most cases-as in Litchfield. Although at night the runways of many airports remain useable, it is nonetheless suspicious for a pilot to land at airports where he knows the FBO building will be closed because doing so allows a pilot to avoid detection. The Court finds that the plane's use of “closed” airports is a factor justifying reasonable suspicion. However, a pilot who lands at a “closed” airport presumably must use a credit or debit card to refuel from a ...


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