United States District Court, C.D. Illinois, Springfield Division
ORDER AND OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.)
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.
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.
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
The Encounter Outside The Hotel Was A Terry Stop
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).
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).
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
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
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
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.
The Terry Stop Was Supported By Reasonable
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.
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).
The AMOC tip, the late arrival to a desolate airport, and
unloading a box from the plane are factors supporting
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).
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.
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