The opinion of the court was delivered by: Chief Judge Susan J. Dlott
ORDER DENYING DEFENDANTS' MOTIONS TO SUPPRESS EVIDENCE
This matter comes before the Court on Defendant Phillip Ayers' Motion to Suppress Evidence (Doc. 22) and Defendant Wesley Showes' Motion to Suppress Evidence (Doc. 23). The Court held a hearing on Defendants' motions on September 15, 2011. For the reasons that follow, the Court DENIES Defendants' motions to suppress.
The March 18, 2011 arrest of Defendants Ayers and Showes stemmed from a months-long investigation by the Drug Enforcement Administration (DEA) that began in or about November 2010. Several of the officers involved in the investigation and in the arrest, including Cincinnati Police Officers Ken Baker, Josh Schrage, and James Davis, testified during the suppression hearing. At the time of the investigation, Officer Baker had been assigned to the Cincinnati Police Department's DEA task force for approximately seven years and had participated in hundreds of drug investigations. Officer Schrage was at that time and still is assigned to the Cincinnati Police Department's central vice control section mid-level drug unit. He commonly works with the DEA on drug trafficking investigations. Officer Davis also is part of the central vice control section. He is the only member of that unit to regularly work in uniform and his primary role in the unit is to support other vice officers by making traffic stops or otherwise assisting when a uniformed officer is needed.
In November 2010, a confidential informant gave information to Officers Baker and Schrage regarding Ayers' and Showes' involvement in heroin trafficking in the Cincinnati, Ohio area. The informant was incarcerated at the time, and he cooperated with law enforcement in the hopes of receiving leniency with regard to charges pending against him.*fn1 However, Officer Schrage indicated the informant had worked with officers in the past and had proven himself to be reliable by providing information that had yielded numerous arrests for drug- and weapon-related offenses. With regard to this investigation, the informant told the officers that Defendants Ayers and Showes had been supplying him with heroin. The informant further claimed that Ayers and Showes sold heroin throughout the Cincinnati area and that they obtained that heroin by driving to other source cities, like Dayton and Detroit,*fn2 to pick up the drugs and transport them back to Cincinnati.*fn3
Based on the information from the informant, the officers launched an investigation into Ayers and Showes. Their investigation initially focused on Ayers, who had a criminal record, including a prior conviction in a federal drug conspiracy case, and who was serving a period of supervised release at the time of the investigation.*fn4 Ayers' probation officer gave Officer Schrage information about Ayers' residence and other places where he sometimes stayed. The officers also obtained a GPS "ping" order, which allowed them to constantly track the location of a cell phone they believed to belong to Ayers.*fn5 In addition to tracking Ayers' phone, Officers Baker and Schrage also conducted physical surveillance and monitored phone calls between the informant and Ayers.
While conducting surveillance, the officers observed the following: In February 2011, Officer Schrage observed Ayers and Showes engage in what appeared to be a hand-to-hand drug transaction at a tire store on West Fork Road, near a neighborhood of Cincinnati known as "Northside." Ayers and Showes arrived at the tire store in different cars. Showes remained in his vehicle, and Ayers approached him on foot and gave him a package.
On March 1, 2011, Officer Baker observed Ayers leave his apartment, which was located on Vienna Woods Drive, on the west side of Cincinnati, and drive to Northside, where Ayers pulled into an alley near a barber shop known to be associated with drug trafficking. Officer Baker then observed another individual approach Ayers' vehicle and hand him a small black satchel.
On March 8, 2011, Officer Baker once again observed Ayers leave his Vienna Woods apartment and drive to a gas station in Northside where someone approached him and gave him a McDonald's bag.*fn6 Officer Baker described the incident as a quick hand-off. An individual approached Ayers' vehicle, gave him the bag, and then Ayers drove away. Ayers was driving a different car than the car he had used on March 1. At some point, the officers discovered that Ayers worked for a transportation service owned by a family member, giving him access to a number of different vehicles. When probed further about the circumstances of the March 8 incident, Officer Baker indicated that the hand-off took place in the open, in broad daylight. He further stated that based on his own experience investigating drug trafficking, he knew that a lot of trafficking is conducted in a similar manner -- out in the open, in broad daylight, using common items such as McDonald's bags to conceal drugs or other contraband. Officer Baker believed that on that occasion, the bag contained money, which he said would have been consistent with information received from the informant regarding Ayers' general practice of distributing heroin to lower level dealers and collecting money at a later date.
There were other times during which the officers tracked Ayers' movement through his cell phone. For example, the officers had noted at least two occasions, once in late January 2011 and once in early March 2011, when the tracking records showed that either Ayers or someone else carrying his phone made short trips to Detroit, stayed in Detroit for only one or two hours, and then drove back to Cincinnati. Officer Schrage testified that the tracking records showed similar trips to Dayton, and that on at least one occasion in February 2011, he had followed the cell phone GPS signal to Dayton where he observed a white Cadillac that Ayers was known to drive.*fn7 Officer Schrage briefly followed the Cadillac until he feared that Ayers had noticed him. He believed Ayers stayed in Dayton for a few hours that day.
The officers did not obtain a GPS tracking order for Showes' phone because Showes was not the primary target of the investigation and because the officers did not have a reliable cell phone number for him. Officer Schrage also testified that the accuracy of the GPS tracking sometimes depended on the cell phone service provider, and he feared any attempt to track the number they believed to be associated with Showes would not yield accurate results. However, the officers did monitor calls that the informant made to Showes while the informant was incarcerated. During those calls, Showes and the informant spoke in slang about picking up drugs.
On March 18, 2011, the day of Ayers' and Showes' arrests, the officers determined from Ayers' cell phone movement that either Ayers or someone else in possession of the phone was traveling north to Detroit, Michigan. The officers tipped off DEA officers in Detroit, and directed them to the location of the cell phone. When the Detroit DEA officers caught up with the cell phone signal, they observed two black males driving around Detroit in a black Lincoln Aviator. Earlier that day, Officer Schrage had seen Ayers driving around in the same vehicle, and he and Officer Baker believed that the two men observed by the Detroit DEA officers were Ayers and Showes. The Detroit DEA officers indicated that the Lincoln Aviator stopped in a high-level drug trafficking area in Detroit. Consistent with the GPS tracking records of previous trips to Detroit, the two men stayed in town for a brief period before heading back to Cincinnati. Officers Baker and Schrage continued tracking the cell phone's location, and when Ayers and Showes reached the Dayton, Ohio area, Officer Baker started following the Lincoln Aviator as Ayers and Showes made their way toward Cincinnati on I-75. Officer Baker observed Ayers make a traffic violation,*fn8 and he instructed Officer Davis, who was in uniform, to conduct a traffic stop of the vehicle.
At approximately 11 p.m., Officer Davis and another uniformed officer, Sean Woods, stopped Ayers and Showes on I-75 about ten miles north of downtown Cincinnati.*fn9 When he approached the car, Officer Davis noticed that both Ayers' and Showes' pants were unzipped and that they appeared nervous. He found the fact that their pants were unzipped to be suspicious given that, in his experience, people often store narcotics in their pants. Officer Davis told Ayers that he had pulled him over for a traffic stop, and asked both Ayers and Showes for their IDs. Neither men had warrants under their names.*fn10
Officer Davis asked Ayers, who had been driving, to step out of the vehicle first. He patted Ayers down and did not feel anything abnormal. He then asked Showes to step out of the vehicle. When patting Showes down, Officer Davis felt a large bulge in the area of Showes' groin, possibly in his underwear. Officer Davis testified that it was apparent to him that the bulge was contraband, specifically narcotics.
At that point, fearing the situation may escalate, Officer Davis handcuffed Showes and walked him back over to the police cruiser. Officer Davis then tried to remove the object he had felt during the pat down. Unable to retrieve the object through Showes' underwear, Officer Davis made a small incision in the front of Showes' pants. He then removed from Showes' groin area a bag described as roughly the size of a baseball or softball. The bag contained a large amount of heroin divided into smaller bags.
At the suppression hearing, Defendants showed a video from the traffic stop, on which Officer Davis can be heard asking Showes during the pat down what he has in his pants. Defendants seize upon that question, arguing that it shows that Officer Davis did not in fact know upon plain feel that the package in Showes' pants contained drugs. When asked about that portion of the video on redirect examination, Officer Davis testified that when he feels a suspicious item during a pat down, he often asks the suspect what the item is, even if the nature of the item is immediately apparent. He further explained that in order to avoid a potential conflict, he did not want to reveal to Showes that he believed the item or items concealed in Showes pants were drugs until after he was able to retrieve the drugs.
After seizing the heroin, Officer Davis secured both Showes and Ayers and placed them in the back seats of two different police cruisers.*fn11 Officer Davis transferred Showes to a Cincinnati Police station, where Showes was questioned by another officer. Ayers was also transferred to a police station and was questioned. After a few hours, Ayers was transported to the ...