Case 2:21-cr-20715-TGB-DRG ECF No. 37, PageID.

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

United States of America,

Plaintiff,
Case No. 21-cr-20715
v.
Hon. Terrence R. BERG
D-1 Steven J. VINING, Jr.,

Defendant.
_________________________________/

United States’ Supplemental Brief in Support of Response in Opposition

to Defendant’s Motion to Suppress Evidence for Unlawful Search
Seizure and for Evidentiary Hearing (ECF No. 31)

On September 28, 2021, law enforcement officers from the Michigan

State Police (“MSP”) and the Federal Bureau of Investigation (“FBI”)

lawfully contacted Mr. Vining at the Detroit Greyhound bus terminal.

During this consensual encounter, see Florida v. Bostick, 501 U.S. 429,

434 (1991), Mr. Vining, when confronted by law enforcement officers

abandoned the bag, then in his possession, by placing it on the floor and

walking away from it. See ECF No. 1: Complaint, PageID. 3. Mr. Vining,

thereafter, walked in the direction of the front door of the terminal, see

ECF No. 36: Hearing Transcript, PageID. 222, while stating he was going

to get a ticket. The officers, however, visually observed Mr. Vining

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already holding a bus ticket in his hand. Based on the totality of

circumstances, which included Mr. Vining’s nervous behavior and the

discarding of his bag, he was detained. During his Terry detention, Mr.

Vining indicated that his bag contained, approximately, “5 pounds of

marijuana.” See ECF No. 1: Complaint, PageID. 4. Within moments of

his detention, a free air dog sniff was conducted by a trained and certified

police dog, which positively alerted to the presence of narcotics in the bag

previously possessed by Mr. Vining. Based on this fact, Mr. Vining’s bag

was searched, and 2.1 kilograms of methamphetamine seized.

Argument

a. Abandonment

The first question for review is whether Mr. Vining abandoned his

bag.

The word “abandonment,” within the factual framework of the U.S.

v. Vining case, does not refer to the traditional concepts of property law.

United States v. Talbert, 692 F.2d 1041, 1044 (6th Cir. 1982). Rather, the

resolution of the issue turns on whether Mr. Vining retained a legitimate

expectation of privacy in the invaded space considering the totality of

circumstances. See U.S. v. Dillard, 78 Fed.Appx. 505, 510 (6th Cir. 2003)

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(“Abandonment is primarily a question of intent, and intent may be

inferred from words, acts, and other objective facts.”). The Supreme Court

has repeatedly held that the warrantless seizure of abandoned property

does not violate the Fourth Amendment. See Abel v. United States, 362

U.S. 217, 240 (1960); see also United States v. Frazier, 936 F.2d 262 (6th

Cir. 1991); United States v. Knox, 839 F.2d 285 (6th Cir. 1985).

In the instant matter, the defendant’s intent to abandon the bag,

and, thereby, his relinquishing of any expectation of privacy in its

contents, is demonstrated by the fact that he discarded the bag when he

became aware of the presence of the police at the bus depot, and walked

away from it. At the evidentiary hearing Trooper Sonstrom testified,

“[w]hen I walked up towards and made eye contact with the [defendant],

he had a startled appearance on his face. Also, [. . .] Trooper Ocheski

advised that [Vining] dropped his bag or put his bag down. That is not

normal.” ECF No. 36: Hearing Transcript, PageID. 213.

In Dillard, the defendant was the target of a drug investigation. As

law enforcement officers approached his home to execute a search

warrant, he became aware of their presence and “tossed the briefcase

onto the ground,” and that “the briefcase ‘went flying’ and landed about

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four feet away.” 78 Fed.Appx. at 507. The Sixth Circuit concluded Dillard

abandoned his briefcase, and any expectation of privacy in it, because he

“threw the item on the ground when he realized the police were

approaching.” Id. at 512. In coming to its conclusion, the Court reasoned

that “[o]ne of the most crucial facts of an abandonment case is the

location of the object in question.” Id. at 510. The Court juxtaposed cases

in which the abandonment issue was raised, such as Commonwealth v.

Shaw, 665 N.E.2d 80 (1996) and United States v. Sims, 808 F.Supp. 596

(N.D.Ill.1992).

In Shaw, “the defendant had tossed a briefcase from the window of

his house into his fenced backyard as the police approached with an

arrest warrant.” 78 Fed.Appx. at 510. That court determined that the

defendant did not abandon his property because he “intended to protect

his property from any public scrutiny” when he threw “it into the fenced-

in curtilage of his family’s home, an area enjoying full Fourth

Amendment protection from search by the authorities.” 665 N.E.2d at 83.

In Sims, however, as police officers approached her, the defendant

dropped incriminating property on the ground of a parking lot. The

federal district court in Sims opined that “[b]y dropping the envelope,

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defendants effectively abandoned the envelope and its contents . . . and

thus have no legitimate expectation of privacy in these items.” 808

F.Supp. at 604 n. 14; see also State v. Oliver, 386 So.2d 1331, 1336

(Fla.Dist.Ct.App. 1979) (defendant abandoned a bag he threw on a public

street immediately prior to an encounter with police.). Additionally, the

Sixth Circuit emphasized the persuasive holding of the Tenth Circuit in

United States v. Morgan, 936 F.2d 1561 (10th 1991) (the defendant

abandoned a bag he discarded as police approached even though he did

not flee).

In analyzing the facts of the instant matter, Mr. Vining’s actions

are more analogous to the facts in Sims than to those of Shaw. As law

enforcement personnel approached Mr. Vining at the Greyhound bus

station, he “set [the bag] down and started to walk away from it.” Hearing

Transcript, PageID. 194. SA Cioma elaborated on his reaction to

observing Mr. Vining’s conduct by stating, “I found that to be suspicious.

In a public transportation area for someone to leave their bag, as law

enforcement, that’s very concerning.” Id. (emphasis added). Mr. Vining

abandoned his bag at a place of public transit, where he had no

expectation of privacy. As the Tenth Circuit articulately discussed in

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Morgan, “[t]here is no indication that [defendant] requested the

assistance of anyone to help recover or protect the bag, and the record

discloses no one else was present who could have provided such

assistance.” 936 F.2d at 1571. Additionally, that court pronounced “[the

defendant’s] ability to recover the satchel depended entirely upon fate

and the absence of inquisitive (and acquisitive) passers-by.” Id. (citing

United States v. Jones, 707 F.2d 1169, 1172 (10th Cir. 1983). In the case

at bar, Mr. Vining made no attempt to protect the bag or its contents from

inspection by either secreting it – in any form – from public view or by

transferring it, even to the temporary custody of a stranger. When

officers at the scene asked Mr. Vining why he left his bag at the door, see

Hearing Transcript, PageID. 204-05, Mr. Vining did not even fain

forgetfulness by asking about the status of the bag or attempting to

retrieve it himself.

On September 28, 2021, Mr. Vining abandoned his bag at the

Greyhound bus terminal, and any privacy interests he had in it. See Abel

v. United States, 362 U.S. 217, 241 (1960).

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b. Search Incident to Arrest

At the conclusion of the motion to suppress hearing, Mr. Vining

argued that he was arrested – without proper probable cause – prior to

the positive dog sniff of his bag. “Mr. Vining was under arrest by any

practical, legal definition, purpose at that point and at that point it was

prior to even the dog sniff.” Hearing Transcript, PageID. 238. The

government maintains that Mr. Vining was not arrested until after the

discovery of the controlled substances. See id. at 215. However, if the

Court concludes that an arrest occurred prior to the seizure of the drugs,

the government avers that probable cause to arrest the defendant existed

prior to the drugs being identified, and that its seizure was pursuant to

a lawful search incident to arrest. United States v. Blevins, 2000 WL

1597821 *4 (citing United States v. Nelson, 102 F.3d 1344, 1347 (4th Cir.

1996).

On the day in question, Mr. Vining was a last-minute arrival at the

Greyhound bus station. Law enforcement has learned that, for

individuals engaged in criminal conduct, it “is a tactic that is used to

minimize their time exposure in the station to being intercepted by law

enforcement.” Hearing Transcript, PageID. 168; see also PageID 191.

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When Mr. Vining arrived at the bus terminal, he was still wearing his

work clothing. “On the thousands of people we’ve interacted with there

it’s uncommon for someone to have their work-type clothing on them and

that stood out to me.” Id. After entering the lobby of the terminal, Mr.

Vining began to scan the interior in a manner that – to law enforcement

– resembled countersurveillance. SA Cioma testified that this conduct

was relevant to him “because someone that perhaps is trafficking

narcotics would want to look around and see if law enforcement is

present.” Id. at 190. Mr. Vining was then observed signaling to someone

on the exterior of the terminal by knocking on the window and waving at

them to come inside. SA Cioma stated, “[a] gentleman walking into the

bus station, looking around, then going and knocking on the window and

appearing to wave to somebody outside, I find that suspicious.” Id. at 192.

As the officers were approaching Mr. Vining, he abandoned his bag by

placing it on the ground and walking in the direction of the front door of

the bus terminal. See id. at 69. The officers then followed Mr. Vining –

asking him questions – as he returned to the lobby area of the terminal.

Mr. Vining’s responses to a number of those questions were demonstrably

false. See id. at 51-2; see also id. at 61. Finally, when asked by the officers

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“if he had any illegal narcotics inside his bag and he advised

approximately 5 pounds of marijuana.” ECF No. 1: Complaint, PageID.

4. Importantly, this inculpatory admission occurred prior to the

defendant being moved to the non-public section of the bus terminal.

Once Mr. Vining informed the investigators that he possessed over 2

kilograms of marijuana – in conjunction with all of the other factors listed

above – probable cause existed to lawfully arrest him. See United States

v. Griffin, 2022 WL 3329916 *4 (“knowledge of the precise crime

committed is not necessary to a finding of probable cause provided that

probable cause exists showing that a crime was committed by the

defendant[]”) (citing United States v. Anderson, 923 F.2d 450, 457 (6th

Cir. 1991); see also Halasah v. City of Kirtland, Ohio, 574 F. App'x 624,

630 (6th Cir. 2014).

Since probable cause to arrest Mr. Vining fully ripened after he

admitted possessing illegal controlled substances, the search and seizure

of the methamphetamine in his bag was valid, pursuant to the doctrine

of search incident to arrest.

[W]hen a container is within the immediate control of a

subject at the beginning of an encounter with law enforcement
officers; and when the officers search the container at the
scene of the arrest; the Fourth Amendment does not prohibit
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a reasonable delay . . . between the elimination of the danger

and the search.

Dillard, 78 Fed.Appx. at 513 (citing United States v. Han, 74 F.3d 537,

543 (4th Cir. 1996).

II. Conclusion

Mr. Vining’s motion to suppress should be denied and the

incriminating evidence admitted against him, pursuant to two

recognized exceptions to the warrant requirement: abandonment and,

alternatively, search incident to arrest.

Respectfully Submitted,

Dawn N. ISON
United States Attorney

s/ C. Barrington Wilkins
C. Barrington Wilkins
Asst. United States Attorney
211 West Fort Street
Suite #2001
Detroit, Michigan 48226-3211
(313) 226-9621
barrington.wilkins@usdoj.gov

Date: January 25, 2023

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Certificate of Service

I hereby certify that on January 25, 2023, I electronically filed the

foregoing document with the Clerk of the Court using the ECF system,

which will send notification to the attorneys of record.

Mark A. SATAWA, Esq.

/s C. Barrington Wilkins
C. Barrington Wilkins
Assistant United States Attorney
211 West Fort Street, Suite 2001
Detroit, Michigan 48226-3211
(313) 226-9621
barrington.wilkins@usdoj.gov

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