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United States v. Koutsos

United States District Court, S.D. Mississippi, Northern Division

November 21, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
NIKOLAOS T. KOUTSOS, et al. DEFENDANTS

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.

         Nikolaos Koutsos, James Horrisberger, and Lai Saechao were arrested and charged with possession of marijuana with intent to distribute, conspiracy to possess marijuana with intent to distribute, and interstate transportation in aid of racketeering. Horrisberger and Saechao now move to suppress evidence resulting from their detention and arrest.[1] The Court has reviewed the parties' arguments and the evidence they presented at a suppression hearing. For the reasons stated below, the motion is DENIED.

         I. Facts [2]

         On the afternoon of June 6, 2017, the U.S. Air Marine Operations Center (AMOC), which monitors all air traffic in the United States, contacted the U.S. Customs and Border Protection Air and Marine Operations, New Orleans Air and Marine Branch (NOAMB) concerning a Piper airplane. The NOAMB agents were told that the Piper, with registration N454SC, departed Oroville, California, and began a cross-country flight eastbound. The aircraft refueled in Los Alamos, New Mexico, and continued traveling eastward. And “[b]ased on the type of aircraft, current speed and previous travel, agents from NOAMB determined that the aircraft was likely to land somewhere near Hattiesburg, Mississippi to refuel.” Docket No. 44-1 at 2.

         Shortly before 6 p.m. central time, Horrisberger landed the Piper at Copiah County Airport in Mississippi. Fifteen minutes later, as the Piper was taxiing towards the runway for departure, Agent Martin Smith of NOAMB hailed the Piper via radio to conduct a pilot certificate inspection (PCI).[3] Agent Smith, who was flying in a helicopter with Agent Grant Sibley, landed in front of the Piper-blocking the only active runway at the airport. Agent Smith informed Horrisberger that they were agents with the U.S. Department of Homeland Security. He asked Horrisberger to shut down the airplane's engines and present his documents for inspection.

         Multiple factors triggered the PCI. The Piper was flying at 15, 500 feet even though this type of plane typically flew above 18, 000 feet on cross-country flights to take advantage of wind patterns, which would allow the plane to fly faster and more efficiently. The pilot did not file a flight plan and was not in communication with air traffic control.[4] The plane departed from northern California, an area known to produce large quantities of marijuana. Most significantly, having obtained the plane's registration number, AMOC prepared and sent NOAMB a report indicating that the owner of the Piper was “linked to possible narcotics and currency smuggler.” Docket No. 60-1 at 1. The owner was a corporation, and Nikolaos Koutsos was its registered agent. The AMOC report also stated that Koutsos was linked to two other planes suspected of aviation smuggling. In March 2016, officers seized over $52, 000 from Koutsos at the Orlando International Airport. In December 2012, Koutsos was also the “subject of [a] bulk currency encounter” in which $34, 000 was found in his carry-on luggage at Tampa International Airport. Id.

         The agents had received all of this information from AMOC by the time they made contact with Horrisberger and requested the PCI. According to Agent Smith, Horrisberger complied but said he was on a tight schedule and would meet the agents outside of the Piper. Horrisberger turned off the engines, exited the Piper, closed the door behind him, and walked about 20 feet away from the Piper toward the agents. He produced the requested documents. An FAA Inspector then gave the agents access to the terminal building and allowed them to complete the inspection inside the terminal.

         Once they entered the building, Agent Smith started taking pictures of each document. Agent Smith asked Horrisberger if there was anyone else in the airplane; Horrisberger answered that there were two passengers. When Agent Smith requested Horrisberger's consent to look inside the Piper, Horrisberger answered no. Agent Smith then asked “if [Horrisberger's] passengers would be more comfortable if they exited the aircraft for the duration of the inspection.” Docket No. 44-1 at 3. Horrisberger replied that the passengers were fine inside the airplane. Agent Smith again suggested that the passengers exit the plane since the “ambient air temperature was very hot” inside the closed Piper.[5] Id. Horrisberger again rejected this suggestion.

         At some point during the PCI, Horrisberger allegedly became argumentative and asked how long the inspection would take. He then commented that the inspection was taking too long and stated he was going to call his attorney. Horrisberger then called an individual who he claimed was his attorney. After he got off the phone, he told the agents that his attorney said he was free to go.

         By this time, Agent Smith had finished inspecting Horrisberger's documents.[6] The agents found that Horrisberger had produced every document required for the PCI. Each was in order.

         The agents then told Horrisberger that they were concerned about the passengers and were going outside to check on them. They instructed Horrisberger to wait inside the terminal building, stating that he was not free to leave.

         The agents walked across the tarmac to the Piper. Agent Smith testified that he approached the aircraft door on the left side of the rear fuselage, knocked on the door, and asked if anyone was inside. He heard no response. The agents tried to look through the windows but the curtains were closed. Agent Sibley, who was on the opposite side of the aircraft-the side without a door-said he then smelled marijuana emanating from the Piper. Agent Smith walked over to where Agent Sibley was standing and smelled marijuana as well.

         The agents returned to the terminal building where Horrisberger had remained. Horrisberger was talking on his cell phone when Agent Smith told Horrisberger to put down his phone and turn around. Agent Smith handcuffed Horrisberger and patted him down. The search yielded no contraband or weapons.

         The agents then returned to the Piper. Agent Smith knocked on the door and ordered all passengers to exit the plane. There was no response. He testified that he repeated this order several times and received no response, but heard movement inside the plane. Agent Smith then opened the door and saw two men “squatting down in a crouched position in the [a]isle of the aircraft toward the back near the door.” Docket No. 44-1 at 3.

         Agent Smith ordered the men to put their hands up and exit the Piper. The men complied. One man was identified as “Nick, ” the other as “Lai.” Both were arrested. At this point, Agent Smith did not attempt to obtain a search warrant. He instead contacted Homeland Security to request a K-9 search of the plane and conduct interviews of the three men.

         Within 40 to 45 minutes, additional Homeland Security agents arrived at the airport. Horrisberger's affidavit is the only evidence that provides a direct account of the K-9 search. Horrisberger states:

The K-9 walked around the Piper and did not appear to give any positive indication for the presence of illegal drugs. The K-9 officer then directed the K-9 to the open door of the Piper and the K-9 still did not appear to give any positive indication for the presence of drugs. The K-9 officer then picked up the K-9 and carried it into the Piper. After that, the K-9 officer came out of the Piper and stated that the K-9 detected illegal drugs.

Docket No. 37, Ex. 1 at 3-4. The agents found black vacuumed-sealed, plastic garbage bags in the rear luggage area of the plane's cabin and along the front passenger seating area. They contained seven bundles of marijuana weighing a total of 248.26 pounds.

         That same day, Koutsos, Horrisberger, and Saechao were charged with possession of marijuana with intent to distribute, conspiracy to possess marijuana with intent to distribute, interstate transportation in aid of racketeering. This motion followed.

         II. ...


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