Ryan v. USA

Filing 15

ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255. No certificate of appealability shall issue. Signed by District Judge Barbara B. Crabb on 9/19/14. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TREVOR RYAN,
OPINION AND ORDER
Petitioner,
14-cv-430-bbc
08-cr-164-bbc

v.
UNITED STATES OF AMERICA,
Respondent.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Trevor Ryan has moved for post conviction relief under 28 U.S.C. § 2255,
contending that he had been denied his right to the effective assistance of counsel in
connection with his arrest and prosecution for importing marijuana into Wisconsin from
California. While the motion was being briefed and after the government had responded to
petitioner’s motion, he was granted leave to withdraw most of his claims. He has continued
to pursue two claims of ineffectiveness: (1) that his counsel gave him constitutionally
ineffective advice on the night he was arrested for flying a large quantity of marijuana to
Wisconsin from California and (2) that counsel failed to move to suppress the evidence
obtained in connection with that arrest.
Petitioner’s withdrawal of all but two of his claims leaves him with no basis for relief,
for two reasons. First, the allegedly ineffective advice given him when he was arrested cannot
support a claim that counsel was constitutionally ineffective because the constitutional right

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to counsel does not attach until the initiation of adversarial criminal proceedings. Kirby v.
Illinois, 406 U.S. 682, 689 (1972). When petitioner’s counsel advised him to cooperate
with law enforcement, no adversarial criminal proceedings had been initiated.
Second, petitioner cannot show that his counsel was ineffective in not moving to
suppress the marijuana seized from his plane unless he can show that the investigatory stop
and subsequent search of his plane were illegal. He has not made that showing or argued
that he needs to have an evidentiary hearing to adduce the evidence to support his claim.
The record evidence is more than sufficient to show that his counsel would have had no
ground on which to move to suppress the marijuana seized from the plane.
Petitioner has also moved for appointment of counsel. Dkt. #5. That motion will
be denied. His inability to state a claim is not the result of any failure on his part to explain
his arguments cogently or to cite appropriate legal support.

RECORD FACTS
On October 8, 2008, Special Agent Kenneth Martinson of Immigration and Customs
Enforcement learned that a 1962 Piper Aztec PA-23, registration number N5071Y,
registered to petitioner and piloted by him, was flying west from Madison, Wisconsin. The
agent knew that a January 2008 search of petitioner’s residence had disclosed a commercialscale marijuana growing operation in petitioner’s residence in Grenada Hills, California.
Martinson was aware that petitioner owned property in Ukiah, California, an area that was

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a known area for marijuana cultivation, and that he was affiliated with a Los Angeles area
medical marijuana dispensary.
Ten days later, on October 18, 2008, Agent Martinson learned that petitioner had
advised the Federal Aviation Administration that he would be flying from Ukiah to the Dane
County Regional Airport in Madison, Wisconsin; that he had left the Ukiah area about
12:00 p.m., CST; and he had an expected arrival time in Madison of 8:30 p.m., CST.
Martinson passed on the information to Richard Hanson, an ICE agent in Wisconsin, and
arranged for live radar tracking of the aircraft.
At about 7:00 p.m. CST, three ICE agents, including Hanson, met Drug Enforcement
Administration Special Agent Jerry Becka at Wisconsin Aviation, the fixed base operator
serving the Dane County airport. At approximately 8:45 p.m., the agents were informed
that the aircraft they expected to meet had changed course and was landing at the Iowa
County airport in Mineral Point, Wisconsin. Agent Becka passed on the information to the
Iowa County Sheriff’s Department and started for the Iowa County airport. Before he could
get there, Iowa County and Mineral Point officers arrived at the airport, where they observed
only one plane. The officers heard the plane rev its engines. Thinking that it might be about
to take off, they boxed it in with their vehicles. According to petitioner’s summary of the
situation, which I accept as true for the purpose of deciding this motion, law enforcement
officers approached him at gun point as soon as he shut down his engines and stepped out
of the plane; they then told him to lie down on the tarmac, searched him, seized his wallet
and three cell phones and locked him in a squad car. They also brought out a narcotic

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detection canine, which alerted to the presence of narcotics on the aircraft.
Agents Becka and Hanson arrived at the airport about 9:45 p.m.

Becka told

petitioner he would be detained and that they believed the plane contained contraband.
After the agents administered Miranda warnings to him, petitioner said that he wanted to
speak with his attorney. Agent Becka placed the call to petitioner’s attorney, William
Kroger, and told him that petitioner was being detained on the possibility that his plane
contained marijuana. Becka turned the phone over to petitioner, so he could talk with
Kroger, who advised him to cooperate. Before ending the call, Becka talked again to Kroger;
Kroger told him that petitioner would cooperate. In the end, however, petitioner chose not
to cooperate, other than to admit to Becka that the plane contained marijuana. He refused
to answer any other questions. Becka then called Kroger and told him of petitioner’s
decision.
At about 10:20 p.m., an assistant United States Attorney told Agent Hanson that the
plane could be treated like an automobile and searched without a warrant. The search
revealed 157.45 pounds of marijuana.

OPINION
The record evidence does not support petitioner’s claim that the airport search and
seizure violated his Fourth Amendment rights and he has not suggested that he has any other
evidence to show that law enforcement lacked reasonable suspicion to detain him temporarily
or that they lacked probable cause to search his plane.

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“Reasonable suspicion” justifying a stop means only “some objective manifestation
that the person stopped is, or is about to be, engaged in criminal activity.” United States v.
Johnson, 383 F.3d 538, 542 (7th Cir. 2004). “‘[T]he likelihood of criminal activity need not
rise to the level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.’” Id. at 542 (quoting United States v. Arvizu, 534
U.S. 266, 274 (2002). In petitioner’s case, the officers had ample suspicion: they had been
told that petitioner was a known marijuana grower and had left California with plans to fly
to Madison, Wisconsin, a college town likely to contain prospective customers; he was not
landing in Madison, but at the Iowa County airport, where he would be under far less
scrutiny than at the much larger Dane County airport; he was known to possess firearms and
he had taken what seemed to be a defensive maneuver initiated when he spotted the official
vehicles.
The Mineral Point police officers and sheriff’s deputy were justified in blocking
petitioner’s plane with their vehicles when they thought it was about to take off, in holding
petitioner at gunpoint in light of the information that he was known to possess guns and in
placing him in a squad car while they waited for the federal agents. Intrusive as their actions
were, they did not exceed the bounds of a constitutionally permissible investigatory stop in
a situation in which it appeared “necessary “to ‘neutralize’ potentially dangerous suspects
during an investigatory detention.” United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.
1994) (finding it within the bounds of investigatory stop for officers to block Tilmon’s car
after observing it shortly after a bank robbery, to approach him at gunpoint, order him out

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of car with hands up and force him to lie on ground until he could be handcuffed and placed
in squad car). See also United States v. Smith, 697 F.3d 625, 632-33 (7th Cir. 2012)
(officers conducting investigatory stop may approach suspect with guns drawn and handcuff
him without transforming stop into arrest). In petitioner’s case, the officers had been told
that petitioner owned guns, so it was reasonable for them to protect against the chance that
he would use one if he was not detained during the search.
The local law enforcement officers who detained petitioner were entitled to rely on the
information given them from the federal agents. Officers in different jurisdictions may rely
on information from other officers so long as the officer relaying the information had
reasonable suspicion for a stop. United States v. Nafziger, 974 F.2d 906, 911 (7th Cir.
1992). See also United States v. Parra, 402 F.3d 752 (7th Cir. 2005) (applying “collective
knowledge doctrine” after reviewing what knowledge could be imputed to officers at scene
and whether knowledge was sufficient to allow officers to form reasonable belief that
defendant was engaged in criminal activity).
In his reply brief, petitioner lists reasons why he believes that the officers overstepped
the bounds in stopping him at gunpoint and detaining him in a squad car for a brief period,
including his contention that they were not telling the truth about what they called his evasive
actions on the runway. Petitioner says now that he had no intent to take evasive action, that
he was simply taxiing over to the airport gas pump, that what the officers said were tire marks
showing evasive action could not have been made by his plane and that the officers should
have realized that he would be in need of gas at that point in his trip. However, the issue is

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not whether the actions the officers observed were actually criminal in nature or whether
officers more experienced in flying would have known that petitioner was not taking evasive
actions; it is how reasonable officers would have assessed the actions they observed. Even if
petitioner’s explanation for his actions is true, the officers’ assessment was reasonable under
the circumstances. They did not have the luxury of undertaking a full investigation of the facts
of petitioner’s arrival at the Iowa County airport, but had to make a quick decision based on
their observation of the situation and the information they possessed when they arrived. This
is not uncommon in situations like petitioner’s; the process of making an investigatory stop
“does not deal with hard certainties, but with probabilities.” United States v. Cortez, 449
U.S. 411, 417-18 (1981). Given the possibility that petitioner could take off in his plane if
not detained long enough to permit further investigation and the additional possibility that
he was armed, it was not unreasonable for the officers to hold him at gun point and put him
into a squad car while they continued the investigation.
The officers had sufficient probable cause to search the plane.

They had the

information from the ICE agents, petitioner’s post arrest admission that the plane contained
marijuana and the additional evidence supplied by the drug sniffing canine. This was more
than enough to establish the probability of criminal activity, which is all that is required.
Illinois v. Gates, 462 U.S. 213, 235 (1983) (“Probable cause” requires “only a probability, and
not a prima facie showing, of criminal activity.”)
In short, petitioner has not shown that his brief detention at the Iowa County airport
was illegal or that law enforcement officers lacked probable cause to search his airplane. It

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follows that he has no ground on which to contend that his retained counsel, William Kroger,
was constitutionally ineffective in failing to challenge the search and the seizure. United
States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005) (“When the claim of ineffective
assistance is based on counsel’s failure to present a motion to suppress, we have required that
a defendant prove the motion was meritorious.”) Moreover, petitioner has not shown that
Kroger can be held liable under the Sixth Amendment for advising him to cooperate
immediately with law enforcement, nor could he, because Kroger gave the advice before any
adversarial proceedings had been initiated. Kirby, 406 U.S. at 689; United States v. Jackson,
886 F.2d 838, 843 (7th Cir. 1989). Accordingly, petitioner’s motion for post conviction relief
must be denied.
Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must issue
or deny a certificate of appealability when entering a final order adverse to a defendant. To
obtain a certificate of appealability, the applicant must make a "substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274,
282 (2004). This means that "reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (internal quotations and citations omitted). Defendant has not
made a substantial showing of a denial of a constitutional right so no certificate will issue.
Although the rule allows a court to ask the parties to submit arguments on whether a
certificate should issue, it is not necessary to do so in this case because the question is not a

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close one. Petitioner is free to seek a certificate of appealability from the court of appeals
under Fed. R. App. P. 22, but that court will not consider his request unless he first files a
notice of appeal in this court and pays the filing fee for the appeal or obtains leave to proceed
in forma pauperis.

ORDER
IT IS ORDERED that petitioner Trevor Ryan’s motion for post conviction relief under
28 U.S.C. § 2255, dkt. #1, is DENIED, as is his motion for appointment of counsel, dkt. #5.
Further, it is ordered that no certificate of appealability shall issue. Defendant may seek a
certificate from the court of appeals under Fed. R. App. P. 22.
Entered this 19th day of September, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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