United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Ollisha Nicole
Easley's Motion to Suppress. [Doc. 20]. Having reviewed
the Motion, briefs, testimony, and relevant law, for the
reasons below, the Court grants the Motion.
Motion concerns a warrantless bus sweep and its fallout-one
of many warrantless sweeps that have come before this Court
and courts across the country. On March 10, 2016, Ollisha
Easley, the defendant, was a passenger on a Greyhound bus
traveling east from Claremont, California. The bus made many
scheduled stops at stations along its route. Some stops were
for a few minutes. The bus stopped for a longer layover at
the bus station in Albuquerque, New Mexico. When it is on
schedule, the bus arrives in Albuquerque at 9:55 a.m. and
departs at 11:15 a.m.
the one-hour-and-twenty-minute layover in Albuquerque,
passengers disembarked. Those who were continuing on to
eastward destinations waited in the terminal while the bus
was serviced, refueled, and cleaned in the maintenance
shop-what is called the wash bay, south of the terminal. When
the bus was ready to depart from Albuquerque, it left the
wash bay and returned to the terminal. The passengers
re-boarded to continue their journeys.
Easley is a 34-year-old African-American mother from
Louisville, Kentucky. It appears that she is the sole
economic provider and caregiver for her family. In early
March, 2016, she was in a desperate financial situation when
she got an offer for a job that would pay $1, 000. The Court
does not know how much Ms. Easley was earning in Kentucky,
where she worked at a chain restaurant. But the weekly
take-home pay-that is, pay after deductions for Social
Security and Medicare taxes-for a minimum wage job in the
United States during this time period was around
$267.80. It would take a person earning the minimum
wage more than 149 hours of remunerated work to earn what Ms.
Easley was offered for this job.
Schultz-a friend in Kentucky whom she had known for about a
year and a half-knew that Ms. Easley needed money. He gave
Ms. Easley's number to a woman who called to offer her
the job. The woman said that Ms. Easley would earn $1, 000
for flying out to California and returning to Louisville on a
Greyhound bus. Beyond those details, Ms. Easley did not know
what the job would involve and she did not ask the woman for
more information. Mr. Schultz gave Ms. Easley money for her
airline ticket, which she purchased with her own debit or
credit card. She flew to Ontario, California, where Mr.
Schultz (who had traveled from Kentucky to California on an
earlier plane) and the woman met Ms. Easley at the airport
and took her to the woman's apartment.
Enforcement Agency (DEA) Special Agent (SA) Jarrell Perry
works to detect and intercept both illegal drugs and proceeds
from the sales of illegal drugs at hubs of public
transportation in Albuquerque: the bus station, the Amtrak
train station (which is connected to the bus station), at
packaging services, and sometimes at the international
airport. SA Perry has more than nineteen years of experience
with the DEA. He has interdicted illegal drugs and proceeds
from sales of illegal drugs for almost eighteen of those
nineteen years-at the Greyhound station in Albuquerque for
six or seven of those nineteen years.
March 10, 2016, SA Perry was at the Greyhound station in
Albuquerque. Before SA Perry arrived at the bus station, he
had received a passenger list from Greyhound. In reviewing
the list, SA Perry observed that two passengers-Ms. Easley
and a woman called “Denise Moore”-were traveling
under the same reservation number. Their tickets had been
paid for in cash and, according to the passenger list, both
women had one piece of checked luggage, that is, luggage
traveling in the cargo area of the bus. [Doc. 21 at 2].
day, the other agent with whom SA Perry typically works was
on vacation. Another DEA agent, Scott Godier, was SA
Perry's backup. Agent Godier does not typically work in
interdiction. The two agents were in street clothes, their
shirts were untucked. SA Perry was carrying a weapon, but his
shirt was covering it. SA Perry believes that Agent Godier
was also carrying a weapon, but he (SA Perry) did not see it.
agents watched the bus from Claremont pulling into the
Greyhound station in Albuquerque. They watched the passengers
disembark from the bus. The bus went to the wash bay. While
the bus was in the wash bay, SA Perry and Agent Godier
“observed” the luggage that was stored underneath
the bus. Ms. Easley's counsel notes that the extent of
the agents' observations in the luggage hold is unknown.
[Doc. 20 at 2]. In the Preliminary Examination/Detention
Hearing on March 14, 2016, SA Perry testified that he
“opened up the luggage bins[, ] . . . looked at the
luggage[, and] looked at the tags.” [Doc. 23 at
10:11-13]. According to the government, SA Perry observed two
pieces of luggage-a grey-colored Rome Essentials-brand
suitcase with a luggage tag displaying Ms. Easley's name
and a black-tan-colored G-brand suitcase with a luggage tag
displaying the name of Denise Moore. Both luggage check-in
tags listed Claremont, California, as the city of origin, and
a Louisville, Kentucky, as the final destination. The two
luggage tags also listed an identical contact phone number.
[Doc. 21 at 2-3].
the bus was washed and refueled, Ms. Easley and the other
passengers re-boarded. As she was returning to her seat, Ms.
Easley saw Agent Godier at the front of the bus and SA Perry
at the rear of the bus. SA Perry was questioning other
to Ms. Easley, after SA Perry had questioned about 15
passengers and searched numerous passengers' belongings,
he approached Ms. Easley. In the Preliminary
Examination/Detention Hearing on March 14, 2016, SA Perry
testified that he “spoke with each passenger” and
estimated that there were “maybe 35, 40”
passengers aboard the Greyhound bus that day. [Doc. 23 at
14:17-18, 24]. The recording of SA Perry's conversations
with passengers clearly demonstrates that different
passengers were subjected to different levels of inquiry. For
example, some passengers were only asked where they boarded,
where their final destination was, and whether they would
consent to a search of their belongings, although SA Perry
did not actually search these passengers. [Doc. 34 at 4].
Defense counsel points out that “[i]t is not at all
clear how Agent Perry decided which passengers would be
subject to which level of inquiry. Every passenger on the bus
began their travel in a source city for narcotics. Every
passenger (except the two traveling to Fort Worth, TX) were
traveling to a destination city for narcotics.” [Doc.
34 at 5]. However, “what is clear is that most of the
people who were asked to produce their ticket and
identification and who were ordered to submit to a search of
their person were Hispanic surname individuals and Ms.
Easley, who is an African-American.” Id.
According to the government, SA Perry had his recording
device activated during his questioning of the passengers,
including Ms. Easley. [Doc. 21 at 3]. The recording of these
interactions reveals that not a single passenger on Ms.
Easley's bus declined to speak with SA Perry, and that
everyone who was asked to do so gave consent for SA Perry to
search their person and belongings. A Latino passenger
apparently even consented to SA Perry's cutting into his
stiff shoe with a knife that SA Perry borrowed from another
to Ms. Easley, when SA Perry spoke to her, he asked her:
(1) where she was traveling from; (2) where she was traveling
to; (3) if she was traveling alone; (4) if she had checked
luggage stored underneath in the cargo hold of the bus; (5)
if he could search her checked luggage stored underneath in
the cargo hold of the bus; (6) if she had any personal
belongings stored in the overhead bin of the bus; and, (7) if
he could search her personal belongings.
[Doc. 20 at 3]. According to the government, Ms. Easley told
SA Perry that she was not traveling with anyone. Ms. Easley
also identified a backpack, pillows, and a checked-in
suitcase as the items belonging to her. [Doc. 21 at 3]. The
government and Ms. Easley agree that Ms. Easley
“consented to a search of all of her belongings.”
[Doc. 20 at 3]. While on the bus, SA Perry saw her ticket,
searched her backpack and pillow, asked Ms. Easley to open
her jacket and if he could search her waist and around her
legs. Ms. Easley complied with these requests. [Doc. 34 at
6]. After SA Perry finished speaking with each passenger, he
exited the bus, pulled luggage out of the cargo hold, removed
Ms. Easley's suitcase and the G-brand suitcase, then
reboarded and asked Ms. Easley to step off the bus. Once she
had exited the bus, SA Perry asked to see her ticket and
again asked her about her travel plans. [Gov. Ex. 1(A) at
38:9-15]. He then asked to see her identification and to
search her purse. Id. at 39:23, 40:17. Next, SA
Perry asked Ms.
to identify her suitcase. Then SA Perry asked Ms. Easley if
she also owned the G-brand suitcase, to which Ms. Easley
responded that it was not hers and that she did not know who
it belonged to. Id. at 41:7-42:4. She then reboarded
the bus. After confirming with the bus driver that the other
passenger on Ms. Easley's reservation had not boarded the
bus, SA Perry concluded that the G-brand suitcase had been
abandoned and proceeded to search it. He cut into the
suitcase and discovered methamphetamine. SA Perry then
reboarded the bus and arrested Ms. Easley. The bus then
departed, sometime later than its scheduled departure.
Godier transported Ms. Easley to the DEA District Office in
Albuquerque. According to Ms. Easley, while he was
transporting her, Agent Godier asked her questions about the
offense and warned her that she was facing a prison sentence
of ten years to life. [Doc. 34 at 8].
DEA District Office, SA Perry interrogated Ms. Easley. The
government provided a video of the interrogation and a
transcript of the video. [Gov. Ex. 2(A)]. The parties dispute
what happened before the recorded interrogation-specifically,
what SA Perry told Ms. Easley about the potential charges
against her, her right to be represented by an attorney, and
her potential exposure to incarceration. According to Ms.
Easley, after she was placed in a holding cell, SA Perry
removed her from the holding cell, showed her the
methamphetamine that had been seized, told her that she was
facing a sentence of ten years to life imprisonment,
“and then he told he[r] that she needed to be selfish,
that she needed to think about her kids, that the people who
supplied her with the drugs would not care about her and,
most important, that she needed to ‘help
herself.'” [Doc. 34 at 8]. Ms. Easley says that she
was then returned to the holding cell and, sometime later,
removed again by SA Perry to take her photograph,
fingerprints, and obtain personal information. During this
processing, according to Ms. Easley, SA Perry told her that
she was “not getting out, ” that he wanted to
interview her, and that, again, she needed to be
“selfish” and “help” herself.
Id. at 9. Ms. Easley recalls that SA Perry told her
“she could help herself by consenting to an interview
because if she cooperated he would tell the judge that she
was a good person but if she failed to cooperate he would be
forced to tell the judge that she was not worthy of
leniency.” Id. at 9. At the hearing, SA Perry
testified to telling Ms. Easley that “if she decided to
cooperate to help herself, that her consideration, anything
that she did, would be relayed to the U.S. Attorneys who
would relate it to the Judge, who would make the final
decision of what happened to her.” [Hearing Tr. at
SA Perry returned Ms. Easley to the holding cell and then,
sometime later, removed her again and took her to an
interview room where he conducted a tape-recorded
conversation. The following is an excerpt of the
interrogation near the beginning of the recording, after SA
Perry read Ms. Easley her Miranda warning.
SA Perry: You kind of had a puzzled look on your face. Do you
-- do you want me to read that again? Do you understand it?
Ms. Easley: I understand it, but I'm just like I want to
help but I'm like --
SA Perry: Well, let me finish. Let me finish reading your
rights. You understand that one, though, right? Let me read
it to you again. You have the right to talk to a lawyer for
advice before we ask you any questions and to have a lawyer
with you during questioning. Do you understand that?
Ms. Easley: Yes.
SA Perry: Okay. If you cannot afford a Lawyer one will be
appointed to you before any questioning if you wish. Do you
Ms. Easley: Yes.
SA Perry: Do you understand everything I just read to you?
Ms. Easley: Yes.
SA Perry: Okay. Are you willing to answer some questions?
Ms. Easley: If I answer the questions now and then I answer
questions with a lawyer here, how long would it that be?
SA Perry: Okay. Repeat that again because I didn't
Ms. Easley: I said-I said how long would it be for me to
answer questions with a lawyer here?
SA Perry: Okay. Here's the deal, you have a right to a
lawyer, okay, before you answer any questions. If you tell me
that you want a lawyer right now-
Ms. Easley: Uh-huh
SA Perry: -we're just not going to ask you the questions
today. Okay. So that's your right. We're not going to
call a lawyer and bring one in here and have you question-
answer questions. Okay. We're not going to do that today.
If you decide you want a lawyer today we just won't ask
you questions but you can-if you talk to your lawyer later
and after you go to court and then you decide you want to
answer questions then we'll talk to you then. Does that
make sense? If it doesn't make sense let me know.
Ms. Easley: It makes sense. I'm just like which one is
going to help me better because I told you I don't-I
can't afford to be here like this. I know what is going
on but I can't afford to be here like this.
SA Perry: Okay. That's your right. I-you know, all I can
do is read you your rights and I can't try to talk you
into talking to us. You know, I mean, as I explained to you
when we was processing you, you know, I want to talk to you.
The advantages of you talking to us is it'll, in the long
run help you. Obviously it will help us. It will help you
when it comes down to your sentencing. That's a choice
you make. You can get-make a choice to talk to us and, you
know, I can't make that decision for you.
Ms. Easley: All right. [. . .] I'll answer the questions.
[Gov. Ex. 2(A) at 2:24-5:13]. During the ensuing interview,
Ms. Easley described how she agreed to transport luggage from
Claremont, California, to Louisville, Kentucky, who she was
working with and what transpired prior to her boarding the
bus in Claremont. Over the course of the interview, both SA
Perry and Ms. Easley made references to their earlier,
unrecorded conversation while Ms. Easley was being processed,
including SA Perry saying “I told you before, we
can't go back and change anything we did, ”
id. at 24:4-5, and Ms. Easley saying “like you
already said, I'm not going to get out anyways, ...