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United States v. Easley

United States District Court, D. New Mexico

January 10, 2018




         THIS 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.


         This 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.[1]

         During 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.

         Ms. 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.[2] 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.[3]

         William 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.

         Drug 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.

         On 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].

         That 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.

         The two 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].

         After 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 passengers.

         According 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 passenger.

         According 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.

         Easley 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.

         Agent 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].

         At the 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 100:11-15].

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 understand that?
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 understand.
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, ...

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