United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTIONS ON DESTRUCTION OF EVIDENCE
MATTER comes before the Court on Defendant's Motion for
Hearing Concerning Destruction of Evidence, filed November
27, 2017 (Doc. 25), and Defendant's
Supplemental Brief, filed January 22, 2018 (Doc.
34). Having considered the parties' written and
oral arguments, and applicable law, the Court finds that
Defendant's motions are not well-taken and, therefore,
August 22, 2017, Defendant was indicted with
unlawfully, knowingly, and intentionally possess[ing] with
intent to distribute a controlled substance, 1 kilogram and
more of a mixture and substance containing a detectable
amount of heroin. In violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A).
Doc. 12. On August 4, 2017, Defendant was
arrested by DEA Agent Jarrell Perry, after exiting a
Greyhound bus at the downtown Albuquerque Greyhound station.
Doc. 25. Agent Perry allegedly discovered
heroin inside Defendant's handbag, after an allegedly
search is the subject of a separate motion to suppress filed
by the Defendant. See Doc. 58.
August 9, 2017, Defense counsel sent a preservation request
to Greyhound to
“preserve all Greyhound surveillance security video and
audio recordings made on August 4, 2017 in and around the
Albuquerque Greyhound bus terminal at 320 1st St.
SW. This includes surveillance camera video of the lobby, the
passenger loading area, the office, the wash bay, the luggage
storage areas, the cleaning/'fueling bays that are
located one block immediately south of the bus station, as
well as any other public areas in the surrounding area that
your company surveils. I also request surveillance videos of
the Greyhound office, the passenger waiting area, ticketing
office, and any on-board video from eastbound Greyhound buses
arriving in Albuquerque on Agust [sic] 4, 2017”
Doc. 25-1. The preservation request was sent
to the manager of Greyhound's Albuquerque bus terminal,
Marie Gomez-Avila, the associate general counsel for
Greyhound in Dallas, and local counsel.
Court granted Defendant's Motion for ex-parte motion for
order for subpoena duces tecum on September 20, 2017
(Doc. 20). The subpoena was served on
October 19, 2017. Doc. 21. Greyhound
responded to the subpoena on November 17, 2017, (Doc.
21) asserting that the local station manager had not
preserved the video at the time she received the preservation
request. The station manager mistakenly thought that she did
not need to preserve video on the basis of a preservation
request, and only had to preserve video when she received a
subpoena. See Doc. 21. By the time
the subpoena was received, the relevant video had been
Marie Avila-Gomez is the customer experience manager for
Greyhound Albuquerque, in charge of the Albuquerque terminal.
She is responsible for overseeing private security guards at
the station, and ensuring Greyhound's security procedures
are followed. She is also responsible for responding to
preservation requests and copying video surveillance.
employees go through a security training program. For station
managers, the training includes how to engage with local law
enforcement and how to engage with local government. This
includes training managers on how to ask for assistance from
local law enforcement DEA Agent Jarrell Perry works drug
interdiction at the Albuquerque Greyhound and Amtrack
terminals. He has no office in the Greyhound station,
although he has a key to a conference room at the station.
Agent Perry was given the key by Ms. Gomez-Avila.
April 2017, David Streiff, security operations manager for
Greyhound in North America, requested a meeting with DEA
agent Perry and Marie Gomez-Avila to discuss the parameters
in which law enforcement may operate in the Albuquerque
Greyhound terminal. The DEA did not have any input on these
procedures. At the meeting, they also discussed the procedure
for DEA submitting administrative subpoenas to Greyhound for
video recording. Greyhound reiterated that they would need a
subpoena for any requests for copies of video surveillance
from the DEA. They did not discuss subpoenas or preservation
letters submitted by defense counsel. Mr. Streiff expressed
that Greyhound wanted the DEA to continue working drug
interdiction at the terminal. Mr. Streiff also asked Agent
Perry to email a summary of arrests to him, to know what
criminal activity occurred on Greyhound property.
end of the meeting, Ms. Gomez-Avila asked Mr. Streiff, in a
“side-bar”, how she should respond to
preservation requests and subpoenas for video footage. Mr.
Streiff told her that she didn't need to act on
hand-delivered “legal documents” until attorneys
from Greyhound's corporate office advised her. Based on
this conversation, Ms. Gomez-Avila mistakenly thought that
she did not need to respond to preservation requests until
instructed to do so by Greyhound's legal department.
Thus, when she received the preservation request from Defense
counsel in this case, she did not preserve the video. Ms.
Gomez-Avila thought that “preservation
request” meant that responding was optional.
The Court finds Ms. Gomez-Avila's explanation credible.
Greyhound's legal department has since told Ms.
Gomez-Avila to comply with all preservation requests without
Streiff drafted operating procedures that outlined how local
and state law enforcement would be allowed to operate in
Greyhound terminals. The operating procedures specified where
law enforcement could operate at Greyhound terminals, and
where they had to be accompanied by Greyhound employees.
years ago, Greyhound received a grant from a federal grant
program, Over-the-Road Bus Security Grant Program.
Greyhound's grant was earmarked for camera surveillance
and video operations. Greyhound did not receive any funds
over the last two years, and none of the $468, 000 grant went
to the Albuquerque bus terminal. Greyhound also submitted a
security plan to the Department of Homeland Security. This
security plan is required in order to apply for TSA grant
money. However, there were no formal or informal agreements
between Greyhound and the DEA. The DEA does not share in the
expense of responding to defense counsel preservation
requests, or in any of the security costs borne by Greyhound
Perry had previously supplied DVDs for Greyhound's
Albuquerque terminal to use to respond to DEA subpoenas for
copies of video surveillance. Mr. Streiff has since
instructed Ms. Gomez-Avila not to use those DVDs.
April 11 and 17, 2018 the Court held evidentiary hearings,
and heard testimony from Ms. Gomez-Avila, Mr. Streiff, and
four DEA agents. At the hearing, the Government objected to
certain questions and asserted certain privileges. The Court
sustained the objection, ...