United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING IN PART AND
GRANTING IN PART DEFENDANT'S MOTION TO SUPPRESS TANGIBLE
EVIDENCE AND STATEMENTS
MATTER comes before the Court on Defendant's Motion to
Suppress Tangible Evidence and Statements, filed April 2,
2018 (Doc. 58). Having considered the
parties' written and oral arguments, evidence, and
applicable law, the Court finds that Defendant's motion
is largely not well-taken and, therefore, is DENIED
IN PART. However, certain statements are in
violation of Miranda violations, and excluded as
agreed by the Government.
challenges the validity of an allegedly consensual encounter
and search, and seeks to suppress heroin found in her
backpack. On August 4, 2017, Defendant was arrested by DEA
Special Agent Jarrell Perry, after exiting a Greyhound bus at
the downtown Albuquerque Greyhound station. She was indicted
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. Agent Perry works drug interdiction
at the Albuquerque Greyhound and Amtrak terminals. He has
been a DEA Agent for approximately 20 years, primarily at
those terminals, investigating approximately 1, 500 narcotics
arrived in Albuquerque via a Greyhound bus at 9:35 p.m. on
August 4, 2017. The bus was scheduled to depart at 11:15 p.m.
Two other DEA agents were working with Agent Perry in the
station that night, although only one of them was present
during the encounter with Defendant.
Perry observed defendant exit the bus, grab her luggage, and
enter the station. Agent Perry observed Defendant seated at a
game machine in the station, and approached her. The station
was open to the public, and “a lot” of people
were present. Agent Perry told Defendant: “I'm a
police officer and we check the station here for security.
May I speak to you for a moment?” Defendant consented
and represented she spoke English. Agent Perry again asked if
he could speak to her, and she affirmed. The two next engaged
in casual conversation; Agent Perry asked where she was
coming from, and where she was going. Agent Perry was
generally casual, calm, and respectful. He asked for her ID
and ticket, and returned them to her.
asked “what happened” and Agent Perry responded:
“It's just for security here at the station because
Amtrak, ur, Greyhound doesn't really have any security so
we come down here and speak with passengers for security
reasons.” She responded “okay.” The parties
continued in casual conversation. Agent Perry asked where she
was from, and how long she was going to be in Denver.
Perry again stated “yeah, we just check the station
here. It's just for security, speaking to all the
passengers.” Defendant asked “It's like
vi-vi-violence here or something?” Agent Perry
responded “well, no, it's just that
Greyhound… really doesn't have any security when
you board…. there's not really any security on the
busses so basically you can carry whatever you want on the
bus. Weapons, illegal narcotics, anything illegal. Weapons,
hopefully not explosives but you can… anything
illegal.” Agent Perry then asked if she had been to
Denver before, and how long ago.
Perry asked if she had any luggage with her. Defendant had
two bags: a suitcase and a backpack. Defendant first showed
agent Perry her black suitcase, and they moved over to a row
of seats by a pillar. Defendant gave consent for Agent Perry
to search her suitcase, which appears to be undisputed. While
Agent Perry was searching the suitcase, Agent Pantoja came
over and introduced himself, and talked with her. Based on
the testimony and admitted pictures of the area, it does not
appear that Defendant's ability to leave was blocked.
searching her suitcase, Agent Perry asked for permission to
search her backpack. Defendant did not give an answer, but
asked “why?” She later asked “What
happened? I'm nervous now.” Agent Perry responded
“oh, there's no reason to be nervous. As I
explained to you over there, it's just for security at
the bus station. Is that a purse or backpack?” Agent
Perry asked for permission to search her backpack a second
time, and Defendant declined to answer, asking “but
why?” Agent Perry said it was “just to make sure
you don't have anything illegal inside ma'am. Let me
ask you this, since you're not answering the question,
can you just open up, show me the contents then…
without me searchin' it? That okay with you?”
Defendant responded “yeah, of course”. Defendant
took the backpack off and placed it on her lap while sitting.
Agent Perry did not put his hands in the bag, but instead
Defendant moved the contents around at his request, after she
expressly agreed to do so.
recorded encounter lasted for approximately five minutes.
After seeing the alleged heroin in her backpack in plain
view, he arrested her and brought her back to the local DEA
office. The DEA questioned Defendant and read her a
Miranda advisement. She then asserted her right to
remain silent. The parties appear to agree that one answer
given by Defendant prior to the Miranda advisement
should be excluded.
August 6, 2018, the Court held an evidentiary hearing, and
heard testimony from Agent Perry, Agent Pantoja, and the
Defendant. During the hearing, the Court heard the audio
recording of the encounter. The parties requested written
closing, and this matter was fully briefed and ready for
decision on September 7, 2018.
Agent Perry's Credibility.
Defendant attacks Agent Perry's credibility. At the
hearing, Agent Perry testified that prior to encountering
Defendant, he received a copy of the passenger list from a
confidential source. Defendant asserts that Agent Perry made
no mention of a confidential source in prior pleadings,
reports, or testimony. In fact, a confidential source was
discussed at a previous hearing in this case, and based on
the Government's vigorous assertion of the informant
privilege, it was assumed that a confidential source was
used. At that prior hearing, Agent Perry was prohibited from
discussing the informant based on a Touhy letter,
and the Court ultimately determined that it did not need to
rule on whether the confidential source should be disclosed,
because it was not relevant to the motion at issue.
Doc. 66. Both parties are aware that Agent
Perry operates using a confidential source that provides him
with a passenger manifest list. It is unclear why that
passenger manifest list was not provided to defense counsel
or brought to the Court's attention. However, it appears
that this oversight does not fall on Agent Perry, who was
forthright about its existence when asked and allowed to
answer at the hearing. Therefore, the Court concludes that it
does not affect the credibility of his testimony on the
narrow issues in the motion to suppress.
argues that her Fourth Amendment rights were violated,
because Agent Perry seized her early on in the encounter, and
the search of her backpack was otherwise not consensual. She
seeks suppression of the heroin found in her backpack.
Fourth Amendment typically requires that law enforcement
agents obtain a warrant before conducting a search. A warrant
is not required, however, when the defendant consents to the
search.” United States v. Jackson, 381 F.3d
984, 988 (10th Cir. 2004) (internal citation omitted);
see also United States v. Jones, 701 F.3d 1300, 1317
(10th Cir. 2012). “Subject to a few exceptions,
evidence obtained in violation of the Fourth Amendment will
be suppressed under the exclusionary rule.” United
States v. Christy, 739 F.3d 534, 540 (10th Cir. 2014).
The exclusionary rule encompasses both “evidence
obtained during the illegal police conduct” and
“any other evidence deemed to be ‘fruit of the
poisonous tree.'” United States v. Olivares-
Rangel, 458 F.3d 1104, 1108 (10th Cir. 2006).
no seizure (and no violation of the Fourth Amendment)
“occurs when police ask questions of an individual, ask
to examine the individual's identification, and request
consent to search his or her luggage-so long as the officers
do not convey a message that compliance with their requests
is required.” Florida v. Bostick, 501 U.S.
429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
consent to be valid, the Government must show that (1) there
is clear and positive testimony that consent was unequivocal
and specific and freely given, and that (2) “consent
was given without duress or coercion, express or
implied.” United States v. Guerrero, 472 F.3d
784, 790 (10th Cir. 2007); see also United States v.
Jones, 710 F.3d 1300, 1318 (10th Cir. 2012). The
Government bears “the burden of proving that consent is
given freely and voluntarily.” United States v.
Jones, 701 F.3d 1300, 1318 (10th Cir. 2012) (citation
omitted). Whether consent was given voluntarily without
duress or coercion “is a factual issue, determined
through the totality of the circumstances.” United
States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007).
Since consent for both the encounter and search are
substantially similar, the Court will analyze them together,
with differences noted below.
First prong: clear and unequivocal consent.
Agent Perry searched Defendant's
Agent Perry understood that he did not search her backpack,
and therefore did not receive consent. His subjective
understanding of whether he performed a search is not
determinative. The Court agrees with Defendant's
well-reasoned analysis that Agent Perry searched