United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE JAMES A. PARKER J.
November 15, 2017, a federal grand jury returned an
indictment charging Defendant Jesus Francisco Fernandez with
unlawfully, knowingly and intentionally possessing with
intent to distribute 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A). (Doc. 10). On February 12, 2018, Defendant filed a
Motion to Suppress and Request for Evidentiary Hearing (Doc.
21) (Motion), asking the Court to suppress: (1) all physical
evidence that Drug Enforcement Administration (DEA) agents
seized from Defendant on October 25, 2017 at the Albuquerque
Greyhound bus station; and (2) all post-arrest statements
Defendant made to DEA agents or officers on October 25, 2017.
The United States opposes the Motion, and it is fully
briefed. The Court held an evidentiary hearing
beginning on September 19, 2018 that continued on September
26, 2018. Having considered the parties' briefing,
arguments, evidence, and relevant case law, the Court will
deny Defendant's Motion.
Rule of Criminal Procedure 12(d) requires that, when factual
issues are involved in deciding a motion, the Court must
state its essential findings on the record. For the purpose
of ruling on Defendant's Motion to Suppress, the Court
makes the following factual findings based on the evidence in
accordance with Rule 12(d):
morning of October 25, 2017, DEA Special Agents (SA) Jarrell
Perry and Kirk Lemmon were conducting drug interdiction at
the Greyhound bus terminal in Albuquerque, New Mexico. (Doc.
21 at 2). The agents waited for an eastbound bus from Phoenix
scheduled to arrive in Albuquerque around 9:55 a.m.
(Id.). When the bus arrived, passengers disembarked
for a brief layover to allow for any necessary bus refueling,
cleaning, and maintenance service. (Id. at 3).
Special Agents Perry and Lemmon boarded the bus curbside
after it had pulled out of the wash bay and began looking at
the bags left by passengers inside the bus.
Perry noticed a black duffel bag with white trim bearing the
brand name Protégé in the overhead common
luggage area. SA Perry began looking for a name tag on the
bag, picked it up, and noted that it was very heavy despite
appearing to be only partially full. Because SA Lemmon did
not typically participate in drug interdiction at the bus
station, SA Perry handed the bag to SA Lemmon for a
“teaching moment” to allow him to feel the
bag's heft. SA Lemmon held the bag by its corners because
the bottom was sagging. He then handed the bag back to SA
Perry who returned the bag to its previous location in the
overhead rack. SA Perry does not recall whether he smelled
the bag, but SA Lemmon does not remember him doing so.
Neither agent manipulated, squeezed, or opened the bag.
the bus returned to the terminal for passenger reloading, the
two agents again boarded the bus. SA Lemmon remained in the
front driver's side area to provide security for SA Perry
who commonly handles all of the consensual encounters with
passengers. (Def. Exs. A, B, & C). SA Perry moved to the
back of the bus. (Id.). Both agents were wearing
civilian clothes and their firearms were not visible to the
public. SA Perry began approaching each passenger, generally
introducing himself as “a police officer” and
stating that “we check the bus here for
security.” (Def. Ex. D, 2:3). When Defendant boarded
the bus, SA Lemmon noticed that he seemed
“surprised” and “panicked.” Defendant
sat in a seat located approximately in the middle of the bus.
The Protégé bag was stored three or four rows
behind and on the opposite side of the aisle from
Defendant's seat. Ten minutes after boarding, Defendant
got up from his seat and went to the lavatory in the back of
the bus. (Def. Ex. A, 10:48-10:58). SA Lemmon observed that
Defendant poked his head out of the lavatory doorway, saw
where SA Perry was located, and then retreated back into the
lavatory. Defendant returned to his seat less than two
minutes after he went to the lavatory.
Defendant was seated again, SA Perry approached Defendant,
introduced himself as a police officer, stated that he was
checking the bus for security, and asked for permission to
speak with Defendant. (Def. Ex. A, Def. Ex. D, 17:25-18:7).
Defendant agreed. (Def. Ex. A, Def. Ex. D, 18:7). While
speaking to Defendant, SA Perry stood somewhat to the rear of
Defendant's seat and partially in the aisle. SA Perry
asked Defendant several questions in English regarding his
travel, and Defendant responded in thickly accented English.
(Def. Ex. A, Def. Ex, D. 18:8-13). SA Perry noted that
Defendant's bus ticket was under the name Frank Dreke.
After SA Perry began speaking with Defendant, SA Perry
recognized him from an encounter four or five days earlier.
(Def. Ex. A, Def. Ex. D, 18:14-24). Defendant also recalled
that encounter. During the prior encounter, Defendant was
also traveling under the name Frank Dreke. He had been
traveling with a black or brown duffel bag and consented to
SA Perry conducting a pat down search with negative results.
When SA Perry requested identification during that prior
encounter, Defendant handed medical paperwork to SA Perry
that bore the name Jesus F. Fernandez Rodriguez. At that
time, SA Perry did not ask Defendant any questions about the
discrepancy in names. SA Perry spoke to Defendant in English
during the first encounter a few days earlier, and Defendant
had responded in English and appeared to understand SA
the October 25, 2017 encounter, after recognizing Defendant,
SA Perry asked Defendant several questions regarding
Defendant's travel and then began to question him
regarding luggage in the following manner:
SA: Ok. Do you have luggage, do you have luggage on the bus
JF: No, not (inaudible) I don't got nothing with me
SA: Do you have luggage with you?
SA: Did you have luggage on the last trip?
JF: Nah, I leave it at the house, it's a short trip back
SA: Ok, so you don't have any luggage?
SA: No weapons, or anything on your body sir?
JF: No, you want to check me again?
SA: Do you give me permission to pat you down?
SA: Ok, thank you.
SA: Thank you. I thought you had a bag the other ...