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United States v. Fernandez

United States District Court, D. New Mexico

October 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS FRANCISCO FERNANDEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE JAMES A. PARKER J.

         On 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.[1] 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.

         I. BACKGROUND

         Federal 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):

         On the 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.

         SA 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.

         After 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.

         When 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 Perry's questions.

         During 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 with us?
JF: No, not (inaudible) I don't got nothing with me today.
SA: Do you have luggage with you?
JF: No.
SA: Did you have luggage on the last trip?
JF: Nah, I leave it at the house, it's a short trip back home.
SA: Ok, so you don't have any luggage?
JF: Nah.
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?
JF: Yeah.
SA: Ok, thank you.
JF: Yeah.
SA: Thank you. I thought you had a bag the other ...

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