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United States v. Clines

United States District Court, D. New Mexico

February 7, 2019



         THIS MATTER comes before the Court Defendant's Motion to Suppress Evidence, filed October 29, 2018 (Doc. 31). Having reviewed the parties' briefs and applicable law as well as the testimony and evidence presented at the hearing, the Court finds that Defendant's motion is not well-taken and, therefore, is denied.


         Defendant Clines is charged with possession and distribution of cocaine. On April 23, 2018, Defendant, who is African-American, was traveling with a female African-American companion on an Amtrak train from California to Newton, Kansas that made a stop at the Amtrak station in Albuquerque.

         DEA Special Agent Jarrell Perry (“Agent Perry”) is often assigned by the DEA to the transportation stations in downtown Albuquerque, New Mexico to conduct consensual encounters of both Greyhound Bus passengers and Amtrak Train passengers. On April 23, 2018, while the train was stopped at the Albuquerque station, Agent Perry boarded the coach and after obtaining consent, searched Defendant's bag and recovered suspected cocaine from underneath the soles of a pair of boots. Defendant contends that consent was not voluntarily given because no reasonable person in Mr. Clines' position would have known or believed he had a right to withhold consent, and also claims that Agent Perry unreasonably searched and seized his luggage without probable cause or reasonable suspicion. Defendant moves to suppress all evidence and statements resulting from the search.

         I. Relevant Facts

         Prior to boarding the train car on which Defendant was traveling, Agent Perry had noted from the booking records that two one-way tickets to Newton, Kansas had been purchased separately by the same individual, “K.W.” (later identified as Kenya Watkins, Defendant's traveling partner), having the same origination and destination point and using two different phone numbers. The tickets were purchased close to the train's departure time, one ticket purchased for “K.W” and the other for a third party, “Lee Clines.” With this information, Agent Perry boarded the Amtrak cars most likely to contain passengers destined for Newton, Kansas and walked through the aisle looking for ticket stubs above the passenger seats showing which passengers were bound for Newton.[1] He found a female passenger destined for Newton sitting along the right side of a car, two seats from the front, who was Ms. Watkins. He also noticed just across the aisle, in the front seat closest to the aisle was a male Newton passenger-the Defendant. After confirming that Defendant and Ms. Watkins were traveling together, Agent Perry began a consensual encounter with Ms. Watkins.

         Defendant contends that Agent Perry had “cursory encounters” with other passengers, but that he subjected both Defendant and his companion to extensive questioning about their identities, places of residence and travel plans, which they provided. Defendant claims that no other passenger received the same “aggressive” treatment. After confirming that Defendant and Ms. Watkins were traveling together, Defendant contends that Agent Perry proceeded to subject them to extensive questioning about their identities, places of residence and travel plans, which they provided. Defendant claims that Agent Perry had “cursory encounters” with other passengers but that his treatment of them was more aggressive.

         II. Relevant Law

         A. Seizures Under the Fourth Amendment:

         The Fourth Amendment protects “people” against unreasonable searches and seizures conducted by law enforcement officers or other government agents. U.S. Const. amend. IV; Katz v. United States, 389 U.S. 347, 351 (1967) (holding that the “Fourth Amendment protects people, not places”). A seizure has not occurred unless a police officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen[.]” Florida v. Bostick, 501 U.S. 429, 438 (1991). “[S]o long as the officers do not convey a message that compliance with their requests is required, ” there is no seizure “when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage.” Id. at 437. Similarly, unless officers give cause for an individual to believe that he or she may not refuse, no Fourth Amendment interest is implicated by a request to move to another area to speak. Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984). “[T]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Bostick, 501 U.S. at 437.

         B. Consent for Searches Under the Fourth Amendment:

         Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, “subject only to a few specifically established and well-delineated exceptions.” Id. at 357. One such exception to the warrant requirement is that “a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In order for a search by consent to be valid, the Government has the burden of proving that consent was:

(1) unequivocal, “freely and voluntarily given”; and
(2) without duress or coercion, express or implied.

Schneckloth at 222; United States v. Butler, 966 F.2d 559, 562 (10th Cir. 1992). Mere submission to lawful authority does not equate to valid consent. United States v. Manuel, 992 F.2d 272, 275 (10th Cir. 1993). Courts apply an objective reasonableness test to measure the scope of a person's consent, based on a totality of the circumstances surrounding the search: [W]hat would the typical reasonable person have understood by the exchange between the officer and the suspect? United States v. Kimoana, 383 F.3d 1215, 1223 (10th Cir. 2004).

         In determining whether the Government has met its burden, the Court must consider the totality of the circumstances. United States v. Price, 925 F.2d 1268, 1270 (10th Cir. 1991) (citing Schneckloth, 412 U.S. at 227, 232-33, 249)). In considering whether consent was voluntarily given, courts may consider: the age, intelligence, and education of the defendant; (2) the length of [any] detention; (3) the length and nature of the questioning; (4) whether the defendant was advised of [his or] her constitutional rights;[2] and (5) whether the defendant was subjected to physical punishment.” Schneckloth, 412 U.S. at 226; U.S. v. Glover, 104 F.3d 1570, 1580 (10th Cir. 1997).

         The burden of proving that consent to search was given freely and voluntarily is always on the Government on a motion to suppress. U.S. v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993). The Court may exclude unlawfully seized evidence in criminal prosecutions where a defendant's Fourth Amendment rights has been violated. United States v. Herrera, 444 F.3d 1238, 1248 (10th Cir. 2006) (citing Illinois v. Krull, 480 U.S. 340, 347 (1987)).


         Defendant raises other arguments concerning Agent Perry's conduct in support of his position that all evidence found as a result of the search should be suppressed, and the Court addresses each one of these in turn. In the end, the Court finds that none of these arguments have any merit at all, In making this determination, the Court relies on: the parties' briefing; Agent Perry's testimony presented at the hearing and the transcript and audio recording of the encounter. Both parties submitted relevant portions of the transcript with the briefs. See Doc. 31-2. The audio recording, which is somewhat difficult to hear, was admitted at the hearing as Government Exhibit 1. The Court relies mostly on the transcript version in this discussion because the parties do not dispute the accuracy of the transcript for purposes of this motion.

         I. “Grilling” and Extensive Questioning”

         Defendant contends that Agent Perry subjected him and Ms. Watkins to aggressive questioning, unlike what other passengers received, suggesting that this occurred because they were the only two African-American passengers on the train. He describes Agent Perry's questioning as “grilling” and “extensive.” The Court has reviewed the transcript several times and listened to the eight-minute or so audio recording, and concludes that not even the most thin-skinned individual could regard the questioning as aggressive.

         Agent Perry engaged Ms. Watkins first. He asked to see her ticket and questioned her about the trip origin and destination, whether she was having a good trip and whether she was traveling with Defendant. Doc. 31-2. He asked Defendant for his identification; asked him where he lived; how he was doing today (Defendant responded that his “feet [were]just killing” him”); how long he was out in California and the purpose of the visit (a funeral). Agent Perry then asked both of them if they were traveling with luggage and whether they would consent to have it searched. Throughout all of this, Agent Perry's manner and tone is best described as low-key, polite and respectful.

         Ms. Watkins consented to have her belongings searched. Defendant responded “Cool” to Agent Perry's request to search his shoes, and “Yeah, go ahead” to his request to search his luggage. Doc. 31-2 at 8-9. When he searched Defendant's backpack, Agent Perry found a large pair of shoes that looked like new work boots because they were “kind of shiny.” He looked in the inner sole area, noticing that it was raised and did not look like what a normal sole in a boot would look like. Agent Perry lifted up the inner portion of each sole and noticed a block sock. Inside of each sock was a green saran-wrapped bundle that generally conformed in shape to the bottom of the boot. He testified at the hearing that, based on his experience, he knew that the packaging and concealment method was consistent with illegal narcotics that I had seen numerous times in the past.[3] Agent Perry knew at that point that he had probable cause to arrest Defendant based on that package and bundles found in each boot. See St. John v. Justman, 771 F.2d 445, 448 (10th Cir. 1985) (Probable cause requires a “substantial probability that a crime has been committed and that a specific individual committed a crime.”).

         Defendant's claim that his encounter with Agent Perry was more aggressive than other passengers experienced seems almost flippant. There is no evidence that anyone in Defendant's vicinity on the train were approached by Agent Perry so that Defendant could even begin to fairly claim there was a disparity in encounters. Agent Perry had little recollection of the specifics for that day. He recalled questioning perhaps one other person and noted that if he had not arrested Defendant, he undoubtedly would have attempted to speak with other passengers as well.

         Therefore, there is no merit to Defendant's claim that he was subjected to aggressive questioning by Agent Perry.

         II. Agent Perry's Conduct as “Deceptive” and “Misleading”

         Defendant next contends that Agent Perry misled him and Ms. Watkins when he told them that he was checking the train for “security” reasons when in fact he was checking for illegal narcotics. Transcript at 6:1-2; 4-5. This “deceptive” statement fooled Defendant into giving consent to search for weapons and the consent was not to a search for drugs. Defendant also claims it was deceptive for Agent Perry to ask Defendant if he had weapons (to which he responded in the negative), and then subsequently ask if he could search for contraband. This led Defendant to understand that “contraband” meant only weapons, again ...

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