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United States v. Johnson

United States District Court, D. New Mexico

December 16, 2019


          John C. Anderson United States Attorney Mark Christian Pfizenmayer Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Stephen P. McCue Federal Public Defender Benjamin A. Gonzales Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorneys for the Defendant


         THIS MATTER comes before the Court on: (i) the Defendant's Motion to Suppress Evidence, filed February 4, 2019 (Doc. 31)(“Motion”); and (ii) the Defendant's Motion to Reconsider, filed November 4, 2019 (Doc. 79). The Court held an evidentiary hearing on March 18-19, 2019, and April 8, 2019. See Clerk's Minutes at 1, filed March 18, 2019 (Doc. 49); Clerk's Minutes at 1, filed April 8, 2019 (Doc. 56). The primary issues are: (i) whether the Court should suppress evidence that Drug Enforcement Administration (“DEA”) Special Agent Jarrell Perry obtained after approaching Defendant Nathaniel Donald Johnson and searching his bag without a warrant where Perry spoke in a low tone, did not brandish a weapon, and did not block Johnson from leaving for the majority of the encounter; and (ii) whether the Court should suppress statements that Johnson made during a custodial interrogation, because there was no temporal or causal break between the interrogation and Johnson's arrest for possessing a bundle of methamphetamine that he was transporting between Phoenix, Arizona, and Joplin, Missouri. At the hearing, the Court indicated its inclination to deny the Motion to Suppress. See Transcript of Hearing at 15:20-18:2 (taken April 8, 2019), filed May 23, 2019 (Doc. 62). The Court denied the Motion to Suppress on July 30, 2019. See Order, filed July 30, 2019 (Doc. 68)(“Order”). Subsequently, Johnson filed his Motion to Reconsider (Doc. 79). In this Memorandum Opinion and Order, the Court details the rationale for the denial of the Motion, and while the Court grants Johnson's Motion to Reconsider to the limited extent that it did reconsider its oral ruling and written Order denying the Motion, it decides not to change its decision, and will deny the Motion to Reconsider.


         Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. The United States Court of Appeals for the Tenth Circuit has indicated that the restrictions in the Confrontation Clause of the Sixth Amendment to the Constitution of the United States of America do not apply to hearsay introduced in suppression hearings, so the Court may consider testimonial statements. See United States v. Lopez-Carillo, 536 Fed.Appx. 762, 768-69 (10th Cir. 2013)(unpublished)[1](“[T]he Supreme Court [of the United States] has made it clear hearsay is admissible in suppression hearings. . . . As a result, the restriction in the Confrontation Clause against admission of testimonial statements . . . is not implicated here.” (citing United States v. Matlock, 415 U.S. 164, 172-77 (1974); United States v. Sanchez, 555 F.3d 910, 922 (10th Cir. 2009); United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004)).

         As a general matter, the Court finds Perry to be a more credible witness than Johnson. Perry testified cogently and thoroughly about the events of January 5, 2018. Although Johnson's testimony was also coherent and internally consistent, Johnson was, at times, less than forthright. Most notably, on cross-examination, Johnson initially denied certain underlying facts regarding a previously imposed term of probation that he was serving at the time of his encounter with Perry -- namely, that he had possessed a weapon and drugs. See Mar. 18 Tr. at 218:5-25; id. 219:1-11. In fact, Johnson did not admit that he had previously possessed a weapon or drugs until the United States reminded him that he was under oath. See Mar. 18 Tr. at 218:5-25; id. 219:1-11. The Court does not find Johnson's temporary memory lapse believable. Considering Johnson's lack of candor, the hearing testimony as a whole, and the demeanor of both witnesses, the Court is persuaded that Perry is more reliable about the case's events. Consequently, although the Court credits Johnson's largely undisputed testimony, where Johnson's testimony Perry's testimony diverge, the Court will adopt Perry's version of events. In accordance with this credibility determination, the Court makes the following findings of fact under rule 12(d) of the Federal Rules of Criminal Procedure.

         1. On January 5, 2018, Johnson, an African-American male, was traveling on an eastbound Greyhound Bus that stopped at the Greyhound/Amtrak station in Albuquerque. See Mar. 18 Tr. at 167:20-25; id. at 171:1-3.

         2. Perry was working drug interdiction operations at the Greyhound bus station in Albuquerque for the DEA. See Mar. 18 Tr. at 9:1-12.

         3. Passengers deboarded the bus while it was stopped at the station. See Mar. 18 Tr. at 12:2-5; id. at 171:1-6.

         4. Before passengers re-boarded the bus, Perry and Task Force Officer Seth Chavez boarded the bus. See Mar. 18 Tr. at 171:22-25; id. at 171:1-5.

         5. Chavez remained at the bus' front, while Perry positioned himself at the bus' rear to question passengers as they boarded. See Mar. 18 Tr. at 32:1-12; id. at 39:21-23; id. at 172:17-23.

         6. Perry questioned two passengers as they boarded the bus. See Nathaniel Johnson Encounter at 00:01:22-02:50, filed February 19, 2019 (Doc. 35-1)(“CD”).[2]

         7. While Perry was speaking with those passengers, he observed Johnson sit in an aisle seat ahead of where Perry was standing. See Mar. 18 Tr. at 22:22-25; id. at 23:1-4.

         8. Johnson sat down next to a black backpack. See Mar. 18 Tr. at 22:22-23:4.

         9. Johnson picked the backpack up and put it underneath the seat next to him. See Mar. 18 Tr. at 23:21-23.

         10. Johnson overheard the questions Perry asked other passengers. See Mar. 18 Tr. at 175:13-23.

         11. Perry approached Johnson. See Mar. 18 Tr. at 26:2-3.

         12. During his encounter with Johnson, Perry was dressed in plain clothes and did not brandish his firearm. See Mar. 18 Tr. at 68:19-22; id. at 211:20.

         13. Perry spoke quietly and did not use aggressive language with Johnson. See Mar. 18 Tr. at 211:8-18.

         14. Perry addressed Johnson as “sir, ” repeatedly said “please” when making requests, and thanked Johnson for his cooperation. See CD at 00:02:50-04:30.

         15. Perry identified himself as a police officer, showed Johnson his badge, and asked if he could speak with Johnson. See Mar. 18 Tr. 23:10-15; id. at 24:9-10.

         16. The encounter occurred on a confined, cramped Greyhound bus within view of the other passengers. See CD at 00:02:50-04:30; Mar. 18 Tr. at 156:14; id. at 211:13-14.

         17. Johnson responded affirmatively. See CD at 00:02:54-55.[3]

         18. Perry inquired about Johnson's travel plans. See CD at 00:02:55-03:00.

         19. Johnson informed Perry that he was traveling from Arizona to Joplin, Missouri. See CD at 00:02:55-03:00.

         20. Perry asked Johnson for his ticket, and Johnson handed his ticket to Perry. See Mar. 18 Tr. at 26:15-17; id. at 183:21-22.

         21. The ticket was issued to a “Mike Johnson.” See Mar. 18 Tr. at 26:15-17; id. at 212:22-24.

         22. Perry immediately returned the ticket to Johnson. See Mar. 18 Tr. at 26:17-18.

         23. Perry asked Johnson if he had identification on him. See CD at 00:03:13-16; Mar. 18 Tr. at 26:21-22 24. Johnson responded that he did not have any identification. See CD at 00:03:13-16; Mar. 18 Tr. at 26:21-22 25. Perry testified that, in his experience, drug traffickers often do not travel with identification, because they are traveling under a false name. See Mar. 18 Tr. at 27:12-21.

         26. Johnson explained that he was going to Joplin for probation. See CD at 00:03:10-11.

         27. Perry then asked Johnson if he was traveling with luggage. See Mar. 18 Tr. at 215:8-9.

         28. The following colloquy occurred:

Perry: Okay. Do you have any luggage with you, sir?
Johnson: None at all.
Perry: Okay. Nothing under the bus?
Johnson: No.
Perry: How about underneath your seat? Anything underneath your seat?
Johnson: No.

CD at 00:03:17-22.

         29. In combination with placing the black backpack underneath the seat next him, Johnson's denials that he had any luggage suggested to Perry that Johnson was attempting to distance himself from the backpack. See Mar. 18 Tr. at 30:4-8.

         30. Perry then requested permission to conduct a pat down of Johnson for weapons, to which Johnson consented. See CD at 00:03:27-28; Mar. 18 Tr. at 30:12-18.

         31. When Johnson stood up for the pat down, Johnson was partially in front of his seat and partially in the aisleway, causing Perry to ...

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