United States District Court, D. New Mexico
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
MEMORANDUM OPINION AND ORDER
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.
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)(“[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)).
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.
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.
Perry was working drug interdiction operations at the
Greyhound bus station in Albuquerque for the DEA.
See Mar. 18 Tr. at 9:1-12.
Passengers deboarded the bus while it was stopped at the
station. See Mar. 18 Tr. at 12:2-5; id. at
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.
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.
Perry questioned two passengers as they boarded the bus.
See Nathaniel Johnson Encounter at 00:01:22-02:50,
filed February 19, 2019 (Doc.
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.
Johnson sat down next to a black backpack. See Mar.
18 Tr. at 22:22-23:4.
Johnson picked the backpack up and put it underneath the seat
next to him. See Mar. 18 Tr. at 23:21-23.
Johnson overheard the questions Perry asked other passengers.
See Mar. 18 Tr. at 175:13-23.
Perry approached Johnson. See Mar. 18 Tr. at 26:2-3.
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.
Perry spoke quietly and did not use aggressive language with
Johnson. See Mar. 18 Tr. at 211:8-18.
Perry addressed Johnson as “sir, ” repeatedly
said “please” when making requests, and thanked
Johnson for his cooperation. See CD at
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.
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
Johnson responded affirmatively. See CD at
Perry inquired about Johnson's travel plans. See
CD at 00:02:55-03:00.
Johnson informed Perry that he was traveling from Arizona to
Joplin, Missouri. See CD at 00:02:55-03:00.
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.
ticket was issued to a “Mike Johnson.”
See Mar. 18 Tr. at 26:15-17; id. at
Perry immediately returned the ticket to Johnson.
See Mar. 18 Tr. at 26:17-18.
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
Johnson explained that he was going to Joplin for probation.
See CD at 00:03:10-11.
Perry then asked Johnson if he was traveling with luggage.
See Mar. 18 Tr. at 215:8-9.
following colloquy occurred:
Perry: Okay. Do you have any luggage with you, sir?
Johnson: None at all.
Perry: Okay. Nothing under the bus?
Perry: How about underneath your seat? Anything underneath
CD at 00:03:17-22.
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
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.
When Johnson stood up for the pat down, Johnson was partially
in front of his seat and partially in the aisleway, causing
Perry to ...