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United States v. Muse

United States District Court, D. New Mexico

December 20, 2019

DARIUS MUSE, Defendant.

          Mallory M. Gagan Assistant Federal Public Defender Attorney for Mr. Muse

          Paul H. Spiers Assistant United States Attorney



         THIS MATTER is before the Court on Defendant Darius Muse's Opposed Motion to Suppress Evidence. Doc. 43. The government filed a Response [Doc. 63] and Mr. Muse filed a Reply [Doc. 68]. The Court then held an evidentiary hearing on the motion on November 22, 2019. Doc. 62. Having considered the briefs, exhibits, witness testimony, relevant law, and being otherwise fully informed, the Court finds that the motion is well-taken and will be GRANTED.


         This motion centers on an encounter between Mr. Muse and Drug Enforcement Agency (DEA) Special Agent (SA) Jarrell Perry on a Greyhound bus in Albuquerque, New Mexico in July 2017. At issue is whether SA Perry violated the Fourth Amendment when he subjected Mr. Muse to a full body pat-down search on the bus and then arrested him. The following represents the Court's findings of fact, based on the evidence submitted as well as SA Perry's testimony at the November 22, 2019 hearing.[1] In the interest of brevity and clarity, the Court will cabin its discussion of the facts to those that bear on the issues it finds dispositive.

         I. Facts

         In the early morning of July 1, 2017, SA Perry was patrolling the Greyhound bus station in Albuquerque, New Mexico. Transcript of November 22, 2019 Hearing at 5:25-6:3 (“Tr.”).[2]Sometime after 3:00 a.m., Perry boarded an eastbound bus and began to speak to passengers when they re-boarded. Id. at 6:6-7. He was in plainclothes with his firearm concealed. Id. at 6:12-20. The government submitted the audio recording of SA Perry's encounters on the bus, as well as a transcript of the recording, as Exhibits 1 and 1A to its response. See Doc. 63 Ex. 1 and 1A. These exhibits show that SA Perry spoke with approximately five other passengers before getting to Mr. Muse. See Doc. 63 Ex. 1A at 2-6. He introduced himself as a “police officer” there to “check the bus… for security.” See, e.g., id. at 3:10. He then asked the passengers where they were traveling to. See Id. at 2-6. Responses varied from Fairbault, Minnesota; to Chicago, Illinois; to Austin, Texas. See id. SA Perry also asked three of the passengers about their luggage but did not ask to search it. See Id. One of them nevertheless offered to let Perry look at her backpack, but he declined to do so. See Id. at 6:12-7:2. When asked about his interaction with this passenger at the evidentiary hearing, SA Perry responded that he didn't “remember her specifically” and could not “recall the circumstances around her” because the interaction occurred approximately two and a half years ago. Tr. 22:20, 24:19-23.

         SA Perry then moved on to Mr. Muse, who was sitting in a window seat towards the rear of the bus. Tr. 8:1-7. As with the other passengers, Perry introduced himself as a “police officer” there to check the bus “for security.” Doc. 63 Ex. 1A at 7:9. Mr. Muse explained that he was headed to Akron, Ohio and was coming from California. Id. at 7:14-19. SA Perry asked if Mr. Muse was coming back on the bus, to which he replied that he was not sure. Id. at 8:11-12. Perry then requested consent to search Mr. Muse's bag for contraband [Id. at 8:17-19] which he gave by saying “yeah, ” offering to open the bag, and then telling Perry to “go ahead.” Id. at 8:18, 9:1, 9:5. The search revealed nothing of interest. Tr. 9 at 1-2. When asked during the hearing why he requested to search Mr. Muse's bag but not the other passengers', SA Perry responded that he had made “numerous seizures” from passengers traveling to Akron. Id. at 24:6-12. He later testified that prior to hearing about Akron, there was “nothing at all” that made him suspicious of Mr. Muse. Id. at 54:18-55:5.

         After finding nothing in the bag, SA Perry thanked Mr. Muse and stated, “'Preciate, you have a good trip, okay?” Doc. 63 Ex. 1A at 9:12. Instead of moving on to another passenger, however, he then re-initiated the encounter by asking, “Sir, would you give me permission just to pat you down for contraband?” Id. at 9:14-15. What did or did not happen next is of central importance to the instant motion. Perry testified that in response to his request, Mr. Muse said “yeah.” Tr. 9:2-3. He further testified that he could make out that response when he later listened to the audio recording of the encounter, and that he would not have conducted the pat-down had he not received consent because he would not have had “any type [of] reasonable suspicion or probable cause to do that.” Id. at 12:12-18; 13:5-6.

         Contrary to SA Perry's testimony, however, the transcript submitted by the government does not show Mr. Muse responding with the word “yeah” to his request for the search; instead, it records Mr. Muse's response as “IA” or inaudible. The relevant portion of the transcript reads as follows:

Perry: Good for you. Thank you sir, that's fine. ‘Preciate, you have a good trip, okay?
Muse: You too.
Perry: Thank you. Thank you very much, sir. Sir, would you give me permission just to pat you down for contraband?
Muse: (IA)

See Doc. 63 Ex. 1A at 9:12-16. The Court has also listened carefully to the audio of the encounter, and like the government's transcriptionist, it does not hear Mr. Muse responding to SA Perry with the word “yeah.” From the audio, the Court cannot make out a response at all.

         What is not contested is that following the pat-down request, Mr. Muse stood up from his seat and raised his hands above his head while facing the front of the bus. Tr. 9:3-7, 58:6-7. He was sitting alone but there were other passengers in the vicinity. Id. at 45:14-15. Perry then began his search. Using his palms and fingers, Perry patted down Mr. Muse's “waist up to his torso, up to his chest, around his back and up his back, and then [] down around his ankles on each leg, and [then] up… to his crotch or groin area.” Tr. 59 at 2-5. Upon searching Mr. Muse's crotch, SA Perry felt a round, hard “bundle” between his legs which he believed to be drugs. Id. at 10:3- 11. Based on the audio recording, the entire search took no longer than 15 seconds, and almost certainly less because that amount of time includes Perry's request. See id. at 44:6-16. SA Perry also provided a physical demonstration of the pat-down during the evidentiary hearing and it appeared to take no more than five to ten seconds to complete. Mr. Muse did not object to the search while it was occurring. Id. at 50:5-11.

         SA Perry also made several other relevant statements at the evidentiary hearing on the topic of pat-down searches. First, when asked how he feels about conducting a pat-down search of a male's private areas, Perry responded:

Well, it's not something that I enjoy doing or like doing, but I know that that's where drugs are concealed, because they don't think - passengers that are doing that don't think you're going to search there.

Tr. 16:13-16 (emphasis added). Later, Perry also testified that pat-down searches of female passengers are “totally different” because with female passengers he avoids searching their breast, crotch, and buttocks areas, and accordingly only pats down “their waist area and their back.” Id. at 53:17-54:4. Finally, SA Perry was asked on direct examination why in his sworn complaint he described his pat-down search as covering Mr. Muse's “lower abdomen” rather than his “crotch” or “groin.” Id. at 14:1-5. In response, he testified:

From my past experience of locating bundles in people's genital area or crotch or-and I referred to that in my complaints and reports in the past, and I had a couple different U.S. Attorneys advise me that maybe to word it differently because when we go to court, such as a preliminary hearing or suppression hearing or a trial, to basically-they didn't like the wording of, like, "in the genital area" or the "crotch." So that's basically why I-when I reference searching someone's person, either "lower abdomen area," or if it's a female, it's close up to their breast area, I'll say "in the upper abdomen area." So that's how I reference it in my complaints and reports.

Id. at 14:6-16. Perry then stated that he believed the rationale for the rewording was to protect defendants' privacy in open court and to “not make it uncomfortable” for them. Id. at 14:17-24.

         Following the pat-down, SA Perry asked Mr. Muse for identification and then placed him under arrest. Id. at 17:1-7. Mr. Muse appears to have been holding a phone, which Perry told him to put down before handcuffing him. Doc. 63 Ex. 1A at 10:13-18. SA Perry then led Mr. Muse off the bus and transported him to the DEA's Albuquerque district office. Tr. 17:13-14. The arrest occurred at approximately 4:00 a.m., and the two arrived at the DEA office around 30 minutes later. Id. at 10:18-21. Sometime thereafter, SA Perry strip-searched Mr. Muse and discovered that he was in fact carrying a softball-shaped bundle in a pair of underwear he was wearing. Id. at 18:1-6; Doc. 63 Exs. 3-8. The bundle weighed 850 grams and field-tested positive for the presence of methamphetamine, a result later confirmed by laboratory testing. Tr. 29:13- 23.

         Around three hours later, at 7:19 a.m., SA Perry conducted a post-arrest interview of Mr. Muse. Doc. 63 Ex. 2A at 2:1. The government submitted a video-recording and transcript of the interview, both of which the Court has reviewed. See Doc. 63 Exs. 2 and 2A. Perry began by reading Mr. Muse his Miranda rights, which he waived. Id. Ex. 2A at 2. Mr. Muse then admitted that he was approached by an individual in California who asked him to transport drugs to Amarillo, Texas for $1, 000. Id. at 4. He agreed and was instructed to wear a pair of underwear with a large ball of drugs taped to the crotch area. Id. Upon arrival in Texas, Mr. Muse was going to transfer the drugs to an awaiting individual in exchange for the $1, 000. Id. at 4-5.

         Towards the end of the interview, the follow exchange occurred:

Perry: Knowin' you had that on you, why did you give me permission to pat ...

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