United States District Court, D. New Mexico
Mallory M. Gagan Assistant Federal Public Defender Attorney
for Mr. Muse
H. Spiers Assistant United States Attorney
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
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.
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. 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.
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.”).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.
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
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.
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
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.
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
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.
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.
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.
the end of the interview, the follow exchange occurred:
Perry: Knowin' you had that on you, why
did you give me permission to pat ...