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United States v. Fernandez.

No. 20-2106.  D.N.M. Judge Hartz. Sufficiency of the Evidence—Fourth Amendment Search and Seizure—Waiver of Argument—Abandonment of Property—Agency—Due Process.

December 17, 2021

Defendant was a passenger on a Greyhound bus that stopped at a bus terminal for a layover. During the layover, Drug Enforcement Administration (DEA) Agent Perry conducted a routine search for signs of drug trafficking, which included talking to passengers. Agent Perry approached defendant, who was wearing a distinctive black hat and had a black duffel bag at his feet. Defendant voluntarily spoke with Agent Perry and consented to a pat-down search of his person and bag, which revealed no contraband.

Three days later, Agent Perry was examining luggage stored inside another bus during a layover at the same terminal and noticed a large black duffel bag in an overhead compartment near the rear of the bus. The bag felt very heavy and had no name tag, and the agent surmised that it contained narcotics. Agent Perry approached each reboarding passenger in attempt to find out who owned the duffel bag. When defendant boarded, another DEA agent noticed he looked panicked. Defendant sat in the middle of the bus, physically distancing himself from the bag by sitting several rows away from it, even though there were few passengers on the bus. Defendant constantly looked at Agent Perry to observe his interactions with other passengers, and then left his seat for the lavatory and peeked out several times. When questioned by Agent Perry, defendant initially denied having any luggage on the bus, but he later stated that the bag was his and asked if the agent wanted to check it out. Agent Perry opened the bag and discovered a package of illegal drugs. As he was arrested, defendant denied it was his bag.

Defendant was indicted on one count of possession of methamphetamine with intent to distribute. He moved to suppress evidence from the bag and subpoenaed recordings from Greyhound surveillance cameras to support the suppression motion. Greyhound responded with recordings from a few cameras and stated that no video was available from several other cameras. Defendant moved to hold the government responsible for destruction of the video surveillance footage on the ground that Greyhound was acting as a government agent with respect to its handling of the surveillance cameras and video recordings. The district court conducted evidentiary hearings on both the agency issue and the motion to suppress. It ruled that Greyhound was not acting as an agent of the government and denied the motion to suppress. Defendant was convicted and sentenced to 180 months’ imprisonment.

Defendant argued on appeal that his conviction should be overturned because there was insufficient evidence of his guilt. A conviction may be reversed for insufficient evidence only when no reasonable jury could find the defendant guilty beyond a reasonable doubt. Here, defendant’s behavior when he reboarded the bus, his admission that the bag was his, that fact that the bag contained medical paperwork bearing his name, and the distinctive black hat that Agent Perry recognized as the one defendant had on during their previous encounter, constituted strong evidence of guilt.

Defendant also argued that the district court erred in denying his motion to suppress because the evidence was seized in violation of the Fourth Amendment. However, defendant failed to raise his argument about how agents handled the bag before passengers reboarded in district court, so it was waived. Further, Agent Perry did not violate defendant’s Fourth Amendment rights because defendant abandoned the bag by affirmatively disclaiming ownership of it.

Defendant further contended that he was denied due process because the government was responsible for the destruction of or failure to preserve potentially exculpatory video. However, testimony established that the DEA had nothing to do with how Greyhound operated or maintained its video surveillance system, so the government was not responsible. Further, defendant raised no legitimate complaint about the district court’s refusal to conduct an in-camera hearing. Accordingly, defendant was not denied due process, and the district court did not err.

The conviction was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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