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United States v. Johnson.

No. 21-2058. 8/9/2022. D.N.M. Judge Moritz. Methamphetamine Possession with Intent to Distribute—Fourth Amendment—Motion to Suppress—Probable Cause for Warrantless Arrest—Illegal Search—Plain View Exception.

August 9, 2022

Defendant was traveling on a Greyhound bus that stopped in Albuquerque for service. The passengers were required to disembark during the service. DEA agent Perry boarded the bus. As he was questioning other passengers, the agent observed defendant pick up a backpack and place it underneath the window seat. Agent Perry proceeded to interview defendant and asked him whether he was traveling with luggage. Defendant denied having any luggage. He then consented to a pat-down search. When asked about the backpack under the seat, defendant confirmed it was his. Although it was later disputed, the district court concluded that defendant then gave the agent permission to search the bag for contraband.

Defendant proceeded to open the backpack and “self-search” it while attempting to block Perry’s view. While defendant was self-searching the bag, Perry observed an oblong-shaped large bundle protruding from some clothing. Based on his experience, Perry believed the bundle contained illegal narcotics. Defendant did not immediately respond when asked what was inside the bundle. Perry then promptly arrested defendant. After defendant departed the bus, Perry reached inside the backpack and felt the bundle, which confirmed his suspicion. He and another agent then took the backpack to the DEA office, where without a warrant, Perry searched the backpack. This search uncovered two bundles, including one that tested positive for methamphetamine.

The government charged defendant with knowingly and intentionally possessing with intent to distribute over 500 grams of methamphetamine. Defendant moved to suppress. Following a suppression hearing, the court issued a short, two-page order denying the motion. Following a motion for reconsideration, the court issued a more detailed order, explaining that Perry had probable cause for the arrest and that the warrantless search was valid because it was a “foregone conclusion” that the backpack contained contraband. Defendant entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. He was sentenced to 10 years in prison and 5 years of supervised release. Defendant appealed.

The Tenth Circuit first held that the district court did not abuse its discretion in concluding that agent Perry had probable cause to arrest defendant. Based on the totality of the facts, including (1) defendant’s lie whether the backpack was his, (2) defendant’s self-search while attempting to obstruct Perry’s view of the backpack, and (3) Perry’s visual identification of the clothing bundle, the Tenth Circuit concluded that Perry had probable cause to arrest defendant. Likewise relevant but accorded less weight in the analysis were the facts that (1) defendant placed the backpack under the seat next to him, (2) defendant said he lacked identification, and (3) defendant failed to answer Perry’s final question.

Next, the Tenth Circuit addressed defendant’s contention that the resulting bus search violated the Fourth Amendment. The plain-view exception provides an exception to the warrant requirement. It applies if (1) the officer was lawfully in a position from which the object seized was in plain view, (2) the object’s incriminating character was immediately apparent, and (3) the officer had a lawful right of access to the object. Initially, the Tenth Circuit rejected the government’s argument that Perry’s conduct on the bus did not amount to a search at all. An officer violates a passenger’s reasonable expectation of privacy when the officer touches the luggage in a manner that exceeds how a fellow passenger or transportation employee would. The Tenth Circuit next concluded that the incriminating character of the backpack and bundle was immediately apparent. However, the Tenth Circuit held that the district court erred in concluding that the contents of the bundle was a foregone conclusion. An officer may conduct a warrantless search of a container in plain view only if its contents are a foregone conclusion. The cases cited by the district court were distinguishable, and the facts of this case were more akin to cases in which the Tenth Circuit held that contents could not be searched without a warrant.

For the same reasons, the Tenth Circuit held that the warrantless search of the backpack and bundle at the DEA office violated the Fourth Amendment. Because the search on the bus was illegal, Perry could not rely on those new, unlawfully obtained facts to justify the later search at the DEA office. Moreover, the additional evidence obtained on the bus did not raise Perry’s probable cause to the “virtual certainty” required for the exception to apply.

Lastly, the Tenth Circuit rejected the government’s argument that it should be permitted to assert new grounds to support the evidence’s admission on remand.

The Tenth Circuit therefore affirmed the ruling that there was probable cause for the arrest and seizure of the backpack and bundle. Due to the warrantless search of the container in violation of the Fourth Amendment, the district court’s denial of the suppression motion was reversed, defendant’s conviction and sentence were vacated, and the matter was remanded.

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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