U.S. v. Mckenzie, CR 08–1669 JB.

779 F.Supp.2d 1246

UNITED STATES of America, Plaintiff,

v.Richard Anthony McKENZIE, Defendant.

No. CR 08–1669 JB.

United States District Court, D. New Mexico.

April 8, 2011.

Robert R. Cooper, Albuquerque, NM, for Defendant.Damon P. Martinez, Samuel A. Hurtado, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Plaintiff.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Suppress Evidence Based on Illegal Seizure of Passenger Named Report PNR and to Reconsider, in Part, Factual Findings Relating to the Seizure of the PNR, filed March 30, 2011 (Doc. 124)(“Motion”). The Court held a hearing on April 1, 2011. The primary issue is whether the Court should suppress evidence based on DEA Special Agent Mark D. Hyland's allegedly illegal seizure of the Defendant Richard Anthony McKenzie's passenger named report (“PNR”). Because McKenzie presents no new factual allegation or legal authority that tends to undermine the Court's decision, and because the United States Court of Appeals for the Tenth Circuit has held that AmTrak's disclosure of a passenger's PNR to the Drug Enforcement Agency (“DEA”) does not violate the passenger's Fourth Amendment rights, the Court denies McKenzie's Motion.

FACTUAL BACKGROUND

The Court previously made factual findings in this matter. See Memorandum Opinion and Order, filed April 13, 2010 (Doc. 70)(“April 13, 2010 MOO”); Memorandum Opinion and Order, filed February 10, 2011 (Doc. 116)(“February 10, 2011 MOO”)(incorporating and expanding on the findings in the April 13, 2010 MOO). McKenzie relies on the Court's prior findings of fact. See Motion ¶ 1, at 1 (“Mr. McKenzie incorporates by reference as though fully stated herein the apt factual recitation made by this Court in the Memorandum Opinion and Order Denying Defendant's Motion to Suppress [Doc. No. 116], pp. 2–7.”). The Court will not recite its findings here, but incorporates these findings by reference.

PROCEDURAL BACKGROUND

McKenzie is charged by Indictment with one count of possession with intent to distribute 500 grams of a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On May 14, 2009, McKenzie filed a motion to suppress all evidence found as a result of what he considers to be an illegal search. See Motion to Suppress Evidence with Supporting Authorities, filed May 14, 2009 (Doc. 32). McKenzie asserted that the encounter with Hyland was not consensual, but was an investigative stop. The Court relied upon testimony from Hyland at the hearing in denying McKenzie's requested relief. The Court, after hearing testimony at two separate hearings, denied the motion to suppress, ruling that the encounter was consensual and that McKenzie had given Hyland consent to search his luggage where the cocaine was found. See April 13, 2010 MOO at 29.

Hyland testified, under oath, that he received McKenzie's PNR from an AmTrak ticket agent via a facsimile transmission, which he received before McKenzie's arrival in Albuquerque, New Mexico. See Transcript of Hearing at 76:3–82:4 (taken August 20, 2009)(“Tr.”)(Padilla, Hyland).¹ Hyland further testified that the AmTrak ticket agent routinely sends PNRs by facsimile transmission to the DEA if the ticket agent identifies, based upon training that the DEA provides, characteristics fitting the drug-courier profile. See Tr. at 102:6–105:23 (Padilla, Hyland); Transcript of Hearing at 12:6–18 (taken February 18, 2010)(“Second Tr.”)(Padilla, Hyland).

On May 17, 2010, McKenzie filed his Opposed Motion to Continue Trial Setting; Request for Frank's [sic] Hearing; and Request to Reopen Suppression Motion Hearing, see Doc. 76 (“ Franks Motion”), requesting the Court to conduct a Franks² hearing, re-open its suppression hearing, and, presumably, re-consider its April 13, 2010 ruling. McKenzie contended that the Court “may need to ... conduct[ ]” a Franks hearing to determine if Hyland provided false or misleading information to the Magistrate Judge who issued the warrant to search the cereal boxes in McKenzie's luggage. McKenzie further contended that, even if the Court determined that a Franks hearing is not necessary, Hyland's testimony regarding how the DEA received the PNR is relevant to the determination whether the initial contact with McKenzie was an investigative stop or a consensual encounter.

On January 10, 2011, the United States filed its Sealed Supplement of Document to Defendant's Request for Frank's [sic] Hearing and Request to Reopen Suppression Motion Hearing Filed May 17, 2010 (Doc. 76). See Doc. 105. The United States attached the July 7, 2008, telephone records for the telephone number associated with the facsimile transmission apparatus at the Flagstaff AmTrak station. The records showed that four telephone calls were made from the telephone number associated with the facsimile transmission apparatus at the Flagstaff AmTrak station to the telephone number associated with the facsimile transmission apparatus at the DEA's offices on July 7, 2008, between 5:54 am and 7:05 am. See Government's Ex. 1, at 1, filed January 10, 2011 (Doc. 150–1)(“Telephone Records”). On February 20, 2011, the Court denied McKenzie's Franks Motion. See Memorandum Opinion and Order, filed February 20, 2011 (Doc. 116)(“February 20, 2011 MOO”).

McKenzie again moves the Court to suppress the evidence against him. He argues that the evidence he presented in support of his Franks Motion in combination with discrepancies in Hyland's testimony support the Court's reconsideration of its decision not to suppress the evidence against him. At the April 1, 2011 hearing, the United States argued that McKenzie has no expectation of privacy in his PNR or standing to challenge Hyland's obtaining the PNR from AmTrak.

ANALYSIS

McKenzie argues AmTrak's disclosure of his PNR to Hyland violated his Fourth Amendment rights. The Tenth Circuit has rejected this line of reasoning. McKenzie's Motion also restates arguments that the Court rejected in its February 10, 2011 MOO without setting forth new factual allegations or authorities that controvert the Court's analysis. The Court, therefore, denies McKenzie's Motion.

I. AMTRAK'S DISCLOSURE OF McKENZIE'S INFORMATION TO THE DEA DID NOT VIOLATE McKENZIE'S FOURTH–AMENDMENT RIGHTS.

At the April 1, 2011 hearing, McKenzie indicated that the heart of his argument is that Hyland illegally seized his PNR. McKenzie appears to advance two arguments: (i) AmTrak's disclosure of McKenzie's PNR to Hyland violated McKenzie's Fourth–Amendment rights; and (ii) Hyland seized McKenzie's PNR from AmTrak without a warrant, violating McKenzie's Fourth–Amendment rights. The Tenth Circuit has addressed and rejected both of these arguments in other cases involving DEA agents interdicting defendants on AmTrak trains. The Court thus concludes that McKenzie's argument is unavailing.

A. AMTRAK'S DISCLOSURE OF McKENZIE'S PNR DID NOT VIOLATE HIS FOURTH–AMENDMENT RIGHTS.

McKenzie contends AmTrak's disclosure of his PNR violated his Fourth– Amendment rights. The Tenth Circuit has held, however, that AmTrak may share passenger information with the DEA. In United States v. Jackson, 381 F.3d 984 (10th Cir.2004), the Tenth Circuit rejected a defendant's contention that AmTrak's disclosure of his PNR violated his Fourth–Amendment rights.

On March 24, 2003, DEA agent Jarrell Perry obtained a Passenger Name Record (“PNR”) from Amtrak which showed that Jackson had paid cash for a one-way coach train ticket from Los Angeles, California to Akron, Ohio. Perry testified that, based on his experience, he determined that Jackson's travel arrangements were consistent with those of drug couriers. As a consequence, Perry approached Jackson on the Amtrak train when it stopped in Albuquerque, New Mexico.

381 F.3d at 987 (footnote omitted). During a consensual search, the DEA found cocaine concealed in the defendant's luggage and arrested the defendant. The Tenth Circuit rejected the defendant's argument that AmTrak's disclosure of his information to the DEA agent violated his Fourth–Amendment rights:

Jackson argues that Amtrak is a government agency whose disclosure to Perry of the information surrounding his travel plans violated his rights under the Privacy Act, 5 U.S.C. § 552a, and the Fourth Amendment. As a result, Jackson argues, he is entitled to suppression of all the evidence seized during his encounter with Perry.

Assuming, without deciding, that the Privacy Act can create a reasonable expectation of privacy that could support suppression of evidence, Jackson's argument fails because Amtrak is not an agency within the meaning of the Privacy Act. The Fifth Circuit has held that Amtrak is not subject to the Privacy Act. See Ehm v. Nat'l R.R. Passenger Corp., 732 F.2d 1250, 1251–53 (5th Cir.1984). Noting that Amtrak's charter, 45 U.S.C. § 541, specifically provides that Amtrak “will not be an agency or establishment of the United States Government,” the Ehm Court held that Amtrak was not an “agency” within the meaning of the Privacy Act. Ehm, 732 F.2d at 1252–53. In Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 392, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), the Supreme Court specifically noted that Amtrak's charter is dispositive of Amtrak's status as a government entity for the purposes of the Administrative Procedure Act because Congress controls whether Amtrak is subject to the provisions of the statutes which it enacts. The Privacy Act is part of the Administrative Procedure Act. 5 U.S.C. § 552a. As a consequence, we find the Ehm Court's reasoning persuasive and hold that Amtrak is not a governmental agency within the meaning of the Privacy Act. Because the Privacy Act does not apply to Amtrak, Jackson's argument necessarily fails.

381 F.3d at 989–90.

Similarly, McKenzie asserts that Hyland violated his-Fourth Amendment rights when he obtained McKenzie's PNR...