United States v. Fernandez

24 F.4th 1321

UNITED STATES of America, Plaintiff - Appellee,

v.Jesus Francisco FERNANDEZ, Defendant - Appellant.

No. 20-2106

United States Court of Appeals, Tenth Circuit.

FILED February 3, 2022

Esperanza S. Lujan, Federal Public Defender's Office, Albuquerque, NM, for Defendant - Appellant.

Emil John Kiehne, Office of the United States Attorney, District of New Mexico, Albuquerque, NM, for Plaintiff - Appellee.

Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges.

ORDER

This matter is before us on Appellant's Petition for Panel Rehearing and Rehearing En Banc ("Petition"). Upon careful consideration, we direct as follows.

Pursuant to Fed. R. App. P. 40, Appellant's request for panel rehearing is denied. However, we sua sponte amend our opinion as reflected in the attached revised opinion. The Clerk of Court shall replace our December 17, 2021 opinion with the attached revised opinion effective nunc pro tunc to the date the original opinion was filed.

The Petition and the attached revised opinion were transmitted to all judges of the court who are in regular active service. As no member of the panel and no judge in regular active service requested that the court be polled, Appellant's request for rehearing en banc is denied. See Fed. R. App. P. 35(f).

HARTZ, Circuit Judge.

A jury convicted Jesus Francisco Fernandez of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The methamphetamine was discovered during a search at the Albuquerque Greyhound bus terminal of luggage on a bus on which Mr. Fernandez was a passenger. On appeal Mr. Fernandez argues (1) that his conviction was not supported by sufficient evidence that the luggage was his, (2) that the search of the luggage by law-enforcement officers violated his Fourth Amendment rights, and (3) that he was denied due process by Greyhound's failure to record or preserve terminal surveillance video, allegedly as the agent of law-enforcement officers. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Greyhound buses arriving at the Albuquerque terminal often stop for a layover. Passengers disembark so that the bus may be cleaned and refueled in a separate wash bay and maintenance area. During such layovers Jarrell Perry, a special agent for the United States Drug Enforcement Administration (DEA), regularly conducts what he calls "checking the bus." R., Vol. IV at 1082. He looks at luggage on the bus for signs of drug trafficking after the bus has been serviced and before the passengers reboard. Examining luggage may include looking for name tags (a lack of which raises suspicion), lifting bags to gauge weight, and smelling bags for substances often used to mask the scent of drugs (such as dryer sheets, perfume, mustard, or coffee). He then speaks to passengers after they reboard, looking for suspicious behavior. Once he checks the bus, Agent Perry talks to passengers who had originally been on the bus but are now waiting inside the terminal for the bus to which they will transfer.

Agent Perry encountered Mr. Fernandez on two layovers in late October 2017. On the first occasion, on October 22, he did not discover any criminal activity. Mr. Fernandez had arrived on a bus from Phoenix and was standing inside the terminal awaiting the bus from El Paso that would be taking him north. He was wearing what Agent Perry described as a distinctive black hat bearing some sort of logo referencing New York. He had a black duffel bag at his feet. Agent Perry walked up to Mr. Fernandez and identified himself as a DEA agent. Mr. Fernandez agreed to speak with him. Agent Perry reviewed Mr. Fernandez's bus ticket, which was issued to a "Frank Dreke" and showed that he was traveling to Colorado Springs. R., Vol. IV at 1082–83. Agent Perry asked for identification. Mr. Fernandez retrieved a stack of papers from the black duffel bag and gave the papers to the agent. The documents, apparently medical-discharge paperwork from a Colorado hospital, bore the name "Jesus F. Fernandez-Rodriguez." Id. at 1083. Mr. Fernandez consented to a pat-down search of his person and a search of the bag; neither turned up contraband. Agent Perry thanked Mr. Fernandez and went on to speak with other travelers.

Three days later, Agent Perry was again on duty at the bus station, joined this time by DEA special agent Kirk Lemmon. A Greyhound bus arrived that morning for a layover of about 75 minutes. The passengers got off, and the bus was cleaned and refueled. After the bus pulled out of the wash bay, but before the passengers returned, the agents boarded the bus and began examining the luggage stored inside. Agent Perry noticed a large black duffel bag in the overhead compartment near the rear on the driver's side of the bus. The bag was "drooping," id. at 1058, because it was not filled to capacity. But when he lifted the bag, it felt "very, very heavy." Id. It had no name tag. He surmised that the bag contained illegal narcotics. He passed the bag to Agent Lemmon to show him what he had observed and then returned the bag to the overhead compartment. Altogether, this interaction with the bag lasted about 30 seconds. Agent Perry told Agent Lemmon that he wanted to find out who owned the bag. The officers then left the bus and it was driven to the boarding area.

The officers reboarded the bus as the passengers began to get on. As the passengers were taking their seats, Agent Perry approached each of them, identified himself as a law-enforcement officer, asked about travel plans and luggage, and sometimes asked to search the passenger's belongings. Agent Lemmon stood behind the bus driver's seat to observe passengers and ensure Agent Perry's safety. A digital audio device on a lanyard under Agent Perry's shirt recorded all his interactions with the passengers. A video camera at the terminal also recorded a view from outside the bus, showing Agent Perry's movements down the aisle.

According to Agent Lemmon, when Mr. Fernandez boarded and saw Agent Lemmon, he "gave a face of surprise, almost panic." R., Vol. IV at 1249. Mr. Fernandez sat down near the middle of the bus. He intermittently peered over his shoulder and appeared to be observing Agent Perry's conversations with other passengers. Soon, Mr. Fernandez left his seat and entered the lavatory at the back of the bus. About a minute later, he opened the lavatory door, peeked out to see Agent Perry talking to another passenger close by, and closed the door again. Another minute later, Mr. Fernandez exited the lavatory and returned to his seat near the middle of the bus. He continued looking over his shoulder every so often toward Agent Perry.

Agent Perry approached Mr. Fernandez, displayed his DEA badge, and asked for permission to talk. Mr. Fernandez responded, "Again?" and laughed before agreeing to talk. Id. at 1078. Unprompted, Mr. Fernandez gave Agent Perry his bus ticket, which again bore the name "Frank Dreke." Id. at 1081. Upon seeing the name, Agent Perry recognized Mr. Fernandez from their encounter three days earlier. He asked whether they had spoken before, and Mr. Fernandez confirmed that they had. Agent Perry asked if he had luggage with him; Mr. Fernandez answered, "I don't got nothing with me today." Suppl. R., Vol. I at 46. Agent Perry repeated his question; again, Mr. Fernandez denied having luggage. Agent Perry then asked if he had any luggage on the previous trip; Mr. Fernandez responded, "Nah, I leave it at house—short trip." Id. Agent Perry said, "Ok, so you don't have any luggage." Id. Mr. Fernandez said, "Nah." Id. Mr. Fernandez consented to a pat-down search, which turned up nothing. Agent Perry said, "I thought you had a bag the other day though?" Id. Mr. Fernandez confirmed that he had a black or brown bag on the previous trip. Agent Perry thanked him and proceeded to speak with the other passengers.

No passenger claimed the black duffel bag that had piqued the agents’ interest. Eventually, Agent Perry grabbed the black duffel bag and, starting from the rear of the bus, carried the bag up the aisle, asking each passenger about the bag. Once he reached Mr. Fernandez, the agent asked if the bag was his. Mr. Fernandez replied, "Yeah, that's my bag," and asked, "You want to check it out?" R., Vol. IV at 1091. Agent Perry asked for and received permission to search the bag. He placed it in the vacant seat in front of Mr. Fernandez, opened it, and discovered an oblong bundle wrapped in brown tape, which he recognized as consistent with the packaging of illegal drugs. Agent Perry arrested Mr. Fernandez. As he was being arrested, Mr. Fernandez said, unprompted, "That's not my bag, that's not my bag." Suppl. R., Vol. I at 52.

A grand jury indicted Mr. Fernandez on one count of possession of methamphetamine with intent to distribute. He moved to suppress evidence from the bag on the ground that Agent Perry had unlawfully seized and searched the bag. To support the suppression motion, he subpoenaed all recordings from Greyhound surveillance cameras at the terminal for the relevant time period on October 25. But he was informed that there was no video available from several of the cameras. He 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.

Mr. Fernandez was then tried twice. The first jury could not reach a verdict, and the district court declared a mistrial. But the second jury found Mr. Fernandez guilty. The district court sentenced Mr. Fernandez to 180 months’ imprisonment.

II. DISCUSSION

On appeal Mr. Fernandez challenges his conviction on three grounds: (1) there was insufficient evidence...