United States v. Johnson

43 F.4th 1100

UNITED STATES of America, Plaintiff - Appellee,

v.Nathaniel Donald JOHNSON, Defendant - Appellant.

No. 21-2058

United States Court of Appeals, Tenth Circuit.

FILED August 9, 2022

Hans Erickson, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant – Appellant.

Taylor F. Hartstein, Assistant United States Attorney, Albuquerque, New Mexico (Fred J. Federici, United States Attorney, with him on the brief), for Plaintiff – Appellee.

Before MORITZ, EBEL, and KELLY, Circuit Judges.

MORITZ, Circuit Judge.

Nathaniel Johnson was arrested following an encounter on a Greyhound bus with Special Agent Jarrell Perry. Law enforcement then discovered two packages of methamphetamine in Johnson's backpack, and Johnson gave several incriminating statements. The district court denied Johnson's motion to suppress the physical evidence and his statements.

Appealing that ruling, Johnson argues that (1) there was no probable cause to arrest him; (2) Perry illegally searched a bundle of clothing in his backpack while on the bus following the arrest; and (3) Perry conducted an illegal search of the backpack and bundle later at the DEA office. We hold that Perry had probable cause to arrest Johnson and to seize the bundle of clothing and backpack. But we further hold that while seizing the items from the bus, Perry conducted an illegal search of the bundle by reaching inside Johnson's open backpack and feeling the bundle in an exploratory manner. Then later, at the DEA office, still without a warrant, Perry conducted a second illegal search of the backpack and the bundle. And contrary to the government's position, the plain-view exception to the warrant requirement cannot apply because at neither point in time were the contents of the bundle or backpack a foregone conclusion. Accordingly, we affirm in part, reverse in part, vacate Johnson's conviction and sentence, and remand for further proceedings.

Background¹

Johnson was traveling east on a Greyhound bus that stopped in Albuquerque for routine service. Perry, who had 19 years of drug-interdiction experience with the United States Drug Enforcement Agency (DEA), was working at the Albuquerque bus station. During the service stop, passengers were required to temporarily get off the bus. When Johnson got back on board, Perry was at the rear of the bus speaking with two other passengers about their travel; Task Force Officer Seth Chavez boarded behind Johnson and stood at the front of the bus.

Perry saw Johnson take an aisle seat three or four rows ahead of where he was standing. Johnson's backpack, which he had left on board while the bus was being serviced, was on the window seat next to him. As Perry questioned other passengers, he observed Johnson pick up the backpack and place it underneath the window seat, which Perry perceived as an attempt to hide the bag.

Perry then approached Johnson. Perry's firearm was not visible; he wore plain clothing, an Amtrak-branded cap, and an audio-recording device.² Positioned behind Johnson, Perry introduced himself as a police officer and showed his badge. Perry asked for permission to speak with him, and Johnson agreed. Perry's recording device captured their exchange.

Perry first asked Johnson about his travel plans, and Johnson replied that he was traveling from Arizona to Joplin, Missouri. At Perry's request, Johnson handed his ticket to Perry, which had the (false) name Mike Johnson on it.³ Perry returned the ticket and asked Johnson whether he had any identification on him; Johnson replied that he did not.⁴ Perry asked Johnson the reason for his trip, and Johnson said he was going to Joplin for something related to probation, although he did not explain further. Perry then asked Johnson whether he was traveling with luggage. Johnson replied, "None at all." R. vol. 1, 102. Next, Perry asked if Johnson had anything "under the bus," and Johnson said, "No." Id. And a third time, Perry asked if Johnson had "[a]nything underneath [his] seat." Johnson again replied, "No." Id.

Perry testified that because he had seen Johnson place the backpack underneath the seat next to him, Johnson's denials that he had any luggage suggested that Johnson was attempting to "distance himself" from the backpack, which "possibly ... contained contraband." R. vol. 2, 45.

Johnson then consented to a patdown of his person. After the patdown, Perry asked whether the bag under the seat next to Johnson's was his. After initially denying it was his, Johnson reversed course, confirmed it was, and added that the backpack contained clothing. Perry then asked, referring to the backpack, "You give me permission to search it for contraband, sir?" R. vol. 1, 103. Although the audio recording is not entirely clear, the district court concluded that Johnson replied, "Yeah, I am doing it." Id. at 104.

Johnson then removed the backpack from underneath the vacant window seat, placed it on the seat, opened it, and began to rummage through the bag's contents. Perry testified that, in his experience, individuals will conduct a "self-search" like this to conceal contraband and deflect officer concerns. R. vol. 2, 52. At this point, Johnson was still seated; Perry testified that Johnson angled his body to shield Perry's view of the bag, so Perry repositioned himself to get a better view of what Johnson was doing.

Perry then observed a black "oblong-shaped large bundle" "protruding" from some clothing. Id. at 137. Perry pointed to the bundle and asked Johnson, "[w]hat about inside this right here? Black bundle right there?" R. vol. 1, 104. Perry testified that in his experience, drug traffickers conceal "bundles of illegal narcotics inside sleeves, jackets, pants, shirts, [and] underwear." R. vol. 2, 56. This experience—together with the bundle's size, shape, and concealment method—led Perry to believe the bundle contained illegal narcotics. Perry asked Johnson what the bundle was, and Johnson did not respond. Without missing a beat, Perry said, "Okay, sir, I need you to go ahead and put your hands up here for me."⁵ R. vol. 1, 104. Perry handcuffed Johnson and handed him over to Chavez, who escorted Johnson off the bus.

After Johnson was off the bus, Perry reached inside the open backpack and "felt th[e] bundle." R. vol. 2, 59. He testified that this contact confirmed his suspicion about the bundle being illegal narcotics, explaining that the bundle was "very hard" and "a pretty large bundle." Id. at 60. He repeated that the bundle was "oblong shaped" and further testified that it had a "crinkling or kind of crushing feel." Id. at 134. Perry then put some clothing that had fallen out of the backpack back in, zipped it up, and took the backpack off the bus.

Perry and Chavez took Johnson and the backpack to the DEA office where, without a warrant, Perry searched the backpack. When he did, Perry saw for the first time that the bundle was a package wrapped in tinfoil that had been placed inside one of the legs of a pair of long underwear. Perry also discovered a second bundle. The bundles were weighed, and one of them field-tested positive for methamphetamine.

Also at the DEA office, Perry advised Johnson of his rights. Johnson waived his rights and told Perry that he believed the black backpack contained one bundle of marijuana, wrapped in aluminum foil, and that he was being paid $500 to transport the drugs.

The government charged Johnson with knowingly and intentionally possessing with intent to distribute over 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Johnson moved to suppress the methamphetamine and his statements. Relevant to this appeal, Johnson argued that (1) the drugs and statements should be suppressed because he was arrested and the items were seized without probable cause; (2) the items were searched without a warrant; and (3) his statements were fruit of the poisonous tree because they were obtained without purging the taint of the earlier illegal conduct. The district court conducted a suppression hearing at which Johnson and Perry both testified to the facts detailed above. The district court found that Johnson exhibited a "lack of candor" and that "Perry [wa]s more reliable about the case's events." R. vol. 1, 99–100. After the hearing, Johnson filed a supplemental brief, adding additional arguments and authorities to his initial motion.

The district court issued a short, two-page order denying Johnson's motion to suppress. Johnson, at that point proceeding pro se, sought reconsideration of that order. Approximately five months after its initial order, the district court issued a more detailed order, explaining the rationale for its initial decision and denying reconsideration. It concluded, as relevant here, that (1) Perry had probable cause when he arrested Johnson and (2) Perry's warrantless search of Johnson's backpack was valid because it was a "foregone conclusion" that the backpack contained contraband. Id. at 126. Given this latter conclusion, the district court did not separately analyze whether Perry conducted a search of the backpack either on the bus or at the DEA office. And given its overall determination that no illegality occurred, the district court did not consider whether Johnson's statements warranted suppression as fruit of the poisonous tree.

Johnson then entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The district court sentenced Johnson to ten years in prison and five years of supervised release. Johnson now appeals.

Analysis

"In reviewing the denial of a motion to suppress, we accept the district court's factual findings unless clearly erroneous" and review the overall question of reasonableness under the Fourth Amendment de novo. United States v. Hammond , 890 F.3d 901, 905 (10th Cir. 2018). In conducting our review, we "view the evidence in the light most favorable to the determination of the district court." Santos , 403 F.3d at 1124. "A ...