United States v. Osorio

1

UNITED STATES OF AMERICA, Plaintiff, v. KADEEM SHAQUILE OSORIO, Defendants.

CR. No. 22-889 JCH

United States District Court, D. New Mexico

April 17, 2023

MEMORANDUM OPINION AND ORDER

This case is before the Court on Defendant Kadeem Shaquile Osorio's Amended Motion to Suppress Evidence [Doc 37]. Defendant Osorio argues that law enforcement violated his Fourth Amendment rights to be free of unreasonable search and seizure during their interaction with him on a Greyhound bus, and he asks the Court to suppress as evidence all items found on his person and in his luggage. The Government has filed its response [Doc. 45], and Osorio filed his reply [Doc. 48]. On February 7, 2023, the Court held an evidentiary hearing on the motion at which Defendant was present, and on February 21, 2023, the parties submitted additional authorities [Docs. 67 and 68] for the Court's consideration. After reviewing the law and the evidence, the Court concludes that the motion to suppress should be denied.

FACTUAL BACKGROUND

For the purpose of the hearing on the motion to suppress evidence the Court finds the following facts.^[1] Former DEA Special Agent Jarrell Perry has 23 years of experience doing drug interdiction work for the DEA and has been involved in thousands of interdiction operations. Tr. at 8-9. On April 29, 2022, Perry and DEA Task Force Officer Rey Zamarron were at the Greyhound bus station in Albuquerque New Mexico, performing drug interdiction duties. Tr. at 10 12. The pair were there to meet the eastbound bus scheduled to arrive at 7:30 a.m. Id. at 1011. When the bus arrived, all the passengers got off so that the bus could be cleaned. Before any of the passengers could re-board the bus, Perry and Zamarron got on the bus, Perry standing toward the rear and Zamarron at the front, just behind the driver's seat, out of the aisleway. Tr. at 13-14, 85. Both wore plain clothes. Tr. at 11. Perry had a firearm, ammunition, Leatherman tool, handcuffs, and a recording device^[2] concealed under his clothing. Id. at 11-12. When passengers got on the bus, Perry began speaking with them. Gov't Ex. 1.

As he approached passengers, Perry said things such as, “I'm a police officer, we check the bus here,” and asked permission to speak with them. He also asked passengers about their travel destinations, whether they had luggage, whether they had contraband or anything illegal, and whether they would consent to a search of their bags. Gov't Ex. 1. Perry also searched the bags of several of the passengers he spoke to. Id.

After speaking with numerous other passengers, Perry approached Osorio, who was seated on the aisle on the left side of the bus, approximately five rows from the front. Tr. at 15. A camouflage duffel bag was sitting in the window seat to Osorio's left. Tr. at 16, 18. In his interaction with Osorio, Perry stood behind him and to the right of Osorio, as was his general practice so that he does not block the passenger's egress. Tr. at 17. Perry began speaking to him in a calm and polite tone. Tr. at 16, 17, 79-80; Gov't Ex. 1. After greeting Osorio, Perry identified himself as a police officer, displayed his DEA badge, and said, “we check the bus here and you'll see me speaking with the passengers. May I speak to you for a moment?” Tr. at 24; Gov't Ex. 1. The recording of the encounter contains no audible response. Gov't Ex. 1. However, Perry testified that Osorio mumbled inaudibly and nodded his head up and down, which Perry construed as agreement. Tr. at 24, 70. Perry asked Osorio how his trip was going; Osorio responded, “It's going good.” Gov't Ex. 1. Perry asked Osorio where he was headed, and Osorio responded that he was traveling to Atlanta. Id. Then Perry asked Osorio if he had his ticket with him, and if he was traveling with anyone. Id. Osorio held up his phone to show Perry his electronic ticket under the name Derrick Jones and indicated that he was traveling alone. Id.; Tr. at 25, 71-72.

Next, Perry asked Osorio, “You live in-so where did you start out at, L.A.?” Gov't Ex. 1. Osorio said that he was returning to Atlanta. Id. Perry testified that based on his 23 years of drug interdiction work, Los Angeles stood out to him as a source city and Atlanta as a destination city for illegal narcotics. Tr. at 26. Osorio indicated that he had been in Los Angeles for about two or three days visiting his uncle, and that he had flown there from Atlanta via Spirit Airlines. Gov't Ex. 1. Perry then asked Osorio if he preferred the bus or the plane. Id. Osorio did not answer that question directly, but rather offered, “I lost my ID when I was out there visiting.” Id.; Tr. at 84. When Perry confirmed, “You don't have no ID with you?' Osorio responded, “No, sir.” Gov't Ex. 1; see also Tr. at 26. This exchange was significant to Perry for three reasons. First, Perry credibly testified that he asked Osorio about identification to see if the name on the ID matched the name on the ticket because in his experience doing drug interdiction work, he has often made drug seizures from people traveling under false names. Tr. at 26-27. According to Perry, Osorio's lack of ID was significant because passengers that know they are traveling under a false name have often tried to conceal that fact by lying and telling him that they have lost their ID or don't have it with them. Id. at 27. Second, Perry testified that in his experience, passengers transporting illegal narcotics will often fly on the outbound trip but then take the Greyhound bus with the drugs on the return because the bus lacks security screening. Tr. at 28. Third, Perry noted that between airplane and bus, Osorio had spent about three and a half days traveling to stay in Los Angles for just two or three days. Perry credibly testified that “people that are transporting illegal narcotics often don't spend a lot of time in the city where they're going to. They're there to pick up illegal narcotics and then transport them back.” Id. at 29.

Perry steered the conversation toward luggage. He asked Osorio if he had luggage on the bus, and Osorio acknowledged that he did. Gov't Ex. 1. Perry and Osorio had a brief exchange in which Osorio clarified which bags were his. Id. These included the camouflage duffel bag sitting next to Osorio in the window seat and an open, brown paper Nike shopping bag in the overhead luggage compartment. Tr. at 29. Osorio pointed to both bags, including the Nike shopping bag, to indicate they belonged to him. Tr. at 30-31, 84. Then Perry asked, “And no weapons or anything illegal with you today?” Gov't Ex. 1. Osorio's response, if any, is inaudible on the recording. Id. Perry then said, “Would you voluntarily consent for a search of your bags you have for contraband, sir?” Osorio asked, “You say would I voluntarily?” Perry confirmed, “Yes, sir.” Id.; Tr. at 87. And then Osorio declined, saying, “No, sir.” Gov't Ex. 1; Tr. at 31, 87. At this point in the encounter, Osorio had refused to grant Perry consent to search his luggage. Tr. at 109.

Perry then followed up: “Okay. Would you be able to open it up and show me the contents of it?” Osorio responded, “Contents?” Perry then said, “Yes, sir,” and after a short pause said, “Thank you, sir.” Tr. at 89. The recording contains no audible response from Osorio, (Gov't Ex. 1; Tr. at 89-90), who stood up in the aisle, retrieved the Nike shopping bag, placed it on his seat, and removed one of two shoe boxes inside. Tr. at 32, 33, 92. At this point in the recording, one can hear the sound of paper crinkling, as though someone is moving or opening the paper Nike shopping bag. Gov't Ex. 1. Perry could see the two shoe boxes inside. Tr. at 33. Osorio opened one shoe box to reveal a pair of shoes. Tr. at 32. Then Perry asked, “Get you some new shoes?” and Osorio responded, “Yes, sir.” Perry observed, “Those are expensive shoes, aren't they?” Osorio responded, “Air Jordans.” Osorio replaced the lid on the shoe box, put it back in the Nike shopping bag, and returned it to the overhead luggage compartment. Tr. at 32. Perry testified that it did not make sense to him why Osorio would open one shoe box and not the other. Tr. at 33.

After pointing out that Osorio had dropped his phone (“You dropped your phone here, I don't want you to lose your phone,” Gov't Ex. 1), Perry asked, “Would you be able to do the same thing with this one too, sir?”, while gesturing toward the camouflage duffel bag in the seat next to Osorio's seat. Tr. at 34, 92, 257. Osorio did not respond audibly (Gov't Ex. 1; Tr. at 92), but he stepped toward the duffel bag, unfastened the Velcro that held the two handles together, and partially unzipped the bag approximately halfway. Tr. at 34-35, 94, 110. The unfastening of the Velcro and the unzipping of the bag both can be heard on the audio recording. Gov't Ex. 1. Through that opening, Perry could see two or three rectangular-shaped bundles wrapped in clear, vacuum-sealed plastic. Tr. at 35, 97; Gov't Ex. 4 (photograph of open duffel bag). Based on his training and experience, as well as the rectangular shape of the bundles and the fact that they were wrapped in heat-sealed clear plastic, Perry believed them to contain illegal narcotics. Tr. at 36-37. Also adding to his belief that the bundles contained narcotics was the fact that under the clear plastic, the bundles were wrapped in brown tape-a manner of packaging illegal narcotics that he had encountered many times during his years of drug interdiction work. Tr. at 37-38.

At this point, Perry summoned Zamarron from the front of the bus, and they placed Osorio under arrest. Gov't Ex. 1; Tr. at 39. They then removed Osorio, along with his camouflage duffel bag and Nike shopping bag, from the bus and took them to the local DEA office. Tr. at 39. There, Perry...