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  • Jim Chapman

Probing tactile examination constituted a warrantless search in violation of the Fourth Amendment

Author: Jim Chapman


Defendant Nathaniel Johnson was traveling east on a Greyhound bus that stopped in Albuquerque, New Mexico, for routine service. Drug Enforcement Administration (“DEA”) Special Agent Jarrell Perry, who had 19 years of drug-interdiction experience with the DEA, was working at the Albuquerque bus station. During the service stop, passengerswere 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 thebus.

​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 he questioned other passengers, Perry 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, wore an Amtrak-branded cap, and had an audio-recording device.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. Perry returned the ticket and asked Johnson whether he had any identification on him; Johnson replied that he did not. Perry then 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 asked Johnson whether he was traveling with luggage. Johnson replied, “None at all.” Next, Perry asked if Johnson had anything “under the bus,” and Johnson said, “No.” For a third time, Perry asked if Johnson had “anything underneath his seat.” Johnson, again, replied, “No.” At the hearing on Johnson’s motion to suppress before the United States District Court for the District of New Mexico, 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.

 ​Subsequently, Johnson consented to a pat-down of his person. After the pat-down, Perry asked Johnson whether the bag under the seat next to him was his. After initially denyingthat it was his, Johnson reversed course, confirmed that it washis, and added that the backpack contained clothing. Referring to the backpack, Perry asked, “You give me permission to search it for contraband, sir?” Although the audio recording is not entirely clear, the District Court concluded that Johnson replied, “Yeah, I am doing it.”

 ​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 thisin order to conceal contraband and to deflect an officer’sconcerns. At this point, Johnson was still seated. Perry testified that Johnson angled his body to shield Perry’s view of the bag, and so, Perry repositioned himself to get a better view of what Johnson was doing.

 ​Perry testified that he observed a black “oblong-shaped large bundle” “protruding” from some clothing. Perry pointed to the bundle and asked Johnson, “what about inside this right here? Black bundle right there?” Perry testified that, in his experience, drug traffickers conceal bundles of illegal narcotics inside sleeves, jackets, pants, shirts, and underwear. Perry’sexperience—together with the bundle’s size, shape, and concealment method—led him 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.” 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 the bundle. Perry 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.” Perry repeated to the District Court during his testimony that the bundle was “oblong shaped” and further testified that it had a “crinkling or kind of crushing feel.” 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 that the black backpack contained one bundle of marijuana, wrapped in aluminum foil, and that he was being paid $500 to transport the drugs.

 ​Johnson was subsequently charged with knowingly and intentionally possessing with intent to distribute over 500 grams of methamphetamine. Johnson moved to suppress the evidence of his possession of methamphetamine and his statements. In support of his motion to suppress, Johnson argued: (1) that the drugs and statements should be suppressed because he was arrested and the items were seized without probable cause; (2)that the items were searched without a warrant; and (3) that 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. Thereafter, the District Court found that Johnson exhibited a lack of candor and that Perry was more reliable about the relevant events. Accordingly, the District Court denied Johnson’s motion to suppress, andJohnson entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. Johnson thenappealed the District Court’s denial of his motion to suppress to the United States Court of Appeals for the Tenth Circuit.

On appeal, the Tenth Circuit first addressed Johnson’s argument that he was unlawfully arrested because Perry lacked probable cause to arrest him. The Tenth Circuit disagreed.

In reaching this conclusion, the Tenth Circuit noted that probable cause for an arrest exists if the facts and circumstances within the arresting officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense. The probable-cause standard requires only a “fair probability,” which means something more than a bare suspicion but less than a preponderance of the evidence at hand. In considering the existence of probable cause, courtsview the circumstances in their totality rather than individually and note that an officer cannot arrive at probable cause simply by piling hunch upon hunch or ignoring those factors that militate against a finding of probable cause.

Here, the Tenth Circuit agreed with the District Court that Perry had probable cause to arrest Johnson without firstobtaining a warrant. The Tenth Circuit found that the following factors weighed most heavily in favor of a probable cause finding: (1) Johnson’s lie about whether he had luggage and whether the backpack was his and (2) Johnson’s self-search while attempting to obstruct Perry’s view of the backpack.

Conversely, the Tenth Circuit held that the District Court committed reversible error in refusing to suppress Perry’s warrantless search of Johnson’s backpack. The Tenth Circuit explained that the Fourth Amendment protects the right of the people to be secure in their effects against unreasonable searches and seizures. A search or seizure is presumptively reasonable under the Fourth Amendment if it is based on a warrant supported by probable cause.

​However, one exception to the warrant requirement is the “plain-view exception,” which allows a law enforcement officer to seize evidence of a crime without a warrant under a limited set of circumstances. This exception 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. For an object’s incriminating character to be immediately apparent, there must be probable cause to believe that it is contraband or evidence of a crime. Although the plain-view exception may support the warrantless seizure of a container believed to contain contraband, it does not automatically support a subsequent search of the concealed contents of the container. Rather, a subsequent search is only valid if the contents of a seized container are a foregone conclusion or if the search is accompanied by a warrant or justified by one of the exceptions to the warrant requirement.

In the instant case, Perry testified that, while still on the bus, he reached inside the backpack and felt the bundle. As he did, he probed and gained new information (i.e., Perry discovered that the bundle was pretty large, was very hard to the touch, had like a crinkling or kind of crushing feel, and was oblong shaped). Perry also testified that feeling the bundle confirmed his earlier suspicion that the bundle contained illegal narcotics.

Based upon Perry’s testimony, the Tenth Circuitconcluded that Perry’s probing tactile examination of the bundle following Johnson’s arrest done in an exploratory manner amounted to a warrantless search in violation of the Fourth Amendment because Perry had exceeded the minimal intrusion that is permitted in a plain-view seizure.

In addition, the Tenth Circuit concluded that the bundle’s contents were not a foregone conclusion when Perry searched it on the bus. Therefore, Perry’s warrantless search on the bus violated the Fourth Amendment. Finally, the Tenth Circuit found that, because the search on the bus was illegal, the later search at the DEA office was also illegal.

​In sum, the Tenth Circuit affirmed the District Court’s ruling that Perry had probable cause to arrest Johnson and to seize the backpack and bundle. But the Tenth Circuit also concluded that, when Perry felt the bundle on the bus, he conducted a warrantless search of a container, the contents of which were not a foregone conclusion. Therefore, Perry could not rely on that illegally obtained information in order to justify the later warrantless search of Johnson’s backpack at the DEA office. These warrantless searches violated the Fourth Amendment, and as a result, the Tenth Circuit found that the drugs that Perry discovered should have been suppressed. Accordingly, the Tenth Circuit reversed the District Court’s denial of Johnson’s motion to suppress as to Perry’s illegal searches, vacated Johnson’s conviction and sentence, and remand for further proceedings.

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