428 F.Supp.3d 1186
D.N.M.2019Background
- Early morning on July 1, 2017, DEA SA Jarrell Perry, in plain clothes, boarded an eastbound Greyhound in Albuquerque claiming he was checking the bus for security and spoke with passengers.
- Perry asked Muse about travel and requested consent to search Muse’s bag; Muse (verbally and by opening/indicating) permitted a luggage search, which found nothing.
- Perry then asked to "pat [Muse] down for contraband." The audio transcript and the Court’s listening do not capture Muse saying "yeah"; Muse later said he may have been wearing headphones and did not hear the request.
- Muse stood, raised his hands, and Perry conducted a brief full-body pat-down that included touching Muse’s crotch/groin; Perry felt a hard bundle, arrested Muse, and later a strip search at the DEA office revealed ~850g methamphetamine.
- Muse waived Miranda and confessed during a post-arrest interview; he moved to suppress the pat-down, the arrest, the recovered drugs, and post-arrest statements as fruits of an unlawful search/seizure.
- After an evidentiary hearing, the Court found no clear, voluntary consent to the pat-down, held the groin search exceeded any consent, and suppressed the drugs and statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of consent to pat-down | Muse gave explicit consent (verbal and by standing/raising arms); officer behaved noncoercively | Muse did not hear the request (headphones) and did not affirmatively consent; standing up was mere acquiescence | No valid consent: audio/transcript show no verbal assent; actions insufficient given distraction and context |
| Scope of consent (search of crotch/groin) | Pat-down for "contraband" encompassed searching person; Muse did not limit consent and did not object | Muse only consented to a pat-down for contraband (likely weapons); crotch search was intrusive and unexpected on a bus | Search exceeded scope: request for "pat-down for contraband" and public bus setting did not reasonably include groin search |
| Probable cause for arrest based on felt bundle | Experienced agent reasonably believed the hard, round bundle was drugs, supplying probable cause | Arrest was premised solely on evidence from an unlawful search; no prior suspicion | No lawful basis: the felt bundle was discovered during an unconstitutional search, so arrest cannot be justified on that basis |
| Admissibility of post-arrest statements (fruit of the poisonous tree) | Miranda waiver and elapsed time/processing distinguish statements from prior illegality | Statements flowed from the arrest and therefore are tainted by the unlawful search | Suppressed: temporal proximity, lack of intervening circumstances, and connection to the illegal search require suppression of statements and seized drugs |
Key Cases Cited
- Schneckloth v. Bustamonte, 412 U.S. 218 (consent is an established exception to the warrant requirement)
- United States v. McRae, 81 F.3d 1528 (10th Cir.) (government bears burden to prove consent was unequivocal, specific, and voluntary)
- United States v. Flores, 48 F.3d 467 (10th Cir.) (consent may be nonverbal; judged by objective reasonableness)
- Manuel v. United States, 992 F.3d 272 (10th Cir.) (mere submission to authority is not consent)
- United States v. Benitez-Arreguin, 973 F.2d 823 (10th Cir.) (lack of shared understanding or distraction defeats claimed consent)
- United States v. Blake, 888 F.2d 795 (11th Cir.) (groin touching in public exceeded scope of person-search consent)
- United States v. Ashley, 37 F.3d 678 (D.C. Cir.) (limited pat-down reaching groin may be within scope depending on method and context)
- United States v. Russell, 664 F.3d 1279 (9th Cir.) (methodical pat-down permitting opportunity to object can support scope finding)
- Florida v. Jimeno, 500 U.S. 248 (scope of consent is judged by what a reasonable person would understand)
- Brown v. Illinois, 422 U.S. 590 (post-illegality statements are admissible only if taint has been purged)
- Oregon v. Elstad, 470 U.S. 298 (fruit of the poisonous tree doctrine governs evidence from illegal searches)
- Wong Sun v. United States, 371 U.S. 471 (but-for causation and attenuation principles for exclusion of derivative evidence)