Important suppression victory in search of backpack on a bus

United States v. Johnson, 43 F.4th 1100 (10th Cir. 2022) (NM): The panel finds that although the agent had probable cause to seize Johnson’s backpack, he did not have authority to reach in and feel objects contained therein. For that search and the one subsequent to it in the DEA office, he needed a warrant. The district court was wrong to rule it was a “foregone conclusion” the pack held contraband: The agent’s description of what he saw and felt during those searches did not prove it was a “virtual certainty” the bundle inside contained contraband. A detailed review of this opinion is necessary to appreciate all the favorable rulings made by this panel. (Of course, you can just read the case if it’s too much bother.) 1. Factual Background: A Greyhound bus pulls into Albuquerque for routine stop and service. Passengers are required to get off but when they get back on, there at the back of the bus is DEA Agent Perry and a task force colleague of his at the front. Perry says that Johnson had left his backpack on the window seat next to him.* While he was interrogating other passengers he noticed Johnson place the pack underneath the seat “which [he] perceived as an attempt to hide the bag.” When Perry got to Johnson’s seat he showed his badge and said he was a police officer. He asked Johnson about his travel plans and demanded to see his ticket. He then requested identification, which Johnson did not have. Perry asked Johnson if “he was traveling with luggage.”* He also asked if he had any underneath the bus or anything under his seat. Each time Johnson answered no. These denials indicated to Perry that Johnson was trying to “distance himself” from the backpack because it “possibly contained contraband.” Perry then asked to pat him down. Johnson agreed and Perry found nothing. Perry asked if the pack underneath the set next to Johnson’s was his. Johnson said it was and that he had clothing inside. Perry asked for Johnson’s permission to search it and according to the district court, Johnson responded, “Yeah, I’m doing it.” Johnson lifted the bag onto the seat next to him, opened it and rummaged through the contents. Conveniently, Perry labeled his actions as a “self-search,” which allowed him to suggest to the court that Johnson was trying to “conceal contraband and deflect officer concerns.” Perry also said Johnson had “angled his body to shield [his] view of the bag.” Still, Perry said he saw a “black oblong-shaped bundle protruding from some clothing.” Because of its “size, shape and concealment method,” Perry concluded that inside the bundle were illegal narcotics. He asked Johnson what was inside the bundle. Johnson did not answer, so Perry handcuffed him and turned him over to his colleague. After Johnson was off the bus, Perry felt the bundle. He described it as very hard, pretty large, with a “crinkling or kind of crushing feel.” What he discovered by feeling it confirmed in his mind that it contained illegal narcotics. Perry then took the pack back to the DEA office. There, he searched the pack again. He saw that the bundle was inside the leg of a pair of long underwear and that it was wrapped in tinfoil. He also found another bundle. He weighed both and the field test was positive for methamphetamine. Perry next interrogated Johnson. Johnson said he thought the pack held marijuana and he was being paid $500 for carrying it. In his motion to suppress, Johnson gave three grounds for excluding the methamphetamine and his statements. First, he was arrested and his pack was seized without probable cause. Second, the pack was searched without a warrant. Third, his statements were illicit fruits ofthe earlier constitutional violations whose taint the government could not eliminate. The district court ruled against him. Johnson himself filed a supplemental brief/motion to reconsider adding arguments and authorities to his initial motion. Later the court issued a more detailed order in which it concluded that Perry had probable cause to arrest Johnson and that it was a “foregone conclusion” that the backpack held contraband. The panel reversed the latter decision. 2. Probable Cause for Arrest & Seizure of Backpack: The panel agreed with the district court that there was probable cause of Johnson’sarrest. More interesting than its conclusion, is its analysis. It analyzed individually, the degree of suspicion to attach to each of the six factual basis on which the district court relied for its probable cause finding. After doing so, it then addressed whether “in their totality,these facts are enough for probable cause.” The panel concluded that in the aggregate they were, but noted that some facts though relevant, did not carry much weight (putting pack under seat, no identification, not answering question about what was inside bundle.). The panel’s approach isn’t novel but it does affirm our similar approach to reasonable suspicion and probable cause arguments (and rebuff the government's 'divide and conquer' criticism of these arguments). 3. Search Warrant Required to Inspect Backpack’s Contents: The panel then held that Perry illegally searched Johnson’s backpack when, while still on the bus, he reached inside and felt the bundle wrapped inclothing. In doing so, Perry “obtained information beyond what a fellow passenger might learn from touching or moving the bag in the ordinary course of travel.” Citing United States v. Nicholson, 144 F.3d 632, 636-39 (10th Cir. 1998), the panel emphasized that an officer performs a search whenever he touches a person’s belongings “in a manner that exceeds how a fellow passenger would.”* 4. Plain View did not excuse Perry’s illegal search: The government and the district court relied on plain view to justify Perry’s “probing tactile examination” of Johnson’s pack. The panel explained that the plain view exception applies only if (a) the officer was lawfully in a position from which the object seized was in plain view; (b) the object’s incriminating nature was immediately apparent; and (c) the officer had lawful right of access to the object. The panel said the “incriminating character” of the pack and bundle were “immediately apparent” to Perry. Therefore, he could “seize” the pack but he could not search it unless it was a “foregone conclusion” that its contents held contraband. The panel held the district court incorrectly ruled it was a “foregone conclusion” the pack did contain contraband. 5. A “foregone conclusion” requires proof to “a virtual certainty”: The panel stressed that the “foregone conclusion standard is high: It requires a ‘virtual certainty’ that a container holds contraband.” Here,when Perry felt the bundle he had “not seen anything to visually confirm that there was contraband within it.” The panel noted that Perry admitted he did not see the package’s outer tinfoil wrapping until he searched the pack at his office. It also explained that “a bundle of clothes [] could have wrapped up any number of items [] lacking [] a distinctive quality.” Thus, “the bundle’s contents were not a foregone conclusion when Perry searched it on the bus.” His search violated the Fourth Amendment. 6. Perry’s search at the DEA office also was illegal: The panel said its analysis here was similar to its search analysis inside the bus. It again held plain view could not excuse Perry’s actions. Before the office search, Perry had gleaned additional information about the bundle (hard to touch, crinkling, crushing feel). But because he got that information illicitly it could not be used to justify the office search. Even with that information, the government could not establish by a“virtual certainty” that the bundle contained contraband. 7. Johnson did not waive the argument that the agent again illegally searched pack at DEA office: To save the illicit search at the DEA office, the government contended Johnson had waived the argument that the office search was illegal. The panel said that Fed. R. Crim. P.12 governs the “failure to file pretrial motions,” as well as “unmade arguments in an otherwise timely motion.” On appeal, an unmade argument is not considered at all. Here, however, Johnson impliedly challenged the DEA office search. His pleadings referenced the photos taken at the DEA office as well as Perry manipulating the long underwear there. Most importantly, Johnson’s pro se reconsideration motion “directly challenged the search of the backpack at the office byreferring to Perry’s exploration of the contents of the bundle, which occurred only at the DEA office.” The panel held that “these assertions” were “sufficiently definite, specific, detailed and nonconjectural” to preserve the argument for appeal.* 8. On remand government cannot make new arguments to justify the search: The panel rejected the government’s plea to allow it to argue “new grounds” to support the evidence’s admission on remand. It said the government did not cite any authority for its argument. Besides, it is the government’s burden to prove warrantless searches come within an exception to the warrant requirement. The panel refused to give it another opportunity to make its case on remand. *** Practice Notes: why would Perry have noticed where Johnson in particular had left his bag? In other cases, he has testified that he gets on the empty bus while it is in the wash bay area to inspect bags. See United States v. Fernandez, 24 F.4th 1321 (10th Cir. 2022). He will take bags off the overhead rack and hold them with both hands to assess their weight, shape and contents. There is a good argument under Nicholson and Bond, that this is an illegal search. Impliedly, that is what he did here, which expalins why of all the bags on the empty bus, Johnson’s was of interest to him. Also Perry often asks a passenger whether he or she has "any luggage on board." By using this non-specific term, he can later claim that a passenger who answers, 'no', has abandoned any personal item he./she has anywhere on the bus. The term luggage does not have a universal meaning. In Fernandez for example, one passenger responded, no, he did not have "any luggage" but he did have a "backpack." Another passenger asked Perry in Spanish what he meant by "luggage" and Perry said "suitcases." Nicholson is very important case in this context. It sets out the parameters for what is permissible and limits what an officer may do with a passenger’s bag. A passenger may expect “highly limited contact” or “minimal moving” from others as they discretely move another’s bag to make room for their own. 144 F.3d at 638-39. But an officer’s handling of a traveler’s bag will almost certainly exceed what he or she expects the bag will endure from others when the officer is an“expert examiner” whose purpose is to discover “the nature of the contents of the bag.” 144 F.3d at 638 . Tenth Circuit precedent on waiver is fraught. A different panel might not have held Johnson preserved the issue. For example in Fernandez, the panel held that even though the district court addressed the precise issue Fernandez raised on appeal in its memorandum opinion, it was not preserved for review because the district court did so only “generally.” In its view, Rule 12 does not permit plain error review on appeal. To ensure all viable issues are preserved, consider filing a motion to supplement the motion to suppress or the reply, a motion for reconsideration or ask to file supplemental briefing after an evidentiary hearing.