United States v. Easley

• Decision Date: 26 December 2018
• Docket Number: No. 18-2020,18-2020
• Citation: 911 F.3d 1074
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ollisha Nicole EASLEY, Defendant-Appellee. National Association for Public Defense, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

911 F.3d 1074

UNITED STATES of America, Plaintiff-Appellant,

v. Ollisha Nicole EASLEY, Defendant-Appellee.National Association for Public Defense, Amicus Curiae.

No. 18-2020

United States Court of Appeals, Tenth Circuit.

FILED December 26, 2018

C. Paige Messec, Assistant United States Attorney (and John C. Anderson, United States Attorney, on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellant.

Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellee.

Afton Paris, (Tillman J. Breckenridge of Bailey & Glasser, L.L.P., Washington, D.C. and Patricia E. Roberts of William & Mary Appellate and Supreme Court Clinic, Of Counsel, Williamsburg, Virginia, on the brief), for Amicus Curiae.

Before BRISCOE, KELLY, and MORITZ, Circuit Judges.

KELLY, Circuit Judge.

The government appeals from the district court’s decision granting Defendant-Appellee Ollisha Easley’s motion to suppress physical evidence and incriminating statements. The district court held that Ms. Easley was seized in violation of the Fourth Amendment and that the evidence obtained was tainted by her preceding illegal arrest. Our jurisdiction arises under 18 U.S.C. § 3731 and we reverse.

Background

On March 10, 2016, Defendant-Appellee Ollisha Easley was onboard a Greyhound bus from Claremont, California, to her hometown of Louisville, Kentucky, when the bus made a scheduled stop in Albuquerque, New Mexico. United States v. Easley, 293 F.Supp.3d 1288, 1292 (D.N.M. 2018). The Greyhound passenger list showed that Ms. Easley’s reservation included a second woman identified as "Denise Moore"—both Ms. Easley and Denise Moore had one checked bag and both tickets were purchased with cash. Id. at 1293. No one named Denise Moore boarded the bus in California, but her suitcase was stowed in the luggage hold of the Greyhound and was identified with the same reservation number and telephone number as Ms. Easley’s luggage. Id. at 1293–94.

While the bus was stopped in Albuquerque, Special Agent Jarrell Perry of the Drug Enforcement Agency (DEA) and his partner that day, Special Agent Scott Godier, observed the luggage in the bus’s cargo hold. Id. at 1293. Agent Perry had reviewed the bus’s passenger list before arriving at the Greyhound station in Albuquerque and noted that Ms. Easley and Denise Moore were traveling on the same reservation, purchased with cash. Id. Agent Perry later testified that the use of a so-called "phantom passenger" is a common method of narcotics trafficking—the drugs are transported in the suitcase of the fictitious passenger who never boards the bus, presumably in an attempt to give plausible deniability to the actual drug trafficker. 2 Aplt. App. 143–44. Among the checked luggage, Agent Perry observed a gray "Rome Essentials" brand suitcase with Ms. Easley’s name and a black and tan "G" brand suitcase with Denise Moore’s name. Easley, 293 F.Supp.3d at 1293. He observed that both bags had identical travel information and listed identical phone numbers. Id. Agent Perry later testified that their origin in California (in his opinion, a common source for narcotics) and terminus in Louisville (a destination city for illegal drugs) piqued his interest in their reservation. 2 Aplt. App. 144.

The passengers disembarked while the bus was serviced during the stopover, and when Ms. Easley reboarded, Agent Perry and Agent Godier were onboard—Agent Godier stood at the front of the bus while Agent Perry stood at the rear. Easley, 293 F.Supp.3d at 1292–93. Both agents were in plainclothes and no firearms were visible. Id. at 1293. Agent Perry questioned and searched approximately 15 passengers and their belongings before he approached Ms. Easley. Id. All of the passengers questioned before Ms. Easley consented to searches by Agent Perry. Id. at 1294.

When Agent Perry spoke with Ms. Easley he asked her the origin and destination of her travel, whether she was traveling with anyone, if she had checked any luggage, whether he could search any checked luggage she had, whether she had any personal items with her on the bus, and whether he could search those personal items. Id. Ms. Easley responded that she was traveling alone and that she had only checked one bag and identified her backpack and pillows as her only personal belongings. Id. She consented to the search of her personal belongings, her jacket, and around her waist and legs, and she gave Agent Perry permission to search her checked bag in the luggage hold. Id.

After Agent Perry was finished speaking with the other passengers, he exited the bus and retrieved Ms. Easley’s gray suitcase from the luggage compartment and searched it, finding no contraband. 2 Aplt. App. 162. Agent Perry then spoke with the bus driver, who confirmed that Denise Moore had not boarded the bus with Ms. Easley. Easley, 293 F.Supp.3d at 1294. Agent Perry then approached Ms. Easley for a second time and asked if she would speak with him outside the bus. Id. Ms. Easley agreed. 2 Aplt. App. 326–27. Agent Perry questioned Ms. Easley again about her travel plans, asked to see her identification, and asked for permission to search her purse, which she granted. Id. at 326–29. Finally, Agent Perry asked Ms. Easley if she was the owner of the black and tan suitcase checked under Denise Moore’s name. Id. at 329. Ms. Easley responded that she was not; in response to Agent Perry’s questioning she said that she did not know who the bag belonged to, did not have any interest in it, did not care what happened to it, that no one had given her the bag, and that she had never seen the bag before. Id. at 329–30. Ms. Easley then returned to her seat on the bus and Agent Perry proceeded to search Denise Moore’s bag. Easley, 293 F.Supp.3d at 1294. Hidden in the suitcase were bags of methamphetamine. 2 Aplt. App. 165. Agent Perry then reentered the bus and arrested Ms. Easley. Easley, 293 F.Supp.3d at 1294. Following her arrest, Ms. Easley was taken to the DEA office in Albuquerque where she confessed to her agreement to transport the luggage containing methamphetamine from California, described the other individuals with whom she had worked, and explained what had occurred before she boarded the bus in California. Id. at 1296.

On March 23, 2016, Ms. Easley was indicted for possession with intent to distribute 500 grams or more of a substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Id.; see also 1 Aplt. App. 10.

On May 23, 2016, Ms. Easley moved to suppress the evidence seized from the Denise Moore suitcase and to exclude the confession she made to Agent Perry. Easley, 293 F.Supp.3d at 1296 ; see also 1 Aplt. App. 11. Ms. Easley argued that Agent Perry had violated her rights under the Fourth, Fifth, and Sixth Amendments. See id.

On January 10, 2018, the district court granted Ms. Easley’s motion to suppress. See generally Easley, 293 F.Supp.3d 1288. The district court first held that Ms. Easley had not established that Agent Perry illegally searched her bags while the bus was in the wash bay; nor had she established that the bus was subject to an unreasonable investigatory detention. See id. at 1297–98. The court also held, however, that under the totality of the circumstances Ms. Easley had been illegally seized. See id. at 1298. The district court found that Ms. Easley’s abandonment of the Denise Moore suitcase was the product of the preceding Fourth Amendment violation, and so it suppressed the evidence seized from the suitcase. Id. at 1298. The district court also determined that the earlier Fourth Amendment violation tainted Ms. Easley’s subsequent confession and suppressed her inculpatory statements. Id.

Discussion

When reviewing a district court’s decision to grant a motion to suppress, this court reviews factual findings for clear error and legal determinations de novo. See United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008). For factual findings, this court views the evidence in the light most favorable to the district court’s decision. See United States v. Augustine, 742 F.3d 1258, 1264–65 (10th Cir.2014).

There are three distinct but interrelated questions in Ms. Easley’s case. First, whether she was illegally seized in violation of the Fourth Amendment. Second, whether she voluntarily abandoned the Denise Moore suitcase containing methamphetamine. Third, whether her confession was tainted by a preceding Fourth Amendment violation.

The resolution of each of these questions depends on the threshold determination whether Ms. Easley was illegally seized. If Ms. Easley was seized in violation of the Fourth Amendment, as the district court found, then her abandonment of the suitcase under the second test was per se involuntary and the evidence from the suitcase was properly suppressed. If, however, there was no illegal seizure and her abandonment was voluntary, the suppression of the physical evidence was error. The confession analysis, too, turns on a threshold determination whether Ms. Easley was illegally seized—without a preceding Fourth Amendment violation there could be no taint. We address each question in turn.

A. Seizure

An individual has been "seized" for Fourth Amendment purposes when a reasonable person in the individual’s position would not feel free to terminate her encounter with the police and leave. See Halley v. Huckaby, 902 F.3d 1136, 1145 (10th Cir.2018). Such a seizure must be supported by probable cause. Id. If, however, an individual chooses voluntarily to remain and cooperate with the police, the Fourth Amendment’s seizure analysis is not implicated. See United States v. Drayton, 536 U.S. 194, 200–01, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Police officers are permitted to pose questions, ask for identification, and request consent to search even when they have no particular reason to suspect an individual has violated the law. Id. Such an encounter must be assessed under the totality of the circumstances and from the...