United States v. Grobstein
| Decision Date | 07 March 2016 |
| Docket Number | Criminal No. 13-663 MV |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MATTHEW GROBSTEIN, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on Defendant's Motion to Suppress [Doc. 44]. The Court, having considered the Motion, briefs, and relevant law, and being otherwise fully informed, finds that the Motion is not well-taken and will be denied.
The Greyhound buses that travel east from California to New York have a stop, with a layover, at the Greyhound Bus Station in Albuquerque, New Mexico. During that layover, those passengers continuing eastward disembark and wait in the terminal, while the bus is serviced, refueled, and cleaned in the maintenance shop, or "wash bay." Once the bus is ready to depart, the bus returns to the terminal, and the passengers re-board to continue their journey.
DEA Special Agent ("SA") Jarrell Perry works on drug interdiction cases at the Albuquerque Bus Station. His goal is to determine if anyone is transporting illegal narcotics and, if possible, to arrest those individuals. Doc. 85 at 36. SA Perry has 17 years of experience with the DEA, and has been involved in over 1,200 cases involving the seizure of illegal narcotics or proceeds from illegal narcotics. Id. at 34, 152.
In the late evening of February 21, 2013, assisted by Jonathan Walsh, an Albuquerque police officer who is assigned as a task force officer ("TFO") with the DEA, SA Perry was waiting at the Albuquerque Bus Station for the eastbound Greyhound Bus to make its regularly-scheduled stop. He was wearing jeans and a sweatshirt, which concealed his gun and handcuffs. His badge was in a credential pouch in his left rear pocket. Id. at 162-63.
The bus arrived and the passengers disembarked. SA Perry boarded the bus, and rode the bus to the wash bay. Id. at 46. Video surveillance demonstrates that the bus arrived in the wash bay at 21:38:43; the driver exited the bus almost immediately; and SA Perry disembarked from the bus at 21:40:24. SA Perry thus was on the bus alone for one minute and 41 seconds.
After the bus arrived in the wash bay and before he disembarked, SA Perry was examining and looking at the bags in the bus. Id. at 51-52 (). It is SA Perry's customary practice, if he sees a bag that piques his interest, to lift it, sniff it, and/or look at the name tag. Id. at 52. Admittedly, he does "squeeze bags or press bags with [his] hands occasionally, if [he] see[s] something that piques [his] interest, to see if air emanating from it where [he] can conduct a sniff." Id. at 52-53. SA Perry testified that he did not press and sniff any of the bags inside the bus that evening. Id. at 148.
After disembarking from the bus, at 21:40:34, SA Perry opened the bin closest to the back of the bus. SA Perry appears to have been shifting bags inside the bin. SA Perry leaned into the bin up to his waist, leaving only his body from the waist down visible to the camera; from the video recording, his hands cannot be seen.
At 21:42:25, SA Perry removed a bag from the bin. From the video, he appears to have been examining the bag and its tag. He then laid the bag down on the ground, got down on one knee, and while leaning over the bag, pushed on the sides of the bag. While he is applying force to the sides of the bag, the bag slides forward, and SA Perry's hat falls off. At 21:42:48, SA Perry returned the bag to the bin.
When asked, with regard to this portion of the video, "That's not a light push, is it?" SA Perry responded, "Yes my cap did come off." Id. at 62. When then asked, "But the luggage moved around as you pushed it because you pushed it so hard, isn't that correct?" SA Perry responded, Id. SA Perry then testified as follows regarding his handling of the bag: "I would say that I am pressing the sides of the bag to emanate the air from inside of it so I can sniff to see if any air emanates from the bag that I know from my experience will contain illegal narcotics or masking agents from illegal narcotics." Id. at 63.
After returning the bag to the bin, SA Perry looked into the bin again, and his body was again obscured above the waist. At 21:44:05, SA Perry walked away from the bin. At 21:44:08, SA Perry opened the middle bin; it appears that he was shifting bags around inside the bin. He closed the bin at 21:44:29. At 21:44:34, he opened the bin closest to the front of the bus. He leaned into the bin so that only his torso from the waist down is visible. SA Perry testified that he was "moving bags" while leaning into the bin. Id. at 64. SA Perry closed the bin at 21:45:29, and walked out of the wash bay.
At 22:01:32, TFO Walsh entered the wash bay. Video surveillance demonstrates that he opened the bin closest to the front of the bus, and used his flashlight to look inside. TFO Walsh then moved to the bin closest to the back of the bus, looked inside using his flashlight, and pulled out a bag. He pulled the handle up and down to see whether it was broken, because, he explained, "[m]any times, bags that have false compartments have broken handles . . ." Doc. 86 at 17. He then did something to the bag with his left hand. Because of the angle of the camera, it is impossible to see his hands, but his upper body appears to have been moving upward and downward. TFO Walsh then shook the bag and placed it on the ground, where he pressed the sides and pushed down on the top of the bag. He then returned the bag to the bin, and closed both the front and back bins. When asked about his handling of the bag, TFO Walsh testified that he "burped" the bag, or expelled air from the bag to conduct a sniff, and that he may have shaken the bag "in preparation for the burping." Id. at 15.
At 22:04:10, TFO Walsh boarded the bus. He remained alone on the bus for approximately two minutes, until 22:06:39, when he exited the bus back into the wash bay. TFO Walsh testified that he could not recall whether he used the "burping" technique while he was inside of the bus, but that he did not "unzip bags." Id. at 12, 16.
Meanwhile, after leaving the wash bay, SA Perry entered the terminal, although it is not his general practice to go inside the terminal. Doc. 85 at 70. At 21:48:40, SA Perry stopped and leaned against a pillar inside the terminal. Defendant Matthew Grobstein was seated on a bench across from where SA Perry was standing. SA Perry testified that he did not recognize Defendant, and that his purpose for standing there was to look at a television that is on the wall to the right of where Defendant was seated. Id. at 72. SA Perry walked away at 21:48:52.
SA Perry then walked over to the ticket counter where an individual whom he identified as "Daniel" was working. Id. at 73. Daniel is the "lead ticket agent," who was "the supervisor on duty." Id. at 126. SA Perry leaned on the counter to the right of Daniel and, looking straight ahead, began speaking with Daniel at 21:49:52. At 21:50:15, Daniel picked up the telephone and started dialing. SA Perry walked away at 21:50:25. SA Perry could not recall the substance of his conversation with Daniel but testified that it was "probably general conversation." Id. at 73.
Minutes later, at 21:52:43, SA Perry walked toward a security guard in the terminal, walked a bit past him, and then stood next to him. From the video recording, they appear to be speaking together; at one point, SA Perry made a gesture with his hand in the general direction of where Defendant was sitting, and the security guard turned to look in that direction. At 21:53:13, SA Perry walked away.
At some point thereafter, TFO Walsh joined SA Perry, and the two waited together for the bus to return to the terminal from the wash bay. Id. at 94. The bus arrived at 22:27:48; the driver disembarked and entered the terminal; and at 22:29:31, SA Perry and TFO Walsh boarded the empty bus, in advance of any of the passengers, and were on board for approximately five minutes before the passengers began boarding at 22:34:27. SA Perry testified that they were "waiting for the passengers to board so [they] could speak with them." Id. at 98. When asked whether he and TFO Walsh "re-examine[d] the bags that [they were] curious about," SA Perry responded, "No, sir." Id. The video recording shows little to no movement by the officers during the period while SA Perry and TFO Walsh were alone on the bus.
At 22:31:25, Daniel boarded the bus, and then disembarked from the bus 12 seconds later at 22:31:25. When asked whether Daniel conferred with SA Perry and TFO Walsh on the bus,SA Perry responded, "I don't believe that's correct, no." Id. at 99. Rather, he testified that from the video, it looked to him "that [Daniel] got on the bus and grabbed the tablet that's up by the driver and got right off the bus." Id. at 100.
The video demonstrates that at 22:32:25, the passengers began to line up to re-board the bus. One of the passengers was Juan Braxton, whom TFO Walsh ultimately arrested later that night for a marijuana-related offense. Id. at 223. The video further demonstrates that at 22:37:25, as Braxton reached the front of the line, Daniel left his desk, and as Braxton exited the terminal at 22:37:42, Daniel entered the line behind him. Braxton boarded the bus, and Daniel boarded the bus behind him, at 22:37:05. Daniel then exited the bus and ran back to the terminal at 22:39:02.
As Daniel reentered the terminal, Defendant was exiting the terminal to board the bus. Defendant held the door open for Daniel as they passed each other. After speaking to the ticket agent, Daniel...
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