from the United States District Court for the District of New
Mexico (D.C. No. 1:16-CR-01089-MV-1)
Paige Messec, Assistant United States Attorney (and John C.
Anderson, United States Attorney, on the briefs),
Albuquerque, New Mexico, for Plaintiff - Appellant.
A. Pori, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant - Appellee.
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.
BRISCOE, KELLY, and MORITZ, Circuit Judges.
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.
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.
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.
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.
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.
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.
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.