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United States v. Salas-Lopez

United States District Court, W.D. Missouri, Western Division

November 16, 2017



          MATT J. WHITWORTH United States Magistrate Judge

         Before the Court is Defendant Edith Misael Salas-Lopez's Motion to Suppress Evidence. (Doc. No. 39). The Government has filed suggestions in opposition to Defendant's motion (Doc. No. 43).

         A hearing on Defendant's motion was held on October 30, 2017. (Doc. No. 47). During the hearing, the Government called Kansas City, Missouri Police Department Sergeant Rod Gentry as a witness. Defendant testified on his own behalf. The following exhibits were offered and admitted into evidence:

Government's Exhibit 1

Photograph of Defendant's bag;

Government's Exhibit 2

Photograph of Defendant following his arrest;

Government's Exhibit 3

Defendant's boarding pass and itinerary; and

Government's Exhibit 4

Disc containing 09/08/16 surveillance footage from the Greyhound terminal.

         I. FACTS

         Kansas City, Missouri Police Department Sergeant Rod Gentry supervises the Missouri Western Interdiction and Narcotics Drug Task Force (“MOWIN”). (Tr. at 4). Sergeant Gentry has been with the Kansas City, Missouri Police Department since 1994. (Tr. at 4-5). His experience includes 18-20 months with the street narcotics unit and 24 months with the drug enforcement unit. (Tr. at 5-6). He became a sergeant in the interdiction unit in March of 2016. (Tr. at 7).

         Sergeant Gentry testified that Kansas City is the focus of interdiction efforts due to its geographic location in the middle of the country and the number of highways that pass through the downtown area which facilitate distribution of narcotics throughout the United States. (Tr. at 8-9). MOWIN has an office at the Greyhound Bus terminal located at 1101 Troost Avenue in Kansas City, Missouri. (Tr. at 9-10, 13).

         On September 8, 2016, a bus that originated in California and traveled through Denver, Colorado arrived at the Greyhound terminal and parked in bay number two. (Tr. at 14, 15). This bus was significant to Sergeant Gentry, since both California and Colorado are known source states for drug trafficking. (Tr. at 13-14, 15, 87). After the bus arrived, passengers exited the bus so that the bus could be serviced during a one-hour layover before continuing to its next destination. (Tr. at 15-16, 40-42). Passengers are not allowed to reboard or bring bags back into the bus during the servicing process. (Tr. at 19, 24). As the passengers exited the bus, Sergeant Gentry briefly observed an individual wearing a two-toned grey shirt ascend back into the bus with a denim bag; he did not observe the individual's head and/or face and his focus was on the denim bag. (Tr. at 20, 22, 50, 51, 89). Sergeant Gentry testified that based on his training and experience, this was suspicious since the individual had just gotten off the bus and because there were covert officers, including a K-9 officer, working at the terminal. (Tr. at 21-22, 30, 55, 88). It was extremely rare for someone to get back on the bus. (Tr. at 20, 21, 24). Sergeant Gentry believed the individual was trying to distance himself from the bag. (Tr. at 24).

         Sergeant Gentry continued to watch the bus and observed an individual in a two-toned grey shirt he believed to be the person who carried the bag back onto the bus exit with a different bag. (Tr. at 26-27, 51). Sergeant Gentry and Detective Willingham made contact with that individual and performed a consensual search of his bag. (Tr. at 27). Nothing incriminating was found. (Tr. at 27). Sergeant Gentry and Detective Willingham then returned to the bus and located the denim bag unattended in a seat of the bus. (Tr. at 28-29). Greyhound employees and other passengers could have accessed the bag. (Tr. at 29, 109-110). The bag did not have any identification on it. (Tr. at 29, 109). Sergeant Gentry testified the fact that the bag had been taken back onto the bus and left alone on a seat was suspicious and indicative of someone separating himself from the bag. (Tr. at 30). Detective Willingham retrieved the bag so that a K-9 sniff could be performed. (Tr. at 30, 84).

         At approximately 7:20 a.m., Sergeant Gentry and Detective Willingham exited the bus with the bag and stepped onto the loading platform; Defendant approached the officers seconds later and reached for the bag as he told Detective Willingham the bag was his. (Tr. at 30-31, 33, 52; Gvt. Exh. 4). Sergeant Gentry identified himself as law enforcement and asked for permission to search the bag. (Tr. at 31, 86). This consent was requested less than twenty seconds after Detective Willingham picked up the bag. (Tr. at 32-33).

         Sergeant Gentry testified Defendant verbally consented to a search of the bag (Tr. at 31); Defendant testified that he shrugged his shoulders (Tr. at 106, 111). Sergeant Gentry further testified that Defendant appeared to be in his late 20s or early 30s, appeared to understand what was going on, appeared to understand and speak English, and did not appear to be under the influence of drugs or alcohol. (Tr. at 32, 25-36). Neither Sergeant Gentry nor Detective Willingham threatened Defendant or made any promises to Defendant. (Tr. at 33). They did not have any physical contact with Defendant. (Tr. at 90). Defendant watched as the officers searched his bag and did not tell them to stop. (Tr. at 34, 111). A search of the bag revealed a compressed roll of heroin. (Tr. at 35). Defendant was then placed under arrest at approximately 7:22 a.m. (Tr. at 35, 53; Gvt. Exh. 4).

         Defendant's criminal history is comprised of felony convictions, including a hit-and-run causing death or injury, driving under the influence causing bodily injury, and illegal reentry of a previously deported alien. (Tr. at 36). He has been deported from the United States on four separate occasions and is currently in the United States illegally. (Tr. at 38, 106-107).

         I. ANALYSIS

         Defendant seeks suppression of evidence obtained as a result of the September 8, 2016, search on grounds of Fourth Amendment violations. He specifically argues that law enforcement lacked reasonable suspicion to seize his bag and further lacked ...

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