UNITED STATES COURT OF APPEALS August 9, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-2058

NATHANIEL DONALD JOHNSON,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CR-00220-JB-1) _________________________________

Hans Erickson, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant – Appellant.

Taylor F. Hartstein, Assistant United States Attorney, Albuquerque, New Mexico (Fred J. Federici, United States Attorney, with him on the brief), for Plaintiff – Appellee. _________________________________

Before MORITZ, EBEL, and KELLY, Circuit Judges. _________________________________

MORITZ, Circuit Judge. _________________________________

Nathaniel Johnson was arrested following an encounter on a Greyhound bus

with Special Agent Jarrell Perry. Law enforcement then discovered two packages of

methamphetamine in Johnson’s backpack, and Johnson gave several incriminating Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2

statements. The district court denied Johnson’s motion to suppress the physical

evidence and his statements.

Appealing that ruling, Johnson argues that (1) there was no probable cause to

arrest him; (2) Perry illegally searched a bundle of clothing in his backpack while on

the bus following the arrest; and (3) Perry conducted an illegal search of the

backpack and bundle later at the DEA office. We hold that Perry had probable cause

to arrest Johnson and to seize the bundle of clothing and backpack. But we further

hold that while seizing the items from the bus, Perry conducted an illegal search of

the bundle by reaching inside Johnson’s open backpack and feeling the bundle in an

exploratory manner. Then later, at the DEA office, still without a warrant, Perry

conducted a second illegal search of the backpack and the bundle. And contrary to

the government’s position, the plain-view exception to the warrant requirement

cannot apply because at neither point in time were the contents of the bundle or

backpack a foregone conclusion. Accordingly, we affirm in part, reverse in part,

vacate Johnson’s conviction and sentence, and remand for further proceedings.

Background1

Johnson was traveling east on a Greyhound bus that stopped in Albuquerque

for routine service. Perry, who had 19 years of drug-interdiction experience with the

United States Drug Enforcement Agency (DEA), was working at the Albuquerque

1 We take these facts from the suppression hearing and view them in the light most favorable to the district court’s determination. See United States v. Santos, 403 F.3d 1120, 1124 (10th Cir. 2005). 2 Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 3

bus station. During the service stop, passengers were required to temporarily get off

the bus. When Johnson got back on board, Perry was at the rear of the bus speaking

with two other passengers about their travel; Task Force Officer Seth Chavez boarded

behind Johnson and stood at the front of the bus.

Perry saw Johnson take an aisle seat three or four rows ahead of where he was

standing. Johnson’s backpack, which he had left on board while the bus was being

serv

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