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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 4 v. 5 CARL VAN WALTON, 6 Defendant-Appellee. Plaintiff-Appellant, NO. 30,798

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Robert Schwartz, District Judge 9 10 11 12 Gary K. King, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM

13 for Appellant 14 Gorence & Oliveros, P.C. 15 Robert J. Gorence 16 Albuquerque, NM 17 for Appellee 18 19 VIGIL, Judge. MEMORANDUM OPINION

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The State appeals from an order of the district court granting Defendant's

2 motion to suppress evidence found in the search of Defendant's luggage. We affirm. 3 I. 4 Background For the factual background in this case, we rely primarily on the district court's

5 formal findings of fact. We supplement these findings with additional information 6 upon which the record is unequivocal. 7 AMTRAK provides Passenger Name Records (PNRs) to Drug Enforcement

8 Agency (DEA) agents. PNRs contain the name of the passenger, the date and manner 9 of the ticket purchase, the train's destination, and included stops. Agent Perry, a 10 special agent with the Interdiction Unit of the DEA, reviewed the PNRs in this case. 11 He testified that DEA agents traditionally look for people who purchase their tickets 12 with cash, purchase one-way tickets, or purchase their tickets close to the departure 13 date. 14 On February 8, 2008, Agent Perry and Agent Maestas, another special agent

15 with the Interdiction Unit of the DEA, boarded a train in Albuquerque for the purpose 16 of intercepting any drugs, drug couriers, and/or drug-related monies that might be 17 traveling onboard. Neither agent was uniformed. The agents had a list of passengers 18 with whom they wished to speak. Defendant's name was on the list because on 19 February 6, 2008, Defendant purchased a ticket with cash for a train that was 2

1 departing on February 7, 2008, from Oakland, California, to Kansas City, Missouri. 2 In addition, Defendant had not provided a phone number on the train reservation, so 3 he could be notified in the event the departure date or time was delayed. 4 Agent Perry approached Defendant, who was seated in the sightseeing car. The

5 agent displayed his badge, and said, "excuse me, I'm a police officer. May I speak 6 with you?" Defendant responded "yeah." Agent Perry asked Defendant if he could 7 see his ticket. Defendant responded that the ticket was in his bedroom, got up from 8 his seat, and began to walk away toward his sleeper cabin. Agent Perry followed. 9 Just before reaching his cabin, Defendant found his ticket in his jacket pocket

10 and handed it to Agent Perry. Agent Perry reviewed the ticket information, returned 11 it to Defendant, and asked to see Defendant's identification. Defendant produced an 12 ID and Agent Perry verified that Defendant was one of the individuals with whom he 13 wished to speak. Throughout the course of the encounter, the agent never informed 14 Defendant that he had the right to refuse to answer his questions. Defendant testified 15 that he did not think that he had a choice in responding to Agent Perry's questions. 16 Agent Perry then explained his duties as a drug interdiction officer, and asked

17 Defendant if he had any contraband, narcotics, or explosives. Defendant indicated 18 that he did not. Agent Perry then asked Defendant if he had any luggage. When 19 Defendant responded that he did, Agent Perry asked Defendant if he could search the 3

1 luggage. Defendant stated "yeah, I guess." Agent Perry then asked if Defendant 2 would prefer that he search the luggage in the cabin or in the hallway. Defendant 3 responded "it doesn't matter." Agent Perry then asked for permission to enter the 4 cabin to retrieve Defendant's luggage, and Defendant once again stated "yeah." Agent 5 Perry brought Defendant's bag into the hallway and unzipped the bag, revealing 6 approximately two pounds of marijuana. 7 Below, Defendant moved the district court to suppress the evidence seized in

8 the course of the search. After conducting a hearing, the district court granted 9 Defendant's motion, concluding that Defendant's encounter with Agent Perry was not 10 consensual in nature, and alternatively, that Defendant's consent was involuntary and 11 not sufficiently unambiguous. This appeal followed. 12 II. 13 The Nature of the Encounter Reasonable suspicion was not present in this case. Picking Defendant's name

14 because he fit a profile DEA agents traditionally look for, without more, does not 15 amount to reasonable suspicion. "A reasonable suspicion is a particularized suspicion, 16 based on all the circumstances, that a particular individual, the one detained, is 17 breaking, or has broken, the law." State v. Jason L., 2000-NMSC-018,

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