PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. NATHANIEL DONALD JOHNSON, Defendant - Appellant. No. 21-2058

________________ _________________ 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 hi m on the brief), for Plaintiff – Appellee.

________________ _________________ Before MORITZ , EBEL , and KELLY , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ Nathaniel Johnson was a rrested following an encounter on a Greyhound bus with Special Agent Jarrell Perry. Law enfo rcement then discovered two packages of methamphetamine in Johnson’s backpack, and Johnson ga ve several incriminating FILED United States Court of Appeals Tenth Circuit 

### August 9, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 12 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 illegall y searched a bundle of clot hing 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 a nd 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 sear ch 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 neit her 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. Background 1 Johnson was traveling east on a Greyho und bus that stoppe d in Albuquerque for routine service. Perry, who had 19 years of drug-inte rdiction 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 distri ct court’s determination. See United States v. Santos , 403 F.3d 1120, 1124 (10th Cir. 2005). Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 23 bus station. During the service stop, passenge rs were required to temporarily get off the bus. When Johnson got back on board, Pe rry was at the rear of the bus speaking with two other passengers about their trav el; Task Force Office r Seth Chavez boarded behind Johnson and stood at the front of the bus. Perry saw Johnson take an ai sle seat three or four ro ws ahead of where he was standing. Johnson’s backpack, which he ha d left on board while the bus was being serviced, was on the window seat next to him. As Perry questioned other passengers, he observed Johnson pick up the backpack and place it underneath the window seat, which Perry perceived as an attempt to hide the bag. Perry then approached Johns on. Perry’s firearm was not visible; he wore plain clothing, an Amtrak-branded cap, and an audio-recording device. 2 Positioned behind Johnson, Perry introduced himself as a poli ce officer and showed his badge. Perry asked for permission to speak with him, and Johnson agreed. Perry’s recording device captured their exchange. Perry first asked John son about his travel plans, and Johnson replied that he was traveling from Arizona to Joplin, Missouri. At Perr y’s request, Johnson handed

2 Perry testified that he owns both Gr eyhound and Amtrak hats, although he works for neither company. He said that he wore th e Amtrak hat on the day in question because he “liked it” and that he did not think passengers would get the mistaken impression that he worked for Am trak. R. vol. 2, 95. Yet Johnson testified that the hat confused him—making him thi nk that Perry was with the bus company. In any event, Perry added that he no l onger wears these hats while on duty because “various defense attorneys” ha d raised issues about them. Id. at 94. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 34 his ticket to Perry, which had the (false) name Mike Johnson on it. 3 Perry returned the ticket and asked Johnson whether he had any identification on him; Johnson replied that he did not. 4 Perry asked Johnson the reason for his trip, and Johnson said he was going to Joplin for something re lated to probation, although he did not explain further. Perry then asked Johnson whether he was traveling with luggage. Johnson replied, “None at all.” R. vol. 1, 102. Next, Perry asked if Johnson had anything “under the bus,” and Johnson said, “No.” Id. And a third time, Perry asked if Johnson had “[a]nything un derneath [his] seat.” Johns on again replied, “No.” Id. Perry testified that because he ha d seen Johnson place the backpack underneath the seat next to him, Johnson’s denials that he had any luggage suggested that Johnson was attempting to “distanc e himself” from the backpack, which “possibly . . . contained c ontraband.” R. vol. 2, 45. Johnson then consented to a patdown of his person. After the patdown, Perry asked whether the bag under the seat next to Johnson’s was hi s. After initially denying it was his, Johnson reversed course, confirmed it was, and added that the backpack contained clothing. Perry then as ked, referring to the backpack, “You give me permission to search it for contraband, sir?” R. vol. 1, 103. Although the audio recording is not entirely clear, the distri ct court concluded th at Johnson replied, “Yeah, I am doing it.” Id. at 104.

3 Nothing in the record indicates that , at this point, Perry knew Johnson was traveling under a false name. 4 Perry testified that Greyhound does not require passengers to present identification before traveling on its buses. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 45 Johnson then removed the backpack from underneath the vacant window seat, placed it on the seat, opened it, and bega n to rummage through the bag’s contents. Perry testified that, in his experience, i ndividuals will conduc t a “self-search” like this to conceal contraband an d deflect officer concerns. R. vol. 2, 52. At this point, Johnson was still seated; Pe rry testified that Johnson a ngled his body to shield Perry’s view of the bag, so Perry repositi oned himself to get a better view of what Johnson was doing. Perry then observed a black “oblong- shaped large bundl e” “protruding” from some clothing. Id. at 137. Perry pointed to the bundle and asked Johnson, “[w]hat about inside this right here? Black bundle right there?” R. vol. 1, 104

. Perry testified that in his experience, drug traffickers c onceal “bundles of illegal narcotics inside sleeves, jackets, pants, sh irts, [and] underwear.” R. vol. 2, 56. This experience— together with the bundle’s size, shape, and concealment method—led Perry to believe the bundle contained illegal na rcotics. Perry asked Johnson what the bundle was, and Johnson did not respond. Withou t missing a beat, Perry said , “Okay, sir, I need you to go ahead and put your hands up here for me.” 5 R. vol. 1, 104. Perry handcuffed Johnson and handed him over to Chavez, who escorted Johnson off the bus. After Johnson was off the bus, Perry re ached inside the open backpack and “felt th[e] bundle.” R. vol. 2, 59. He te stified that this c ontact confirmed his

5 From the end of Perry’s question a bout the bundle until Perry asked Johnson to put his hands up, under two seconds elap sed. But Johnson admitted that he did not respond to Perry’s question. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 56 suspicion about the bundle being illegal na rcotics, explaining that the bundle was “very hard” and “a pretty large bundle.” Id. at 60. He repeated that the bundle was “oblong shaped” and further testified that it had a “crinkling or kind of crushing feel.” Id. at 134. Perry then put some clothing that had fallen out of the backpack back in, zipped it up, and t ook the backpack off the bus. Perry and Chavez took Johnson and the backpack to the DEA office where, without a warrant, Perry searched the backp ack. When he did, Perry saw for the first time that the bundle was a package wrapped in tinfoil that had b een placed inside one of the legs of a pair of long underwear. Perry also discovered a second bundle. The bundles were weighed, and one of them fiel d-tested positive fo r methamphetamine. Also at the DEA office, Perry advised Johnson of his right s. Johnson waived his rights and told Perry that he believed the black backpack contained one bundle of marijuana, wrapped in alumi num foil, and that he was be ing paid $500 to transport the drugs. The government charged Johnson with knowingly and intentionally possessing with intent to distribute over 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Johnson moved to suppress the methamphetamine and his statements. Relevant to this appeal, Johnson ar gued that (1) the drugs and statements should be suppresse d because he was a rrested and the ite ms were seized without probable cause; (2) the items were searched without a warrant; and (3) his statements were fruit of the poisonous tree because they were obtained without purging the taint of the earlier illegal conduct. The district court conducted a Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 67 suppression hearing at which Johnson and Perry both testif ied to the facts detailed above. The district court found that Johnson exhibited a “lack of candor” and that “Perry [wa]s more reliable about the case ’s events.” R. vol. 1, 99–100. After the hearing, Johnson filed a supplemental brief, adding additional arguments and authorities to his initial motion. The district court issued a short, two-page order denying Johnson’s motion to suppress. Johnson, at that point proceeding pro se, sought reconsideration of that order. Approximately five m onths after its initial order, the district court issued a more detailed order, expl aining the rationale for its initial decision and denying reconsideration. It conclude d, as relevant here, that (1) Perry had probable cause when he arrested Johnson and (2) Perry’s warrantless search of Johnson’s backpack was valid because it was a “foregone c onclusion” that the backpack contained contraband. Id. at 126. Given this la tter conclusion, the di strict court did not separately analyze whether Perry conducted a search of the bac kpack either on the bus or at the DEA office. And given its overall determination that no illegality occurred, the district court did not consider whether John son’s statements warranted suppression as fruit of the poisonous tree. Johnson then entered a conditional guilty pl ea, reserving his ri ght to appeal the denial of his motion to suppress. The distri ct court sentenced Johns on to ten years in prison and five years of supervised release. Johnson now appeals. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 78 Analysis “In reviewing the denial of a motion to suppress, we accept th e district court’s factual findings unless clea rly erroneous” and review the overall question of reasonableness under the Fourth Amendment de novo. United States v. Hammond , 890 F.3d 901, 905 (10th Cir. 2018). In conducting our review, we “view the evidence in the light most favorable to the de termination of the district court.” Santos , 403 F.3d at 1124. “A district court’s factual finding is cl early erroneous when it is without factual support in th e record or if, after review ing all the evid ence, we are left with a definite and firm convic tion that a mistake has been made.” United States v. Morales , 961 F.3d 1086, 1090 ( 10th Cir. 2020) (quoting United States v. Cash , 733 F.3d 1264, 1273 ( 10th Cir. 2013)).
I. Probable Cause to Arrest Johnson first argues that Perry lacked probable cause to arrest him. “A warrantless arrest violates the Fourth Amendment unle ss it was supported by probable cause.” United States v. Sanchez , 13 F.4th 1063, 1072–73 (10th Cir. 2021) (quoting Keylon v. City of Albuquerque , 535 F.3d 1210, 1216 (10th Cir. 2008)), cert. denied , 142 S. Ct. 842 (2022). “Probable cause exists if facts and circumstances within the arresting office r’s knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.” Id. at 1073 (quoting Keylon , 535 F.3d at 1216). The probable-cause standa rd “requires only a ‘fair probability,’ a standard understood to mean something more than a ‘bare suspici on’ but less than a Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 89 preponderance of the evidence at hand.” United States v. Denson , 775 F.3d 1214, 1217 (10th Cir. 2014) (quoting United States v. Ludwig , 641 F.3d 1243, 1252 (10th Cir. 2011)). In considering the existe nce of probable cause, we view the “circumstances in their totali ty rather than individually,” and we may not “arrive at probable cause simply by piling hunch upon hunch” or ignore those factors that “militate against” a finding of probable cause. United States v. Valenzuela , 365 F.3d 892, 897 (10th Cir. 2004). The district court concluded that Perry had probable cause to arrest Johnson when he first saw the black bundle of cl othing in Johnson’s backpack based on the following facts: (1) Perry saw Johnson place the bag underneath the seat next to him while Perry questioned other passengers; (2) Johnson lacked identification; (3) Johnson lied to Perry when he told him that he did not have luggage; (4) Johnson conducted a “self-search” of the backpack while attempting to obs truct Perry’s view; (5) Perry saw the black bundle’s “size and shape,” which, based on his experience, led Perry to believe the bundle contained ille gal narcotics; and (6) when Perry asked about the black bundle, Johnson, who had answ ered Perry’s earlier questions, did not respond. R. vol. 1, 124. We discuss each fact in turn and then decide whether—taken together—they add up to probable cause. See Valenzuela , 365 F.3d at 897–901 (discussing facts individually before “consider[ing] the to tality of the circumstances” to decide whether facts am ounted to probable cause). Johnson first challenges two facts: Pe rry’s observation that Johnson placed the backpack underneath the seat next to him and Johnson’s failure to produce Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 910 identification. On the first, the district court credited Pe rry’s testimony that, given his 19 years of drug-interdiction work, Johnson’s conduct stood out to him “significantly” and led him to believe th at the bag “possibl y . . . contained contraband.” R. vol. 2, 45. Perry reasoned that J ohnson moving the backpack indicated that the backpack belonged to hi m and that he was attempting to “conceal” and “distance himself” from it. Id. And as we have explaine d, “furtive efforts”—like moving the backpack—can factor into the probable-cause analysis. United States v. McGehee , 672 F.3d 860, 870 (10th Cir. 2012). As for identif ication, the district court credited Perry’s testimony that he has arrested “numerous passengers transporting illegal narcotics . . . traveling under false names.” R. vol. 2, 42. Although he did not yet know that Johnson in particular was trave ling under a false na me, Perry explained that sometimes after examining a passenger’s ticket (as he did here) he will ask the passenger for identification; at that point, because the passenger is traveling under a fake name, the passenger will deny having identification. Johnson argues that these first two f acts are too commonplace and consistent with innocent behavior to tip the scales toward probable cause. In support, he presents an innocent explanation for moving the backpack—that he placed the backpack beneath the seat next to him to ma ke the seat look occupied so he could sit alone—and points out (as Perry testified) that Greyhound does not require passengers to provide identification. But the innocence or guilt of Johnson’s conduct misconstrues the relevant inquiry. The per tinent question “is not whether particular conduct is ‘innocent’ or ‘guilty,’ but th e degree of suspicion that attaches to Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1011 particular types of non[]criminal acts.” Illinois v. Gates , 462 U.S. 213, 243 n.13 (1983). Thus, as the Supreme Court has explaine d, “innocent behavior frequently will provide the basis for a s howing of probable cause.” Id . Here, the district court credited Perry’s vast drug-in terdiction experience to conc lude that these two facts supported probable cause , and we decline to disturb those findings. See Ornelas v. United States , 517 U.S. 690, 700 (1983) (explaini ng “that a police officer may draw inferences based on his [or her] own experience in deci ding whether probable cause exists” and that appellate cour ts “should give due weight to a trial court’s finding that the officer was credible and the inference was reasonable”); United States v. Williams , 271 F.3d 1262, 1268 (10th Cir. 2001) (according “def erence to an officer’s ability to distinguish betw een innocent and suspicious actions”). Thus, although moving the backpack and failing to produce identification could be consistent with innocent behavior, we reject Johnson’s argument that neither fact weighs in favor of finding probable cause. We consider next whether, as the dist rict court found, Johnson lied to Perry when he said did not have any luggage. A ccording to Johnson, he did not lie because he understood Perry to be asking only wh ether he had luggage underneath the bus, not whether he had any bags at all. But in response to Perry’s question about whether he had luggage, Johnson gave a categoric al answer—that he had “[n]one at all.” R. vol. 1, 102. And a bit later in the exch ange, when Perry spec ifically asked about the backpack underneath the wi ndow seat, Johnson first st ated that the bag was not his. Given that sequence of ev ents, we conclude that the di strict court did not clearly Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1112 err in finding that Johnson lied and appropriately considered that lie in its probablecause assessment. See United States v. Moore , 22 F.3d 241, 243–44, 244 n.4 (10th Cir. 1994) (finding that suspect ’s lie to officer was “ not consistent with innocent travel” and that district court properly reli ed on this fact in it s reasonable-suspicion calculus). Next, we take up the “self-search” of the backpack. John son argues that inferring suspicion from the self-search woul d impermissibly ground suspicion in the refusal to consent to a search. See, e.g. , Santos , 403 F.3d at 1125–26 (“A refusal to consent to a search cannot itself form the basis for reas onable suspicion: ‘[I]t should go without saying that consideration of su ch a refusal would violate the Fourth Amendment.’” (quoting United States v. Wood , 106 F.3d 942, 946 (10th Cir. 1997))). But as the government points out, Johnson misreads the dist rict court’s analysis. The district court did not factor any lack of consent into its probable-cause calculation. Rather, it credited Perry’s e xperience that individuals w ill conduct a self-search to “conceal . . . contraband” while attempting to allay an offi cer’s concern. R. vol. 2, 53. Moreover, the district court also f ound that, in conducting that self-search, Johnson attempted to block Perry’s view of the bag’s contents. 6 These furtive actions added to Perry’s interpretation of Johns on’s self-search as suspicious, further

6 Johnson argues that, given the district court’s findi ng that Johnson was seated during the self-search, it would be “anatomi cally . . . very diffi cult” for Johnson to block Perry’s view. Aplt. Br. 21. We reje ct this contention because the record supports the district court’s finding on th is point, and potential anatomical difficulty does not render the district cour t’s finding clearly erroneous. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1213 contributing to probable cause. See McGehee , 672 F.3d at 870. Accordingly, we reject Johnson’s argument that the se lf-search does not support probable cause. Turning to the next fact—Perry poin ting out the bundle—Johnson argues that a photo Perry took following the arrest (an a ttempt to recreate what he saw on the bus) does not readily show whether the bundle c ontained contraband. We agree that the photo does not reveal much; indeed, even th e government admits that “the bundle [as shown in that photograph] does not necessa rily jump out to the untrained eye.” Aplee. Br. 23. But the distri ct court based its conclusion about what Perry saw during Johnson’s self-search on more than just the photo. Most notably, it again credited Perry’s testimony, based on his years of experience, that he in fact saw “an oblongshaped bundle” wrapped in clothing and prot ruding from the backpack. R. vol. 2, 54. And Perry further testified that drug traffickers often hide bundles of illegal narcotics inside articles of clothing and that this bundle, based in part on its shape and size, could contain contraband. We therefore reject Johnson’s argument that Perry’s view of the bundle does not support probable cause. Finally, we consider Johnson’s failure to answer Perry’s question about the bundle, which he asked af ter pointing it out. Although only about two seconds elapsed from the end of Pe rry’s question until Perry aske d Johnson to put his hands up, Johnson admitted that he did not respond to Perry’s que stion. This fact therefore also bolsters probable cause. See United States v. Albers , 136 F.3d 670, 674 (9th Cir. 1998) (supporting probable cause by notin g, among other facts, that suspects “seemed nervous and refused to answ er [the officer’s] questions”). Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1314 That brings us to the ultim ate question: whether these facts, “in their totality,” are enough for probable cause. Valenzuela , 365 F.3d at 897. The facts most strongly in the government’s favor are: (1) Johnson ’s lie about whether he had luggage and whether the backpack was his, (2) Johnson’s self-search while at tempting to obstruct Perry’s view of the backpack, and (3) Perry ’s visual identification of the bundle of clothing. Likewise re levant—but accorded less weight —are (4) that Johnson placed the backpack under the seat next to him as he overh eard Perry questioning other passengers and (5) Johnson’s lack of identification. See Reid v. Georgia , 448 U.S. 438, 441 (1980) (noting that “circumstance s describ[ing] a very large category of presumably innocent travelers” are usuall y insufficient to justify seizure). Also falling in this latter category is (6) Johnson’s failure to an swer Perry’s final question. Taking these facts together, we conclude that when Pe rry observed the bundle in Johnson’s backpack, the facts and circumst ances within his knowledge sufficiently warranted his belief that Johnson had committed or was committing an offense. See Sanchez , 13 F.4th at 1073. Accordi ngly, we conclude that Perry had probable cause to arrest Johnson and a ffirm the district cour t’s ruling on this point.
II. Lawfulness of Warrantless Searches
A. Search and Seizure on the Bus We turn next to Perry’s actions followi ng Johnson’s arrest. Recall that at this point, Perry remained on the bus, reached in side Johnson’s still-open backpack, and felt the bundle of clothing inside the backp ack. Johnson argues that this warrantless search violated the Fourth Amendment. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1415 The Fourth Amendment protects the “right of the people to be secure in their . . . effects[] agains t unreasonable searches and seizures.” U.S. Const. amend. IV. “A search or seizure is pr esumptively reasonable” under the Fourth Amendment if it is “based on a warra nt supported by probable cause.” United States v. Banks , 884 F.3d 998, 1011 (10th Cir. 2018). But because the Fourth Amendment requires only reasonableness—as opposed to a warrant—“there are various exceptions to the warrant requirement.” Id. “The government bears the burden of proof to justify warrantless searches and seizures” by “a preponderance of the evidence.” United States v. Zubia-Melendez , 263 F.3d 1155, 1160 (10th Cir. 2001). One exception to the warrant requirement is the plain-view exception, which allows a law-enforcement o fficer to seize evidence of a crime without a warrant under a limited set of circumstances. See United States v. Angelos , 433 F.3d 738, 747 (10th Cir. 2006). It applies if “(1) the o fficer was lawfully in a position from which the object seized was in plain view, (2) the object’s incriminating character was immediately apparent . . . and (3) the offi cer had a lawful right of access to the object.” Id. (quoting United States v. Thomas , 372 F.3d 1173, 1178 (10th Cir. 2004)). For an object’s incriminating character to be immediatel y apparent, there must be “probable cause to believe it [is] contraband or evidence of a crime.” Id. But although the plain-view exception “may support the warrantless seizure of a container believed to contain contraband,” it does not automatically support a “subsequent search of the concealed contents of the container.” United States v. Corral , 970 F.2d 719, 725 (10th Cir 1992). Rather, a subse quent search is only valid if “the contents of a seized Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1516 container are a foregone conclusion” (or if the search is “acco mpanied by a warrant or justified by one of the excepti ons to the warrant requirement”). Id. Here, the incriminating ch aracter of the backpack and bundle was immediately apparent. That is, the same facts supporting Perry ’s probable cause to arrest Johnson also gave him probable cause to believe the backpack and bundle of clothing—both of which were in Perry’s lawful plai n view—contained evidence of a crime. Accordingly, Perry could seize those items. See Corral , 970 F.2d at 725 (explaining that officer could seize pack age because there was “probabl e cause to associate [it] with criminal activity”). And seizing thes e objects must logically allow for some incidental touching. See Arizona v. Hicks , 480 U.S. 321, 326 ( 1987) (“It would be absurd to say that an object could lawfu lly be seized and ta ken from the premises[] but could not be moved for closer examination.”). But Perry could only search the backpack and the bundle if he obtained a warrant, another exception applied, or the contents were a fo regone conclusion. See Corral , 970 F.2d at 725. The district court concluded that the conten ts were a foregone conclu sion, a ruling that Johnson challenges on appeal. 1. Whether Perry Searched the Bundle on the Bus But before turning to Johnson’s challe nge, we first address the argument that the government advances as an alternative basis to affirm: that Perry’s conduct on the bus in relation to the bundle did not amount to a search at all. 7 See United States v.

7 The district court did not clearly e xplain whether it considered the bundle of clothing to be a container separate from the backpack. The government, for its part, Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1617 Davis , 339 F.3d 1223, 1227 (10th Ci r. 2003) (noting that we can affirm for any reason supported by record). Under the Fourth Amendment, a search “occurs when government officials violate an individual’s legitimate expectation of privacy.” United States v. Nicholson , 144 F.3d 632, 63 6 (10th Cir. 1998); see also Katz v. United States , 389 U.S. 347, 360 (1967) (Harlan, J., concurring ) (articulating expectation-of-privacy test). That is, “[w]hen an individual seeks to preserve something as private, and [tha t] expectation of privacy is one that society is prepared to recognize as reasonable, we have held th at official intrusi on into that private sphere generally qualifies as a search and requires a wa rrant supporte d by probable
cause.” United States v. Mathews , 928 F.3d 968, 975 (10t h Cir. 2019) (quoting Carpenter v. United States , 138 S. Ct. 2206, 2213 (2018)). In the context of passenger luggage, an officer violates a passenger’s reasonable expectation of privacy when th e officer touches the luggage in a manner that exceeds how a fellow passenger or transportation employee would. See Bond v. United States , 529 U.S. 334, 337–39 (2000). Thus, in Bond , the Supreme Court held that an officer’s “probing tactile examina tion” done in an “expl oratory manner” on a bus was an unreasonable search. Id. The Court explained that a passenger should reasonably expect that his or her “bag may be handled.” Id. at 338. But the passenger

suggests that Johnson’s open backpack was th e relevant container. But consistent with the Supreme Court’s broad understanding of containers, we conclude that the bundle was its own container. See New York v. Belton , 453 U.S. 454, 460 n.4 (1981) (explaining that container “denotes any object capable of holding another object” and “includes . . . bags, clothing, and the like”). Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1718 “does not expect that other passengers or bus employees wi ll, as a matter of course, feel the bag in an exploratory manner.” Id. at 338–39. Our caselaw follows th e same thread. In Nicholson , we held that, “[b]y manipulating [the defendant ’s] bag in a manner that [the defendant] did not reasonably expect from other passengers, [the officer] c onducted a search within the meaning of the Fourth Amendment.” 144 F.3d at 639. Further, we found it significant that the officer obtained information be yond what a fellow passenger might learn from touching or moving the bag in the ordinary course of travel; the officer testified that by “manipulat[ing]” the bag, he dete cted bundles with a “distinct feel.” Id. Notably, we contrasted that hol ding from our earlier decision in United States v. Gault , which held an officer did not search a train passenger’s bag when he kicked and lifted it, explaining that the inform ation obtained—the bag’s “weight and the solidity of its contents”—is “the same information” a passenger would obtain “by kicking the bag accidentally or by lifting it to clear the aisl e.” 92 F.3d 990, 992 (10th Cir. 1996). Here, the government argues that “a sear ch necessitates an ‘attempt to find something or to obtain information’” and th at the record does not show whether Perry “manipulated the bundle . . . to discer n its character or whether his tactile observations were simply incide nt to his seizure of the ba g and its contents.” Aplee. Br. 26 (quoting United States v. Jones , 565 U.S. 400, 408 n.5 (2 012)). But as Johnson argues, Perry’s testimony dem onstrates that this is pr ecisely what he tried and succeeded in doing when he felt the bundle. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1819 Contrary to the government’s contenti on, Perry’s testimony is not ambiguous on this point: Perry testified that he reache d inside the backpack and felt the bundle. As he did, he probe d, gaining new information—Perry discovered that the bundle was “pretty large,” R. vol. 2, 60, “very hard to the touch,” “had like a crinkling or kind of crushing feel, and . . . was oblong shaped,” id. at 134. He explained that feeling the bundle “definitely confirmed” his earlier suspicion that the bundle contained illegal narcotics. Id. at 60. Thus, we conclude that Perry’s “probing tactile examination” of the bundle following John son’s arrest, done in an “exploratory manner,” amounted to a warrantless search. Bond , 529 U.S. at 337–39. Perry therefore exceeded the “min imal intrusion that is permitted in a plain[-]view seizure.” 8 United States v. Miller , 769 F.2d 554, 557 (9th Cir. 1985); see also United
States v. Most , 876 F.2d 191, 198 n.13 (D.C. Cir. 1989) (observing, in dicta, that officer exceeded “the sort of highly limited contact that would be necessary if the bag were moved from one location to another” because “[t]he bag had a drawstring and could easily be transported without the [officer’s] physical manipulation”). We accordingly reject the government’s alternative basis for affirming.

8 Contrary to the government’s suggestion, this result is not altered by the fact that Johnson’s backpack was open when Pe rry felt the bundle. “It is fundamental,” we have explained, that “absent some speci al exception, all cont ainers and packages will receive the full protecti on of the [F]ourth [A]mendment during a police search.” United States v. Bonitz , 826 F.2d 954, 957 (10th Cir. 1987). Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 1920 2. Whether the Bundle’s Contents Were a Foregone Conclusion We now turn to Johnson’s challenge to the district court’ s foregone-conclusion ruling. Recall that an officer may conduct a warrantless sear ch of a container in plain view if its contents ar e a foregone conclusion. See Corral , 970 F.2d at 725. But the foregone-conclusion standard is high: It requires “virtual ce rtainty” that a container holds contraband. Id. at 726. This is “a degree of cert ainty as to the contents . . . equivalent to the plain view of the [contraband] itself.” 9 Id. . With scant analysis, the district court cited two of our cases and concluded that the contents of the bundle were a foregone conclusion. Johnson argues that those cases are distinguishable, and
we agree. In Corral , a detective working u ndercover had previously cut a “slit into the package” and “confirmed that [i t] contained cocaine.” 970 F.2d at 726. When officers later seized the package, th e slit, combined with the po lice’s continuous surveillance of the suspects, ensured it was the same package as before. Id. Thus, we upheld a search of the package becau se the police “knew to a vi rtual certainty that the

9 We emphasize that the foregone-conc lusion standard, which permits the warrantless search of a legally seized object, is a hi gher bar than what is required to seize the object in the first place . As we stated earlier, wh ether an officer may seize an object requires that its connection to criminal behavior is “immediately apparent”—a standard equivalent to probable cause and decidedly not a standard requiring “an unduly high degree of certainty as to the incr iminatory character of the evidence.” Texas v. Brown , 460 U.S. 730, 741 (1983) (plurality opinion). The foregone-conclusion standard, by contra st, requires “knowledge approaching certainty.” Corral , 970 F.2d at 725–26. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2021 package” at issue “contained cocaine.” Id. The facts in Corral sit far afield from what Perry knew to a “virtual certainty” he re—that there was a bundle in a backpack. Id. The other case cited by the district court, United States v. Jackson , 381 F.3d 984 (10th Cir. 2004), is al so distinguishable. In Jackson (which also involved Special Agent Perry), a suspect consente d to the search of his bag on a train, which led to the discovery of a shaving kit that contained baby powder. Id. at 987. Within the scope of the suspect’s consent, Perry removed the baby-powder lid with a knife, inserted the blade into the container, and “felt something hard.” Id. at 987–88. Perry then moved some of the baby powder aside and “saw a white substance” insi de a clear plastic baggy consistent with the “color and texture . . . of powdered cocaine.” Id. at 987. Later, at the DEA office, Perry cut off the top section of the container to remove the plastic bag. Id. That bag was “heat-sealed and c ontained another clear plastic bag,” which held cocaine. Id. We upheld the search at the DEA office, concluding that it was a “foregone conclusion” that the baby- powder container held drugs, noting that Perry had already seen “a white powdery substance” inside a baggy within the babypowder container during th e legal consent search. Id . at 989. Here, unlike in Jackson , when Perry felt the bundle of clothing, Perry had not seen a nything to visually confirm that there was contraband within it. Indeed, Perry confir med that he did not see the package’s outer tinfoil wrapping un til he searched the b ackpack at the DEA office. Thus, Jackson is distinguishable. Defending the district court’s decisi on, the government, in addition to Corral and Jackson , relies on Justice Stev ens’s concurrence in Brown , 460 U.S. at 747–51 Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2122 (Stevens, J., concurring). But in Brown , the container at issue (an opaque balloon tied in a specific manner) was an object that “spoke volum es as to its contents— particularly to the trai ned eye of the officer.” Id. at 733, 743 (plurality opinion). Here, by contrast, a bundle of clothes that could have wrapped up any number of items lacks such a distinctive quality. See id. at 751 (Stevens, J., concurring) (contrasting opaque balloon tied in spec ific manner that “might be used only to transport drugs” with “suitcas e or a paper bag [that] may contain an almost infinite variety of items” (emphasis added)); see also id. at 746 (Powell, J ., concurring) (“We are not advised of any innocent item that is commonly carried in uninflated, tied-off balloons such as the one [the officer] seized.”). Brown , therefore, is distinguishable and does not support the conclusion that th e contents of the bundle here were a foregone conclusion. Indeed, the facts here are more akin to cases in wh ich we have held that a container’s contents could not be search ed without a warrant. For instance, in United
States v. Donnes , the police opened a camera-lens ca se that was found “inside [a] glove” that also contained a syringe. 94 7 F.2d 1430, 1438 (10th Cir. 1991). We explained that, although there may have been probable cause to se ize the lens case, the government could not conduct a warrantle ss search of the container, which was “unrevealing in appearance.” Id. at 1439 (quoting Miller , 769 F.2d at 560). Similarly,
in Bonitz , we held that a “hard plastic case”—wh ich could lawfully be seized because officers had “probable cause to suspect its contents” were connected with criminal activity—could not be opened without a wa rrant because it “did not reveal its Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2223 contents.” 826 F.3d at 956. And notably, we reached this conclusion “even though [the case] could perhaps have been iden tified as a gun case by a firearms expert.” Id. In sum, the bundle of clothing here is ve ry much like the cont ainers at issue in
Donnes and Bonitz and unlike the dist inctive balloon in Brown . And Corral and Jackson are distinguishable because in both cases , the officers had lawfully laid eyes on the contraband itself, not me rely a nonspecific container. 10 Thus, we conclude that the bundle’s contents were not a foregone conclusion when Perry searched it on the bus. Perry’s warrantless search on the bus th erefore violated the Fourth Amendment.
B. The Search at the DEA Office That brings us to the s earch of the backpack and bundle at the DEA office. Though it did not distinguish between the s earch on the bus and the search at the office, the district court im plicitly found the office se arch justified as a foregone conclusion. Johnson contests that ruling on appeal. As a preliminary matter, the government contends that J ohnson waived any challenge to Perry’s search at the office and that we lack discretion to overlook his waiver. In support, the govern ment directs us to Federal Rule of Criminal Procedure 12(c), which governs the failure to file timely pretrial motions, including suppression motions. Under that rule, “[a] defendant must raise a motion to suppress evidence before trial unless there is good cause for the delay.” United States v. Fernandez ,

10 Indeed, Corral expressly distinguished Donnes on those grounds, explaining that the police in Donnes “never saw the contents” of the lens case at issue. Corral , 970 F.2d at 726. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2324 24 F.4th 1321, 1328 (10th Cir. 2022); see also Fed. R. Crim. P. 12(b)(3)(C), (c)(3). This obligation also applie s to unmade arguments in an otherwise timely motion. See Fernandez , 24 F.4th at 1328. The question, th en, is whether Johnson sufficiently raised his challenge to the offi ce search in the district cour t to preserve it for appeal. Johnson’s memorandum of law in s upport of his suppression motion argued that the drug evidence agains t him was the “fruit of an illegal seizure and almost immediate subsequent search ” without specifying which search Johnson meant to challenge. R. vol. 1, 21. But later in th at same filing, Johnson challenged the photographs taken at the DEA office, phot ographs that were only taken after the contents of the backpack and the bundle we re indisputably se arched there. In addition, Johnson’s supplemental filing ag ain addressed the photogr aphs taken at the DEA office and included a reference to Perr y manipulating the long underwear at the DEA office, which again shows that J ohnson’s suppression motion challenged the search at the office. And Johnson’s pro se reconsidera tion motion also directly challenged the search of the ba ckpack at the office by refe rring to Perry’s exploration of the contents of the bundle, wh ich occurred only at the DEA office. See Fernandez , 24 F.4th at 1329 (looking at defendant’s reconsider ation motion to determine whether he preserved argument for appeal). In all, we find these assert ions “sufficiently definite, specific, detailed[,] and nonconjectural” to pres erve Johnson’s challenge to the search at the DEA office. United States v. White , 584 F.3d 935, 949 (10th Cir. 2009) (quoting United States v. Gambino-Zavala , 539 F.3d 1221, 1227 n.2 (10th Cir. 2008)). Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2425 Additionally, the district court expressly stated that it cons idered all of these filings. And its ruling refers to “the search of Johnson’s bag following his arrest” without distinguishing between the bus sear ch and the DEA office search. R. vol. 1, 126. Given that the district court did not analyze whethe r Perry feeling the bundle on the bus was a search—and because the parties did not dispute in the district court that Perry searched the backpack and bundle at the DEA offi ce—we conclude that the district court’s decision is best read to encompass th at later search as well. See United States v. Hernandez-Rodriguez , 352 F.3d 1325, 1328 (10th Cir. 2003) (finding issue preserved for appeal where district co urt raised it sua spont e). Thus, we reject the government’s waiver argument and co nclude that the record—comprising Johnson’s suppression motion, his supplemental filing, his pro se reconsideration motion, and the district court’s decision— sufficiently preserved Johnson’s challenge to the search at the DEA office. We turn now to whether the search at the DEA o ffice violated the Fourth Amendment. Our analysis la rgely mirrors our analysis of the search on the bus. Again, the government’s only argument to justify the search of the backpack and bundle at the DEA office is that, by then, their contents were a foregone conclusion. As Johnson acknowledges, at the time of th e search at the DEA office, Perry knew a few additional facts about the bundle from his actions on the bus: Perry confirmed it was oblong-shaped and learned that it was “hard to the t ouch” and had a “crinkling or kind of crushing feel.” Rep. Br. 12 (quo ting R. vol. 2, 134). But because (for the reasons we previously explained) the sear ch on the bus was ille gal, Perry could not Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2526 rely on those new, unlawfully obtained facts to justify the later search at the DEA office. See United States v. White , 326 F.3d 1135, 1140 (10t h Cir. 2003) (explaining that “[t]he exclusionary rule enjoins th e [g]overnment from benefiting from evidence it has unlawfully obtained” (quoting United States v. Crews , 445 U.S. 463, 475 (1980))). Yet even if we were to accept the government’s cont ention that the Perry’s conduct on the bus was not a search, th e result would not change. As we have emphasized, the foregone-conclusion standard is a high bar, one “equivalent to the plain view of the [contraband] itself.” Corral , 970 F.2d at 726. And the additional knowledge Perry obtained on the bus—that th ere was something hard and crinkly in the bundle of clothing—did not raise Perry ’s probable cause to believe that the bundle contained contraband into a “v irtual certainty” that it did. Id. In short, these new facts would not alter the foregone-concl usion analysis. We therefore hold that Perry also conducted an illegal warra ntless search at the DEA office. C. Scope of Remand Typically, a holding that a search is i llegal leads to the suppression of the drugs discovered as a result of the illegal search. See United States v. Knox , 883 F.3d 1262, 1273 (10th Cir. 2018) (explaining that evidence obt ained in violation of Fourth Amendment may not be used in criminal pr oceeding against victim of violation). But in a last-ditch effort to avoid the exclus ion of the drugs Perry discovered during his illegal searches, the government argues it should be permitted to assert new grounds to support the evidence’s admission on re mand. But it provides no authority to Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2627 support that request. And given that it is the gove rnment’s burden to prove warrantless searches fall w ithin an exception to the warrant requirement, we decline to give the government another opportunity to make its case on remand. See ZubiaMelendez , 263 F.3d at 1160 (noti ng government’s burden to prove exception to warrant requirement); United States v. Hernandez , 847 F.3d 1257, 1262 (10th Cir. 2017) (declining to remand for consideratio n of new theory justifying admission of evidence); United States v. Young , 263 F. App’x 710, 716 (10th Cir. 2008) (unpublished) (rejecting gove rnment’s request to “make entirely new arguments” to justify search on remand). 11 In sum, we hold that the fruit of both ille gal searches must be suppressed, and we remand for further proceedings consistent with this opinion. 12
Conclusion We affirm the district court’s ruling th at Perry had probable cause to arrest Johnson and to seize the backpack and bundle. But we conclude thatwhen Perry felt the bundle on the bus, he conducted a warrantless search of a container, the contents of which were not a foregone c onclusion. Perry therefore coul d not rely on that illegally

11 We cite this unpublished case for its persuasive value. See 10th Cir. R. 32.1(A). 12 On appeal, neither party briefed what should become of Johnson’s incriminating statements. A nd because the district cour t concluded Perry’s conduct was lawful, it did not reach th at issue either. Accordingly, the district court is free to consider on remand whether the taint of Perry’s illegal conduct had been purged when Johnson made those statements. See United States v. Walker , 933 F.2d 812, 818 (10th Cir. 1991) (rema nding for district cour t to consider whether evidence obtained from suspect following illegal detention was “s ufficiently an act of free will to purge the primary taint” of illegality (quoting Brown v. Illinois , 422 U.S. 590, 597 (1975))). Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 2728 obtained information to justify the later warrantless search at the DEA office. Yet even if feeling the bundle on the bus was not a search , that new information still did not make the contents of the backpack an d bundle a foregone conclusion. Thus, these warrantless searches violated the Fourth Amendment, and the drugs th at Perry discovered must be suppressed. We accordingly reverse the distri ct court’s denial of Johnson’s suppression motion as to Perry’s illegal searches, vacat e Johnson’s conviction and sentence, and remand for further proceedings. Appellate Case: 21-2058 Document: 010110722090 Date Filed: 08/09/2022 Page: 28