United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on the Findings and Recommendation (Filing No. 24) issued by Magistrate Judge F.A. Gossett recommending that the Motion to Suppress (Filing No. 17) filed by Defendant Marcos De La Torre-Casas ("Defendant") be denied. Defendant filed an Objection to the Findings and Recommendation (Filing No. 30). The Government did not respond to Defendant's Objections. For the reasons stated below, the Findings and Recommendation will be adopted and the Motion to Suppress will be denied.
The Indictment (Filing No. 1) charges the Defendant with distribution of methamphetamine and illegal reentry into the United States. The Defendant seeks to suppress any and all evidence found on his person and in his vehicle during his arrest on December 19, 2014. The Defendant argues that law enforcement lacked probable cause to arrest him; therefore, the evidence seized resulted from an illegal search and seizure.
Following an evidentiary hearing, Judge Gossett issued oral findings of fact and conclusions of law and a Findings and Recommendation. At the hearing, two law enforcement officers who were present at Defendant's arrest testified: Matthew Kessler ("Kessler"), a special agent with the Drug Enforcement Administration ("DEA"), and Will Rinn ("Rinn"), a sergeant in the Douglas County, Nebraska Sheriff's Office. The testifying officers worked as part of a joint task force that included the DEA and the Douglas County Sheriff's Office (the "Task Force").
On December 19, 2014, the Task Force acted on a tip from a confidential informant ("CI") who told law enforcement about a possible drug transaction between known target Tammy Gall ("Gall") and a male individual. Kessler stated that the CI had been signed up with the DEA and Douglas County Sheriff's Office for approximately 90 days. (Transcript of Motion to Suppress Evidentiary Hearing "Tr.", Filing No. 29 at 7.) Rinn testified that he had worked with the CI on and off since 2007. (Tr. 39.) In Rinn's experience, the CI was reliable and had consistently provided law enforcement with accurate information. (Tr. 40.) Kessler also testified that previous attempts to make arrests related to this particular CI failed only because of lack of manpower, and that this particular CI was involved in other pending investigations. (Tr. 28, 3-5.)
Kessler testified that he attended an operational briefing at approximately 8:00 p.m. on December 19, 2014, with Rinn, Deputy Jason Mass, and Deputy Theresa Ogorazly, along with two other criminal investigators from the Douglas County Sheriff's Office. (Tr. 10, 8-11.) Kessler testified that the Task Force was told that Gall "was supposed to meet with an unknown to receive a quantity of methamphetamine. Based on the information we received in the past, it was going to be the No Frills on Saddle Creek or there was a possibility of Hy-Vee on Center Street." (Tr. 10.) Kessler testified that, according to the CI, the transaction would occur between 8:30 and 9:00 p.m. Kessler testified that he was told the other individual would be an Hispanic male. (Tr. 11.) Rinn testified, according to the CI, the other individual would be an Hispanic male named Marcos. (Tr. 42.) The CI further told Rinn that the other individual regularly conducted trafficking of methamphetamine in and around the area of the No Frills Supermarket on Saddle Creek Road in Omaha (the "No Frills"). (Tr. 42.)
Based on information from the CI, Kessler went to Bennington, Nebraska, to watch for Gall to depart from her residence in a white pickup truck. Other law enforcement officers, including Rinn, established positions in and around the No Frills. In Bennington, Kessler observed a white pickup depart the specified residence and then followed the white pickup to a parking lot near the No Frills. The white pickup arrived at No Frills at some point before 9:00 p.m., consistent with the information the CI provided. (Tr. 16.) Once the white pickup arrived at the parking lot, officers identified Gall as the driver. Gall did not exit the white pickup while it was in the parking lot. Kessler testified that Gall's actions were suspicious because it was odd for an individual to pass several grocery stores between Bennington and the No Frills, and all of Gall's actions were consistent with the information law enforcement received from the CI. (Tr. 18.)
Several officers observed the white pickup in the parking lot. Kessler testified that shortly after Gall arrived, Kessler observed a blue sedan pass his vehicle. Kessler then observed a male in a tan jacket (the Defendant) exit a vehicle and walk directly to the white pickup truck. Kessler could not state whether the Defendant exited the blue sedan. The Defendant entered the white pickup and then exited approximately 30 seconds later. Kessler testified that the Defendant then walked in the direction of the blue sedan, though at that point, Kessler was not sure which vehicle he entered. (Tr. 21.) Other officers radioed that they saw the Defendant exit the white pickup truck and get back into the blue sedan. (Tr. 34.)
Shortly after the Defendant exited the white pickup truck, Rinn gave the order to "takedown" the vehicle the Defendant entered. Both Kessler and Rinn testified that they believed the Defendant had committed an offense based on information from the CI and what Kessler and other officers observed and communicated. Specifically, both Kessler and Rinn noted that in their experience and training, drug transactions occurring in public places generally occur through short meetings inside vehicles. During the takedown, a deputy communicated to Rinn that the Defendant made an assertive quick move to his waistband as officers attempted to arrest him. After that, officers handcuffed the Defendant before learning his identity.
After the takedown of the Defendant, Kessler departed the scene to the other side of the parking lot where a uniformed officer had stopped Gall. When Kessler arrived, Gall was in handcuffs and another officer was patting her down. When questioned by the other officer about the bulge in Gall's pants, Gall stated that the bulge was drugs. Kessler testified that the Defendant was arrested before officers knew Gall had drugs in her possession.
Judge Gossett found Kessler and Rinn's testimony credible. Judge Gossett recognized that there was some question about whether the Defendant's vehicle was green or blue but did not find this distinction to be relevant to the officers' credibility. Judge Gossett also recognized there was some conflict as to whether officers had information that the Defendant's name was Marcos prior to his arrest.
Judge Gossett determined that the CI was previously reliable, and, given the totality of the circumstances, the information given by the CI in this instance was corroborated by the manner in which the events unfolded. Based on this information, Judge Gossett concluded that officers had probable cause to arrest the Defendant, reasoning that the information officers had would lead any reasonable officer to believe that a crime had been committed in their presence. Judge Gossett noted that even if the officers lacked probable cause, they had reasonable suspicion to effectuate a stop. After the stop occurred, additional information, such as learning the Defendant's name and finding drugs on Gall, allowed officers to develop probable cause.
The Defendant objects to Judge Gossett's Findings and Recommendation, arguing that Judge Gossett erred in finding that the officers' testimony was credible and that the CI was reliable. The Defendant also asserts that Judge Gossett erred in ...