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. 69) issued by Magistrate Judge F.A. Gossett recommending that the Motion to Suppress (Filing No. 42) filed by Defendant Ross Rivera ("Rivera") be denied. Rivera filed an Objection to the Findings and Recommendation (Filing No. 80). The Government did not respond to Rivera'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 Rivera with possessing with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine. Rivera seeks to suppress any statements he made to law enforcement on July 11, 2014.
On July 11, 2014, North Platte Police Officer Rick Harms ("Harms") approached Rivera after Rivera exited a Dodge Durango, which he was driving with Defendant Sheena Strand ("Strand") as a passenger. Harms testified that he had received a "be on the lookout" notice ("BOLO") about a black Dodge Durango (the "Durango") with expired Colorado in-transit tags. On July 8, 2014, Harms learned that Timothy Casillas ("Casillas") had loaned the vehicle to Rivera and Strand, and he was trying to get the vehicle back from the them but had been unsuccessful. Harms, while on duty, observed the vehicle he believed was the Durango. At the time Harms observed the Durango, it had Nebraska dealer plates registered to Spady Motors, a dealership in North Platte, Nebraska. The dealer plates not been reported as stolen. At the time he observed the vehicle, Harms believed the driver to be Rivera. Harms had previous interactions with Rivera and had arrested Rivera on multiple occasions.
Harms followed the Durango to the area of 1221 W. 6th St. in North Platte, Nebraska. After stopping his cruiser, Harms rolled down his window and asked Rivera, "Are you Ross Rivera?" He then asked about the Durango. Harms testified that Rivera responded that it belonged to Casillas. Harms asked Rivera about the dealer plates. Harms testified that Rivera responded that Casillas put them there. Harms did not read Rivera his Miranda rights after he first questioned Rivera, nor did Harms read Rivera his Miranda rights when asking him about the Durango.
Harms determined that he would seize the dealer plates. When Harms went to the rear of the Durango to remove the rear plate, Harms testified that Rivera admitted that Rivera had put the plates on the vehicle. Harms also testified that when he stooped down to remove the license plate, he remarked to Rivera that Harms smelled burnt marijuana. Harms had not received prior training or testing to smell marijuana in or outside of a closed vehicle. Harms testified that Rivera then admitted to smoking marijuana earlier in the vehicle. Harms did not smell marijuana on Rivera.
Based upon the odor of burnt marijuana, Harms instructed Rivera to unlock the Durango's doors. Before the doors were unlocked, Harms viewed a copper colored marijuana pipe in plain view through the Durango's window. The Durango's doors were then unlocked, and a door was opened. Harms testified that when the door was opened, "there was an overwhelming smell of burnt marijuana." (Tr., Filing No. 81 at 15:21-23.) Harms then searched the Durango.
Harms seized the marijuana pipe. He also observed, what appeared to him based upon his training and observation, a methamphetamine pipe. Harms observed a packet of miniature Ziploc bags in the center console. Harms asked Rivera about the methamphetamine pipe and testified that Rivera admitted to using the pipe earlier to smoke methamphetamine. Harms continued his search and found a clothing bag. At the bottom of the clothing bag Harms found a large package of a substance that, based upon Harms's training, appeared to be crystal methamphetamine.
Judge Gossett determined that Harms's testimony was credible. Judge Gossett also determined that Rivera's initial encounter with Harms was consensual, and that the encounter became a valid investigative detention based upon Rivera's admission that he was smoking marijuana in the Durango, and the marijuana pipe in plain view. Finally, Judge Gossett determined that up until the point that Harms began to search the vehicle, Rivera was free to leave.
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(C), the Court must make a de novo determination of those portions of the findings and recommendation to which a Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendation. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
I. Credibility of ...