United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the court on the defendant's objection, Filing No. 30, to the findings and recommendation of the magistrate judge ("F&R"), Filing No. 26. After an evidentiary hearing on May 12, 2015, the magistrate judge recommended that the defendant's motion to suppress, Filing No. 13, be denied. See Filing No. 26, F&R; Filing No. 31, Transcript ("Tr.") at 123.
Pursuant to 28 U.S.C. § 636(b)(1)(A), the court has conducted a de novo determination of those portions of the F&R to which the defendant objects. United States v. Lothridge, 324 F.3d 599, 600-01 (8th Cir. 2003). The court has reviewed the record including the transcript of the hearing, and the exhibits, including a videotaped recording ("video") of the police encounter. Filing No. 31, Transcript ("Tr."); Filing No. 23, Exhibit List, Hearing Exhibits ("Hr'g Exs.") 1 & 2.
The facts are stated in the magistrate judge's F&R and will be repeated only as necessary to the court's opinion. Filing No. 26, F&R (incorporating statements made on the record); Filing No. 31, Tr. at 55-62. The defendant has been charged with unlawful possession of a machinegun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) and with being an unlawful user and addict in possession of an assault rifle in interstate commerce, in violation of 18 U.S.C. § 922(g)(3). Filing No. 1, Indictment.
An evidentiary hearing was held on May 12, 2015. Filing No. 31, Tr. Nebraska State Patrol Narcotics Investigator Richard Lutter testified that he began an investigation of the defendant after observing potting plants behind a vehicle parked in the driveway, CO2 canisters in the garage, and several 55-gallon plastic barrels on the defendant's property. Id. at 11. Based on his experience as a narcotics officer, he believed possession of those items was indicative of a marijuana "grow operation." Id. at 11-12. He subpoenaed Omaha Public Power District records and determined that the defendant's house used four times as much electricity as similar houses. Id. at 13. He conducted intermittent surveillance and attempted to obtain the defendant's trash, but found the defendant only placed garbage out for pickup just as the trashpickup vehicles arrived. Id. at 14-15. Officer Lutter also testified he surveilled the defendant on his way to work and observed a traffic stop performed by another officer about a week prior to the encounter at issue herein. Id. at 15-16. The officer who conducted the traffic stop later told Lutter that the odor of marijuana was detected coming from the defendant's vehicle, but a search did not reveal any contraband in the vehicle or on the defendant's person. Id. at 17.
Investigator Lutter also testified that he did a criminal background check on the defendant and found the defendant had been charged with, but not convicted of, possession of less than an ounce of marijuana on two occasions. Id. at 13, 49. The defendant had also been convicted of attempted possession of a concealed weapon and with possessing drug paraphernalia. Id. at 49. Officer Lutter also testified that he was aware that the defendant had a permit to carry a concealed weapon at the time of the instant encounter. Id. at 12.
On December 18, 2014, Lutter "made arrangements with the individuals that [he] work[ed] with on a regular basis to conduct a knock and talk' so that [he] could speak with Mr. Rodriguez in regards to [Lutter's] beliefs [that Rodriguez was conducting a marijuana growoperation]." Id. at 18. He did not believe he had probable cause to obtain a warrant at that time. Id. at 12, 17-18. He and several other officers went to the defendant's residence. All wore plain clothes. Id. at 18. Lutter testified he was "hoping to get inside the residence to smell for [himself]." Id. at 20. He stated that he and Douglas County Deputy Sherriff Wineinger walked onto the defendant's front porch and knocked on the door. Id. at 19. Other officers were nearby. Id. at 19.
Lutter testified that the defendant answered the door, stepped outside, and pulled the door shut behind him. Id. at 21. At the point the defendant pulled the door shut, Lutter smelled a slight odor of marijuana. Id. at 22. Lutter advised the defendant that Lutter was a law enforcement officer, and was there to ask him some questions. Id. Lutter testified that he asked the defendant "if we could step in the residence to talk." Id. Lutter acknowledged that the defendant told Lutter "that he wanted to find more - ask more information or receive more information before he agreed to speak with [Lutter]" and then turned, opened the interior door, "stepped into the residence and [Lutter] stepped in behind him." Id. at 23; see also id. at 41, 43-44. Lutter testified that Deputy Wineinger stepped in as well. Id. at 23.
Lutter testified that "the minute [he] stepped into the residence, as [he] followed Mr. Rodriguez in, there was a distinct overwhelming odor of marijuana throughout that permeated the entire residence." Id. He then "told the defendant that because of the overwhelming odor of marijuana being present in the residence, I was going to detain him and that we were going to conduct a protective sweep for the protection of myself and the other officers so that we could then proceed forward with the investigation." Id. at 50. Lutter also testified that the defendant nodded and said "okay" when Lutter told him he was being detained. Id. at 50, 52. Lutter also stated that he believed he had probable cause to obtain a search warrant when he smelled the "overwhelming odor" of marijuana. Id. at 23-24. He then secured the residence and brought the other officers in to conduct a protective sweep. Id. at 24. Four officers conducted the sweep. Id.
The defendant asked for a lawyer. Id. at 27. Lutter also testified that he read the defendant his rights before the defendant asked for a lawyer. Id. at 27. Lutter stated that his intent at the time was to get consent from the defendant for a search. Id. Realizing that consent to search would not be forthcoming, Lutter then applied for and obtained a warrant. Id. Officer Lutter testified he was able to obtain the warrant in about an hour and a half. Id. The two occupants were detained at the house during that time. Id.
Deputy Sheriff Jarrod Wineinger testified he was assisting Investigator Lutter with the investigation of a possible marijuana manufacturing grow in a residence in south Omaha on December 18, 2014. Id. at 65. He testified he accompanied Lutter to the front door of the residence. Id. Investigator Lutter rang the doorbell, knocked on the door, and a party appeared. Id. The person shut the front door and Lutter continued to speak to the party. Id. Wineinger testified he "got a whiff of the odor of marijuana" at that time. Id. He stated he could not hear the entire conversation with Investigator Lutter, but observed that the defendant turned and walked into the residence and Lutter followed him in. Id. at 67. Wineinger testified that he smelled an even stronger odor of raw marijuana once inside the house. Id. at 65. He stated that the only information he had that people inside the house were dangerous was that he knew that one of the individuals had a weapon on him at a traffic stop. Id. at 66.
The defendant, Joshua Rodriguez, testified that he did not give the officers permission to either enter or search his house. Id. at 81, 84, 92-93. He and his wife were the only people in the residence that day, because their son was at school. See id. at 78-79. He testified he heard a knock on the door and answered it. Id. at 79. He could see two officers on the front porch and one, in uniform, in front of a window. Id. He testified that Lutter was holding the screen door open and when Rodriquez tried to pull it shut Officer Lutter would not allow him to do that by putting himself in the way of the screen door. Id. at 80-81.
He stated that three officers followed him into his house after he turned away from them and took two steps into his house. Id. at 82. Officer Lutter told him the officers were going to detain him and do a sweep search of the house based on the odor of marijuana and the defendant nodded "Okay." Id. at 84. He testified he did not put up any resistance because he "found it unwise to argue with law enforcement." Id. at 84. He testified that he grew marijuana plants for his own consumption. Id. at 88-89. He also testified he had never been convicted of a felony. Id. at 78.
Lutter also testified that the encounter was recorded on "body cam" video cameras mounted on Lutter and on Sergeant Thomas Meola. Id. at 28. The videos and search warrant application and affidavit were admitted into evidence for purposes of the hearing. Id. at 28; Filing No. 23, Exhibit List, Exs. 1 & 2. The court has reviewed the evidence, including the videos.
The video of the encounter on the porch shows that two officers approach the door, an officer opens the screen door and knocks on the front door. See Hr'g Ex. 2. The defendant answers the door, partially closing the door behind him, and converses with the officers with a puzzled look on his face. Id. An officer, later determined to be Officer Lutter, states "Hello sir, how are you doing today? I'm investigator Richard Lutter, I'm an investigator with the Nebraska State Patrol, I got a couple quick questions, I'd like to talk to you, your neighbors are out, do you mind if we just step in and talk real quick?" Id. The defendant replies, "Um, I like to ask what it's about first." During the exchange, the defendant glances several times at the screen-door handle/doorknob. It is clear that the officer is standing at least partially inside the area of the partially open screen door. The defendant repeatedly looks down at the open edge of the exterior door where the officer's foot or leg is inside the door. Lutter responds:
What it is it... We're conducting an investigation that's possible in related to the manufacturing of marijuana. Okay, so I'd like to ask you a couple quick questions about it, if there nothing going on, there's no problems or anything like that, we're ...