United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Findings and Recommendation (Filing No. 145) and Supplemental Findings and Recommendation (Filing No. 160), issued by Magistrate Judge F.A. Gossett recommending that the Motions to Suppress filed by the Defendants, Emmanuel Chaplain (“Chaplain”) (Filing No. 80), Shane Seizys (“Seizys”) (Filing No. 83), and Thomas Jones-Ross (“Jones-Ross”) (Filing Nos. 74 and 89), respectively, be denied. Seizys (Filing No. 147) and Chaplain (Filing No. 149) filed Objections to the Findings and Recommendation as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded (Filing No. 153) to the Objections, incorporating its previously filed briefs in opposition to the Motions to Suppress (Filing Nos. 131 and 144). For the reasons set forth below, the Findings and Recommendation and Supplemental Findings and Recommendation will be adopted, and the Motions to Suppress will be denied. Also before the Court is the Objection to Magistrate Judge’s Order (Filing No. 129), filed by Defendant Dilang Dat (“Dat”). For the reasons discussed below, the Objection will be overruled.
Chaplain and Seizys do not formally object to the Magistrate Judge’s factual findings nor is there any indication that the Magistrate Judge’’s factual findings were erroneous. The Court adopts Judge Gossett’s factual findings and provides the following by way of summary:
On June 23, 2014, the Kum & Go convenience store located at 1010 South 154th Street in Omaha, Nebraska, was robbed. Witnesses to the robbery described the suspects as two, dark-skinned black males with handguns. Witnesses also indicated that the suspects wore dark hooded sweatshirts and one suspect had a bandana over his face. The suspects were seen leaving in a silver or white sedan.
A few minutes after the Kum & Go was robbed, police were dispatched to the area of 90th and Maple Streets in Omaha to respond to a silver Oldsmobile Aurora (the “Oldsmobile”) that had stalled in traffic. Although no occupants of the vehicle were present when police arrived at the scene, Officer Chad Wiebers had seen the Oldsmobile earlier while on his way to another call. At that time, Officer Wiebers observed several occupants of the vehicle and made eye contact with the driver.
Law enforcement discovered that the Oldsmobile was registered to Tamiko Jones, Defendant Jones-Ross’s mother. Police interviewed Tamiko Jones who informed officers that Jones-Ross was previously in possession of the vehicle. A photo lineup that included Jones-Ross’s picture was shown to Officer Wiebers. The line-up included photographs of six black males, with features similar to those of Jones-Ross. Officer Wiebers identified Jones-Ross as the driver of the Oldsmobile.
On July 16, 2014, the GameStop located at 9959 Redick Circle in Omaha was robbed. Video games were taken in that robbery. Approximately twenty minutes later, the Kentucky Fried Chicken (“KFC”) located at 7601 North 30th Street in Omaha was robbed. Omaha Police Officer Patrick Dempsey received a call to respond to the scene of the robbery at 6:58 p.m. Officer Dempsey testified that he arrived on the scene less than 45 seconds after the call. Upon arrival, a KFC employee told Officer Dempsey that the restaurant had just been robbed by two black males, and that they had run eastbound. At that moment, Officer Dempsey dispatched through radio that two black males had robbed the KFC and ran eastbound. The employee then stated that the suspects ran eastbound to a white Ford Mustang (the “Mustang”) parked approximately one block away from the KFC, changed shirts near the vehicle, and continued to run eastbound. Officer Dempsey testified that upon arriving to the area where the Mustang was parked, he was approached by an individual who stated that the suspects walked eastbound and possibly southbound. Officer Dempsey transmitted this additional information over his police radio.
Officer Chad Frodyma and his partner, Officer Petrick, heard Officer Dempsey’s radio call. Officer Frodyma testified that he recalled hearing over the radio that three black males, two of whom appeared to be of Sudanese descent and two of whom were wearing white t-shirts, ran from the area. Officer Dempsey does not recall providing a description of the suspects’ particular complexion, height, weight, or clothing over the radio.
Officer Frodyma and Officer Petrick arrived to the area surrounding the KFC approximately one minute to one-and-a-half minutes after Dempsey’s radio call. Officer Frodyma then heard a second radio call indicating that a witness saw the parties leave a car parked on 29th Street and head east and to the south. Officers Frodyma and Petrick then drove toward that area. Approximately three to four blocks away from the KFC, Officers Frodyma and Petrick observed three black males, two of whom appeared to be of Sudanese descent and one of whom was wearing a white t-shirt. Officer Frodyma testified that he observed the individuals within three minutes of the time the initial call came out.
As soon as Officer Frodyma opened the door to exit his cruiser, one of the black males fled the area on foot. The fleeing male was later identified as Chaplain. Officer Frodyma then drew his weapon, ordered the remaining two black males to the ground. These individuals were later identified as Dat and Seizys. Chaplain was detained a short time thereafter. Officers conducted a pat down of both Dat and Seizys. In Dat’s pocket, officers located a little over $200 in cash, mostly crumbled up, as well as a key that matched the Mustang. On Seizys, officers found over $200 in cash, some of which was crumbled up.
Law enforcement then administered a “show-up” identification process. Chaplain, Dat, and Seizys were transported to the KFC parking lot and placed in separate police cruisers. One at a time, each suspect-cuffed and accompanied by armed officers- stepped out of a police cruiser, and was presented to each individual witness for identification.
Two witnesses who were behind the counter when the robbery occurred, William Booth (“Booth”) and Audrey Chaney (“Chaney”), positively identified Seizys as a participant in the robbery. Chaney had previously described the first suspect as a dark- skinned black male, six feet tall, with a dark hooded sweatshirt and lighter colored pants. She described the second suspect as a lighter-skinned black male, with a red bandana, gray sweatshirt and dark jeans. Booth described one suspect as wearing a red bandana with a gray hooded sweatshirt, light skinned, in his mid-20's. He described another suspect as being a dark-skinned black man, six feet tall, slim build, wearing a blue bandana and white pants. When Seizys presented to Booth for identification, Booth said he was certain that Seizys was one of the robbers. Three other witnesses who participated in the show-up were unable to identify anyone.
Police Sergeant Russell Petersen also responded to the scene of the KFC robbery and spoke to employees. Sergeant Petersen testified that he was told by witnesses that some of the suspects were wearing gray sweatshirts and at least one had a red bandana. Sergeant Petersen stated that, without entering, he looked into the Mustang and could see a gray sweatshirt, red bandana and video games in plain view.
Law enforcement searched the Mustang following the arrest, and before the vehicle was towed to the Omaha Police Impound Lot. From this search, law enforcement seized clothing and video games. Seizys’s identification card was also found in the vehicle.
Police also found a fictitious license plate taped to the rear of the Mustang. It covered a plate belonging to Edward Chaplain, Defendant Chaplain’s brother. The following day, police asked Edward Chaplain for permission to search the Mustang. Edward Chaplain denied consent. Consequently, the police obtained a search warrant. The application for the ...