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. 25), issued by Magistrate Judge F.A. Gossett recommending that the Motion to Suppress filed by the Defendant Melvin M. Dortch (“Defendant”) (Filing No. 18), be denied. Defendant filed Objections to the Findings and Recommendation (Filing No. 29) as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded (Filing No. 32) to the Objections. For the reasons set forth below, the Findings and Recommendation will be adopted, and the Motion to Suppress will be denied.
Defendant is charged with one count of being a felon in possession of a firearm. (Indictment, Filing No. 1.) Defendant moves to suppress any evidence seized and any statements Defendant made to law enforcement on or about June 4, 2015.
On Thursday, June 4, 2015, at approximately 7:35 p.m., Defendant was standing in the street in the area of 29th Street & Parker Street in Omaha, talking to his girlfriend, who was seated in a stopped minivan. (Tr. at 7-8.) Another car, a Pontiac, had pulled up alongside the minivan to talk. (Tr. at 8; Government’s Exhibit (“G.E.”) 2.)
Two gang-unit police officers, including Officer Mike Sundermeier (“Officer Sundermeier”), and a United States Marshal were patrolling the area of 29th Street and Parker Street in an unmarked car. (Tr. at 7-8.) Officer Sundermeier testified that there had been three firearms recovered during traffic stops in front of a nearby apartment building over the past couple of weeks and that the gang unit had been briefed that some South Family Bloods had moved into the building, creating some tension with the Hilltop Crips. (Tr. at 12-13.) Officer Sundermeier had not heard of Defendant and knew nothing about him before June 4, 2015. (Tr. at 31-32.)
The officers’ vehicle came upon two other cars parked facing north on 29th Street in front of the apartment building. (Tr. 9-11; Ex. 2.) One was a van with one occupant. Officers observed that the van was stopped in the wrong lane away from the curb. (Tr. 9-11; G.E. 2.) Defendant was standing in the street at the passenger window of the van. (Tr. 11, 14.) The other vehicle, the Pontiac, had two occupants, and was parked adjacent to the van. (Tr. 10; G.E. 2.) When the officers’ vehicle approached, the Pontiac moved forward and parked facing north, but on the wrong side of the roadway. (Tr. 10; G.E. 2 & G.E. 3.)
The officers did not immediately know what was occurring. (Tr. 10.) They stopped to investigate but did not activate lights or sirens on their patrol vehicle. (Tr. 16, 45). The officers exited their vehicle and approached on foot. (Tr. 16.) Officer Sundermeier approached Defendant at the van, while the other officer and the Deputy approached the Pontiac. (Tr. 16, 45.) Defendant was wearing jeans and a black, canvas, insulated jacket. (See G.E. 4.) The temperature was about 70 degrees outside and the sky was cloudy. (See G.E. 1 and G.E. 4.) Earlier that day, the wind had been blowing at 23 miles per hour, with gusts of up to 32 miles per hour. (G.E. 1.)
As Officer Sundermeier approached Defendant, Defendant looked away and pressed the front of his body against the door of the van. (Tr. 17.) Defendant had a cell phone in his hand, but placed it on the passenger seat through the open window. (Id.) Officer Sundermeier asked Defendant why he was standing in the street. (Tr. at 18.) Defendant looked at Officer Sundermeier and replied that he was talking to his girlfriend. (Tr. at 18, 31.) Defendant then continued his conversation with the girl in the van. (Id.) Defendant turned his head partway when speaking with the officer, but kept his body pressed against the van. (Id.)
Officer Sundemeier testified that, based on the circumstances known to that point, he was concerned that Defendant was armed. (Tr. 20.) When asked, Defendant said he did not have a gun. (Tr. 20.) Officer Sundermeier then told Defendant that he was going to pat him down and he ordered Defendant to put his hands on the van. (Tr. at 20.) During the frisk, Officer Sundermeier felt a heavy object inside Defendant’s lapel pocket and Defendnat said, “It’s in my pocket.” (Tr. at 21.) Officer Sundermeier found a gun in Defendant’s pocket and placed him under arrest. (Tr. at 23.) After he was arrested, Defendant was taken to Central Police Headquarters where he was interrogated and made incriminating statements about the gun. (Tr. at 24.)
The Magistrate concluded that Officer Sundermeier’s seizure and search were justified by reasonable suspicion. The Magistrate reasoned that Officer Sundermeier’s suspicion was supported by Defendant’s dress, i.e. wearing a winter coat during the summer; Defendant’s posture in leaning against the van; Officer Sundermeier’s knowledge of prior incidents in the area that included three gun arrests; and Officer Sundermeier’s knowledge that rival gang members were moving into the area. Defendant objects to the Magistrate’s findings and conclusion that Defendant’s later statements were not fruit of the poisonous tree.
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 the Defendants have 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 ...