United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LYLE E. STROM, SENIOR JUDGE
This matter is before the Court on the defendant Darion R. Haynie’s motion to suppress (Filing No. 19) and the Findings and Recommendation (Filing No. 31) of the United States Magistrate Judge. Following an evidentiary hearing, Magistrate Judge Gossett issued oral findings of fact and conclusions of law and a brief Findings and Recommendation. Magistrate Judge Gossett recommended that Haynie’s motion to suppress be granted in part and denied in part. The defendant objected to the Magistrate Judge’s Findings and Recommendation (Filing No. 39).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which the defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
On July 5, 2015, officers James Holtmeyer (“Officer Holtmeyer”), Christopher Rock (“Officer Rock”), and Timothy Lasater (“Officer Lasater”) of the Omaha Police Department received information from a concerned citizen (Filing No. 34, Hearing Transcript “Tr.” at 13). The concerned citizen told officers that Michael Haynie was in possession and was selling crack cocaine and marijuana, and that he was also in possession of a firearm (Id.). The concerned citizen was also able to provide two vehicles with license plate numbers associated with Michael Haynie (Id. at 13-14). After receiving the information, Officer Holtmeyer accessed the NCJIS database which gave Michael Haynie’s last known address (Id. at 14-15). Officers Holtmeyer, Rock, and Lasater set up surveillance at 6707 Parkview Lane, Michael Haynie’s last known address (Id. at 16).
While conducting surveillance, a white Chevy Impala registered to Michael Haynie pulled into 6707 Parkview Lane (Id. at 16-17). The officers observed Michael Haynie enter the house and leave ten minutes later (Id. at 17-18). The officers followed Michael Haynie’s car and observed two traffic violations, which led to a traffic stop (Id. at 18-19).
During the stop, a baggie of marijuana was found on the driver’s seat between Michael Haynie’s legs (Id. at 21). The officers searched the vehicle and found more marijuana, empty sandwich baggies, and a digital scale with marijuana residue in the back seat of the vehicle (Id. at 22). Michael Haynie was advised of his Miranda rights and stated he was willing to speak to the officer (Id. at 23-24). Michael Haynie admitted the marijuana in the driver’s seat was his but not the marijuana located in the back seat (Id. at 28).
During the traffic stop and search of the car, Darion Haynie, arrived on the scene (Id.). The officers released Michael Haynie’s keys to Darion Haynie so that he could take Michael’s car after Michael was detained (Id. at 29). The officers then transported Michael Haynie and his passenger back to 6707 Parkview Lane (Id. at 29-30).
At 6707 Parkview Lane, Officer Holtmeyer and Officer Rock knocked on the door (Id. at 30). A female answered the door and advised the officers that the homeowner, Sharon Haynie, was in her bedroom (Id. at 31). The female escorted the officers to Sharon Haynie’s bedroom (Id.). The officers introduced themselves to Sharon Haynie and asked to search the house (Id. at 33). Sharon Haynie did not provide consent to search the house (Id. at 34).
While talking to Sharon Haynie, Darion Haynie entered the home (Id.). Darion Haynie entered his bedroom, but Officer Rock asked him to come out of his bedroom (Id. at 35). After being denied consent, the officers were concerned about the destruction of evidence and their safety in the home (Id. at 36). As a result, Officer Holtmeyer and Officer Rock conducted a protective sweep of the house (Id. at 37).
During the protective sweep, the officers observed firearms, ammunition, marijuana, and containers with marijuana residue (Id. at 38-39). After the protective sweep, Officer Holtmeyer and Officer Rock went to the northwest precinct to draft a search warrant (Id. at 39). Officer Holtmeyer testified that he had conducted protective sweeps in the past after being denied consent and he was not aware of that evidence being suppressed (Id. at 40-41). Officer Holtmeyer also testified that he believed he had enough probable cause to apply for a search warrant after the traffic stop, and that he made the decision to apply for a search warrant before the officers knocked on the door at Parkview Lane (Id. at 86).
The officers searched the house after obtaining a search warrant (Id. at 44). The search produced marijuana, two firearms, and ammunition (Id. at 44-45). Darion Haynie was interviewed after the search (Id. at 46). Darion Haynie was advised of his Miranda rights and stated he was willing to speak to the officers (Id. at 47-48). Darion Haynie admitted that the MasterPiece Arms 5.7-by-28 -millimeter MAC 10-style pistol was his (Id. at 51). Michael Haynie was also interviewed after the search (Id. at 54). Officer Holtmeyer told Michael Haynie that he informed him of his Miranda rights on the scene of the traffic stop and asked if he was willing to continue the interview, to which Michael Haynie agreed (Id. at 55). Michael Haynie admitted that the Mason jar in the laundry room containing two ounces of marijuana was his, as well as the marijuana inside the vehicle (Id. at 56-57).
Darion Haynie was cited for a criminal offense but not physically taken and booked by the officers (Id. at 60). Michael Haynie was physically arrested and transported to central police headquarters (Id.). ...