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United States v. Cervino-Hernandez

United States District Court, D. Nebraska

April 28, 2016



          CHERYL R. ZWART, Magistrate Judge.

         The defendants have moved to suppress all evidence seized during a search of the defendants' hotel room on September 21, 2015. (Filing Nos. 47 & 57). Defendants claim the search violated their Constitutional rights, and all evidence arising from that search must be suppressed. For the reasons stated below, the motion to suppress should be denied.


         On the evening of September 21, 2015, dispatch for the Hastings Police Department ("HPD") received a call from a woman who reported receiving text messages from an unknown person soliciting sex in exchange for methamphetamine. HPD Officer Chad Daugherty contacted the woman, and reviewed and photographed the text messages. The messages indicated a man was looking for two women to spend the night with him and his friend in a hotel room. When Daugherty's supervisor, Sergeant Raelee Van Winkle, arrived at the scene, the officers used HPD computer programs to search for the phone number and identify the person sending the messages. They discovered the phone number was assigned to Texas, and it belonged to Defendant Yulio Cervino-Hernandez.

         Cervino-Hernandez' text message suggested he wanted to meet the women at the local Wal-Mart. Van Winkle and Daugherty went to the Wal-Mart and searched the parking lot, but they were not able to find any vehicle with Texas license plates. The informant called dispatch again and informed the officers that, of her own accord, she had continued to text Cervino-Hernandez after the officers left her location. She reported Cervino-Hernandez had provided his location: Rodeway Inn, Room 110.

         Van Winkle drove past the door of Room 110 at the Rodeway Inn. She saw two males smoking and a vehicle with Texas license plates. Since she was unable to record the license plate without drawing suspicion, she asked Daugherty to drive through the motel parking lot and gather the plate information. Ultimately, the officers were able to record the full license plate number, and after running the number through dispatch, they confirmed the vehicle was registered to Yulio Cervino-Hernandez.

         The officers' criminal history search revealed Cervino-Hernandez was the subject of an active misdemeanor warrant out of Hall County, Nebraska. They reviewed a photograph of Cervino-Hernandez. Van Winkle consulted with Investigator M. Glenn Kemp from the Central Nebraska Drug and Safe Streets Task Force. Kemp decided that due to Cervino-Hernandez's transitory presence at the hotel, the officers would promptly execute the arrest warrant and conduct a "knock and talk" to perhaps uncover whether Cervino-Hernandez was offering to supply methamphetamine for sex. At that time, the officers believed they lacked probable cause to obtain a warrant to search the hotel room for drugs.

         The officers met at the Garden Cafe a couple blocks north of the Rodeway Inn to discuss the situation and determine how the arrest warrant would be executed. They decided Van Winkle would remain at the Garden Cafe location watching with binoculars while the other officers went to the scene; Kemp would knock on the door of the hotel room; and Deputy Sheriff Mike Poplau and Daugherty, who were both in uniform, would stand several feet away on opposite sides of the motel room door.

         Kemp knocked on the door of Room 110. At first, he noticed no movement in the room and no light inside. The curtains were drawn. But after Kemp knocked a second time, the curtains shifted and Kemp saw someone peering out the window and light emanating from a television in the room. Kemp gestured with his hand for the man at the window to come to the door. The man left the window and Kemp knocked one more time. The man answered the door. His whole body was visible in the door frame. Kemp immediately recognized the man as Cervino-Hernandez by his physical appearance, including the presence of a mole on his left cheek. Kemp asked the man if he was Yulio. The man nodded affirmatively. Kemp then identified himself and stated that he had a warrant for Cervino-Hernandez's arrest.

         To execute the arrest, Kemp reached out with his right hand to grab Cervino-Hernandez's right wrist. Cervino-Hernandez responded by backing into the hotel room. Kemp maintained his hold on Cervino-Hernandez's wrist and followed Cervino-Hernandez's movements into the room. Poplau entered the room quickly behind Kemp to assist him. Daugherty followed Paplau. Kemp handed Cervino-Hernandez off to Daugherty to be handcuffed and taken into custody. Poplau went further into the hotel room and entered the bathroom while Kemp scanned the rest of the motel room. Both officers were using a flashlight and, for officer safety, determining if others were present. Kemp saw a second male lying on the furthest bed from the entry door (the south bed); torn plastic bags on the floor; beer bottles and torn plastic bags in the trash can; and a clear drinking glass containing white crystalline powder on the television stand. Kemp also noticed a strong odor of acetone.

         Kemp has 36 years of law enforcement experience, and having served on the Central Nebraska Safe Streets and Drug Task Force since the 1990s, he has extensive drug training and experience. He teaches classes for the Drug Enforcement Administration on drug identification, dismantling methamphetamine labs, and the various methods of manufacturing/cooking methamphetamine, including the "red phosphorus method, " (primarily used in Mexico), and the "Birch method, " (commonly used in Nebraska). Kemp has encountered methamphetamine in its various forms thousands of times throughout his career.

         After the protective sweep was completed, Kemp turned his attention to the man on the south bed. Kemp asked the man to raise his hands so that they were visible and asked the man who he was. The man responded that his name was "Alex" (later identified to be Defendant Alex Castellano-Benitez). At this point, Daugherty was standing in the doorway of the room, Poplau was standing near the foot of the south bed, and Kemp was standing between the two beds with Castellano-Benitez. Kemp asked Castellano-Benitez for identification so he could search for any pending warrants. Castellano-Benitez turned on the nightstand lamp and began looking around the nightstand and bed for his wallet. Castellano-Benitez looked in the nightstand drawer, then proceeded to lift the mattress of the south bed, and then both the mattress and box spring of that bed. The hotel beds were supported by a wooden frame that created a hidden cavity under the box spring.

         With the box spring elevated, Castellano-Benitez located his wallet and grabbed it. But during this lift, the officers were able to see into the bed frame's cavity. Kemp saw another wallet, and two small white bags that Kemp believed were one-ounce packages of methamphetamine wrapped in "bindle bags" (the corner of cut-up plastic shopping bags). Kemp asked, "What's that?" Castellano-Benitez dropped the box spring. Kemp then asked again "What was that other wallet?"[1] Kemp asked Castellano-Benitez to lift the box spring a second time. Castellano-Benitez did so, and the officers gained another view of the items under the bed. During this second lift, Kemp saw a plastic bag toward the center of the bed that contained a black brick. The brick was split open, revealing white-crystalline methamphetamine. Kemp asked Castellano-Benitez "What's that?" Castellano-Benitez responded that he did not know; that the items were not his.

         Kemp again turned to Castellano-Benitez and asked "if there was anything under the other bed?" Castellano-Benitez replied "a little bit." Without any request to do so, Castellano-Benitez then lifted the box spring of the north bed. Once lifted, Kemp and Van Winkle, who was now in the room, saw a silver scale and a truck battery under the bed. Castellano-Benitez stated the items ...

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