United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
D. THALKEN, Magistrate Judge.
matter is before the court on the Motion to Suppress Evidence
& Statements by Hugo Leyva-Martinez (Leyva-Martinez) (Filing
No. 38). Leyva-Martinez is charged in the Superseding
Indictment with a conspiracy from February 1, 2015, to
December 7, 2015, to distribute and possess with intent to
distribute methamphetamine (Count I) in violation of 21
U.S.C. Â§ 846; the December 11, 2015, possession of
methamphetamine with intent to distribute (Count II) in
violation of 21 U.S.C. Â§ 841(a)(1); the December 7, 2015,
possession of firearms while being an illegal alien (Count
III); and a Forfeiture Allegation regarding currency, a
vehicle, and numerous firearms (Count IV). See Filing No. 32.
Leyva-Martinez seeks to suppress evidence obtained as a
result of December 7, 2015, search warrants for a storage
facility and a residence; a December 7, 2015, traffic stop in
Omaha, Nebraska; and an interrogation of Leyva-Martinez on
December 7, 2015.
court held an evidentiary hearing on the motion on March 22,
2016. Leyva-Martinez was present with his counsel, Stuart J.
Dornan. The United States was represented by Assistant U.S.
Attorney Nancy A. Svoboda. The court heard the testimony of
Bellevue Police Department (BPD) Officer Robert Iske (Officer
Iske), Special Bureau of Alcohol, Tobacco and Firearms (ATF)
Agent Clay Nolte (Agent Nolte), and Omaha Police Department
(OPD) Officer Paul James Milone (Officer Milone). The court
also received into evidence the following: an Affidavit and
Application for issuance of a Search Warrant for storage Unit
809 at Lockbox Storage, Omaha, Nebraska (Exhibits A and A-1);
a Search Warrant for storage Unit 809 (Exhibit B); an
Affidavit and Application for issuance of a Search Warrant
for 332 South 154th Street, Omaha, Nebraska (Exhibit C); a
Search Warrant for 332 South 154th Street, Omaha, Nebraska
(Exhibit D); a Rights Advisory Form (Exhibit E); and an OPD
Supplemental Report (Exhibit 101). A transcript (TR.) of the
hearing was prepared and filed on March 29, 2016 (Filing No.
the summer of 2015, the OPD Narcotics Unit was investigating
the activities of Leyva-Martinez in Omaha, Nebraska (TR. 40).
Officer Milone conducted three controlled buys of
methamphetamine from Leyva-Martinez during November and
December, 2015 (TR. 44). A court-ordered tracker device was
placed on Leyva-Martinez's black Ford F-250 pickup in
November 2015 (TR. 48). The tracker device indicated the Ford
F-250 was at a storage facility located at 9815 Redick
Avenue, in Omaha, Nebraska, at 6:35 on the morning of
December 7, 2015 (TR. 48; Exhibit A-1). Officer Milone went
to the storage facility and made contact with the manager of
the facility (TR. 49). With the manager's assistance by
accessing security camera footage and key code access,
Officer Milone was able to determine the Ford F-250 pickup
visited Unit 809 (TR. 49). Officer Milone requested OPD
Sergeant Morley to bring his police canine to sniff the area
of Unit 809 (TR. 49). The canine was employed and gave a
positive indication for narcotics at Unit 809 (TR. 50). OPD
officers maintained security of the unit while Officer Milone
drafted an application for a search warrant of Unit 809 (TR.
50; Exhibit A-1). A warrant was issued and executed (TR. 50).
Unit 809 contained nine pounds of methamphetamine ice, twelve
firearms, and venue items linked to Leyva-Martinez (TR. 50).
Officer Milone then requested surveillance of Leyva-Martinez
at his residence, 332 South 154th Street, in Omaha (TR. 51).
OPD Officer Miavage established surveillance of 332 South
154th Street around 2 p.m. on December 7, 2015 (TR. 52).
After finding the items in Unit 809, Officer Milone returned
to his office and began drafting a search warrant for
Leyva-Martinez's residence at 332 South 154th Street (TR.
52). Officer Milone intentioned to arrest Leyva-Martinez and
gave directions to Officer Miavage to utilize a uniform OPD
officer in a marked cruiser to pull Leyva-Martinez over and
arrest Leyva-Martinez if Leyva-Martinez left the residence at
332 South 154th Street (TR. 52). Officer Milone prepared an
application and affidavit for a search warrant for 332 South
154th Street and was presenting it to a Douglas County Judge
when he was informed Leyva-Martinez had been traffic-stopped
and detained (TR. 53). The warrant was signed and Officer
Milone took the warrant to 332 South 154th Street (TR. 53).
December 7, 2015, Officer Iske was in an OPD uniform and
driving a marked cruiser (TR. 5-6). Receiving instructions to
pull over a vehicle when so directed, Officer Iske parked his
cruiser in the Wycliffe Apartments parking lot awaiting
further instructions (TR. 7). Officer Iske observed a black
Ford F-250 approaching the intersection where Officer Iske
was waiting (TR. 8). Officer Iske received instruction to
traffic-stop the Ford F-250, which he did (TR. 9). Following
Officer Iske was another marked cruiser and undercover police
cars (TR. 9). The Ford F-250 pulled over and Officer Iske had
Leyva-Martinez step out of the Ford F-250 police (TR. 10).
Leyva-Martinez was handcuffed and placed in Officer
Iske's vehicle (TR. 10). Also in the Ford F-250 was a
seven-year old child who was turned over to one of the
detectives (TR. 20). The Ford F-250 and police vehicles drove
to the nearby Lifegate Church parking lot and parked (TR.
10-11). Officer Iske waited for a tow truck for the Ford
F-250 with Leyva-Martinez in the back seat (TR. 12). At some
point the Ford F-250 was searched and a pound of
methamphetamine was found in the Ford F-250 (TR. 33; 55).
After the tow truck arrived at the Lifegate Church parking
lot and secured the Ford F-250, Officer Iske drove to 332
South 154th Street and parked on the east side of the
residence (TR. 11). While waiting in the back of Officer
Iske's cruiser, Leyva-Martinez talked about his children
with Officer Iske but was not questioned about the case by
Officer Iske (TR. 14).
Milone took the signed search warrant to the residence at 332
South 154th Street and assisted in the search of the
residence (TR. 55). When informed Leyva-Martinez arrived at
the residence in the back of a police cruiser, Officer Milone
walked outside and got into the back of the police cruiser
with Leyva-Martinez (TR. 56). Officer Milone advised
Leyva-Martinez of his Miranda rights using PO Form
17 (TR. 56; Exhibit E). After Officer Milone advised
Leyva-Martinez of each right, Officer Milone wrote
Leyva-Martinez's response next to each question (TR. 57;
Exhibit E). The entire conversation with Leyva-Martinez was
in the English language (TR. 57). After being advised of his
rights, Leyva-Martinez stated: "All this is mine, she
has nothing to do with it. I want to talk, but I also might
want to talk to a lawyer. I don't want to be recorded.
What you found in the storage unit by WalMart is all I
had" (Exhibit E). Officer Milone wrote
Leyva-Martniez's statement on the form (TR. 61; Exhibit
E). Since it was getting warm in the back of the cruiser,
Leyva-Martinez asked for a drink and both Officer Milone and
Leyva-Martinez got out of the cruiser (TR. 62). Officer
Milone asked for Leyva-Martinez to cooperate with the
investigation and Leyva-Martinez said he would help if they
left him out of jail (TR. 63). Officer Milone told
Leyva-Martinez that given the investigation so far, there was
nothing he could do about keeping him out of jail (TR. 63).
Officer Milone went into the house to get Leyva-Martinez a
drink and talk to Officer Milone's sergeant, Dave Bianchi
(TR. 64). Officer Milone returned outside and spoke to
Leyva-Martinez (TR. 64). Because of documents found in Unit
809 and keys found during the search of the residence,
Leyva-Martinez was asked about other storage units (TR.
65-66). Leyva-Martinez continued to converse with the
officers and said he would show them other storage units
involved in the investigation (TR. 64-67). Leyva-Martinez
accompanied law enforcement officers when traveling to
various storage units in the Omaha area, following which
Leyva-Martinez was booked into Douglas County Corrections
(TR. 66). Officer Milone was never made aware that
Leyva-Martinez ever asked for an attorney during the entire
time Officer Milone or other law enforcement officers were
with Leyva-Martinez (TR. 68).
Nolte arrived at 332 South 154th Street and participated in
the search of the residence (TR. 25). While searching, Agent
Nolte was informed by Officer Milone that Leyva-Martinez was
going to show officers other storage units involved (TR. 26).
While waiting in the cruiser, Leyva-Martinez asked to get out
of the cruiser as his legs were cramping up (TR. 14). Officer
Iske assisted Leyva-Martinez to get out of the cruiser and
stand up (TR. 15). Leyva-Martinez was still handcuffed behind
his back (TR. 15). Agent Nolte went outside and made contact
with Leyva-Martinez, who was standing outside next to a
police cruiser (TR. 26). While standing near Leyva-Martinez,
Leyva-Martinez stated in English to Agent Nolte that he was
not lying (TR. 26). Agent Nolte told Leyva-Martinez that he
didn't ask Leyva-Martinez any questions and Agent Nolte
did not know what Leyva-Martinez was talking about (TR. 26).
Leyva-Martinez said the guns in the storage unit were his,
that he purchased them from some kids because he knew they
were stolen, and he had told his lawyer about it four to six
months ago (TR. 26). Leyva-Martinez told Agent Nolte his
lawyer was supposed to put him in contact with someone in the
OPD so he could give OPD the guns (TR. 24). Agent Nolte told
Leyva-Martinez his lawyer did not do that (TR. 26).
Leyva-Martinez continued to say he was not lying (TR. 27).
Agent Nolte heard no officer ask Leyva-Martinez any questions
and Leyva-Martinez was calm and spoke English during this
time (TR. 27). Agent Nolte then accompanied Leyva-Martinez
and other law enforcement officers while Leyva-Martinez
pointed out various storage units in the area (TR. 32).
of Storage Unit 809
asserts there was insufficient probable cause for the
issuance of the search warrant for Unit 809. After several
controlled purchases of methamphetamine from Leyva-Martinez
and after Leyva-Martinez's Ford F-250 was tracked to the
storage units at 9815 Redick Avenue, in Omaha, Nebraska,
Officer Milone drove to the storage facility. Officer Milone
spoke with the manager and used information found on storage
facility cameras and access equipment to determine the Ford
F-250's driver accessed Storage Unit 809. The manager
also identified Leyva-Martinez's photograph as a person
who accessed Unit 809 in the past. A state certified drug
detection canine, Pippin, gave a positive indication for
narcotics at the door of Unit 809. Officer Milone set forth
these details in his affidavit for a search warrant of Unit
809 (Exhibit A-1).
affidavit for a search warrant must contain probable cause of
four ingredients: time, crime, objects, and place. 2 Wayne R.
LaFave, Search & Seizure Â§ 3.7(d) at 412 (4th ed.
2004). When reviewing the sufficiency of an affidavit
"[a] totality of the circumstances test is used to
determine whether probable cause exists. Courts should apply
a common sense approach and, considering all relevant
circumstances, determine whether probable cause exists."
United States v. Hager, 710 F.3d 830, 836 (8th Cir.
2013). "Probable cause is established when there is a
fair probability that the object of the search warrant may be
found in the place to be searched." United States
v. Romo-Corrales, 592 F.3d 915, 919 (8th Cir. 2010)
(internal quotation omitted). As the Supreme Court stated in
Illinois v. Gates:
The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the "veracity" and "basis of
knowledge" of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238 (1983).
the affidavit for the search warrant for Storage Unit 809, I
find there is sufficient probable cause for the issuance of
the search warrant and ...