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United States v. Garcia

United States District Court, D. Nebraska

May 19, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS L. GARCIA, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp, Chief United States District Judge

         This matter is before the Court on the Findings and Recommendation (Filing No. 38), issued by United States Magistrate Judge F.A. Gossett recommending that the Motion to Suppress filed by the Defendant Jesus L. Garcia (“Defendant”) (Filing No. 28), be denied. Defendant filed Objections to the Findings and Recommendation (Filing No. 41) and a supporting brief (Filing No. 42) as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded (Filing No. 47) to the Objections. For the reasons set forth below, the Findings and Recommendation will be adopted in part and modified in part, and the Motion to Suppress will be granted in part and denied in part.

         BACKGROUND

         The Magistrate Judge stated his factual findings and conclusions of law on the record, as contained in the Transcript of the evidentiary hearing held on November 24, 2015 (abbreviated in this Memorandum and Order as “Tr.”) (Filing No. 37). Neither party directly objects to the Magistrate Judge’s factual findings. The Court provides the following summary of the facts based on its review of the evidence:

         On June 4, 2015, Defendant was traveling by Amtrak train on a ticket showing a route of California to Chicago to Washington, D.C. (Tr. 13.) When the train stopped in Omaha, several officers boarded the train to conduct interdiction activities. According to Investigator Mark Plowman (“Investigator Plowman”), the officers were specifically looking for a “male party” traveling to Chicago who might be transporting illegal items. (Tr. 8.)

         Investigator Plowman began the interdiction by walking through the upper level of the train with several other officers. (Tr. 9-10.) After briefly talking with two men in one car, Investigator Plowman walked behind Investigator Sattlefield into a second car. (Ex. 1 Video 4:38.) Partway down the aisle, Investigator Plowman spotted Defendant. (Ex. 1 Video 5:00.) Investigator Plowman testified at the evidentiary hearing that he decided to engage Defendant in a conversation because of the new-looking bag in the overhead bin above Defendant’s seat. (Tr. 11, Ex. 1 Video 14:40.) In Investigator Plowman’s experience, newer bags are often used in drug trafficking because they have “no identifying marks.” (Tr. 11; Ex. 1 Video 14:40.)

         Investigator Plowman positioned himself between Defendant’s seat and the aisle while Investigator Sattlefield stood no more than a seat or two away. (Tr. 15, 31, Ex. 1 Video 5:00-7:45.) Investigator Plowman was wearing a t-shirt and blue jeans, but immediately displayed his badge and identified himself as a police officer. (Tr. 12; Ex. 1 Video 5:00.) He told Defendant there were “no problems” and that he was not under arrest, and then asked, “Do you have a moment to talk to me?” (Ex. 1 Video 5:10.) Defendant agreed and Investigator Plowman asked to see Defendant’s ticket and began inquiring about Defendant’s itinerary. (Ex. 1 Video 5:08 - 5:55.) Defendant answered Investigator Plowman’s questions, explaining that he was on his way to Chicago to see a cousin before finally heading to Washington D.C. (Ex. 1 Video 5:08-5:55.)

         Investigator Plowman explained that he was on the train looking for people transporting “illegal things, ” and asked Defendant if there was anything illegal in his bag. (Ex. 1 Video 5:55-6:09.) Defendant said no. (Ex. 1 Video 6:09.) Investigator Plowman asked specifically whether Defendant was carrying drugs, cocaine, methamphetamine, or heroin. (Ex. 1 Video 6:09-6:12) Defendant again answered that he was not carrying any of those substances. (Ex. 1 Video 6:12.)

         Investigator Plowman asked, “Is it okay if we do a quick search [of the bag]?” the Investigator asked. (Ex. 1 Video 6:15.) When Defendant asked “why, ” Investigator Plowman quickly explained that “we got people transporting things.” (Ex. 1 Video 6:20.) Investigator Plowman continued, “Would that be okay?” Defendant replied, “I don’t know why.” (Ex. 1 Video 6:29.) Investigator Plowman testified at the suppression hearing that he took Defendant’s behavior and response at this point in the encounter as a denial of consent to search. (Tr. 21.)

         Investigator Plowman then asked Defendant, “Would it be okay if you just open it up for me and make sure?” Defendant responded “Yeah.” (Ex. 1 Video 6:29-35.) Defendant retrieved his bag, opened its, and moved clothes at Investigator Plowman’s direction while Investigator Plowman pulled the side of the suitcase to shine a flashlight inside. (Ex. 1 Video 6:50-7:01.) Investigator Plowman then asked, “can I touch the bottom?” (Ex. 1 Video 7:01-7:15.) As Defendant responded “I don’t know why, ” Investigator Plowman reached in and touched the bottom of the bag. (Ex. 1 Video 7:05, Tr. 16.) Investigator Plowman then asked if Defendant would move his clothes at one end of the bag. (Ex. 1 Video 7:01-7:15.) Defendant complied, and Investigator Plowman inspected to the bottom of the bag with his flashlight. (Ex. 1 Video 7:25-7:30.) Investigator Plowman then gestured to the other end of the bag and asked, “Can we go that way please?” (Ex. 1 Video 7:25-7:30.) Defendant replied, “yep” and moved his clothes at another end of the bag. (Ex. 1 Video 7:30; Tr. 17.) Investigator Plowman spotted an item and the following exchange occurred:

Investigator Plowman: What’s that right there?
Defendant: Huh?
Investigator Plowman: Pull that shirt up for me will ya please?
Defendant: [Pulls shirt back]
Investigator Plowman: Where your hands are what’s that yellow underneath... ...

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