United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
D. Thalken United States Magistrate Judge.
matter is before the court on the Motion to Suppress (Filing
No. 46) filed by defendant Jeron Morris (Morris). Morris is
charged in the Indictment along with co-defendant Preston
Pope (Pope). Pope and Morris are charged in Count I of the
Indictment with a violation of 18 U.S.C. §§ 1951
and 2, i.e., the robbery of a Walgreens store by threatened
force and display of a handgun in Omaha, Nebraska, on August
11, 2015. The Indictment charges the language of the Hobbs
Act dealing with robbery affecting interstate commerce. Both
Pope and Morris are charged in Count II of the Indictment
with a violation of 18 U.S.C. §§ 924(c) and 2,
i.e., brandishing a firearm during a crime of violence which
may be prosecuted in a court of the United States for the
crime charged in Count I of the Indictment. Pope and Morris
are charged in Count III of the Indictment with a violation
of 18 U.S.C. §§ 2113(a) and 2, for the August 11,
2015, robbery of the U.S. Bank in Omaha, Nebraska, by force,
violence and intimidation. Pope and Morris are charged in
Count IV of the Indictment with a violation of 18 U.S.C.
§§ 924(c) and 2, i.e., brandishing a firearm during
a crime of violence for the bank robbery charged in Count II
of the Indictment. Pope is charged in Count V with the August
14, 2015, possession of a handgun in Omaha, Nebraska, after
having been convicted of a felony, i.e., third degree assault
of an officer, in violation of 18 U.S.C. §922(g). Morris
is charged in Count VI with the September 27, 2015,
possession of a handgun in Omaha, Nebraska, after having been
convicted of a felony, i.e., domestic assault causing bodily
injury, in violation of 18 U.S.C. § 922(g).
17, 2016, the court held an evidentiary hearing on
Morris' motions to suppress and sever along with
co-defendant Pope's motions to suppress and sever. During
the hearing, the court heard the testimony of Omaha Police
Department (OPD) Officer Douglas Herout (Officer Herout)
among others and received into evidence, inter
alia, a search warrant for a white Ford Expedition
being held at the OPD Impound Lot (Exhibit 2). During the
hearing, Morris requested a continuance of the hearing on his
motion to suppress. The court granted Morris' request but
completed the hearing as to Pope's motion to suppress and
both defendants' motion to sever. The remainder of the
evidentiary hearing on Morris' motion to suppress was
continued to August 2, 2016.
the hearing of August 2, 2016, Morris was present with his
counsel, Assistant Federal Public Defender Karen M. Shanahan.
The United States was represented by Assistant U.S. Attorney
Susan T. Lehr. In Filing No. 46, Morris seeks to suppress the
search of his vehicle on September 27, 2015. The court heard
the testimony of OPD Officers Jacob Pursell (Officer
Pursell), Steven Fornoff (Sergeant Fornoff), Katie Rath
(Officer Rath), and Adam Fisher (Officer Fisher). Morris'
brief was due ten days following the filing of the
transcript. The transcript (TR.) was filed on August 6, 2016
(Filing No. 69). Morris subsequently requested and received
an extension for filing his brief, which was filed on
September 20, 2016 (Filing No. 73). The government requested
and received an extension for filing its responsive brief,
which was filed on October 13, 2016 (Filing No. 77).
August 11, 2015, at around 12:45 a.m., two black males
arrived in a white Buick and robbed a Walgreens located at
3001 Dodge Street in Omaha, Nebraska, at gunpoint (TR.
13-14). One of the men pointed a firearm at a customer and
took his wallet (TR. 13). The other man jumped a counter
where the store clerk was located and started to empty the
cash register (TR. 13). The suspects fled the store (TR. 14).
on August 11, 2015, at around 5:45 p.m., two males robbed a
U.S. Bank located inside the No Frills grocery store at 4240
South 50th Street in Omaha (TR. 14). One of the suspects
jumped the counter and ordered a bank teller to place money
into a bag, while the other suspect pointed a gun at the
tellers and customers in the bank (TR. 14). Following the
robbery, the two suspects drove away in a white Buick LeSabre
(TR. 14, 18). The white Buick LeSabre was later found near
60th and Frederick Streets, where witnesses stated they
observed two black males get out of the white Buick and enter
a green SUV or minivan (TR. 15, 18). When law enforcement
searched the abandoned white Buick, they found a magazine
containing a forty-caliber live round of ammunition (TR.
August 14, 2015, OPD officers located a green minivan driven
by Pope who was subsequently arrested and detained (Findings
and Recommendation, Filing No. 71). A firearm was discovered
as a result of Pope's arrest (TR. 17). Following
Pope's arrest, OPD officers searched the house of
Pope's half-brother and found the box to the firearm and
located a white Ford Expedition with paper license plates
parked in the driveway (TR. 18, 23). One of the bait bills
from the U.S. Bank robbery was used in the purchase of the
Ford Expedition (TR. 24). Morris was developed as the other
suspect in the robberies and an OPD locate bulletin was
issued for Morris.
September 27, 2015, Officer Pursell was on patrol in uniform
and in a marked cruiser in the Southwest Precinct, which is
south of Dodge Street and west of 42nd Street in Omaha,
during the A shift, which is 10:40 p.m. to 7:10 a.m. (TR.
116). At approximately 1:12 a.m., Officer Pursell received a
dispatch regarding a wanted party, i.e., Jeron Morris, at the
Flashbacks bar at 3013 South 83rd Plaza, Omaha, Nebraska (TR.
116-117). The dispatch advised that an anonymous caller
recognized Morris from a Crime Stoppers broadcast. The caller
added Morris arrived in a white Ford Expedition with a
partial license plate number of “SYL” and Morris
was armed with a firearm (TR. 117). Officer Pursell drove to
Flashbacks and was joined by Officer Fisher who arrived in
uniform and in a separate marked cruiser (TR. 117-118). The
officers located the Ford Expedition parked in the parking
lot and parked their cruisers near the Ford Expedition (TR.
118). The officers performed computer data checks on the
vehicle and Morris (TR. 119). The check came back that the
license plate on the Ford Expedition was stolen out of
Bellevue, Nebraska, and the VIN number of the Ford Expedition
came back registered to a U-Win Auto Sales (TR. 118). The
data check for Jeron Morris revealed a locate for the OPD
robbery unit and a photo of Morris (TR. 119). Sergeant
Sheridan, also in uniform and in a marked cruiser, arrived on
the scene and called for additional cruisers to stage at
separate entrances of Flashbacks in the event Morris exited
through one of the exits of Flashbacks other than facing the
parking lot (TR. 120).
Fisher alerted the other officers that he saw Morris exiting
Flashbacks (TR. 120). Sergeant Sheridan approached Morris and
called to Morris by using Morris' first name, Jeron (TR.
120). After looking at Sergeant Sheridan and Officers Fisher
and Pursell, Morris ran eastbound through the parking lot
(TR. 120). Officer Pursell pursued Morris on foot eastbound
through the Flashbacks parking lot, then Morris ran
northbound through the parking lot, ran eastbound again,
crossed 82nd Avenue, ran through the Police Federal Credit
Union parking lot, around the north side of the Credit Union,
ran eastbound, jumped over a retaining wall, ran further
eastbound, jumped another retaining wall, and continued
through the American Red Cross parking lot where he ran up a
flight of stairs and disappeared from Officer Pursell's
sight (TR 121). Officer Pursell drew his firearm and ran up
the stairs where he discovered Morris lying prone on the
concrete (TR. 121). Officer Pursell held Morris at gunpoint
until other officers arrived and handcuffed Morris (TR. 122).
Morris was taken back to the Flashbacks parking lot and no
weapon was found on Morris (TR. 136). Officer Pursell walked
back to trace the flight path of Morris but found no weapon
Sheridan called Sergeant Fornoff, who was aware of the armed
robberies at the Walgreens store and the U.S. Bank (TR. 131).
When informed of the detention of Morris and the location of
the white Ford Expedition bearing stolen plates, Sergeant
Fornoff requested the vehicle be towed to the OPD Impound Lot
and to conduct an inventory search of the vehicle (TR. 133).
Officer Rath, also at the Flashbacks scene, was told to
conduct the inventory search (TR. 143). Officer Rath opened
the door to the Ford Expedition and looked under the front
seat where she saw a black handgun (TR. 143). Sergeant
Fornoff received a second call from Sergeant Sheridan who
told Sergeant Fornoff a firearm had been located in the
vehicle at the beginning of the search and the search of the
vehicle was stopped (TR. 134). Sergeant Fornoff was aware of
Morris' prior conviction for domestic violence, which
would have prohibited Morris from possessing a firearm (TR.
133). Sergeant Fornoff instructed Sergeant Sheridan to stop
any further search of the vehicle, have it towed to the
impound lot, and await a search warrant for the vehicle (TR.
134). Officer Fisher completed the tow report, and
accompanied the Ford Expedition in tow to the OPD Impound Lot
(TR. 157). A search warrant for the Ford Expedition in the
OPD Impound Lot was obtained by Detectives Hardisty and Cook
(TR. 134; Exhibit 2). Subsequently, the Ford Expedition was
searched and various items were seized from the vehicle as
reflected on the OPD Receipt and Inventory (Exhibit 2).
seeks to suppress the firearm found in the white Ford
Expedition parked outside of Flashbacks on September 27,
2015. Morris asserts the firearm was unlawfully seized under
the pretext of an inventory search as an exception to the
warrant requirement of the Fourth Amendment.
police officer, after lawfully taking custody of an
automobile, may conduct a warrantless inventory search of the
property to secure and protect vehicles and their contents
within police custody.” United States v.
Rehkop, 96 F.3d 301, 3015 (8th Cir. 1996). Sergeant
Fornoff testified it is the policy of the OPD to inventory a
vehicle if it is going to be towed to foreclose claims
against the OPD for damage or lost property (TR. 132). The
vehicle was going to be towed after finding stolen license
plates on the white Ford Expedition. Even if the police
suspect other illegal activity, they are not precluded from
conducting an inventory search of an impounded vehicle.
United States v. Harris, 795 F.3d 820, 822 (8th Cir.
2015). The inventory search was stopped upon locating the
firearm underneath the driver's seat, and the Ford