United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the Court on defendant Darwin Stewart's
objection (Filing No. 58) to Magistrate Judge F.A.
Gossett's Findings and Recommendation
(“F&R”) (Filing No. 51). The magistrate judge
recommended that this Court deny Stewart's Motion to
Suppress (Filing No. 19). Stewart is charged with possession
with intent to distribute 50 grams or more of a mixture or
substance containing a detectable amount of methamphetamine
in violation of 21 U.S.C. § 841.
seeks suppression of evidence obtained by law enforcement
officers as a result of a protective frisk of his person
during a traffic stop. He argues law enforcement officers
exceeded the scope of a protective frisk in violation of the
August 30, 2016, the magistrate judge held an evidentiary
hearing. The evidence adduced at the hearing is accurately
summarized in the magistrate judge's F&R and need not
be repeated here except as necessary to the Court's
opinion. At the hearing, defense counsel narrowed the scope
of the motion to suppress to the sole issue of whether Omaha
Police Department (“OPD”) Officer James
Holtmeyer's search of the defendant's pocket exceeded
the permissible scope of a valid protective frisk.
Holtmeyer testified he was conducting surveillance on a
residence when he observed the defendant in a black
sport-utility vehicle (“SUV”). Officer Holtmeyer
testified that after the SUV circled the block twice and
dropped someone off at the residence under surveillance, he
observed the driver of the SUV make a right turn without
signaling. The videotaped recording of the incident confirms
that the driver did not signal his intent to turn. Officer
Holtmeyer testified he stopped the SUV, asked for the
driver's license, conducted a data check over the radio,
and learned the driver, defendant Darwin J. Stewart
(“Stewart”) was a convicted felon considered to
be extremely dangerous.
Holtmeyer testified he then asked the defendant to step out
of the vehicle and the defendant consented to a protective
frisk. He testified he started with Stewart's
“right chest area and worked [his] way down the right
side of [Stewart's] body. And then [he] began with
[Stewart's] left side.” He stated he
“immediately felt a plastic bag in [Stewart's]
right front pocket that contained a substance through
[Officer Holtmeyer's] training and experience [he] knew
to be methamphetamine.” Although Officer Holtmeyer
first referred to Stewart's right front pocket as
containing the item, he testified shortly thereafter that the
bag was found in Stewart's left front pocket. On
cross-examination, Officer Holtmeyer clarified that he found
the bag in the defendant's left pocket. The videotaped
recording of the incident confirms that the object was found
in the defendant's left pocket.
Holtmeyer testified that, although he was not certain, he
knew the substance was methamphetamine because
“methamphetamine has a much different feel than cocaine
. . . depending on whether there are large shards in it and
its-its overall consistency.” The videotaped recording
shows the officer retrieved a bag from the defendant's
left pocket within seconds after beginning to pat down the
left side of the defendant's body.
Officer Holtmeyer's testimony, the magistrate judge
the plain feel doctrine permitted Officer Holtmeyer to search
the defendant's front pocket and to seize its contents.
Officer Holtmeyer testified that when he patted down the
defendant's front pocket, he immediately felt a plastic
bag in the defendant's front pocket that Holtmeyer knew
from his training and experience was methamphetamine.
According to Holtmeyer's testimony, corroborated by the
video of the traffic stop, he immediately removed the plastic
bag; there was no further manipulation of the contents of the
defendant's pocket to determine whether the contents
the magistrate judge recommended denial of the
defendant's motion to suppress.
objects to the magistrate judge's finding that Officer
Holtmeyer's testimony was credible. He argues Officer
Holtmeyer's testimony that the officer knew the substance
in the bag was methamphetamine appeared to rely “upon
his x-ray vision and clairvoyance” and “strains
standard of review to be applied by the district court to a
report and recommendation of a magistrate ...