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United States v. Stewart

United States District Court, D. Nebraska

December 1, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DARWIN J. STEWART, Defendant.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge.

         This 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.

         Stewart 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 Fourth Amendment.

         I. BACKGROUND

         On 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.

         Officer 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.

         Officer 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.

         Officer 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.

         Crediting Officer Holtmeyer's testimony, the magistrate judge found:

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 contained contraband.

         Therefore, the magistrate judge recommended denial of the defendant's motion to suppress.

         Stewart 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 credulity.”

         II. DISCUSSION

         The standard of review to be applied by the district court to a report and recommendation of a magistrate ...


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