United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Susan
M. Bazis United States Magistrate Judge
This
matter is before the Court on Defendant Jallana Lemuz's
Motion to Suppress. (Filing No. 15.) Lemuz is
charged in a One Count Indictment with Possession with Intent
to Distribute Cocaine Base (i.e., “crack
cocaine”) in violation of 21 U.S.C. 841(a)(1) and
841(b)(1). (Filing No. 1.) Lemuz seeks to suppress
all evidence and statements obtained as a result of her
detention and arrest in Douglas County, Nebraska on the
morning of February 14, 2017. (Filing No. 15.)
The
Court held an evidentiary hearing on June 15, 2017. Lemuz was
present with her attorney, Richard McWilliams. The United
States was represented by Assistant United States Attorney,
Martin Conboy, IV. The Court heard testimony of Douglas
County Sheriff Deputy, Jarrod Wineinger. The Court received
into evidence Deputy Wineinger's body camera video
(“Ex. 1”) and Lemuz's exhibits 101 through
118. (SeeFiling No. 21.) A transcript (TR.) of the
hearing was prepared and filed on July 10, 2017. (Filing
No. 25.) This matter is now fully submitted and ready
for decision.
BACKGROUND
On
February 14, 2017, Deputy Wineinger, who has been employed as
a Douglas County Sherriff Deputy for 16 years, was working as
a commercial interdiction officer and conducting surveillance
at the Amtrak station in Omaha, Nebraska. (TR. 5.) At
approximately 4:50 a.m., Deputy Wineinger was watching a
train come into the station. (TR. 5.) At the time, Deputy
Wineinger was in plain clothes, but was equipped with a body
camera. (TR. 6.)
Deputy
Wineinger testified at the hearing that as he was watching
passengers disembark the train and proceed down the walkway,
he noticed Lemuz walking close to the train with her head
down. He stated that he observed that she was walking very
fast compared to the other passengers. (TR. 5.) Deputy
Wineinger testified that he believed Lemuz was walking in
that manner to avoid eye contact. (TR. 7.) Deputy Wineinger
also testified that, based on his experience, he has found
that when most passengers disembark trains, they get as far
away from the train and rails as possible. (TR. 7.)
When
Lemuz walked by Deputy Wineinger, he noticed that she had a
duffel bag and black backpack. He observed that both the
duffel bag and backpack appeared to be new. (TR. 8.) At that
point, Deputy Wineinger decided to speak to Lemuz. As he
caught up with her, he noticed there was a plastic price tag
ring still on the handle of the backpack. (TR. 8.) Deputy
Wineinger testified that the duffel bag was stuffed pretty
full and the backpack appeared to be half full. (TR. 8.)
Deputy Wineinger also indicated that he did not see any
identification tags on Lemuz's bags. (TR. 13.)
Deputy
Wineinger made contact with Lemuz and identified himself with
his badge. He told her no one was in trouble and that she was
not under arrest. (TR. 10.) Lemuz looked at Deputy Wineinger,
and responded by saying, “hi, how are you doing?”
(TR. 10.) Deputy Wineinger asked Lemuz if he could ask her
some questions. Lemuz agreed, and continued to walk and talk
with Deputy Wineinger. (TR. 10.) Deputy Wineinger testified
that Lemuz told him she was traveling from Denver to South
Sioux City. (TR. 10-11.) Deputy Wineinger testified that when
he asked her if she had any identification, Lemuz stopped
walking and gave him her Colorado Id. (TR. 10.)
Deputy Wineinger testified that he looked at her ID and gave
it back to her. Deputy Wineinger stated that, at that point,
Lemuz started walking again.[1] (TR. 11.)
Deputy
Wineinger testified that he asked Lemuz the purpose of her
trip and she said it was to visit her kids. (TR. 11.) Deputy
Wineinger asked Lemuz to show him her online ticket. Deputy
Wineinger testified that Lemuz stopped, got on her phone,
found the ticket and presented it to him. (TR. 11.) Deputy
Wineinger observed that it was a one-way ticket which was
purchased on February 13, 2017, for travel on the
13th from Denver to Omaha. (TR. 11.) Deputy
Wineinger noted that the ticket had the name of a third-party
female on it. (TR. 11.) Deputy Wineinger asked Lemuz if she
was listed on the ticket as the purchaser. Lemuz told him she
was not, but that she was the other individual named on the
ticket. (TR. 11.) Lemuz explained that her friend purchased
the ticket for her. (TR. 14.) Deputy Wineinger gave Lemuz her
phone back and asked how long she was going to be in South
Sioux City. Lemuz indicated she had four days off of work.
(TR. 14.) Deputy Wineinger testified that he felt that the
amount of luggage Lemuz had with her did not match how long
she was going to be in South Sioux City. (TR. 14.)
Deputy
Wineinger testified that Lemuz was breathing heavily as they
were talking. He further testified that when she gave him her
phone to show him her information, her hands were shaking.
(TR. 14, 33.) Deputy Wineinger testified that, at one point,
Lemuz was on the verge of breaking down and crying. (TR. 31.)
Deputy Wineinger stated that Lemuz's nervousness
increased during his contact with her and that she started to
speak faster. (TR. 16.) Deputy Wineinger testified that as
Lemuz's nervousness increased, she tried to show Deputy
Wineinger her bank information on her phone. (TR. 16.) Deputy
Wineinger thought Lemuz was trying to distract him with her
bank account information to avoid answering questions. (TR.
16.) Deputy Wineinger testified that he did not want to look
at Lemuz's bank account information because he did not
want to catch her bank account number or routing number on
his body camera. (TR. 17.) Also, Deputy Wineinger stated that
he did not think the bank account information was germane to
the questions he was asking. (TR. 17.)
Deputy
Wineinger testified that after Lemuz tried to show him her
bank account information, he asked to search her luggage.
(TR. 17-18.) Lemuz denied his request and said she was in a
hurry to catch her bus. (TR. 18.) As they continued walking,
Deputy Wineinger asked Lemuz if she would mind opening her
luggage. Deputy Wineinger testified that Lemuz opened her
pink duffel bag partially, and let Deputy Wineinger look
inside. (TR. 19.) Deputy Wineinger testified that Lemuz
“moved like one clothing item” in the bag, but
that he could see another layer of clothing. (TR. 19.) Deputy
Wineinger then testified that, as they were walking, he asked
Lemuz if she would move one of the clothing items in the bag.
(TR. 20.) Deputy Wineinger stated that Lemuz told him no, and
started talking about how she had already let him look in the
bag. (TR. 20.) Deputy Wineinger stated that he explained to
Lemuz that he could not see everything in the bag, but that
he could search her bag as they walked. (TR. 20.) Deputy
Wineinger testified that, at that point, Lemuz started to
walk faster and said, “I'm showing you my
bag.” (TR. 20.) Deputy Wineinger asked Lemuz if he
could look in her backpack. (Tr. 20.) Officer Wineinger
testified that he does not recall how Lemuz responded to the
question, but that, at that point, he decided to detain her.
(TR. 20.) Deputy Wineinger requested that Lemuz consent to a
canine sniff, and she refused. (TR. 20.) Deputy Wineinger
then informed Lemuz that he was going to detain her for the
canine sniff. (TR. 20.)
After
Deputy Wineinger told Lemuz she was going to be detained,
Lemuz continued to walk toward the terminal. Deputy Wineinger
testified that he allowed her to do so and made no attempt to
stop her. (TR. 21.) Deputy Wineinger stated that he allowed
Lemuz to walk through the terminal to the cab pick-up area
outside. (TR. 21.) Deputy Wineinger testified that he thought
Lemuz's route through the terminal was significant
because it was not the most direct way to the cabs. (TR. 21.)
Once they were outside, Deputy Wineinger again asked for
consent to search Lemuz's bags, and she refused. (TR.
22.) Then, Deputy Wineinger again informed Lemuz she was
going to be detained for a canine sniff. (TR. 22.) Deputy
Wineinger testified that following this exchange, Lemuz
started talking to one of the cab drivers and acted like she
was going to call someone, so he attempted to take her phone
and she was placed in handcuffs. (TR. 22.) Deputy Wineinger
testified that when Lemuz was placed in handcuffs, she was
not under arrest. (TR. 23.) Deputy Wineinger stated that
Lemuz was placed in handcuffs so that he could further the
investigation. (TR. 23.)
After
Lemuz was handcuffed, she was taken to the west side of the
ticketing office. (TR. 24.) Investigator Peck, from the
Nebraska State Patrol, stood with Lemuz while Deputy
Wineinger got his canine out of his vehicle. (TR. 24.) While
retrieving the canine, Deputy Wineinger explained to another
officer that he detained Lemuz because she had purchased a
last-minute, third-party ticket. He also stated that Lemuz
provided him a false name. (TR. 30, 74; Ex. 1.) Deputy
Wineinger testified that, when he returned, he began speaking
with Lemuz because Investigator Peck informed him that Lemuz
had said to him that it is “in the black backpack and
made a vague statement about thinking that someone put
something in her backpack.” (TR. 24.) However, because
Deputy Wineinger felt that having the canine with him during
their conversation could be coercive, he returned the canine
to his vehicle. (TR. 24.) When Deputy Wineinger returned, he
again asked for her consent to search her bags. (TR. 24-25.)
Lemuz refused, and Deputy Wineinger went back and got the dog
to do a canine sniff. (TR. 25.)
During
the canine sniff, the dog alerted on the pink duffel bag
only. (TR. 25.) After the alert on the duffel bag, the
officers took Lemuz to the Douglas County Sherriff's
office and Deputy Wineinger obtained a search warrant for
both bags. (TR. 26.) The pink duffel bag contained clothing
and makeup items. (TR. 26.) The backpack contained some food
items, power cords, a hair brush, a pair of shoes, and a
zippered makeup bag. In the bottom of the backpack, officers
...