United States v. Lemuz

          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 13^th 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 ...