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United States v. Bailey

United States District Court, D. Nebraska

August 24, 2017



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

         This matter is before the Court on the Findings and Recommendation (Filing No. 42) of the magistrate judge recommending the Court grant Sara Elaine Bailey's (“Bailey”) Motion to Suppress (Filing No. 25). The government objects (Filing No. 43) to the Findings and Recommendation, arguing the magistrate judge “erred in her conclusions of law.” While the Findings and Recommendation are detailed and well-reasoned, based upon a de novo review of the evidence and the relevant Eighth Circuit precedent, the government's objection is sustained and the Motion to Suppress is denied for the reasons stated below.

         I. BACKGROUND

         Around noon on September 1, 2016, Nebraska State Patrol Trooper Robert Pelster (“Trooper Pelster”) was monitoring Interstate 80 three miles west of Seward, Nebraska. Trooper Pelster noticed an expensive Mercedes sport utility vehicle (“SUV”) with Utah license plates. Trooper Pelster deduced the SUV was rented due to its age, color and the lack of dealer aftermarket features. The driver, Bailey, was traveling by herself and leaning back slightly in her seat. Deciding this merited further investigation, Trooper Pelster began to follow the SUV. Eventually, the SUV passed a semi-truck and moved back into the right-hand lane in front of the truck which put the truck less than five-tenths of a second behind Bailey when she completed the pass. Estimating Bailey only left two car-lengths between the SUV and the truck, Trooper Pelster initiated a traffic stop based on what he determined to be an unsafe pass in violation of Nebraska Revised Statute § 60-6, 133(1).[1]

         Trooper Pelster spoke with Bailey and informed her that she would receive a warning for unsafe passing. He asked her to come back to his cruiser so he could ask her some questions while he checked her license and registration. Bailey complied, and while in the cruiser, she spoke with Trooper Pelster as he performed the background check. Bailey was traveling with a large dog which she left in the SUV.

         In the cruiser, Trooper Pelster initiated a conversation with Bailey about her trip, her husband, and her criminal history. Bailey stated that she was returning to Salt Lake City from visiting a friend in Indianapolis who had just moved there. Her friend had a very small window of availability so Bailey only stayed for one day. Bailey added that she drove (rather than flew) because she was five months pregnant and because her dog was too large to fit on an airplane.[2] Bailey stated she was traveling by herself because her husband, whom she described as a “blue collar” worker, was at home working.

         When asked about her criminal history, Bailey admitted that she had been arrested once before for driving under the influence (“DUI”). Trooper Pelster could not recall whether the offense involved drugs or alcohol. Trooper Pelster soon discovered Bailey had given an incomplete criminal history. Bailey's criminal-history check revealed Bailey had a fourteen-year-old burglary charge and a twelve-year-old battery charge that she failed to mention.

         Trooper Pelster returned Bailey's documents and issued her a warning ticket. As Bailey began to exit the cruiser, Trooper Pelster inquired if he could ask a few more questions. Bailey agreed. Trooper Pelster explained that he was troubled by her itinerary, which consisted of four days on the road and only one day in Indianapolis. He also expressed concern at the over $1, 600 cost for renting the luxury Mercedes SUV.[3]

         Trooper Pelster asked Bailey if she was responsible for everything in the SUV and if it contained anything illegal. Bailey agreed she was responsible for everything in the vehicle but denied that there was anything illegal in the SUV. Trooper Pelster asked Bailey whether she was engaged in any illegal activity which Bailey denied.

         Trooper Pelster requested permission to search the SUV and Bailey refused consent. Trooper Pelster then asked Bailey if she would remain until a canine unit arrived. Bailey reluctantly agreed.[4] With Trooper Pelster's permission, Bailey went back to the SUV to tend to her dog. Trooper Pelster told Bailey not to leave until the canine unit arrived.

         When the canine unit arrived at the scene, another trooper deployed the drug dog around the SUV. The dog alerted.[5] Upon searching the vehicle, Trooper Pelster discovered $179, 285 concealed inside the SUV, as well as a small amount of marijuana. As a result of the discovery, Bailey was transported to a State Patrol office where she made further statements.

         Bailey has moved to suppress the evidence found inside the SUV as well as any later-acquired evidence, claiming the initial traffic stop was not based on probable cause, and that there was no reasonable suspicion to justify Bailey's continued detention pending the arrival of the canine unit. After a lengthy hearing during which Trooper Pelster was questioned at length, the magistrate judge recommended the Motion to Suppress be granted, finding for Bailey on both grounds. This Court respectfully disagrees with those conclusions.


         A. ...

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