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United States v. Steele

United States District Court, D. Nebraska

September 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK STEELE, Defendant.

          FINDINGS AND RECOMMENDATION

          Michael D. Nelson United States Magistrate Judge

         This matter is before the Court on the Motion to Suppress (Filing No. 16) filed by Defendant, Mark Steele. Defendant filed a supporting brief (Filing No. 17) and the government filed a brief in opposition (Filing No. 37). The Court held an evidentiary hearing on the motion on August 8, 2017. Defendant was present with his attorney, William Gallup. The government was represented by Assistant United States Attorney, Thomas Kangior.

         Sergeant Jason Mayo (“Sgt. Mayo”) of the Lancaster County Sheriff's Office testified for the government. The Court received into evidence, without objection, an audio/visual recording of the traffic stop at issue (Exhibit 1). The Court also took judicial notice of Nebraska Revised Statute § 60-6, 140(1) as requested by the government, without objection. A transcript (TR.) of the hearing was filed on August 18, 2017. (Filing No. 44). The matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be granted.

         BACKGROUND

         On February 10, 2017, at approximately 9:30 a.m., Sgt. Mayo observed a white Dodge pickup truck bearing Wyoming license plates traveling westbound on Interstate 80. (TR. 11-12, 20). Sgt. Mayo testified the pickup appeared to be following another vehicle too closely for the pickup's speed of approximately sixty-five to seventy miles per hour. (TR. 13). Sgt. Mayo used a digital stopwatch and clocked the pickup traveling 0.51 seconds behind another vehicle. (TR. 14). Sgt. Mayo, who has worked full-time in traffic enforcement on Interstate 80 for four and a half years, testified that “[u]nder three seconds is the standard for the nation” and was familiar with accidents caused by vehicles following within two seconds of another vehicle. (TR. 10, 13, 15). Sgt. Mayo initiated a traffic stop of the pickup by activating his overhead emergency lights. (TR. 16). The pickup, driven by Defendant, turned on his right turn signal and pulled over to the right shoulder of the interstate. (TR. 16; Ex. 1 at 2:17).

         After making the stop, Sgt. Mayo approached Defendant's vehicle on the passenger side. Sgt. Mayo explained to Defendant the reason for the stop and expressed his intention to issue a warning. (TR. 17). Sgt. Mayo testified that he was suspicious of Defendant's demeanor due to Defendant's nervousness, diverted attention (because Defendant left his turn signal on), and reluctance to access the glove box or center counsel to retrieve proof of insurance for the vehicle. (TR. 16-18). Sgt. Mayo testified the pickup had a “lived-in look” due to loose trash and a box of 5-hour energy drinks, and noticed there were only two backpacks in the pickup, which Sgt. Mayo did not think was much luggage for an extended trip. (TR. 19). Sgt. Mayo asked Defendant to come back to the police vehicle while he filled out the warning, which he does every stop. (TR. 18; Ex. 1 at 4:07-14). After Sgt. Mayo indicated to Defendant that it was safe, Defendant exited his vehicle to sit in Sgt. Mayo's cruiser. (Ex. 1 at 5:12-5:50).

         Sgt. Mayo began writing a warning citation and asking Defendant questions. (TR. 18; Ex. 1 at 5:57). Sgt. Mayo testified that his general procedure when he conducts a traffic stop is to run the person's driver's license and vehicle registration through his cruiser's mobile data terminal, while he fills out a warning citation. (TR. 18-19). These tasks usually take a minimum of ten minutes. (TR. 19). Sgt. Mayo looked through the pickup's registration paperwork and ran Defendant's driver's license, which were satisfactory. (TR. 18, 35). Sgt. Mayo testified that as he fills out a warning, he also runs an “NCIC” or “III” to get a criminal history and check for “wants and warrants, ” and also calls for an El Paso Intelligence Center (“EPIC”) check. (TR. 19, 81). The NCIC and EPIC checks are run through a dispatcher by telephone. (TR. 81-83).

         After Defendant got into Sgt. Mayo's vehicle, Sgt. Mayo began asking a number of questions about Defendant's residence, employment, and travels. (TR. 20). Defendant told Sgt. Mayo he used to live in California near Mammoth, but had moved to Wyoming close to Salt Lake City, Utah, about three years before. (Ex. 1 at 5:57-6:49). Defendant told Sgt. Mayo he had two weeks of vacation, so he left his wife at home and went on a photo tour around Indiana and Tennessee, and was on his way home. (Ex. 1 at 7:01-31).[1] Sgt. Mayo testified that he did not see camera equipment in Defendant's pickup. (TR. 20). Defendant stated he works as a civil designer designing waste water treatment plants for the City of San Gabriel in Los Angeles, California. (Ex. 1 at 7:37-53). Defendant also stated his job entails GIS mapping, which requires measuring manholes and storm water drains for the City of San Gabriel; he described himself as a “technical nerd.” (Ex. 1 at 7:54-8:17).

         Defendant was wearing an Oakland Raiders t-shirt, so Sgt. Mayo engaged Defendant in conversation about the Raiders and other football teams. (Ex. 1 at 8:21-52). Sgt. Mayo testified the fact that Defendant was wearing an Oakland Raiders t-shirt was “important” and “suspicious” because California is a drug source state, and because Sgt. Mayo thought Defendant might not be truthful about living in Wyoming. (TR. 51-52, 58-59).[2]

         Defendant commented that he “never had to sit in a police car before.” (Ex. 1 at 8:52-57). Sgt. Mayo explained he was writing Defendant a warning and it was easier to have Defendant in his cruiser to ask questions instead of having to go back and forth between cars. (Ex. 1 at 8:58-9:13). Sgt. Mayo testified that he believed Defendant's demeanor throughout Sgt. Mayo's questioning was “odd” because Defendant would “stop and pause, as if he's thinking about his answers” and would “stop and scratch his head, ” which indicates nervousness. (TR. 21). Sgt. Mayo testified that unlike Defendant, the typical motorist's nervousness usually subsides after learning he or she is only getting a warning, and Defendant's behavior, mannerisms, and responses to questions was consistent with people who are involved in some sort of criminal activity. (TR. 24).

         Sgt. Mayo and Defendant discussed how busy the highway looked and Sgt. Mayo talked about traffic problems on Interstate 80 in the winter. (Ex. 1 at 9:14-46). Defendant said he was familiar with Interstate 80 because it runs through Wyoming. (Ex. 1 at 9:46-53). Sgt. Mayo commented on the warm weather coming in from the Rocky Mountains, and Defendant stated he was traveling home before bad weather came in from the Sierra mountains, and before it got snowy on Interstate 80. (Ex. 1 at 9:53-10:12).

         Sgt. Mayo asked Defendant how long he had been married. Defendant replied that he had been married for eleven years and had four kids that were all now adults. (Ex. 1 at 10:30-11:07). Sgt. Mayo asked if Defendant's pickup was a 2014, and Defendant talked to Sgt. Mayo about Dodge's lifetime warranties and the good deal he got on his pickup. (Ex. 1 at 11:11- 12:31). Sgt. Mayo asked Defendant if his license was “good, ” and Defendant indicated it was. (Ex. 1 at 12:45-57). Sgt. Mayo asked Defendant if he visited anyone he knew on his trip, and Defendant replied no, he was just taking photos. (Ex. 1 at 12:59-13:08).

         At this point, a second officer, Officer John Hudec, arrived at the scene to assist Sgt. Mayo by checking the VIN of Defendant's vehicle. (TR. 22; Ex. 1 at 13:08). Officer Hudec asked Defendant if he could open the pickup's door to check the VIN, and Defendant replied, “No, it's ok.” (Ex. 1 at 13:46-53). Defendant agreed to let Officer Hudec check the VIN by stepping on his front tire. (Ex. 1 at 13:54-56). As Officer Hudec went to check the VIN, Defendant said, “This is weird for me” because he never had to sit in a police car before. (Ex. 1 at 13:56-14:06). Defendant asked Sgt. Mayo if he could “give me my warning” because he would “like to be on my way.” (Ex. 1 at 14:29-30). Sgt. Mayo replied he was not done giving Defendant his warning. (Ex. 1 at 14:31-37). Defendant said he felt like he was “being detained.” (Ex. 1 at 14:37-40). Sgt. Mayo testified that the “only people that know those words are lawyers, cops, and people involved in criminal activity, and he already told me that he wasn't a lawyer or a cop.” (TR. 22-23). Defendant stated that he “know[s] what my rights are” and would “just sign it [the warning] right now.” (Ex. 1 at 14:45-54). Sgt. Mayo replied that Defendant does not sign the warning, he still had to “run [Defendant's] name, ” and asked Defendant if he had ever been arrested before or if he had any criminal history. (Ex. 1 at 14:54-59). Defendant replied “Nope” to both questions. (Ex. 1 at 15:00-02). Sgt. Mayo told Defendant he was going to run his criminal history, which Defendant indicated he thought Sgt. Mayo already had done; Sgt. Mayo replied that he had only run Defendant's driver's license. (Ex. 1 at 15:02-16).

         Officer Hudec returned to the police cruiser and stated, “VIN number is all good.” (Ex. 1 at 15:16-18). Sgt. Mayo testified that he told Officer Hudec to call the canine officer, Deputy Henkel, “as [Sgt. Mayo] walked back to speak with [Officer Hudec] briefly about the VIN number check that he had done in that time.” (TR. 48). After learning the pickup's VIN was “good, ” Sgt. Mayo told Defendant to “hang on” and “we'll finish this up.” (Ex. 1 at 15:17-20).

         After another minute of discussion with Defendant, Sgt. Mayo initiated a call to dispatch to run the EPIC check and III. (Ex. 1 at 16:11-12). Defendant asked if Sgt. Mayo had any water because his chewing tobacco was giving him cottonmouth; Sgt. Mayo replied no, but told Defendant he could get some out of his pickup if he had any. (Ex. 1 at 16:12-30). Sgt. Mayo testified to his belief that this was unusual because chew produces saliva. (TR. 23). Sgt. Mayo told Defendant he could sit in his pickup, but Defendant declined. (Ex. 1 at 16:31-35). Sgt. Mayo provided Defendant's information to dispatch after this water discussion. (Ex. 1 at 16:45-17:32).

         After Sgt. Mayo called dispatch, he began talking to Defendant again about the warning and following too closely. (Ex. 1 at 17:35-19:08). Sgt. Mayo and Defendant discussed chewing tobacco, living in Wyoming, and riding “side-by-sides.” (Ex. 1 at 19:10-22:55). Defendant commented that he had driven through Nebraska's panhandle before and liked taking that route because it is more picturesque, had less traffic, and he liked the small towns. (Ex. 1 at 22:56-23:13).[3] Sgt. Mayo talking about growing up in a small town in western Nebraska and said he would like to live there if it was not so hard economically. (Ex. 1 at 23:13-24:00). Defendant agreed, and told Sgt. Mayo he is able to fly for $90 from Salt Lake City, Utah, to Los Angeles to do his surveys for his job, then come home to ...


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