United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge
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.
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.
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).
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).
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).
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). 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).
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).
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).
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
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).
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).
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).
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).
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). 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 ...