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United States v. McCain

United States District Court, D. Nebraska

September 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON D. MCCAIN, Defendant.

          FINDINGS RECOMMENDATION AND ORDER

          Cheryl R. Zwart United States Magistrate Judge

         Pending before the court is the Motion to Suppress filed by Defendant Jason McCain. (Filing No. 22). McCain seeks to suppress all evidence obtained as a result of the April 22, 2017 stop and search of his vehicle. For the following reasons, Defendant's motion should be denied.

         BACKGROUND

         After hearing the testimony and reviewing the documentary and video evidence, the undersigned magistrate judge finds the following facts are credible.

         On Friday, February 24, 2017, at approximately 9:30 a.m., a branch of U.S. Bank located at the corner of 56th Street and Highway 2 in Lincoln, Nebraska was robbed. The suspect was a lone black male wearing a dark-colored parka coat with a fur-lined hood. (Gov. Exh. 1). His face and hands were covered. He entered the bank, handed the bank employees a bag and told them to fill it.

         Following the robbery, the suspect headed west on foot. One witness, a customer who was able to exit the bank while the robbery was occurring, called 911 and reported the robbery. This customer then followed the suspect when he left the bank and walked west toward a nearby apartment complex. The customer then lost sight of the suspect.

         The Lincoln Police Department (“LPD”) arrived at the bank minutes after the robbery occurred and began its investigation, which was led by LPD Investigator Timothy Cronin. Light snow was falling that morning and after following the path described by the witness, an LPD officer located freshly made footprints in the snow near the apartment buildings. Led by another officer and his canine, the officers were able to track the footprints to the corner of South 52nd Street and Boeckner Avenue. The officers canvassed the immediate area and observed that two of the east-facing homes on S 52nd Street had video surveillance cameras. The first home was on the corner of S 52nd and Boeckner Street (“Home 1”). (See Gov. Exh. 2). The second home was located 5 or 6 houses to the North of the first (“Home 2”). (See Id.). LPD made contact with the owners of those houses and eventually received their surveillance video recordings for the morning of February 24, 2017.

         Reviewing these videos, it appeared that a White Ford SUV with white-painted bumpers, black door handles, and no visible front license plate drove Northbound on S 52nd Street around 9:07 a.m. past Homes 1 and 2.[1] (See Gov. Exhs. 3, 4, 4A, 4B, & 4C). Around 9:16 a.m., the SUV returned to the neighborhood with its back license plate now removed. The SUV parked on S 52nd Street approximately one house south of Home 2. (Gov. Exhs. 2, 3, & 4). The driver exited the SUV and began walking South on S 52nd Street then turned East on Boenecker Avenue, exiting the neighborhood and the view captured on the videos. (Gov. Exhs. 3 & 4). At around 9:34 a.m., a man can be seen on the Home 1 video walking West along Boeneckner Ave, turning North onto S. 52nd Street, approaching the SUV, entering it, and driving the vehicle North out of the view of both surveillance cameras. Correlating the timing of the robbery with the video footage, and having followed footprints in the snow from the bank to the S 52nd Street area depicted in the videos, [2] the LPD concluded that the robbery suspect walked to and from the bank from the S 52nd St and Boenecker Avenue neighborhood, and that he arrived in and left that neighborhood in the White SUV depicted in the home surveillance videos.

         After the events on February 24, 2017, Investigator Cronin attempted to identify the SUV. He consulted with employees at the Anderson Ford car dealership and determined the suspect SUV was a 2002 to 2005 Ford Explorer. Cronin then performed a computer search and located roughly 60 or 70 vehicles registered in Lancaster County that may fit the description of the suspect vehicle. Cronin and other LPD officers visually observed each of these vehicles at the place where they were registered and concluded that none were the vehicle from the February 24, 2017 robbery. Each vehicle either had different door handle colors, wheel options, painted bumpers, bumper stickers, or other observable characteristics that were inconsistent with the suspect Explorer.

         At that point, Investigator Cronin expanded the scope of his search to include vehicles from Omaha. After narrowing the search for known exclusions, Cronin concluded there were to 30 or 40 vehicles which could be the suspect Explorer in Omaha. Cronin and other LPD officers were able to locate, visually observe, and eliminate about half of the vehicles on the Omaha list. Defendant McCain's Ford Explorer was on Cronin's Omaha list, but the LPD officers were unable to personally observe McCain's vehicle during one of the trips to Omaha.

         On Saturday, April 22, 2017, at approximately 9:25 a.m., the U.S. Bank in Lincoln, Nebraska was robbed again. Investigator Cronin was in his office and received a communication describing the robbery. Like the suspect from the February 24, 2017 robbery, the April 22, 2017 suspect was described as a lone black male wearing a dark-colored parka coat with a fur-lined hood. (Gov. Exh. 5). According to the bank employees, the suspect appeared to be the same height, weight, and general appearance as the February robbery suspect, and he had the same mannerisms, voice, and style of clothing. Based on these factors, the employees of the bank reported to LPD that the April suspect was the same person who robbed the bank on February 24, 2017. But in the April robbery, the suspect escaped riding a bicycle North from the bank, carrying the stolen money in an orange bag.

         Based on this information, LPD put out a broadcast reporting the robbery at approximately 9:30 a.m. that morning. The broadcast included the name and location of the bank, and stated the suspect was a black male who left the bank on a bicycle. Nebraska State Patrol (“NSP”) Trooper Jeff Rutan was working the morning of April 22, 2017, and he heard the LPD broadcast as he was about to leave the office. Rutan decided he would park his cruiser on the interstate just east of the Waverly, Nebraska interchange, which also provides access to the far east edge of Lincoln, Nebraska. Rutan surmised that if the robbery suspect was headed from Lincoln to Omaha, he may choose that interchange to enter Interstate 80. When Rutan was near his planned position, LPD released another broadcast stating that a White Ford Explorer, approximately year 2005, may be involved in the robbery. LPD included this information in the second broadcast after Investigator Cronin determined that the April 22, 2017 robbery was likely committed by the same suspect who had robbed the bank on February 24, 2017.

         Approximately 20 minutes after hearing the second broadcast, Trooper Rutan saw a vehicle matching the broadcast's description traveling east on the interstate. From Rutan's own personal experience as a long-time Lincoln resident, he knew that it would take approximately 20 minutes to travel from the U.S. Bank where the robbery occurred and his location on the interstate. When the Explorer passed, Rutan observed a black male in the driver's seat and no other passengers in the vehicle. Rutan exited the median to follow the vehicle.

         The Explorer was traveling at approximately 65 miles per hour. Rutan observed this was odd given the interstate speed limit is 75 miles per hour because, in his experience, most interstate travelers drove at least the speed limit. Rutan did ...


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