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United States v. Polite

United States District Court, D. Nebraska

September 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DARNELL POLITE, Defendant.

          FINDINGS AND RECOMMENDATION

          Michael D. Nelson United States Magistrate Judge

         This matter is before the Court on the Motion to Suppress and Request for Evidentiary Hearing (Filing No. 14) filed by Defendant, Darnell Polite. Defendant filed a brief in support of the motion (Filing No. 15) and the government filed a brief in opposition (Filing No. 17).

         The Court held an evidentiary hearing on the motion on August 29, 2017. Defendant was present with his attorney, Richard McWilliams. The government was represented by Assistant United States Attorney, Matt Lierman. City of Omaha police officers Mike Sundermeier (“Officer Sundermeier”) and Officer David Preston, Jr. (“Officer Preston”) testified on behalf of the government. The Court received into evidence Exhibits 1 through 17 offered by the government, and Exhibits 101 and 105 through 116 offered by Defendant. A transcript (TR.) of the hearing was prepared and filed on September 11, 2017. (Filing No. 48). This matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be denied.

         BACKGROUND

         On October 31, 2016, Officer Sundermeier and Officer Preston, both assigned to the Gang Unit of the Omaha Police Department (“OPD”), were on duty and patrolling a residential area of 48th and Boyd and Sahler Streets in Northeast Omaha, which had seen an increased presence of Crips gang members. (TR. 5, 50-51). Officer Sundermeier was familiar with the area from prior narcotics and firearm investigations and had recovered firearms from the area on at least two prior occasions. Officer Preston knew of homicides that have occurred there. Both officers knew the area was associated with the Crips gang, including the 40th Ave., Hilltop, and 44th Ave. Crips. (TR. 7, 51). The officers were dressed in jeans and tactical vests marked with “Police” on both sides. (TR. 9). They were also equipped with handcuffs, firearm, baton, mace, and a shoulder mounted audio/visual recording system. (TR. 10, 71).

         At approximately 10:35 p.m. on October 31, 2016, Office Sundermeier and Officer Preston were driving eastbound on Sahler Street in Preston's unmarked Dodge Magnum to an apartment complex located at 4842 Sahler Street. (TR. 7-8, 50-51). The manager and property owner of the apartment complex had previously contacted police about the increased activity of people hanging around out front of the apartment complex, and asked police to encourage individuals not to hang out there. (TR. 10-11, 51). The apartment management provided police with keys to access the apartment's locked front doors to aid their patrol. (TR. 11).

         When Officer Sundermeier and Officer Preston arrived at the apartment complex, they observed approximately twenty people standing in a parking lot out front. (TR. 13, 52). The officers recognized some individuals as 40th Ave. and 44th Ave. gang members from the officers' prior contacts. (TR. 12, 53). Officer Sundermeier stopped and activated the Dodge's red and blue lights, at which point the officers observed parties disperse east away from the officers, and west towards the apartment complex door. (TR. 13-14, 53-54).

         When Officer Sundermeier exited his vehicle, he observed one individual, identified as Defendant, quickly bend down for approximately one second behind a blue Chevrolet Impala as soon as Officer Sundermeier began approaching him. (TR. 14-15, 18). Officer Sundermeier did not initially see anything in Defendant's hands. (TR. 48). No one else was in the area immediately around Defendant. (TR. 19). As Defendant ducked down behind the Impala, Officer Sundermeier heard an object hit the ground where Defendant was standing. Officer Sundermeier attributed this first sound to Defendant. Almost immediately after hearing the first sound, Officer Sundermeier then heard another object hit the ground a little bit to Defendant's east. Officer Sundermeier attributed the second sound to a group of four other individuals, including a known Crips member. (TR. 14, 17-18, 40). Officer Sundermeier described the first sound as a “metallic thump . . . metal-on-metal, ” and the second sound as metal or something heavy hitting the ground. (TR. 16-17). Officer Sundermeier has heard similar sounds on previous occasions when he has recovered firearms. (TR. 17). Officer Sundermeier was between twenty to thirty feet away from Defendant when he heard the sounds. (TR. 45). Officer Preston did not hear the sounds because he was speaking to a large group of people farther away. (TR. 55).

         Officer Sundermeier knew Defendant from prior contacts. On a previous occasion, Officer Sundermeier was informed by Defendant that he is a 40th Ave. Crips gang member. Additionally, in June 2016, during the execution of a search warrant, Officer Sundermeier recovered two firearms and drugs from a residence where Defendant was living. (TR. 27-28, 32-33). Importantly, Officer Sundermeier also knew from his prior contacts that Defendant was under the age of 21. (TR. 29).

         Officer Sundermeier walked to make contact with Defendant, believing Defendant had just discarded a firearm. (TR. 18). Officer Sundermeier immediately placed Defendant, who was holding a cell phone, in handcuffs and asked if he had discarded a firearm. (TR. 18-19, 48). After placing Defendant in handcuffs, Officer Sundermeier moved to the front of the Impala to look in the area where Defendant had ducked down. (TR. 20). In that location, Officer Sundermeier saw a Makarov semi-automatic pistol in the grass between the sidewalk and the building. (TR. 20, 41). The firearm was not covered in dust and did not appear to have been there for a long time. (TR. 20-21). Officer Sundermeier remained standing next to the firearm until its location could be documented and photographed. (TR. 23). Once the Crime Lab arrived on the scene, Officer Sundermeier obtained the serial number of the firearm recovered near Defendant and found it was not registered. (TR. 29).

         A second firearm wrapped in a blue bandana was found in the location where Officer Sundermeier had heard the second sound and observed the four other individuals, including the known Crips member. (TR. 23). The Court received into evidence photographs of the recovered firearms and area around them (Exhibits 5-10), as well as the body camera footage from Officer Sundermeier's body camera (Exhibit 17) and Officer Preston's body camera (Exhibit 16).

         The officers transported Defendant to Central Headquarters to be interviewed. (TR. 29, 60). Defendant was placed in an interview room equipped with an audio/visual recording system, which was activated when Defendant was first placed in the room. (TR. 62-63). The audio/visual recording of the interview room was received into evidence (Exhibit 15). (TR. 63). Defendant's handcuffs were taken off once he was in the interview room. (TR. 84).

         Officer Preston conducted the interview with Defendant. Prior to the interview, Officer Preston utilized an OPD Rights Advisory Form (Exhibit 4), which he read to Defendant word for word. (TR. 64-65). Officer Preston believed Defendant was under the influence of marijuana, but he appeared to be in tune, lucid and understood what was taking place. Defendant also responded appropriately to questions. (TR. 65). Officer Preston made no threats or promises, and Defendant did not appear to be under duress or have any medical issues. (TR. 66).

         Officer Preston questioned Defendant for less than an hour. (TR. 66). During the interview, Defendant consented to provide a DNA sample and provided his address which was placed on a consent form (Exhibit 3). (TR. 66-67). Officer Preston testified that both he and Defendant signed the consent ...


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