United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard, United States District Judge.
matter is before the Court on the defendant's motion to
suppress evidence (filing 15), the Magistrate Judge's
Finding and Recommendation (filing 26) recommending that the
motion be granted, and the government's objection (filing
29) to the finding and recommendation. Having conducted a
de novo review of the record pursuant to 28 U.S.C.
§ 636(b)(1)(C), the Court will adopt the Magistrate
Judge's recommendation. Accordingly, the government's
objection (filing 29) will be overruled, and the
defendant's motion to suppress (filing 15) will be
facts of this case, generally summarized, are as
follows. On February 14, 2017, the defendant
traveled from Denver, Colorado to Omaha, Nebraska by Amtrak
train. Filing 26 at 1-3. Immediately upon disembarking from
the train, the defendant was approached by Deputy Wineinger
of the Douglas County Sheriff's Office, who was working
as a commercial interdiction officer and conducting
surveillance at the Amtrak station. Filing 26 at 1. Wineinger
asked the defendant several questions about her identity and
whereabouts, and eventually sought permission to search her
duffel bag and backpack. After resisting the officer's
request, the defendant was detained, and the officer's
police dog was deployed to perform a canine sniff. Filing 26
at 2-5. The dog alerted to the defendant's duffel bag
only, and the defendant (and her luggage) were transported to
Wineinger's office, where he obtained a search warrant
for both bags. No illegal substances were found in the
defendant's duffel bag, but Wineinger did uncover a
"cellophane-wrapped, heat-sealed bundle of a white,
powdery substance" in the defendant's backpack that
Wineinger believed was cocaine. Filing 26 at 5.
defendant has moved to suppress the evidence, arguing that
she was unlawfully seized in violation of the Fourth
Amendment. See filing 26 at 5; filing 16. As a
result, the defendant contends, "all evidence discovered
during the search of her bags must be suppressed as
inadmissible fruit [of the poisonous tree]." Filing 16
at 16. The government argues that Wineinger's
investigatory stop was supported by reasonable suspicion, and
therefore justified under the Fourth Amendment. Filing 18 at
6. It points to several factors which, it claims, supports
that argument, including: (1) the defendant's arrival
from a "source location"; (2) the defendant's
purchase of a one-way ticket; (3) the defendant's
luggage, which was "new" and "still had the
pricetag ring attached"; and (4) the defendant's
demeanor during the encounter, which Wineinger generally
described as "nervous." Filing 18 at 6-7; filing 26
Magistrate Judge held an evidentiary hearing on the
defendant's motion on June 15, 2017. There, the
government adduced extensive testimony from the arresting
officer, Wineinger, regarding the events leading up to and
following the underlying encounter. The Court also received
video footage of the incident from Wineinger's body
camera, and defendant's exhibits 101 through 118.
See filing 21.
Magistrate Judge, after a thorough review of the argument and
evidence, issued a Finding and Recommendation (F&R),
recommending that this Court grant the defendant's motion
to suppress. Filing 26. Specifically, the Magistrate
Judge-examining the totality of the circumstances-found that
the government's justifications for the investigatory
stop did "not generate reasonable suspicion to warrant
[the defendant's] detention." Filing 26 at 7.
Rather, the Magistrate Judge concluded, the government's
stated reasons for the stop (i.e., the
defendant's one way ticket, her newer-looking luggage,
etc.) were "consistent with innocent travel" and
therefore insufficient, at least for Fourth Amendment
purposes, to justify the seizure. Filing 26 at 7 (citing
United States v. Campbell, 843 F.2d 1089, 1093-94
(8th Cir. 1988)). The Magistrate Judge also found
Wineinger's testimony "less than credible, "
pointing to apparent discrepancies between the officer's
description of events and the encounter as depicted on his
body camera. Filing 26 at 10.
government objects to the Magistrate Judge's F&R.
Filing 29. It contends that the Magistrate Judge, while
correctly acknowledging the "totality of
circumstances" standard, failed to fully consider each
of the government's justifications for the stop. Filing
30 at 10. As a result, the government contends, the
Magistrate Judge incorrectly determined that the arresting
officer lacked reasonable suspicion to detain the defendant.
See filing 30 at 16. The government also
objects to the Magistrate Judge's "less than
credible" determination regarding Deputy Wineinger.
Filing 30 at 16. To that end, the government claims that the
discrepancies, if any, were insignificant, and that Wineinger
in no way intended to "mislead the court or to
intentionally present false testimony." Filing 30 at 19.
Accordingly, the government urges the Court to reject the
F&R to the extent that its "less than credible"
language constitutes a "finding." Filing 30 at 17.
government has, to some extent, overstated the issues
presently before the Court. People often perceive or recall
events differently, and the Court may consider and resolve
those discrepancies without ascribing them to deceit. Indeed,
the Court need not, and does not, determine whether Deputy
Wineinger attempted to deceive or in some fashion mislead the
Court during his testimony.
the Court must, upon a de novo review, determine
whether the arresting officer had reasonable suspicion to
justify the investigatory stop. And that inquiry turns on
whether Wineinger was aware of "particularized,
objective facts which, taken together with rational
inferences from those facts, reasonably warrant suspicion
that a crime is being committed." United States v.
Houston, 548 F.3d 1151, 1153 (8th Cir. 2008) (quoting
United States v. Martin, 706 F.2d 263, 265 (8th
Cir.1983)). For the reasons set forth in the F&R, and
after careful review of the entire record, the Court finds
that Deputy Wineinger lacked reasonable suspicion to initiate
the stop, and that the evidence must therefore be suppressed.
clear: the Court does not suggest that the discrepancies
between Wineinger's testimony and the events depicted in
the video footage are entirely irrelevant. In fact, the Court
agrees that such discrepancies exist, particularly with
respect to Wineinger's description of the defendant's
demeanor. For example, it does not appear from the video that
the defendant's hands were shaking, or that she was
"on the verge of breaking down and crying" as
Wineinger testified. See filing 25 at 15, 21,
31. And it is clear, despite Wineinger's
confusion, that the defendant was forthright about her
identity when initially asked-a point that Wineinger has
since acknowledged. See filing 30 at 17.
again, the question here is not whether the officer's
testimony perfectly described the events leading up to the
defendant's arrest. It is whether the officer's
seizure was supported by objectively reasonable
suspicion of criminal activity. See United
States v. Eustaquio, 198 F.3d 1068, 1070 (8th Cir.
1999). And for the reasons explained, the Court
concludes that it was not. The Magistrate Judge's F&R
will be adopted, and the defendant's motion to suppress
will be granted.
1. The government's objection (filing 29) to the
Magistrate Judge's Findings and ...