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
Warrant, and Request for A Franks Hearing”
(Filing No. 24) filed by Defendant, Felandes Wilson.
Defendant filed a brief (Filing No. 25) supporting his motion
and the government filed a brief (Filing No. 35) in
Court held an evidentiary hearing on the motion on August 10,
2017, and September 5, 2017. Defendant was present with his
attorney, Jessica Douglas. The government was represented by
Assistant United States Attorney, Thomas Kangior. Officers
Chris Brown and Roman Hutton, both with the City of Omaha
Police Department (“OPD”), and Christine Trosper
and Abby Kossow, both Nebraska state probation officers,
testified for the government.
(TR.) of the hearing were filed on September 8 and 12, 2017.
(Filing Nos. 51 and 52). The Court granted Defendant's
oral request for supplemental briefing. Defendant filed a
supplemental brief (Filing No. 53) on September 28, 2017, and
on October 18, 2017, the government filed its supplemental
brief (Filing No. 56) in opposition. The matter is now fully
submitted to the Court.
24, 2015, Defendant was sentenced to three years'
supervised probation in Nebraska state court after pleading
no contest to possession of more than one pound of marijuana.
(Exhibit 3 - Order of Probation; TR. 49). The conditions of
Defendant's probation required him to “[a]bstain
from the use or possession of alcohol and controlled
substances, except by prescription” and also required
him to “[s]ubmit to random searches and seizure of
[his] person, premises, or vehicle upon request of a
probation officer or a law enforcement officer who has been
authorized and directed by the probation officer.” (Ex.
3). Probation Officer Trosper began supervising Defendant on
his state probation in June 2016. (TR. 100). When Trosper
first began supervising Defendant, he lived at an address on
Butler Street, but in July 2016, he reported to Trosper that
he had moved to 5124 North 51st Street. (TR.
October 14, 2016, Trosper asked her partner, Probation
Officer Kossow, to conduct a probation search of
Defendant's residence because Trosper was going to be out
of the office that day. (TR. 101-102, 118). Defendant
reported to Kossow's office sometime before 11:00 a.m. on
that date for a scheduled appointment. (TR. 118-119). Kossow
testified that Defendant seemed “very calm and laid
back” when he arrived, and did not appear to be under
the influence of anything. (TR. 119-120). Kossow asked
Defendant if he would consent to a probation search of his
residence, and he agreed. (TR. 119-120). Kossow called OPD
Officers Brown and Hutton to ask for their assistance in the
search of Defendant's residence. (TR. 14, 16, 55-56).
Kossow advised the officers that Defendant had consented to
the search. (TR. 14, 118). Kossow also told the officers that
5124 North 51st Street was the address to be
searched. (TR. 59).
Brown and Hutton arrived at Kossow's office wearing
jeans, t-shirt, a tactical vest marked “Police, ”
and a police badge. (TR. 16). Officer Brown, Officer Hutton,
and Kossow testified that Defendant became agitated and upset
when he first observed Brown and Hutton enter the probation
office. (TR. 17, 59, 121). Officers Brown and Hutton each
testified that they were familiar with Defendant from prior
contacts. (TR. 15, 57). In addition, Defendant indicated that
he would still consent to the search if a different officer
transported him. (TR. 17, 60, 121). Kossow testified that it
is procedure to ask for law enforcement to transport
probationers. (TR. 120).
Officer Tim Huffman arrived at the probation office to
transport Defendant for the search. (TR. 19). Officer Huffman
asked Defendant for permission to search his person, and he
agreed. (TR. 19). Officer Huffman patted Defendant down and
removed approximately $700 in cash and Defendant's car
keys from Defendant's pants pocket. (TR. 20, 74).
Defendant also gave the officers permission to search the
vehicle that he had driven to the probation office. (TR. 61).
Officer Huffman and Kossow found approximately $5, 500 in
cash and a garage door opener in Defendant's vehicle.
(TR. 20-21, TR. 74). Officer Huffman handcuffed Defendant
before transporting him to the residence for the search. (TR.
Brown testified Kossow informed him that Defendant resided at
5124 North 51stStreet, which address Officer Brown
confirmed was listed on Defendant's “IMS
page” and driver's license. Officer Brown further
testified that MUD provided Defendant's name as the
individual responsible for that address's services.
Defendant was also listed as the owner with the Douglas
County Assessor. However, the residence's OPPD utilities
were registered under a woman's name. (TR. 46).
Brown and Hutton drove together in an unmarked cruiser to
5124 North 51stStreet. (TR. 21-22). Officer
Huffman transported Defendant in his cruiser. (TR. 22).
Officer Brown contacted Sergeant George Collins to meet them
at the residence. (TR. 40). Sergeant Collins and two other
officers were waiting outside the residence when Officers
Brown and Hutton arrived. (TR. 22-23).
arriving at 5124 North 51st Street, Kossow asked
Defendant for the easiest way to enter the residence.
Defendant told Kossow to use the garage door opener from his
vehicle. (TR. 62, 122). Once Kossow opened the garage door
with the opener, officers entered the garage and proceeded
toward the door that enters the residence through the garage.
(TR. 23-24, 123). When Sergeant Collins opened the door to
the residence, an audible security alarm started going off.
(TR. 25, 62-63, 123). Kossow went to briefly speak with
Defendant, who was still sitting in Officer Huffman's
cruiser. Officer Brown and Officer Hutton each testified that
when Kossow returned, she supplied the code to deactivate the
alarm. (TR. 25-26, 63). However, Kossow testified that she
believes OPD officers were the ones who shut off the alarm.
(TR. 123, 128).
the security alarm was deactivated, four to five OPD officers
entered the residence. (TR. 24, 27-28). Officer Brown
testified that the residence is two stories with a two car
garage. (TR. 24, 27). Entry to the residence from the garage
(where the officers entered) leads to the basement level of
the residence. The second floor is the main level consisting
of the kitchen, living room, and bedrooms. (TR. 27). Officer
Brown testified that as soon as he entered the residence from
the garage, he smelled the strong odor of raw marijuana,
which he could tell was emanating from the area by the garage
door entrance. (TR. 26). Officer Hutton likewise testified
that he smelled raw marijuana as soon as they opened the door
to the residence. (TR. 63). Kossow also testified that there
was a “very strong odor of marijuana” as they
walked into the residence. (TR. 124). Officer Brown noticed
that the odor of marijuana dissipated as he proceeded further
into the residence. (TR. 27).
Brown and Hutton proceeded upstairs to the main level of the
residence, where they saw a digital scale in the kitchen, a
heat-sealing machine, and a money counter. (TR. 28, 65).
Officer Brown testified that empty heat-sealed bags were
found in the garage, labeled with names of different
marijuana strains. (TR. 29). Officers Brown and Hutton did
not see any marijuana inside the residence, but ...