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United States v. Wilson

United States District Court, D. Nebraska

November 14, 2017




         This 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 opposition.

         The 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.

         Transcripts (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.


         On June 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. 100-101).

         On 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).

         Officers 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).

         OPD 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. 35).

         Officer 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).

         Officers 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).

         After 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).

         Once 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).

         Officers 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 ...

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