United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Findings and Recommendation
(F&R), ECF No. 45, issued by Magistrate Judge Michael D.
Nelson. The Magistrate Judge recommended that the Motion to
Suppress filed by the Defendant Mark Steele, ECF No. 16, be
granted. The Government filed Objections to the F&R, ECF
No. 48, as allowed by 28 U.S.C. § 636(b)(1)(C) and
NECrimR 59.2(a). Steele did not respond to the Objections.
For the reasons set forth below, the F&R will be adopted
in part, the Objection will be sustained, and the Motion to
Suppress will be denied.
is charged with conspiracy to distribute or possess with
intent to distribute marijuana and using a facility in
interstate commerce to facilitate the promotion of unlawful
activity. Indictment, ECF No. 12. Steele seeks to suppress
any evidence gained by law enforcement on February 10, 2017,
on the grounds that the detention of his vehicle and its
search were conducted in violation of his right to be free
from unreasonable searches and seizures under the Fourth
suppression hearing, a recording of the traffic stop was
received into evidence (Exhibit 1). A transcript (Tr.) of the
hearing was filed on August 18, 2017.ECF No. 44. The Magistrate
Judge provided extensive and detailed factual findings
regarding the events of the traffic stop at issue.
See F&R at 1-7, ECF No. 45, Page ID 186-192. The
Government did not object to the Magistrate Judge's
factual findings. The Court incorporates those findings by
reference, and provides the following summary:
February 10, 2017, Sergeant Jason Mayo was conducting traffic
enforcement on Interstate 80 in Lancaster County when he
observed Steele's vehicle following too closely behind
another vehicle. Mayo pulled Steele over. Mayo then
approached Steele's vehicle, explained the reason for the
stop, and asked Steele to come to Mayo's cruiser while
Mayo performed routine tasks associated with the stop. Mayo
described Steele as somewhat nervous and found it odd that
Steele did not want to open his glove box or center console
to look for his insurance card. Mayo also noted that
Steele's vehicle had a “lived-in” look, and
contained a box of 5-Hour Energy Drinks and two backpacks.
Mayo performed routine checks on Steele's registration
and license, Mayo and Steele discussed Steele's travel.
Steele said he was on his way home to Evanston, Wyoming,
after a photo tour in Indiana and Tennessee. Mayo asked if
Steele was a professional photographer and Steele said he was
not, and that he did mapping and surveying work for a city in
Southern California. Mayo testified that it struck him as odd
that Steele lived in Wyoming, worked in Los Angeles, and was
on a photo tour of Indiana and Tennessee in February.
testified that when Steele answered questions, he stopped and
paused as if he was thinking about his answers, and continued
this behavior throughout the encounter even after being told
he would receive only a warning ticket.
officer, John Hudec, arrived and assisted Mayo by confirming
the validity of the Steele's Vehicle Identification
Number (VIN). As Hudec checked the VIN, Steele told Mayo that
Steele felt as if he was being detained and would like to be
on his way. Mayo told Steele he was not being detained, but
that Mayo needed to finish performing tasks associated with
the stop before Steele could go. After performing checks on
Steele's license and registration, Mayo explained the
process of checking Steele's criminal history. Steele
said he thought Mayo had run the criminal history check, but
Mayo said he had only checked Steele's driver's
license. (Ex. 1 at 15:02-16).
another minute of conversation with Steele, approximately 10
minutes and 14 seconds into the stop, Mayo initiated a call
to dispatch to run checks on Steele's criminal
history. Steele asked if Mayo had any water because
his chewing tobacco was making his mouth dry. Mayo replied
no, but told Steele he could get water from his pickup truck
if he had any. After several more minutes of discussion, Mayo
apologized to Steele because dispatch had not called back
regarding Steele's criminal history. Steele said he was
trying to make it to Sydney, Nebraska, to go to a
Cabela's store, and he wished Cabela's had a better
selection of sleeping bags because he had been sleeping in
the back of his pickup truck.
this conversation, Mayo exited the cruiser to speak to Hudec.
Mayo told Hudec that he “called Julie for a [check on
Steele's criminal history]” and asked Hudec if he
called Deputy Henkel to bring a canine. (Ex. 1 at 26:50-54).
Hudec confirmed that Deputy Henkel was on his way, and asked
Mayo if Steele was detained. (Ex. 1 at 26:52-56). Mayo
replied “no, not yet, ” but that Steele said he
“felt like he was being detained already.” (Ex. 1
at 26:56-27:02). Mayo told Hudec about Steele's picture
tour and Hudec told Mayo that there were “bugs on his
[Steele's] car” indicating Steele may have been in
climates warmer than Indiana. (Ex. 1 at 27:05-16). At the
hearing, Mayo testified that he requested a canine because he
was going to ask Steele for consent to a dog sniff.
returned to the cruiser and asked Steele if he wanted a
Monster energy drink. Steele refused and said caffeine had a
negative effect on him and was a bad addiction. Mayo thought
Steele's statement was odd in light of the box of 5-hour
energy drinks in Steele's car. Mayo again apologized for
the delay and said he was going to call dispatch again.
Approximately 24 minutes and 45 seconds into the stop, and 14
minutes and 35 seconds after initiating the call to dispatch
for the criminal history checks, Mayo called dispatch and was
informed that a vehicle registered to Steele at the same
address where Steele's pickup truck was registered had
been stopped by the Nebraska State Patrol in July 2016, with
almost 200 pounds of marijuana. Mayo testified that although
he suspected Steele was involved in criminal activity before
he received this information, he nevertheless might have let
Steele go “down the road, ” but the information
from dispatch was the “final piece of the puzzle”
and set up a “red flag.” (Tr. 80, 84-85).
Mayo received the results of the criminal history checks,
Mayo delivered the warning and asked Steele if he could ask a
few more questions. Steele denied having “grenade
launchers, ” narcotics, or large amounts of U.S.
currency in the pickup truck, and agreed to show Mayo the
rear topper area of the vehicle. (Tr. 25). Mayo looked in the
rear topper area and did not see any bedding. Mayo testified
that this was inconsistent with someone sleeping in a
vehicle. Mayo asked Steele for his consent to search the rest
of the pickup. Steele stated he would rather continue his
trip. Mayo then asked Steele if he would consent to a police
canine running around the exterior of the vehicle, and Steele
again stated he would rather go. Approximately 28 minutes
into the stop, Mayo advised Steele that he was being detained
because Mayo suspected Steele was transporting a large amount
of currency and he would need to wait for the canine to
canine arrived roughly four minutes later and alerted or
indicated to the vehicle. Officers searched the vehicle and
found a user amount of cocaine and $1, 200 cash in the center
console. In the vehicle's spare tire, officers found
approximately seventy heat-sealed, vacuum-sealed packages of
bundled U.S. currency totaling approximately $362, 000.
28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a), the Court
shall make a de novo review of the portions of the
Magistrate's Findings and Recommendation to which
objections have been made. The Court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
findings and recommendations. The Court may ...