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United States v. Steele

United States District Court, D. Nebraska

November 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK STEELE, Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         Steele 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 Amendment.

         At the 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.[1]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:

         On 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.

         While 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.

         Mayo 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.

         Another 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).

         After 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.[2] 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.

         After 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.

         Mayo 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).

         After 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 arrive.

         The 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.

         STANDARD OF REVIEW

         Under 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 ...


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