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United States v. Lillard

United States District Court, D. Nebraska

December 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RODNEY LILLARD, Defendant.

          FINDINGS AND RECOMMENDATION

          Susan M. Bazis United States Magistrate Judge.

         This matter is before the Court on Defendant Rodney Lillard's Motion to Suppress Evidence. (Filing No. 21.) Defendant is charged with Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). (Filing No. 1.) Defendant seeks to suppress all evidence resulting from the traffic stop and search of his vehicle in Sarpy County, Nebraska on May 30, 2017.

         The Court held an evidentiary hearing on October 2, 2017. Defendant was present with his attorney, Denise Frost. The United States was represented by Assistant United States Attorney, Russell Mayer. A transcript (TR.) of the hearing was prepared and filed on November 2, 2017. (Filing No. 36.) This matter is now fully submitted.

         BACKGROUND

         At approximately 1:20 a.m. on May 30, 2017, Sarpy County Sheriff's Deputy Earl Johnson (“Deputy Johnson”) observed two suspicious vehicles parked in the parking lot of the Nebraska Crossing Outlets, a shopping center located in Sarpy County, Nebraska. (TR. 25.) Sarpy County Sheriff's Deputy Jason Miller (“Deputy Miller”), who was traveling in his own cruiser, assisted Deputy Johnson with the suspicious vehicles. (TR. 28.)

         As they were sitting in the parking lot of the Nebraska Crossing Outlets completing their inspection of the suspicious vehicles, the officers observed a blue, 2006 Chevy Equinox drive into the parking lot. At that time, Deputy Miller told Deputy Johnson that this was the third time he had observed the Equinox drive through the area that day. (TR. 30; 125-26.) The officers thought this was suspicious so they got into their individual cruisers and headed toward the Equinox. (TR. 30-31.) It was later discovered that the Equinox was being operated by Defendant.

         The officers observed Defendant make a right-hand turn onto a roadway that contained a median. Deputy Johnson testified that Defendant pulled into the left lane, which placed him on the wrong side of the median. (TR. 32.) Deputy Johnson testified that the lane with the median ended, so Defendant drifted back into the right lane and pulled up to the stop sign at the intersection of Highway 31.[1] As Defendant traveled northbound on Highway 31, the Equinox began to drift and straddle the painted solid line dividing the northbound lane and the turning lane. (TR. 36-37.) At this point, Defendant turned on his turn signal, but never fully entered the turn lane. (TR. 374.) Defendant then made a right-hand turn onto Nebraska Crossing Drive. (TR. 38.) Deputy Johnson testified that Defendant's turn onto Nebraska Crossing Drive was wide and that Defendant turned into the wrong lane. (TR. 38.) As Defendant continued eastbound on Nebraska Crossing Drive, Deputy Johnson decided to stop Defendant and activated his overhead lights. (TR. 38.) However, Defendant did not stop, and continued eastbound on Nebraska Crossing Drive. Defendant eventually slowed the Equinox and made a right-hand turn back into the mall parking lot. (TR. 39-40.) Defendant drove slowly through the parking lot and made a number of turns. (TR. 40.) Defendant ultimately stopped the Equinox in the mall parking lot. However, the Equinox began to pull slightly forward again once it had stopped. (TR. 44.)

         Deputy Miller yelled at Defendant to stop the Equinox, and Defendant complied after slightly rolling the vehicle forward. (TR. 43-44.) Deputy Johnson then exited his vehicle and approached the Equinox. (TR. 44.) As he approached, Deputy Johnson yelled at Defendant and told him to exit the vehicle. Defendant complied. (TR. 45.) Deputy Johnson then told Defendant to raise his hands, which Defendant did. (TR. 45.) Deputy Johnson asked Defendant what took him so long to stop, and at that point, Defendant lowered his hands and reached for his waistband to pull up his pants. (TR. 45.) Defendant was then placed in handcuffs. (Ex. 2.)

         Deputy Johnson testified that when Defendant initially got out of the Equinox, he appeared to be intoxicated. (TR. 45.) Deputy Johnson observed that when Defendant stood up, he was swaying and did not appear to have very good balance. (TR. 45.) Deputy Johnson could smell alcohol on Defendant's breath and noticed that Defendant had bloodshot and glassy eyes. (TR. 45-46.) Deputy Johnson also noted that Defendant's speech was slurred. (TR. 46.) Based on all of this, and Deputy Johnson's experience in arresting more than 230 individuals for driving under the influence of alcohol, Deputy Johnson felt Defendant was under the influence of alcohol. (TR. 47-48.)

         After Deputy Johnson handcuffed Defendant, he performed a pat search. (Ex. 2.) Deputy Johnson did not find a wallet on Defendant's person. (TR. 48.) Deputy Johnson did not ask Defendant about a wallet at that time, or ask Defendant his name, but instead opened the driver's door of the Equinox and looked inside to see if the wallet was sitting on the seat or on the floor of the vehicle. (TR. 48-49.) Deputy Johnson looked on the seat but did not see a wallet. (TR. 49.) However, when he opened the door, Deputy Johnson saw an open beer can that was spilled in the center console. (TR 49.) Deputy Johnson testified that he did not see the beer until he opened the door of the Equinox. (TR. 49.) Deputy Johnson went to the passenger side of the Equinox, but still did not locate a wallet. (TR. 50.) Deputy Johnson then walked back around to the driver's side of the Equinox, looked under the driver's seat, and located a firearm. (TR. 50.) Deputy Johnson removed the firearm from the Equinox and placed it on top of Deputy Miller's patrol vehicle. (TR. 50.) Deputy Johnson placed Defendant in the rear of his patrol car. Once Deputy Johnson placed Defendant in the patrol car, he turned off his body microphone to talk to Deputy Miller and call his sergeant.[2] (TR. 54.) Deputy Johnson testified that he did not have probable cause to search the Equinox and Defendant did not provide consent to search. (TR. 63; TR. 65-66.)

         At some point following the search of the Equinox, Deputy Johnson asked Defendant his name and Defendant identified himself. (TR. 51; TR. 59-60.) Deputy Johnson could not recall if this was before or after he turned off his microphone.[3] (TR. 51-52.) Between dispatch and the running of Defendant's name through NCJIS, Deputy Johnson leaned that Defendant is a convicted felon, was currently on supervised release, and had two prior DUIs. (TR. 51.) Deputy Johnson gave Defendant a preliminary breath test, after waiting the required 15 minutes, and Defendant tested .150, which is over the legal limit. (TR. 51-52.) Defendant was then told he was being arrested for Driving Under the Influence (“DUI”). He was taken to the Sarpy County jail and charged with possession of a firearm by a prohibited person, DUI third offense, refusal, driving under revocation, carrying a concealed weapon, failure to signal a turn and open alcohol container. (TR. 52-53; Ex. 2.)

         Deputy Miller testified at the hearing that he was in charge of the towing and disposition of the Equinox following Defendant's arrest. (TR. 94.) As part of this procedure, Deputy Miller conducted an inventory search of the vehicle. (TR. 94; Ex. 4; Ex. 5.) Per the policy of the Sarpy County Sheriff's Office, Deputy Miller was required to fill out a Tow/Impound Form following completion of the inventory search. (TR. 100.) Deputy Miller testified that he made mistakes on the Tow/Impound Form. (TR. 103.) Specifically, Deputy Miller did not indicate whether Defendant had been arrested. (TR. 103.) He also listed the incorrect model of Defendant's vehicle. (TR. 103.) The Tow/Impound Form also does not list the property found in the vehicle or property removed from the vehicle, although spaces for the listing of such items are contained on the Tow/Impound Form. (Ex. 6.) Deputy Miller testified that pursuant to the policy of the Sarpy County Sheriff's Office, following an inventory search, anything of evidentiary value is listed on an Evidence/Property Form. (TR. 104.) The Evidence/Property Form Deputy Miller completed in this case lists the gun that was found under the driver's seat, but it does not list the beer can observed by Deputy Johnson. (Ex. 7.) Deputy Miller testified that officers in Sarpy County do not take empty or half-empty beer cans into evidence in DUI arrests. (TR. 105-106.)

         Instead, officers flash cans in front of their cameras.[4] (TR. 106.) Deputy Miller testified that he believes he followed the Sarpy County Sheriff's Office's policies and procedures in the way he was trained to ...


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