United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
M. Bazis United States Magistrate Judge.
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.
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.
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.
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.
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. 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.)
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.)
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.)
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. (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.)
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. (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.)
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.
officers flash cans in front of their cameras. (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 ...