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, ECF No. 38, issued by United States
Magistrate Judge Michael D. Nelson, recommending that the
Motion to Suppress filed by the Defendant Adan Garcia-Garcia
(“Defendant”), ECF No. 26, be denied. Defendant
filed Objections to the Findings and Recommendation, ECF No.
39, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR
59.2(a). The Government responded, ECF No. 40, to the
Objections. For the reasons set forth below, the Findings and
Recommendation will be adopted, and the Motion to Suppress
will be denied.
is charged with one count of possessing with intent to
distribute a mixture or substance containing a detectable
amount of heroin. Defendant moves to suppress evidence and
statements made to law enforcement on May 12, 2017. Neither
party directly objects to the Magistrate Judge's factual
findings. The Court adopts the Magistrate Judge's factual
findings and provides the following summary of the facts
based on its review of the evidence:
On May 12, 2017, Defendant was waiting to reboard a bus to
Indianapolis at the Greyhound Bus Station in Omaha, Nebraska.
Investigator Kevin Finn, an officer with the Commercial
Interdiction Unit of the Nebraska State Patrol, noticed a new
Samsonite suitcase sitting next to the bus, waiting to be
loaded. Based on several factors, Finn suspected the suitcase
to be transporting contraband. Finn entered the bus station,
approached Defendant, identified himself as law enforcement,
and began to question Defendant.
explained to Finn that he did not speak English. Finn, using
basic Spanish and a smart-phone translation app, began to
question Defendant about his travels. Finn and Defendant
exchanged documents in response to Finn's requests, and
Defendant produced a bus ticket, baggage claim check, and
identification. Using the translation app, Finn showed
Defendant a screen with a statement asking for consent to
search Defendant's bag. Defendant replied yes. Finn used
the Spanish term “bolsa” when requesting
permission to search.
asked Defendant to identify his “bolsa.”
Defendant began to get onto the bus to retrieve a small
personal bag. Before Defendant boarded the bus, Finn pointed
at the checked suitcase outside the bus and asked if it
belonged to Defendant. Defendant acknowledged it was his.
Finn then said “permite?” to request to search
the suitcase. Defendant did not respond verbally, but raised
his hands chest high and nodded. Finn testified that
Defendant's body language indicated permission to search
then searched the Samsonite suitcase and found a wrapped
package, which he suspected to be drugs. The contents were
later determined to be heroin. Finn then placed Defendant in
handcuffs and escorted him to a back room of the bus station.
Later, Defendant made several incriminating statements
including, but not limited to, an admission that he had been
paid to deliver contraband.
28 U.S.C. § 636(b)(1)(C), the Court must make a de novo
determination of those portions of the findings and
recommendation to which the Defendant has objected. The Court
may accept, reject, or modify, in whole or in part, the
Magistrate Judge's findings or recommendation. The Court
may also receive further evidence or remand the matter to the
Magistrate Judge with instructions.
Initial Encounter with Law Enforcement
first argues that Finn seized him without reasonable
suspicion. The Fourth Amendment demands that people shall
“be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, . . .
and no Warrants shall issue, but upon probable cause. . .
.” U.S. Const., amend. IV. “The Fourth Amendment
‘is not triggered by a consensual encounter between an
officer and a private citizen.'” United States
v. Aquino, 674 F.3d 918, 923 (8th Cir. 2012) (quoting
United States v. Villa-Gonzalez, 623 F.3d 526, 531
(8th Cir. 2010)). An encounter is consensual unless,
“in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was
not free to leave.” United States v. Grant,
696 F.3d 780, 784 (8th Cir. 2012). Courts evaluate several
factors when assessing consent under the totality of the
Officers positioning themselves in a way to limit the
person's freedom of movement, the presence of several
officers, the display of weapons by officers, physical
touching, the use of language or intonation indicating
compliance is necessary, the officer's retention of the
person's property, or an ...