United States District Court, D. Nebraska
AMENDED FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge
matter is before the Court on the Defendant's Amended
Motion to Suppress (Filing No. 20). While Defendant
did not file a brief in support of the motion as required by
the Criminal Rules of the United States District Court for
the District of Nebraska, see NECrimR 12.3(b)(1),
Defendant's argument was contained in his motion and will
be accepted by the Court in this instance in satisfaction of
the Rule's requirement. The government filed a brief
(Filing No. 25) opposing the motion.
Court held an evidentiary hearing on the motion on December
19, 2017. Defendant was present with his attorney, Jackie L.
Barfield. The government was represented by Assistant United
States Attorney, Susan Lehr. Omaha Police Department Sergeant
Timothy Woolman (“Sgt. Woolman”) and Omaha Police
Department Officer Martin Obrecht (“Ofc.
Obrecht”) testified on behalf of the government. The
Court received into evidence, without objection, a Google
Aerial Map of 24th and Ames Ave. (Exhibit 1) and a
copy of Neb. Rev. Stat. § 60-6, 193(Exhibit 2)
offered by the government. Defendant did not call any
witnesses or offer other evidence. A transcript (TR.) of the
hearing was prepared and filed on December 26, 2017.
(Filing No. 35). The matter is now fully submitted
to the Court. For the following reasons, the undersigned
magistrate judge recommends that the motion be denied.
Woolman has been employed by the Omaha Police Department for
nineteen years, the last thirteen as a Sergeant. His regular
shift is 3:00 p.m. to 11:00 p.m., but on August 4, 2017, he
was working the 6:00 p.m. to 3:00 a.m. shift for the
“Native Omaha Days” event in North Omaha. (TR.
5-6). Ofc. Obrecht has been employed by the Omaha Police
Department for eight years and was assigned as Sgt.
Woolman's partner for the shift. (TR. 35). Sgt. Woolman
described the event as a “huge block party” that
occurs every two years in the general area of 24th
Street between Ames and Hamilton Streets, and requires a
greater law enforcement presence due to the large number of
people in attendance and prior incidents of fighting,
drinking, shootings, and gun seizures. (TR. 6-7).
about 12:08 a.m., Sgt. Woolman was driving a marked cruiser
with Ofc. Obrecht in “zone one, ” which is the
farthest north zone of the event. Part of the officers'
responsibilities in patrolling this zone is to check on the
Los Diablos Motorcycle Club on 25th and Ames.
Exhibit 1 is an aerial map of this area. (TR. 8-10). As Sgt.
Woolman drove past the motorcycle club eastbound on Taylor
Street, the officers noticed a Chevy Impala stopped just west
of 24th Street in the eastbound lane,
approximately five feet away from the curb. (TR. 10, 25, 33,
35, 39). Sgt. Woolman observed that at least two other
vehicles had to drive around the Impala in the westbound
lanes to access 24th Street. (TR. 11). The
officers did not know if the Impala was stalled, if there was
an accident, or if the driver was suffering from a medical
condition. (TR. 11, 37).
Woolman and Ofc. Obrecht stopped their cruiser behind the
Impala and activated the cruiser's overhead lights and
spotlights, but did not activate the siren. Sgt. Woolman
approached the driver's side and Ofc. Obrecht approached
the passenger side of the Impala. The Impala was in park with
its engine running. (TR. 11-13, 19-20, 37). Sgt. Woolman
observed a black male, later identified as Defendant, in the
driver's seat of the Impala. (TR. 16-17). As Defendant
was talking on his phone and apparently unaware of the police
presence, Sgt. Woolman knocked on the window to get
Defendant's attention. (TR. 14, 38). Sgt. Woolman noticed
that Defendant's eyes were bloodshot and watery,
Defendant was speaking loudly on the phone with slurred
speech, and Defendant appeared to be impaired. (TR. 13-14).
Ofc. Obrecht likewise testified that Defendant showed signs
of impairment. (TR. 38-39).
Woolman asked Defendant to hang up the phone and step out of
the vehicle. Sgt. Woolman testified that his focus was on
Defendant's hands and feet when Defendant initially
stepped out of the vehicle. (TR. 31). Sgt. Woolman indicated
to Ofc. Obrecht that they were going to administer field
sobriety tests. Ofc. Obrecht walked to the rear of the
Impala, and Sgt. Woolman walked Defendant to Ofc. Obrecht to
administer the field sobriety tests. (TR. 14-15, 17, 39, 50).
The officers did not pat down Defendant. (TR. 51).
Woolman left Defendant with Ofc. Obrecht and returned to the
driver side of the Impala to look for
paperwork. Ofc. Obrecht remained with Defendant
making small talk to attempt to build a rapport. (TR. 42).
Sgt. Woolman testified that as soon as he returned to the
Impala, he saw a gun on the driver's seat. Sgt. Woolman
testified he did not enter the Impala but saw the firearm
through the driver's door, which was left open when
Defendant exited. Sgt. Woolman immediately informed Ofc.
Obrecht that he found a firearm, and Ofc. Obrecht handcuffed
Defendant for purposes of officer safety because they did not
know whether other firearms were present. (TR. 15-16, 28-29,
41-42). Sgt. Woolman testified that the firearm had been
concealed because he did not initially see it when Defendant
stepped out of his vehicle. (TR. 16). Sgt. Woolman described
the firearm as an older silver revolver with a pearl handle
and having a serial number. (TR. 30). Sgt. Woolman did not
see any other persons approach the vehicle during the
encounter. (TR. 16). According to Sgt. Woolman, he did not
ask the Defendant any questions, but Defendant “blurted
out” that it was not his gun and that he did not know
how it got there. (TR. 17, 44).
as Sgt. Woolman found the firearm, he requested additional
units and someone with a Preliminary Breath Test. (TR. 17).
The officers did not conduct field sobriety tests on the
scene due to officer safety concerns once they found the
firearm. (TR. 18, 43). Because the Impala's license
plates indicated it was registered to a female, officers
searched for paperwork in the vehicle. Backup officers
performed a data check to see if Defendant was a convicted
felon and also searched the vehicle incident to a lawful
arrest for possession of a concealed handgun. (TR. 18-19).
The data check showed Defendant had at least one prior felony
conviction. (TR. 19, 44). Defendant was arrested on a number
of charges, including impeding traffic, no valid
registration, no proof of insurance, DUI, felon in possession
of a firearm, unlawful carrying, and unregistered firearm.
(TR. 32). Defendant was transported to Central Headquarters
where the DUI investigation was processed. Defendant was
given his Miranda warnings and invoked his right to
remain silent. Officers asked no questions regarding the
firearm and Defendant made no statements regarding the
firearm. (TR. 45).
Woolman's cross-examination, he testified that he could
have asked Defendant to roll the window down to perform some
field sobriety tests, including a horizontal gaze nystagmus
test, an alphabet test, and a counting test. (TR. 21).
Nonetheless, Sgt. Woolman testified that he believed he had
enough information to ask Defendant to step out of the car.
(TR. 22). Sgt. Woolman agreed there could be a number of
reasons besides intoxication why a person's eyes could be
glazed and their speech slurred, including drugs. (TR. 23).
Sgt. Woolman testified that there was no recording equipment
in his cruiser, nor on either his or Ofc. Obrecht's
person. (TR. 29).
Obrecht's cross-examination, he testified that the area
was somewhat lit from the cruiser's lights, a nearby
business, and a streetlight. (TR. 46). Ofc. Obrecht could see
inside the Impala, but did not see the firearm on the
driver's seat. (TR. 46-47). At some point after Sgt.
Woolman found the firearm, Ofc. Obrecht returned to the
Impala to get a bill of sale. (TR. 47). Ofc. Obrecht intended
to conduct field sobriety tests before Sgt. Woolman
discovered the firearm. (TR. 49). Ofc. Obrecht testified that
he did not ask for Defendant's consent to search the
Impala. (TR. 49).
seeks suppression of “any physical evidence as the
result of his unlawful seizure.” He argues that he was
unlawfully arrested and searched without a warrant.
(Filing No. 20 at p. 1). Defendant also seeks
suppression of any statements he made to ...