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United States v. Gordon

United States District Court, D. Nebraska

January 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY D. GORDON, Defendant.

          AMENDED FINDINGS AND RECOMMENDATION

          Michael D. Nelson United States Magistrate Judge

         This 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.

         The 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[1](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.

         BACKGROUND

         Sgt. 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).

         At 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).

         Sgt. 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).

         Sgt. 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).

         Sgt. Woolman left Defendant with Ofc. Obrecht and returned to the driver side of the Impala to look for paperwork.[2] 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 soon 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.[3] 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).

         On Sgt. 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).

         On Ofc. 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).

         Defendant 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 ...


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