United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
M. BAZIS, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Alfort Henry's
(“Defendant”) Motion to Suppress Evidence.
(Filing No. 36.) Defendant seeks to suppress
evidence obtained during the search of an apartment and
vehicle on March 14, 2017, as well as statements made
following the search.
addition to the filing of Motion to Suppress, Defendant filed
an Application and Request for Franks v. Delaware Hearing.
(“Franks hearing”). (Filing No. 39.)
Upon receiving the government's response to the Motion
and Application, the Court granted Defendant's request
for a Franks hearing. (Filing No. 57.) A Franks hearing and
an evidentiary hearing on the Motion to Suppress was held on
December 19, 2017. No witnesses were called to testify at the
transcript of the proceedings was filed on January 16, 2018.
(Filing No. 70.) This matter is now fully submitted
March 8, 2017, the York Police Department received a phone
call from Shaine Lyons (“Lyon”), reporting that
Eva Bowers (“Bowers”) had been raped. Officer
Brit Koch (“Officer Koch”) proceeded to trailer
#4, at 1200 N. Platte Ave. in York, Nebraska to investigate.
Koch's report of the incident (Ex. 106) states that while
at the trailer, he attempted to speak to Bowers, but she was
crying uncontrollably and was only able to give short
statements. Bowers stated she was raped and when Officer Koch
asked her who raped her, she responded “the black guy,
Henry.” Bowers stated she was unsure where the rape
occurred, but at one point she mumbled Del Ray Apartments.
Bowers was unable to provide an apartment number. Officer
Koch asked Bowers if anyone else was present during the rape.
Initially, Bowers did not answer this question, but she later
replied “Jennifer.” Bowers also explained that
she was placed in the shower at some point during the
evening, and that she was not wearing her own clothes.
was drowsy during her conversation with Officer Koch and
stated that she had been drugged. As Officer Koch was trying
to speak to her, she was fading in and out of consciousness.
Therefore, Officer Koch transported Bowers to York General
Hospital, where she was examined by Physician Assistant,
Trevor Hansen (“Hansen”). Bowers was barely
responsive to Hansen. (Ex. 106.)
Koch's report of the March 8, 2017 incident (Ex. 106)
also notes that the York Police Department had interacted
with Bowers and Justine Fowler (“Fowler”) on a
couple of occasions that evening. In the first instance,
Officer Koch found Lyon, Bowers, Jennifer Smith
(“Smith”), and Defendant in a van parked near
Harrison Park. Lyon was arrested on an active warrant, and
Bowers stated that she wanted to leave with Defendant and
Smith. Officer Koch believed that Bowers was under the
influence of narcotics at that time.
to Officer Koch's report, shortly after they left
Harrison Park, officers were called to Smith's apartment,
at Del Ray Plaza, #13. Officers Headlee and Cass investigated
that incident. Smith reported that Bowers had caused a
disturbance and left the apartment with Defendant. Smith also
stated that Defendant had made Bowers stand in the shower
with her clothes on because he believed Bowers was wearing a
March 12, 2017, Officer Koch returned to the trailer to
further investigate Bowers' sexual assault claim. (Ex.
104.) Bowers was transported to the York Police Department to
provide a statement. During the interview, Bowers confirmed
that Defendant and Smith were the same people with her in
Harrison Park on March 8, 2017. Bowers stated that after they
left Harrison Park, Bowers and Smith took her to an
apartment. Bowers felt that the apartment was located in the
back corner of the Del Ray Apartment Complex. Bowers believed
the apartment belonged to “Jennifer” because it
was decorated like a female's apartment, but she did not
know for certain. Bowers reported that she was forced to
shower with her clothes on while at the apartment because
Jennifer and Defendant believed she was wearing a wire.
Following the shower, Smith continued to give Bowers orders
and told Bowers to strip off her clothes to show that she was
not wearing a wire. Bowers stated she was given clothes to
change into and then voluntarily left the apartment with
reported that Defendant gave her Klonopin and two Ecstasy
pills while on their way out of town. Once they were out of
town and parked, she smoked a bowl of methamphetamine with
Defendant. The sexual assault occurred in the car after they
smoked the methamphetamine.
Koch was interviewing Bowers, he determined the rape occurred
outside the city limits and outside of his jurisdiction, so
Koch contacted the York County Sheriff's Department.
Sergeant Bruce Winn (“Sgt. Winn”) of the York
County Sheriff's Department then came to interview Bowers
on March 12, 2017. Sgt. Winn's report indicates that
Bowers was under the influence during the interview and was
having a difficult time remembering the details of the night
of the assault. (Ex. 105.) The report states that Bowers was
having a hard time staying focused and seemed very unsure
about timelines, locations and details of the assault. Bowers
told Sgt. Winn that she was with Defendant and a woman named
“Jennifer Smith, ” and that she had gone to
Smith's house located at “2220 N. Nebraska Ave #13,
” and was forced to take a shower with her clothes on
and strip. (Ex. 105.) She also stated that Defendant
had given her Ecstasy and that she had taken Clonopin
earlier. She also reported smoking methamphetamine with
March 13, 2017, York County Sheriff's Deputy Paul Vrbka
(“Deputy Vrbka”) applied for a search warrant,
and the warrant listed the address to be searched as a
“residence, located 2220 apt. #13 York,
Nebraska.” (Ex. 1.) The warrant also authorized the
search of a white Dodge Avenger. The warrant indicates that
the residence and vehicle were under the control or custody
of “Jennifer L. Smith.” The warrant was directed
at obtaining illegal ...