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United States v. Henry

United States District Court, D. Nebraska

February 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ALFORT HENRY, Defendant.

          FINDINGS AND RECOMMENDATION

          SUSAN M. BAZIS, UNITED STATES MAGISTRATE JUDGE

         This 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.[1]

         In 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 hearing.

         The transcript of the proceedings was filed on January 16, 2018. (Filing No. 70.) This matter is now fully submitted for disposition.

         BACKGROUND

         On 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. (Ex. 106.)

         Officer 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.

         Bowers 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.)

         Officer 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.

         According to Officer Koch's report, shortly after they left Harrison Park, officers were called to Smith's apartment, at Del Ray Plaza, #13.[2] 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 wire.

         On 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.[3] 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.[4] 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 Defendant.

         Bowers 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.

         While 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.[5] (Ex. 105.) She also stated that Defendant had given her Ecstasy and that she had taken Clonopin earlier. She also reported smoking methamphetamine with Defendant.

         On 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 ...


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