United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
matter is before the Court on the Motion to Suppress the
Fruits of an Unlawful Search and Seizure (Filing No.
27) filed by Defendant, Eloy Vargas Morales. Defendant
filed a brief in support of the motion (Filing No.
28) and the government filed a brief in opposition
(Filing No. 33).
Court held an evidentiary hearing on the motion on February
13, 2018. Defendant was present with his attorney, James
Martin Davis. The government was represented by Assistant
United States Attorney, Thomas Kangior. Omaha Police Officers
Nicholas Yarpe and Robert Branch, Jr. testified on behalf of
the government. Defendant testified on his own behalf. The
Court received into evidence Exhibits 1 and 2 offered by the
government, and Exhibit 101 offered by Defendant. The Court
also took judicial notice of Neb. Rev. Stat. § 60-6,
161. A transcript (TR.) of the hearing was prepared and filed
on February 26, 2018. (Filing No. 42). This matter
is now fully submitted to the Court. For the following
reasons, the undersigned magistrate judge recommends that
Defendant's motion be denied.
March 14, 2017, Omaha Police Officers from the Gang
Suppression and Narcotics Units began surveillance of a
residence at 2325 North 48th Street after
receiving information from a confidential informant (C/I)
that a felony fugitive and methamphetamine or other narcotic
activity might be taking place at the residence. (TR. 10, 18,
23, 34, 43-44). During his surveillance, Officer
Branch drove by the residence in an unmarked
black Ford F-250 and noticed two males standing next to a red
Ford F-150 parked in the driveway. Officer Branch was unable
to determine the identity of the individuals as he was
driving. (TR. 46-48). Officer Branch turned his
vehicle around and set up a stationary surveillance of the
residence for approximately an hour to an hour and a half.
Branch testified that he did not observe anything unusual
during his stationary surveillance, but he did observe the
F-150 leaving the residence. Officers suspected that the
felony fugitive was in the truck. (TR. 34, 52-53). Officer
Branch then observed Defendant, driving the F-150, fail to
signal a right-hand turn from 48th Street onto
Northwest Radial Highway. (TR. 18, 35, 53, 63). Officer
Branch communicated his observation by portable radio to
Detective Jordan Brandt, who was driving in a separate marked
police vehicle. Detective Brandt relayed the information to
Officer Yarpe,  who was driving in an unmarked
surveillance vehicle. Detective Brandt and Officer Yarpe
began following the F-150, and observed the F-150 drive past
a residence just east of 50th Street and Erskine Street, then
reverse into the driveway of the residence. Detective Brandt
conducted a traffic stop of the F-150 based on the
information provided to him by Officer Branch. (TR. 11-12,
22, 25, 35, 63).
Yarpe approached the F-150 with his weapon drawn because he
had information that one of the parties had a felony warrant,
and because he thought the F-150 may flee since it had
reversed into the driveway. (TR. 13, 102). Officer Yarpe
testified that as Defendant exited the vehicle, a large
amount of money and what appeared to be methamphetamine were
protruding from the left inner pocket of Defendant's
unzipped coat. Officer Yarpe placed Defendant in handcuffs
and contacted Officer Branch. (TR. 13, 21, 26-29, 101).
Yarpe searched Defendant's person and found $3, 910 in
U.S. currency and 77 grams of methamphetamine packaged in
four separate plastic bags in Defendant's left inner coat
pocket. (TR. 14-15). Because of the large amount of money and
methamphetamine found in Defendant's coat pocket,
Detective Brandt searched the F-150 for additional items
related to drug dealing. (TR. 14, 17). A stolen motorcycle
was found in the back of the F-150. (TR. 29).
Branch placed Defendant in Branch's vehicle while the
other officers searched the F-150. Officer Branch obtained
Defendant's biographical information and explained to him
the circumstances of his arrest. Officer Branch and Defendant
conversed in English without difficulty. Defendant was calm
but began to cry when Officer Branch told him that he was
being arrested for possession with intent to distribute
methamphetamine. (TR. 37).
Defendant was arrested and taken to Central Headquarters,
Officer Branch provided the OPD Miranda rights
advisory form (Ex. 101) to Defendant in order to conduct an
interview. Defendant did not agree to be interviewed. He did
not ask for an attorney. (TR. 38, 107). Officer Branch then
told Defendant that he had information regarding
Defendant's access to a residence at 48th and
Blondo streets and the existence of a camper at
19th and Arbor streets. Officer Branch requested
Defendant's permission to search the residence and the
camper without the necessity of obtaining a warrant. (TR.
38-39, 62, 106-107). Defendant agreed to the search of the
camper at 19th and Arbor and signed an OPD
Permission to Search form (Ex. 2) filled out by Officer
Branch. Defendant was allowed to read the form and stated
that he could read before signing the form. (TR. 39-40).
Officer Branch and Defendant spoke in English without
difficulty. Officer Branch made no threats or promises
and Defendant appeared calm throughout. (TR. 40, 93-94).
Officer Branch transported Defendant to the camper's
location to execute the search. Officers used a key provided
by Defendant to gain entry to the camper. Officers found
about 60 grams of methamphetamine in the camper. (TR. 41).
filed the instant motion to suppress “all evidence
seized from the Defendant's person, property, motor
vehicle, cell phone, and camper[.]” (Filing No.
argues that the evidence in this case should be suppressed
because it resulted from a traffic stop without probable
cause, a search of his person, and the F-150 without a
warrant or exception the warrant requirement, and a
consensual search of the camper obtained after he had invoked
his right to remain silent. (Filing Nos. 27, 28; TR. 8, 111,
115-117). Each of these arguments is without merit, as
although standing was not addressed at the hearing, the
government did raise in its brief the issue of whether
Defendant established “that he was in lawful possession
of the truck he was driving and had any ...