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United States v. Perkins

United States District Court, D. Nebraska

April 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES M. PERKINS, Defendant.

          FINDINGS, RECOMMENDATION, AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         Defendant James M. Perkins (“Defendant”) has moved to suppress all evidence and statements obtained during a vehicle search conducted on August 9, 2017, alleging his Fourth Amendment rights were violated. Defendant has also moved to suppress statements made during the traffic stop at issue based on alleged violations of his Fifth Amendment rights. For the following reasons, Defendant's motion should be denied.

         STATEMENT OF FACTS

         After hearing testimony and reviewing the video evidence, the undersigned magistrate judge finds as follows:

         In June and July of 2017, while engaged in criminal investigations for the Lincoln Police Department, Officer Daniel Cleveland received intelligence reports regarding methamphetamine sales in Lincoln, Nebraska. On June 5, 2017, Officer Cleveland received a report from a Lincoln police officer, premised on information from a confidential informant of unknown reliability, that Perkins had sold methamphetamine to a confidential informant, and the confidential informant had observed him in possession of a half-ounce of methamphetamine. On July 30, 2017, another confidential informant reported purchasing methamphetamine from Perkins and observing him in possession of additional methamphetamine. Officer Cleveland also received three separate intelligence reports regarding the sale of methamphetamine connected either to the residence at 3925 N. 11th Street in Lincoln, Nebraska or to Nicholas LaFrenz (“LaFrenz”), who resided there. The first two reports were received from or authored by fellow Lincoln police officers. On July 15, 2017, a further report, containing information from a confidential informant, indicated that LaFrenz's purported methamphetamine sales were conducted at the 3925 N. 11th Street residence, and that people frequented the residence for the purpose of purchasing illegal drugs.

         On August 9, 2017, while conducting surveillance of the LaFrenz residence, Officer Cleveland observed a 1994 Cadillac Seville parked across the street. He ran the license plate and determined the vehicle was registered to Perkins. Officer Cleveland then observed Perkins exit the LaFrenz residence, enter the Seville, and drive northbound on 11th Street. Officer Cleveland initiated a traffic stop at the intersection of 11th and Vale Streets. Defendant was the driver and sole occupant of the vehicle at the time of the stop. Officer Cleveland approached the vehicle and informed Defendant that he had been stopped for failing to signal his turn at least 100 feet before the intersection, in violation of Neb. Rev. Stat. § 60-6, 161.

         Officer Cleveland noticed Perkins appeared nervous and was shaking as they interacted. The officer asked about the shaking, but Perkins indicated he was not nervous or otherwise in distress. Officer Cleveland then asked Defendant whether there were illegal drugs or weapons inside his car. Defendant responded that there were not. Officer Cleveland returned to his police vehicle and completed a warning ticket for failing to properly signal a turn. When Officer Cleveland returned to Perkins' vehicle with the warning ticket, he handed it to Perkins and told Perkins he would like to speak with him further. Perkins exited the vehicle to speak with the officer. Officer Cleveland requested permission to search the vehicle. Perkins denied consent.

         Officer Cleveland informed Perkins that he had requested a canine to come to the scene to assist. Officer Cleveland explained that he had reasonable suspicion to believe there were illegal substances in Perkins' vehicle, and Perkins was not free to leave--he would be released only if the canine did not indicate to the odor of a controlled substance in the vehicle.

         Between the issuance of the warning citation and the canine's arrival, an additional officer-Officer Gaston-arrived at the scene. Officers Cleveland and Gaston stood near the back of Defendant's vehicle and talked with Perkins while awaiting the canine's arrival. During that discussion, Officer Cleveland asked Perkins about the origin and destination of Perkins' travel. Officer Cleveland asked if Perkins had entered any residence immediately prior to the stop and whether Perkins personally used illegal drugs. Perkins denied entering a residence prior to the stop, but he admitted to occasionally using marijuana and previously using methamphetamine.

         A police canine arrived and began a dog sniff of the exterior of Defendant's vehicle. The dog alerted to the presence an illegal substance. Officer Cleveland then began a search of the interior of the vehicle, where he discovered a white pill he believed to be a controlled substance. Officer Gaston, who remained at the scene as backup, confirmed that the pill was hydrocodone, a Schedule II controlled substance. Defendant was placed under arrest and seated in the back of Officer Cleveland's police cruiser.

         Officer Cleveland continued searching Perkins' vehicle and discovered a locked safe in the vehicle's trunk. Perkins was unwilling to give the officers the safe's combination and, without prompting, stated his belief that opening the safe was an illegal search and would necessitate a warrant. Officers completed the search over Defendant's objections and discovered approximately 72 grams of methamphetamine concealed within it. Defendant was advised of his Miranda warnings at the search's conclusion. He refused to further speak to the officers at the scene.

         ANALYSIS

         I. Fourth Amendment.

         Defendant does not dispute that Officer Cleveland had probable cause to initiate the traffic stop. Instead, Defendant contends that after Officer Cleveland issued the traffic warning, he impermissibly ...


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