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United States v. Henry

United States District Court, D. Nebraska

April 16, 2018

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

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Findings and Recommendation (F&R), ECF No. 71, issued by Magistrate Judge Susan M. Bazis recommending that the Motion to Suppress filed by the Defendant Alfort Henry (Defendant), ECF No. 36, be denied. Defendant filed Objections to the Findings and Recommendation, ECF No. 72, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government has not responded to the Objections. For the reasons set forth below, the Findings and Recommendation will be adopted, the Objections will be overruled, and the Motion to Suppress will be denied.

         BACKGROUND

         Defendant is charged with conspiracy to possess with intent to distribute methamphetamine and possession with intent to distribute methamphetamine. Indictment, ECF No. 1. Defendant moves to suppress the evidence seized during the search of Jennifer Smith's apartment[1] on March 14, 2017, on the grounds that the application supporting the warrant was insufficient to support a finding of probable cause. Defendant also requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), asserting that officers provided improper information or omitted key information in their application for the search warrant.

         Although Defendant broadly objects to the factual findings as “not supported by the record, ” Objection at 1, ECF No. 72, Page ID 184, and objects to the Magistrate Judge's characterization of some of the facts, Defendant does not specifically identify the objectionable portions of the factual findings. Accordingly, except as noted below, the Court adopts the findings in their entirety. The Court provides the following by way of summary:

         On March 8, 2017, Officer Brit Koch of the York Police Department found Defendant, Shaine Lyon, Eva Bowers, Justine Fowler, and Jennifer Smith in a van parked near Harrison Park in York, Nebraska. Lyon was arrested on an active warrant. Bowers asked to leave with Defendant and Smith. Officer Koch believed that Bowers was under the influence of narcotics at that time.

         Shortly after Defendant, Bowers, and Smith left Harrison Park, officers were called to Smith's apartment at the Del Ray Plaza Apartments in York. 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 Defendant believed Bowers was wearing a wire. Smith told officers that Defendant believed the water from the shower would destroy any electronics.

         Later that evening, Bowers reported to the York Police Department that Defendant sexually assaulted her. Soon after the report, Officer Koch interviewed Bowers. Bowers was emotional, drowsy, and appeared intoxicated during the interview, but managed to disclose that she was unsure where the assault took place, though she mentioned the “Del Ray Apartments” and indicated that a woman named “Jennifer” may have been present. ECF No. 38-6, Page ID 83. Bowers indicated that she may have been drugged.

         On March 12, 2017, Officer Koch brought Bowers 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 located in the back corner of the Del Ray Apartments complex. Bowers believed the apartment belonged to “Jennifer.” 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. After the shower, Smith told Bowers to strip off her clothes to prove 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 driving outside of York. Once outside the city, she and Defendant smoked a bowl of methamphetamine. The sexual assault allegedly occurred in the car after they smoked the methamphetamine.

         Because the alleged assault took place outside of York, Officer Koch turned over the investigation to Sergeant Bruce Winn of the York County Sheriff's Department. Sgt. Winn continued the interview with Bowers on March 12, 2017. Sgt. Winn reported that although Bowers had a difficult time remembering timelines and details, she repeated to 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.” Bowers repeated her account of the night to Sgt. Winn.

         On March 13, 2017, York County Sheriff's Deputy Paul Vrbka applied for a search warrant to search a “residence, located 2220 apt. #13 York, Nebraska.” Ex. 1.[2]Deputy Vrbka also requested a warrant to search a white Dodge Avenger. The affidavit in support of the application stated that Bowers had reported that “Alfort F. Henry” assaulted her. The affidavit stated that Bowers told Sgt. Winn that she was with “Alfort Henry and a female named Jennifer Smith at her residence located at 2220 N. Nebraska [A]ve apt. #13 in York, Nebraska on March 7, 2017.” Ex. 1. The affidavit contained Bowers's account of the evening, including that Smith forced her to take a shower to prove Bowers was not wearing a wire and that Bowers smoked a bowl of methamphetamine with Defendant.

         The affidavit further stated that a case worker was currently working on a case of alleged child abuse involving Jennifer Smith. In that investigation, one of Smith's children, a three-year-old, tested positive for methamphetamine in a hair follicle test. The affidavit also stated that Defendant was a convicted felon with numerous drug arrests and convictions.

         A warrant for a search of Smith's residence and the vehicle was issued on March 13, 2017. The warrant indicated that the residence and vehicle were under the control or custody of “Jennifer L. Smith.” Ex. 1. The stated purpose of the warrant was to obtain illegal drugs such as methamphetamine and drug paraphernalia, including smoking pipes, small plastic bags, cash, digital measuring scales, and drug ledgers. The warrant was executed on March 14, 2017. The inventory of the search stated that officers found 66 grams of methamphetamine, marijuana, two laptop computers, 11 cell phones, two USB flash drives, Nebraska state IDs for Defendant and Smith, two digital scales, pills, rolling papers, baggies, a torch, four pipes, two needles, and a glass tube with white residue. (Ex. 1.)

         After the hearing on Defendant's Motion to Suppress, the Magistrate Judge concluded that the affidavit did not contain deliberately false statements nor did it omit material information. The Magistrate Judge further concluded that the ...


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