United States v. Elias

          FINDINGS AND RECOMMENDATION

          MICHAEL D. NELSON, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the Motion to Suppress the Fruits of an Unlawful Search and Seizure (Filing No. 18) filed by Defendant, Luis Elias. Defendant filed a brief in support of the motion (Filing No. 19) and the government filed a brief in opposition (Filing No. 24).

         The Court held an evidentiary hearing on the motion on May 2, 2018. Defendant was present with his attorney, Michael F. Maloney. The government was represented by Assistant United States Attorney, Kimberly Bunjer. Nick Greiner, a Detective with the Bellevue, Nebraska Police Department testified on behalf of the government. The Court received into evidence, without objection, Exhibits 1 (booking photographs of Defendant) and 2 (audio-visual recording from police vehicle camera) offered by the government. A transcript (TR.) of the hearing was prepared and filed on May 12, 2018. (Filing No. 30). This matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be granted.

         BACKGROUND

         Detective Nick Greiner (“Det. Greiner”) has been in law enforcement for eight and a half years-three with Cass County Sheriff's Office in Nebraska and five with his current employer, Bellevue Police Department. (TR. 4-5). At approximately 12:30 p.m. on June 28th, 2017, Det. Greiner was performing a dayshift road patrol of a residential neighborhood in north Bellevue when he recognized a Pontiac Firebird belonging to Michael Beltran (“Beltran”) and commonly driven by Selena Hansen (“Hansen”) parked in the driveway of an unknown residence. (TR. 7). Det. Greiner previously had received information from officers that the Firebird had been involved in drug activity. (TR. 15).

         While driving by the residence the first time, Det. Greiner ran a records check of the Firebird's license plates, which showed it belonged to Beltran. (TR. 5, 15). Det. Greiner had no information associating the residence with Beltran and Hansen. (TR. 23). Det. Greiner then ran a records check for Beltran and Hansen and confirmed with dispatch that they appeared to have active warrants. (TR. 6, 16). Beltran's was a misdemeanor warrant for interference with a public service. (TR. 19). Det. Greiner also had pictures and physical descriptions of Beltran and Hansen at his disposal on the computer in his cruiser. (TR. 16). Beltran's physical description was five-foot-nine-inches and-two hundred pounds. (TR. 20).

         While driving by the residence a second time, Det. Greiner noticed two Hispanic males and a white female standing by the residence. (TR. 6-7, 17). Det. Greiner testified that he did not get a good look at the individuals. (TR. 18). Nonetheless, Det. Greiner suspected that these individuals were Beltran and Hansen. (TR. 19). Det. Greiner called in backup from Sergeant Derrick Bees (“Sgt. Bees”).

         After passing the residence a third time, Det. Greiner and Sgt. Bees parked their patrol cars two or three blocks away and approached the residence by foot. Det. Greiner did not know if Hansen or Beltran were actually there. (TR. 21). As the officers approached, Det. Greiner saw a “tall skinny” Hispanic male standing near the porch of the residence, a white female sitting in the front passenger seat of the Firebird, and a Hispanic male, later identified as Defendant, sitting in the front driver's seat of the Firebird. (TR. 8, 20). As Det. Greiner approached the residence, Defendant got out of the driver's seat and made his way to the open trunk of the Firebird. Det. Greiner noticed what he believed to be gang-related tattoos on Defendant. (TR. 8-9, 11). Det. Greiner called out and identified himself as a police officer as Defendant searched through the trunk. (TR. 8-9). Defendant then looked at Det. Greiner and continued to search the trunk. After Det. Greiner called out a second time, Defendant moved from the trunk. Neither Beltran nor Hansen were at the residence. (TR. 21, 26).

         After Defendant moved from the trunk, Det. Greiner saw that Defendant was five-foot-three-inches and one-hundred and fifteen pounds, a stark difference from Beltran's larger frame. Det. Greiner proceeded with a pat-down search of Defendant. (TR. 9). Det. Greiner decided not to conduct the frisk of Defendant in front of his cruiser camera and he did not engage his microphone. (TR. 24). Det. Greiner found a plastic baggie filled with a clear crystalized substance he believed to be methamphetamine in Defendant's right pocket. Det. Greiner then placed Defendant in handcuffs, detained him, and requested assistance from Officer Jordan Spencer (“Ofc. Spencer”). Det. Greiner and Ofc. Spencer placed Defendant in the back of Ofc. Spencer's patrol car, read Defendant his Miranda warnings, and performed a field test of the substance. (TR. 9-10). Defendant identified himself sometime after being handcuffed, but Det. Greiner did not specify if it was before or after the Miranda warnings. Det. Greiner questioned Defendant. (TR. 12). Defendant admitted that the substance was methamphetamine, that the Firebird belonged to him, and that some of the contents inside the Firebird belonged to him. Det. Greiner and Ofc. Spencer searched the Firebird. (TR. 13). Det. Greiner and Ofc. Spencer found a firearm and two glass bongs commonly used for smoking marijuana. After questioning Defendant about the firearm, the officers took him to the Sarpy County jail for booking. (TR. 13-14).

         Defendant has filed the instant motion to suppress all evidence obtained as a result of Det. Greiner's frisk, arguing the frisk was unconstitutional because it was not supported by reasonable suspicion that Defendant was armed and dangerous. (Filing No. 19 at pp. 4-7).

         ANALYSIS

         Defendant argues that the evidence in this case should be suppressed because it resulted from a frisk unsupported by reasonable suspicion that he was armed and dangerous. (Filing No. 19 at p. 4). The undersigned magistrate judge agrees with Defendant that the totality of the circumstances did not support reasonable suspicion for a frisk of Defendant, and therefore finds the frisk was unconstitutional.

         Under the Fourth Amendment, “[l]aw enforcement officers may make an investigatory stop if they have a reasonable and articulable suspicion of criminal activity.” United States v. Bustos-Torres, 396 F.3d 935, 942 (8th Cir. 2005) (citing Terry v. Ohio, 392 U.S. 1, 25-31 (1968)). “‘After a suspect is lawfully stopped, an officer may in some circumstances conduct a frisk search for weapons' if the officer has ‘reasonable, articulable suspicion that the suspect is armed and dangerous.'” United States v. Roelandt, 827 F.3d 746, 748 (8th Cir. 2016) (quoting United States v. Trogdon, 789 F.3d 907, 910 (8th Cir. 2015)). “In the case of a self-protective search for weapons, [an officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968) (citing Terry, 392 U.S. at 21). Reasonable suspicion cannot be based on an officer's hunch. Terry, 392 U.S. at 22. Instead, “Reasonable suspicion is determined by ‘look[ing] at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing [based on his] own experience and specialized training to make inferences from and deductions about the cumulative information available.'” United States v. Dillard, 825 F.3d 472, 474 (8th Cir. 2016) (quoting United States v. Arvizu, 534 U.S. 266, 273(2002)).

         In this case, the undersigned magistrate judge finds that the totality of circumstances did not support reasonable suspicion and the subsequent frisk of Defendant. Det. Greiner gave three reasons for initiating the frisk: the high risk-nature of checking people with felony arrest warrants; the fact that Defendant continued searching his trunk and ignored Det. Greiner upon his first approach; and Det. Greiner's belief that Defendant's tattoos ...