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. 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).
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.
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.
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).
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”).
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,
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).
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).
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.
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)).
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 ...