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United States v. Andrade

United States District Court, D. Nebraska

September 28, 2018

UNITED STATES OF AMERICA, Plaintiffs,
v.
ELMER ALEXANDER ANDRADE, Defendant.

          FINDINGS AND RECOMMENDATION

          SUSAN M. BAZIS UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant Elmer Alexander Andrade's Motion to Suppress Evidence (Filing No. 47). An evidentiary hearing was held on Defendant's motion on August 1, 2018 and August 9, 2018. Having heard the testimony and considered the evidence, the undersigned will recommend that the motion be denied.

         FACTUAL BACKGROUND

         On January 18, 2018, Nebraska State Patrol (“NSP”) Investigator Dan Fiala (“Fiala”) contacted NSP Trooper Greg Goltz (“Trooper Goltz”)[1] and advised that a confidential source[2](“CS”) had reported that a vehicle would soon be coming into Hall County transporting methamphetamine. (TR. 12; Ex. 3.) Fiala relayed to Trooper Goltz that the vehicle was on its way to a specific residence. (TR. 12.) Fiala then provided Trooper Goltz the address of the residence. (TR. 12.) Fiala informed Trooper Goltz that the CS had reported that the vehicle was going to the residence to unload methamphetamine, and that the methamphetamine would pretty much be out in the open as it traveled. (TR. 12; Ex. 3.) From the residence, the vehicle would travel to either Grand Island or Hastings, Nebraska. (TR. 12.) Fiala asked Trooper Goltz to be near the area of the residence to either intercept the vehicle or try to conduct a traffic stop. (TR. 13.)

         Fiala described the subject vehicle to Trooper Goltz as a black Ford Expedition with a California license plate. (TR. 13.) Fiala also provided Trooper Fiala with the vehicle's license plate number. (TR. 13.) When officers ran the license plate number, they learned the vehicle was a rental. (TR. 13.)

         Trooper Goltz then met with Fiala and Adams County Deputy Sheriff Glenn Kemp (“Sheriff Kemp”) at the Wood River exit truck stop. (TR. 14.) There, Fiala told Trooper Goltz that the subject vehicle was at the residence and that there were two Hispanic males behind the garage of the residence unloading methamphetamine. (TR. 14.) Trooper Goltz believed the vehicle would be coming towards the highway at the Wood River exit, so he parked his cruiser facing eastbound in a driveway located north of the stop sign of a county road. (TR. 15, 47-48.) As he sat there, Trooper Goltz saw an approaching vehicle that matched the description provided by investigators. (TR. 15.) The vehicle was a quarter of a mile away when Trooper Goltz first spotted it. (TR. 47.) Trooper Goltz testified that he witnessed the vehicle stop at the stop sign on the county road, and then turn south without activating a turn-signal. (TR. 15.) Trooper Goltz testified that as the vehicle stopped, he could see its left side, but as it turned, he could see the rear of the vehicle and that the turn signal was not on.[3] (TR. 50.)

         Trooper Goltz pulled out of the driveway to conduct a traffic stop. The cruiser was equipped with a video and audio recording system, which activated when Trooper Goltz turned on his emergency lights. (TR. 15, 17.) Trooper Goltz testified that as he followed the vehicle, he observed another traffic violation. (TR. 19.) He saw the vehicle cross the center line while navigating a curve in the roadway. (TR. 19.) This violation is visible in the video of the traffic stop. (TR. 19, Ex. 1.)

         Once the vehicle stopped, Trooper Goltz approached the driver's window. (TR. 20.) The driver of the vehicle was identified as Defendant from his California driver's license. (TR. 20.) The passenger of the vehicle was identified as Juan Carlos Camacho-Jimenez, Jr. (“Camacho”). (TR. 23; Ex. 3.) Defendant told Trooper Goltz that the vehicle was a rental. (TR. 22.) While conducting a criminal history check, Trooper Goltz engaged Defendant in conversation. (TR. 22-23.) Trooper Goltz asked Defendant for consent to search the vehicle. (Ex. 1.) Trooper Goltz testified that part of the reason he sought consent to search the vehicle was based on the information he received from investigators. (TR. 26.) Defendant initially gave consent, but subsequently withdrew consent. (TR. 26; Ex. 1.) Trooper Goltz then advised Defendant that he was going to call for a K-9 to sniff the vehicle. (TR. 27.) Defendant was placed in the rear of the cruiser, and Camacho was placed in the front passenger seat. (TR. 26.)

         Trooper Goltz called Fiala and Sheriff Kemp and told them that Defendant had provided consent, but that consent was revoked and a K-9 was called. (TR. 26.) When Fiala and Sheriff Kemp arrived on the scene of the traffic stop, Trooper Goltz learned that Defendant was someone investigators were well-aware of and that Defendant had been involved in drug activity for years in the Hastings area. (TR. 27-28.)

         NSP Trooper Matt Workman (“Trooper Workman”) arrived at the scene with his K-9 approximately thirty-eight minutes after Defendant was detained.[4] Trooper Workman testified that during the first pass around the vehicle, his K-9 alerted in between the driver's door and the left rear passenger door.[5] (TR. 116.) Trooper Workman stated that once his K-9 alerts, but does not indicate, he typically goes back to the area to recheck it, which he did in this case. (TR. 117.) As he went to re-check the area, Trooper Workman directed his K-9 to sniff higher on the vehicle. (TR. 117.) Trooper Workman testified that this is called a “direct search” and is common practice in the K-9 industry. (TR. 139-40.) Trooper Workman testified that the purpose of a direct search is to assist the K-9 in finding the strongest source of the odor. (TR. 117.) Trooper Workman stated that a direct search is part of each of his K-9 deployments and is the only way to communicate with the K-9. (TR. 151-52.) As Trooper Workman and the K-9 were coming around the back of the vehicle, the K-9 alerted on the left rear seam of the rear hatch of the vehicle and indicated by sitting down. (TR. 117.) Trooper Workman testified that he did not direct his K-9 to indicate. (TR. 117.) Following the indication by the K-9, the vehicle was searched, and methamphetamine was located. (TR. 33-34.) Defendant and Camacho were placed under arrest and the vehicle was taken back to the NSP office in Grand Island, Nebraska for further search. (TR. 34-35.)

         Following the arrest and search of the vehicle, Sheriff Kemp applied for and obtained a warrant to search Defendant's residence. (TR. 158.)

         DISCUSSION

         Defendant requests that the Court suppress all evidence and statements obtained from the traffic stop on January 18, 2018 and the subsequent search of his residence. Defendant argues that law enforcement did not have probable cause to stop his vehicle and impermissibly extended the duration of the traffic stop to obtain a K-9 sniff. Defendant also argues that the subsequent search of his home was improper because the search warrant was obtained based on the unlawful traffic stop.[6] The undersigned finds each of Defendant's arguments unpersuasive.

         1. Stop ...


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