United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Findings and Recommendation
(F&R), ECF No. 33, issued by Magistrate Judge Susan M.
Bazis. The Magistrate Judge recommended that the Motion to
Suppress or alternatively, Motion to Dismiss Indictment,
filed by the Defendant Douglas Eckhardt, ECF No. 13, be
denied. Defendant filed an Objection to the F&R, ECF No.
36, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR
59.2(a). The Government responded to the Objection, ECF No.
37. For the reasons set forth below, the F&R will be
adopted, and the Motion to Suppress will be denied.
is charged with using interstate commerce to facilitate the
promotion of unlawful activity and conspiracy to distribute
or possess with intent to distribute marijuana. Indictment,
ECF No. 1. Defendant seeks to suppress any evidence obtained
by law enforcement on September 20, 2017, asserting that
Omaha Police lacked probable cause or reasonable suspicion to
initiate a traffic stop. Defendant also asserted that Omaha
Police conducted the stop outside their jurisdiction and
failed to provide him with proper Miranda warnings,
but he withdrew his Miranda argument at the
evidentiary hearing. Tr. 78-79.
Magistrate Judge concluded that Officer Jeffrey Vaughn of the
Omaha Police Department was authorized to conduct traffic
stops on September 20, 2017. The Sarpy County Sherriff's
office has a Memorandum of Understanding (MOU) with the Omaha
Police Department. The evidence showed that, as required by
the MOU, Officer Vaughn notified Sarpy County dispatch that
he would be patrolling in Sarpy County on the date of the
traffic stop. Tr. 40. Defendant does not challenge the
Magistrate Judge's conclusion. Having reviewed the
record, the Court concludes that Officer Vaughn was
authorized to conduct the stop in Sarpy County on September
lone remaining argument is that the stop was unjustified
because Officer Vaughn lacked probable cause to initiate the
stop. On the date of the stop, Officer Vaughn was conducting
traffic patrol on Interstate 80 near mile marker 430 in Sarpy
County. Officer Vaughn observed Defendant's vehicle
driving westbound on Interstate 80 in the lane closest to the
median, following closely behind a white motor vehicle. Tr.
17. Using a stopwatch, Officer Vaughn timed the distance
between the white vehicle and Defendant's vehicle and
found it to be four-tenths of a second. Tr. 18. Based on the
Nebraska driving manual and Officer Vaughn's experience,
he determined that Defendant was following at an unsafe
distance and decided to stop Defendant. Tr. 20.
Officer Vaughn entered the Interstate to stop Defendant,
Vaughn noticed that Defendant's vehicle was a rental and
that both the front and rear driver's side windows were
down a couple of inches. Tr. 20. These facts were significant
to Officer Vaughn because, in his experience, people
traveling at high speeds with windows down are often either
smoking cigarettes while driving or transporting drugs, both
illegal activities. Tr. 21.
Vaughn testified that traffic was heavy due to morning
rush-hour and when he entered the Interstate, there were
several vehicles between his cruiser and Defendant's
vehicle. Tr. 22. Officer Vaughn's dashcam began recording
at some point before Defendant pulled to the shoulder of the
Interstate. As the recording begins, Officer Vaughn's
cruiser moves from the right-hand lane to the center lane
behind Defendant's vehicle. Ex. 1, 0:02. Officer Vaughn
then follows Defendant's vehicle to the left-hand lane
and turns on his cruiser's siren. Ex. 1, 0:15.
Defendant's vehicle then makes his way to the right-hand
shoulder where Officer Vaughn conducted the traffic stop. Ex.
1, 0:32. Officer Vaughn testified that it took approximately
30 seconds for Defendant to pull over. Tr. 23.
28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a), the Court
shall make a de novo review of the portions of the
Magistrate's Findings and Recommendation to which
objections have been made. The Court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
findings and recommendations. The Court may also receive
further evidence or remand the matter to the Magistrate Judge
Fourth Amendment states that people should be “secure
in their persons, houses, papers, and effects against
unreasonable searches and seizures, and no Warrants shall
issue, but upon probable cause . . .” U.S. Const.,
amend. IV. Defendant argues that Officer Vaughn violated his
Fourth Amendment rights because the traffic stop was not
justified at its inception. Specifically, Defendant argues
that Officer Vaughn's testimony lacked credibility. ECF
No. 36-1, Page ID 198.
traffic violation, no matter how minor, creates probable
cause for a law enforcement officer to stop [a]
vehicle.” United States v. Lopez, 564 F.3d
1001, 1003 (8th Cir. 2009). “[I]f an officer has
reasonable suspicion or probable cause to stop for a traffic
violation, ‘any ulterior motivation on the
officer's part is irrelevant.'” United
States v. McLemore, 887 F.3d 861, 864 (8th Cir. 2018)
(quoting United States v. Fuehrer, 844 F.3d 767, 772
(8th Cir. 2016), cert. denied, 137 S.Ct. 2107
(2017). “Reasonable suspicion is ‘a
particularized and objective basis for suspecting the
particular person stopped of breaking the law.'”
Id. (quoting Heien v. North Carolina, 135
S.Ct. 530, 536, (2014)).
Nebraska law, it is unlawful for a driver of a motor vehicle
to “follow another vehicle more closely than is
reasonable and prudent.” Neb. Rev. Stat. § 60-6,
140(1). Officer Vaughn testified that he uses a
“two-second rule” to determine whether a driver
is following at an unsafe distance and that he observed
Defendant following a motor vehicle at a timed distance of .4
seconds. Tr. 19. Vaughn explained that, in his experience,
drivers need more than two seconds to react to hazards in
front of them. Tr. 19-20. The Eighth Circuit has recognized
that under Nebraska law, “[t]he two-second rule . . .
is a ‘widely used rule of thumb that accounts for the
speed of traffic' and is an appropriate measurement of
whether a trailing car is maintaining a reasonable and
prudent distance.” United States v. Lopez, 564