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United States v. Douglas

United States District Court, D. Nebraska

November 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EBONY L. DOUGLAS, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp, United States District Judge.

         This matter is before the Court on the Findings and Recommendation (F&R), ECF No. 37, issued by Magistrate Judge Michael D. Nelson. The Magistrate Judge recommended that the Amended Motion to Suppress filed by the Defendant Ebony L. Douglas, ECF No. 18, be denied. Defendant filed an Objection to the F&R, ECF No. 39, [1]as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded to the Objection, ECF No. 40. For the reasons set forth below, the F&R will be adopted, and the Motion to Suppress will be denied.

         BACKGROUND

         Defendant is charged with one count of possession with intent to deliver marijuana. Indictment, ECF No. 1. Defendant seeks to suppress any evidence obtained by law enforcement on December 17, 2017, asserting that Douglas County, Nebraska, Deputy Sheriff Eric Olson (Deputy Olson) lacked probable cause or reasonable suspicion to initiate a traffic stop and lacked reasonable suspicion to conduct a canine sniff of her vehicle. Defendant did not directly object to the Magistrate Judge's factual findings. Having reviewed the record, the Court adopts those findings and provides the following by way of summary:

         On December 17, 2017, Deputy Olson stopped a Chevrolet Tahoe, driven by Defendant, towing a small U-Haul trailer on Interstate 80 at about 60th Street. Deputy Olson initiated the stop because he observed the Tahoe cross into a different lane of traffic, causing another driver to swerve. According to Deputy Olson, no obstructions or hazards justified crossing into the adjacent lane.

         After initiating the stop, Deputy Olson asked Defendant to return to his cruiser while he conducted a records check, reviewed Defendant's documents, and asked about her travel itinerary. Defendant said she was moving from California to Michigan, adding that her boyfriend lived in Chicago. Defendant appeared nervous and volunteered information that Deputy Olson did not ask for. The U-Haul rental agreement stated that the trailer was rented in Sacramento, California, and was scheduled to be returned in Chicago, Illinois. When asked about the drop-off location of the U-Haul trailer, Defendant stated that she did not have an exact location, but that it needed to be dropped off at the airport.

         The rental agreement for the Tahoe stated that the vehicle was rented in California on December 16, 2017, and due to be returned in California on December 22, 2017. Defendant explained that the vehicle was not actually going to be returned to California because she did not have enough money for a one-way rental. However, Defendant claimed that she worked out a way to return the vehicle to Midway Airport in Chicago at an expected additional cost of $500.00 and possibly another day's rental fee.

         Defendant's record check revealed no warrants or criminal history. Deputy Olson returned Defendant's documents, issued a verbal warning for the traffic violation, and told Defendant he would assist her back to the Tahoe. Defendant declined Deputy Olson's request to open the rear cargo area of the Tahoe, she also declined to give consent to a narcotic sniff of the vehicle and trailer. Deputy Olson nevertheless detained Defendant and deployed his canine around the exterior of the Tahoe and the U-Haul trailer. The canine alerted at the vehicle and indicated to the odor of narcotics at the trailer. Deputy Olson searched the Tahoe and the U-Haul trailer and found marijuana.

         The Magistrate Judge concluded that Deputy Olson had probable cause to initiate the stop based on the Tahoe crossing the lane divider. The Magistrate Judge also concluded that, based on Defendant's suspicious behavior and inconsistent travel plans, Deputy Olson had reasonable suspicion to detain Defendant to conduct a canine sniff. Finally, the Magistrate Judge concluded that there was no evidence of unequal enforcement on the basis of race. Defendant objects to the Magistrate Judge's findings that (1) the initial stop was supported by probable cause and (2) that Deputy Olson had reasonable suspicion to detain Defendant.

         STANDARD OF REVIEW

         Under 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 with instructions.

         DISCUSSION

         1. Probable Cause to Stop Defendant

         “A 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 ...


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