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United States v. Lopez

United States District Court, D. Nebraska

December 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAR RODRIGUEZ LOPEZ, Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Findings and Recommendation (F&R), ECF No. 78, issued by Magistrate Judge Susan M. Bazis. The Magistrate Judge recommended that the Motion to Suppress filed by the Defendant Omar Rodriguez Lopez, ECF No. 58, be denied. Defendant filed an Objection to the F&R, ECF No. 79, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded to the Objection by a “Notice of Adoption of Magistrate Judge's Findings and Recommendation.” ECF No. 80. 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 conspiracy to possess with intent to distribute methamphetamine and possession with intent to distribute methamphetamine. Indictment, ECF No. 21. Defendant seeks to suppress any evidence obtained by law enforcement during a traffic stop on April 26, 2018. Defendant does 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 April 26, 2018, Investigator Jarod Brabec of the Lancaster County Sheriff's Office was working on Interstate 80 performing traffic enforcement. Brabec was a member of the County's interdiction team, that pursued individuals involved in criminal activity and intercepted such persons while enforcing traffic laws. While observing traffic on Interstate 80, Brabec received information from Special Agent Weimer of Homeland Security that there was a vehicle traveling eastbound on Interstate 80 that was involved in a large-scale methamphetamine distribution operation based out of Omaha. Weimer's notice was based on reliable information from a confidential informant. Brabec relayed the information to Sergeant Mike Vance, a K-9 handler with the Seward County Sheriff's Office.

         At 9:45 a.m., Vance observed the vehicle, driven by Defendant, travelling eastbound on Interstate 80 toward Brabec's location. Vance followed the vehicle to Brabec's location. Brabec testified that once the vehicle reached his location, the plan was to look for a traffic violation to support a stop. Brabec testified that when the Defendant's vehicle reached Brabec's location, it was following closely behind another vehicle. Using a stopwatch, Brabec measured 0.8 seconds between the rear bumper of the first vehicle and the front bumper of Defendant's vehicle. Brabec, using the “three-second rule”, determined that Defendant was following too closely and stopped Defendant's vehicle.

         Brabec testified that Defendant's vehicle had a “lived-in” look and that Defendant was overly nervous throughout the stop. After initiating the stop, Brabec escorted Defendant to Brabec's cruiser so he could issue Defendant a warning ticket and perform a records check. Defendant did not provide a valid driver's license but provided a Mexican identification card. Brabec asked Defendant about his travel itinerary. At first, Defendant told Brabec that he was traveling from Aurora, Colorado, because he was going to see his friend who was deported, but later stated that he had gone to Colorado because his friend had already been deported.

         Defendant could not provide a permanent address of residence, though he reviewed a piece of paper from his wallet that had two addresses written on it. Brabec testified that he could not complete a records check without Defendant's address. Brabec also testified that communication barriers due to language prolonged the routine tasks associated with the traffic stop.

         As Brabec was attempting to get Defendant's information to perform a records check, Vance ran his K-9 around Defendant's vehicle. At that point, Brabec had not provided Miranda warnings. Approximately ten minutes into the stop, the K-9 alerted to the presence of narcotics in the vehicle. Vance then returned to Brabec's cruiser and asked Defendant if there were any narcotics in the vehicle. Defendant admitted that there was a small amount of cocaine.

         Brabec then asked for Defendant's consent to search the vehicle, even though Brabec believed that, due to the K-9 alert, he did not need Defendant's consent. Brabec used Google translate to ask for consent in both English and Spanish. Brabec obtained consent and investigators searched Defendant's vehicle. Investigators found a vacuum-sealed container with tape. Soon thereafter, Defendant was given his Miranda warnings and Defendant invoked his rights to remain silent and to an attorney.

         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

         Defendant asserts that the evidence obtained from the stop should be suppressed because he did not violate any traffic laws; the traffic stop was unreasonably prolonged; and his Miranda rights were violated when he was asked questions by officers during the traffic stop. Though not asserted in his Motion, Defendant argues in his brief and in his Objection that he did not consent to a search of his vehicle and officers did not request consent for the K-9 sniff of the vehicle. The Magistrate Judge rejected each of Defendant's arguments. Defendant broadly objects to the Magistrate Judge's ...


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