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United States v. Carrillo

United States District Court, D. Nebraska

January 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GIAVANA CARRILLO, 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. 38, issued by Magistrate Judge Susan M. Bazis. The Magistrate Judge recommended that the Motion to Suppress filed by the Defendant Giavana Carrillo, ECF No. 20, be denied. Carrillo filed an Objection to the F&R, ECF No. 43, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded to the Objection, ECF No. 45, and incorporated its previous arguments. For the reasons set forth below, the F&R will be adopted, and the Motion to Suppress will be denied.

         BACKGROUND

         Carrillo is charged with being a felon in possession in of ammunition, and she seeks to suppress any evidence obtained by law enforcement during a traffic stop on May 6, 2018. She objects to the Magistrate Judge's credibility findings regarding Omaha Police Officer Christopher Rich, but otherwise the facts are not in dispute. For the reasons stated below, the Court adopts the Magistrate Judge's factual findings and provides the following by way of summary:

         On May 6, 2018, Officer Rich and his partner, Officer Judkins, were conducting routine patrols in a marked cruiser. While traveling northbound on Park Avenue in Omaha, they observed a vehicle traveling southbound, towards their cruiser. Officer Rich testified that as the southbound vehicle passed them, he noticed that the two brake lights on the bottom of the vehicle were functioning, but the top-mount brake light, which was centered between the other brake lights and positioned above the trunk of the vehicle, was not working. Officer Rich said he could see the non-functioning brake light in his side view mirror because his cruiser was traveling at a slow rate of speed.

         Officer Rich made a U-turn and came up behind the vehicle to make sure the brake light was out. Once he confirmed it was not working, he initiated a traffic stop. He testified that he was not on the lookout for Carrillo's vehicle at the time of the traffic stop and he did not intend to stop the vehicle until he observed the non-functioning brake light. Carrillo was driving the vehicle, and Officer Rich verified her identify and discovered that she had two outstanding warrants and her license was suspended. He took Carrillo into custody and discovered ammunition in her purse.

         Carrillo moved to suppress the evidence from the stop, arguing that Officer Rich did not have probable cause to stop her vehicle because Nebraska law does not require all break lights to be functional. The Magistrate Judge concluded that Officer Rich's interpretation of Nebraska law was objectively reasonable and he had probable cause to stop the vehicle.

         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

         Carrillo objects to the Magistrate Judge's finding that Officer Rich's testimony was credible. She also argues that Officer Rich's interpretation of Nebraska traffic law was objectively unreasonable, and therefore he lacked probable cause to stop her vehicle. The record supports the Magistrate Judge's recommendations as to each objection and, for the reasons stated below, the Court will adopt the F&R.

         I. Officer Credibility

         Under de novo review, “once a party makes a proper objection to a magistrate's finding, including a credibility finding, the district court must make a de novo determination of that finding.” Taylor v. Farrier, 910 F.2d 518, 521 (8th Cir. 1990). The Court must determine whether Officer Rich's testimony was “so implausible that a reasonable fact-finder would not credit the testimony.” United States v. Portmann, 207 F.3d 1032, 1033 (8th Cir. 2000).

         Carrillo argues that video evidence and screen shots show Officer Rich's explanation for the stop is not credible. Officer Rich testified that he noticed Carrillo's malfunctioning break light in his side mirror as he passed her. Carrillo argues that this testimony is implausible because Officer Rich applied the brakes on his cruiser just before he passed Carrillo and immediately began to turn around to stop Carrillo. This evidence, according to ...


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