United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the Court on defendant Connie Estrella
Moreno's (“Moreno”) Motion to Suppress
Evidence (Filing No. 20). The magistrate judge issued a
Findings and Recommendation (Filing No. 35) recommending the
motion be granted. The government objects (Filing No. 38) to
the findings and recommendation. For the reasons stated
below, Moreno's motion to suppress is denied.
September 13, 2018, at around 6:00 a.m., Moreno alighted from
a bus at the Trailways bus station in Omaha, Nebraska. Moreno
soon encountered Nebraska State Patrol (“NSP”)
Trooper Brandon Wilkie (“Trooper Wilkie”) and
Sergeant Thomas Meola (“Sergeant Meola” and
collectively, the “officers”) who were conducting
criminal interdiction at the station, looking for criminal
activity like illicit weapons and drugs. Trooper Wilkie, a
twelve-year veteran, works criminal interdiction weekly.
Sergeant Meola has been with the NSP since 1994 and has had
training for commercial interdiction. Before being assigned
to the Investigative Services Division in 2011, Sergeant
Meola served five years on the Federal Bureau of
Investigation's joint-terrorism task force and has had
counter-terrorism training. He now supervises the Drug
Enforcement Agency Task Force in Omaha, working interdiction
at transportation hubs. His unit handles eighty to one
hundred cases per year.
officers first contacted Moreno in the passenger-loading area
at the bus station. Moreno was wearing what Trooper Wilkie
described as “a larger blanketed jacket” over her
shoulders with regular clothes underneath. The officers were
in plain clothes and had their firearms concealed. Sergeant
Meola had a body camera on his left shoulder.
came to the officers' attention when she claimed
ownership of a black suitcase removed from the baggage
compartment of a bus that arrived from Denver and was
destined for Chicago. The bag caught Sergeant Meola's eye
because it was new and only had one tag when bags typically
have two-one from the bus line and one personal one. The bag
did not have a personal tag containing certain identifying
information the officer thought a typical passenger would
include to ensure the bag could be recovered if lost or
stolen. Trooper Wilkie also found the bag suspicious. The
officers noted the only tag on the bag had what appeared to
be a fabricated phone number comprised of all the same
digits. The officers testified they have seen people involved
in criminal activity put limited or false information on a
baggage tag, so the bag cannot be connected to them.
passengers began boarding the bus for Chicago, Trooper Wilkie
asked them if the bag belonged to them. Moreno approached the
door and told him the bag was hers. After he identified
himself as a trooper and told Moreno why the officers were at
the station, Trooper Wilkie asked Moreno about her travel
plans and asked to see her ticket. He did not raise his
voice, block her ability to move, or tell her she had to
stay. At the same time, he did not tell her she did not have
to talk to him and was free to leave.
produced her ticket, explaining she was travelling from Las
Vegas to New York. Her name matched the name on the tag.
Trooper Wilkie asked for permission to search Moreno's
bags because when she handed him her ticket “her hands
were visibly shaking.” He also noted that she was
travelling from a distribution hub for narcotics and that
“her ticket did not match her travel, coming from
Denver to Chicago.” Moreno consented to the search of
Trooper Wilkie began to search Moreno's bags, Sergeant
Meola approached Moreno and joined the conversation. Like
Trooper Wilkie, Sergeant Meola suspected possible criminal
activity because Moreno said she was leaving Las Vegas, but
her bag indicated it was coming from Denver. He explained to
Moreno it was unusual that her bag was not checked all the
way to her destination, requiring her to retrieve her bag at
every stop and make sure it got back on the bus. Sergeant
Meola testified he frequently sees people caught smuggling
contraband check their bags at every stop despite the added
difficulty so they “can keep the bag in their
possession and not let it out of their sight.”
Sergeant Meola spoke with Moreno, he noticed her left arm was
out of place and “she was holding her blanket at her
belt line in a way that” did not seem natural. He was
not too concerned until he noticed “a very straight
line off [Moreno's] left side behind her arm.” It
then became “obvious that there was something
there.” That concerned him because it could have been a
weapon or a bomb. Sergeant Meola testified that, based on his
counterterrorism training, he was on heightened alert because
it was close to the anniversary of the September 11 attacks
and the bus station was a soft target for terrorism because
of the lack of security there.
Meola asked Moreno if anyone asked her to bring anything with
her and if she had anything strapped to her body. Moreno said
“no” three times. Sergeant Meola noted that her
answer to that question was different than her previous
answers, suggesting she was under stress. “[S]he was a
little more animated in her response and . . . shifted her
weight a little bit, ” he testified. Sergeant Meola
explained he has seen similar behavioral changes and
increases in stress when he asks questions about possible
Meola then asked Moreno if she would mind opening her
blanket. He did not raise his voice or make any demands.
Moreno responded by turning her back to him and slightly
extending her arms out from each side. Sergeant Meola found
that odd. He told her she could turn around and face him,
which she did, lowering her arms to her side, and leaving the
blanket open in front. When Moreno turned to face Sergeant
Meola, she leaned forward at the waist, causing her shirt to
hang “down loose off her body.” Sergeant Meola
“could still see . . . a definite bulge on her left
side where [he] had seen the original straight line
underneath the blanket.” He took hold of the edge of
the blanket hanging loose on Moreno's left side and said,
“Open this up for me.” Moreno lifted both arms,
opening the blanket further. Sergeant Meola then told Moreno
she could stand straight up. When she did, he could see the
“pronounced” outline of something under her
shirt. Sergeant Meola testified he was concerned Moreno might
be concealing a weapon.
Meola again asked if Moreno had anything strapped to her body
but did not ask her what was causing the bulge. She said no.
Without asking Moreno's permission, Sergeant Meola
reached out and touched the bulge “to make sure it
wasn't a weapon or . . . a bomb, or something like
that.” When he touched the bulge, it felt like a
“kilo-size brick” based on his prior experience.
He immediately placed Moreno in handcuffs and took her into
custody. On cross-examination at the suppression hearing,
Sergeant Meola agreed that “prior to [his] touching the
bulge” what he saw could “perhaps” have
been a book.
officers moved Moreno to an administrative area and advised
her of her rights under Miranda v. Arizona, 384 U.S.
436, 444 (1966). The officers told Moreno she could consent
to a search of her person or wait for them to get a warrant.
Moreno consented to the search, and the officers found two
large bricks of heroin. Moreno also agreed to talk with the
officers about the drugs they found, telling them she agreed
to transport the drugs to Chicago because she needed money.
Moreno told the officers she strapped the bricks to her body
shortly before encountering them. Before that, the drugs were
in her bag.
September 18, 2018, Moreno was charged with possessing with
intent to distribute one kilogram or more of heroin in
violation of 21 U.S.C. § 841(a)(1) and (b)(1). Moreno
moves to suppress “all evidence obtained as a result of
the illegal stop, arrest and search of her person on
September 13, 2018.”
Standard of Review
28, section 636(b)(1)(B) authorizes the Court to
“designate a magistrate judge to conduct” an
evidentiary hearing and submit “proposed findings of
fact and recommendations for the disposition” of a
motion to suppress evidence in a criminal case. When, as
here, a party timely objects to the magistrate judge's
findings and recommendation, the Court must “make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made” and “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id. §
636(b)(1); accord Fed. R. Crim. P. 59(b)(3).
Search and Seizure
Fourth Amendment protects the people “against
unreasonable searches and seizures” by the government.
U.S. Const. amend. IV; United States v. Preston, 685
F.3d 685, 689 (8th Cir. 2012). But “[n]ot every
encounter between law enforcement officers and an individual
constitutes a seizure within the meaning of the [F]ourth
[A]mendment.” United States v. Campbell, 843
F.2d 1089, 1092 (8th Cir. 1988); accord United States v.
Mendenhall, 446 U.S. 544, 553-54 (1980) (“The
purpose of the Fourth Amendment is not to eliminate all
contact between the police and the citizenry, but ‘to
prevent arbitrary and oppressive interference by enforcement
officials with the privacy and personal security of
individuals.'” (quoting United States v.
Martinez-Fuerte, 428 U.S. 543, 554 (1976))).
officers are, of course, always free to approach citizens and
question them if they are willing to stay and listen.”
United States v. O'Neal, 17 F.3d 239, 242 (8th
Cir. 1994) (citing Florida v. Royer, 460 U.S. 491,
497 (1983) (plurality opinion)). “So long as a
reasonable person would feel free ‘to disregard the
police and go about his business,' the encounter is
consensual and no reasonable suspicion is required. The
encounter will not trigger Fourth Amendment scrutiny unless
it loses its consensual nature.” Florida v.
Bostick, 501 U.S. 429, 434 (1991) (quoting
California v. Hodari D., 499 U.S. 621, 628 (1991)).
“Only when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of
a citizen may [the Court] conclude that a ‘seizure'
has occurred.” Terry v. Ohio, 392 U.S. 1, 20
initially consensual encounter can ripen into a seizure
requiring reasonable suspicion or probable cause.”
Campbell, 843 F.2d at 1092. As a consensual
encounter progresses, a police officer may act in some way to
restrain a person's liberty and prevent her from walking
away. See id.; accord Mendenhall, 446 U.S. at 554.
Or a citizen's behavior and the surrounding circumstances
may give rise to “a reasonable fear of harm . . .
sufficient to justify a seizure for a short period of time,
in order to conduct a [protective] pat-down
search.” United States v. Ellis, 501 F.3d
958, 961 (8th Cir. 2007); accord United States v.
Davis, 202 F.3d 1060, 1063 (8th Cir. 2000) (“The
danger to officer safety that justifies a protective search
may arise after a consensual encounter or investigative stop
has commenced.”). A protective frisk does not
necessarily transform a consensual encounter into an
investigatory stop. See Davis, 202 F.3d at 1062-63.
these principles to the facts of this case, the Court finds
Moreno's encounter with the officers was consensual until
Sergeant Meola, without Moreno's consent, initiated a
protective frisk by touching Moreno's outer clothing and
the bulge he saw under her shirt. At that point, the encounter
became “a search and a seizure for Fourth Amendment
purposes, ” requiring reasonable suspicion for the
frisk. Gray, 213 F.3d at 1000. When Sergeant Meola
handcuffed Moreno and moved her to the back of the station,
she was admittedly under arrest-which, in this case, required
probable cause. See, e.g., Ross v. City
of Jackson, 897 F.3d 916, 920 (8th Cir. 2018)
(“[A] constitutional violation occurs when there is a
warrantless arrest that is not supported by probable ...