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United States v. Moreno

United States District Court, D. Nebraska

April 24, 2019



          Robert F. Rossiter, Jr. United States District Judge.

         This 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.

         I. BACKGROUND

         On 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.

         The 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.

         Moreno 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.

         As the 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.

         Moreno 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 her bags.

         As 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.”

         As 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.

         Sergeant 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 criminal activity.

         Sergeant 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.

         Sergeant 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.

         The 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.

         On 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.”


         A. Standard of Review

         Title 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).

         B. Search and Seizure

         The 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))).

         “Police 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 (1968).

         “[A]n 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.”[1] 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.

         Applying 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.[2] 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 ...

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