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United States v. Graber

United States District Court, D. Nebraska

May 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LESLIE GRABER, Defendant.

          FINDINGS AND RECOMMENDATION

          Michael D. Nelson United States Magistrate Judge.

         This matter is before the Court on the Motion to Suppress Statements and Evidence and Request for Hearing (Filing No. 15) filed by Defendant, Leslie Graber. Defendant filed a brief (Filing No. 16) in support of the motion and the government filed a brief (Filing No. 20) in opposition.

         The Court held evidentiary hearings on the motion on February 26, 2019, and March 21, 2019. Defendant was present with his attorney, Richard McWilliams. The government was represented by Assistant United States Attorney, Matthew Lierman. Bellevue Police Detective Ryan Roskey, United States Probation and Pretrial Services Officer Avidan Perez, Nebraska State Probation Officer Aimee Assman, and Omaha Police Officer Adam Kruse testified on behalf of the government. The Court received into evidence, without objection, Exhibits 1-14 offered by the government, and Exhibit 105 offered by Defendant. A transcript (TR.) of the hearings was prepared and filed on April 22, 2019. (Filing No. 51). This matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be denied.

         BACKGROUND

         On March 6, 2018, Defendant began a nine-month term of post-release supervision after serving a term of incarceration for a felony conviction in Douglas County, Nebraska. (TR. 43-44; Ex. 3). Defendant's Order of Post-Release Supervision required him to “[r]eport as directed by the Court or probation officer and permit the probation officer to visit the defendant at all times and places.” Defendant was also ordered to “[s]ubmit to random searches and seizure of [his] person, premises, or vehicle upon request of a probation officer or a law enforcement officer who has been authorized and directed by the probation officer.” (Ex. 3). Officer Perez was Defendant's post-release supervision probation officer.[1] (TR. 40). According to Officer Perez, as of June 20, 2018, Defendant was placed in “absconder status” after failing to provide Officer Perez with a current address and after having no contact with Officer Perez for approximately thirty days. As a result, Officer Perez had submitted the matter of a revocation to the state court. (TR. 44, 62, 66-67).

         Sometime around June 21, 2018, Bellevue Police officers came into contact with Defendant while canvassing a neighborhood during a separate, unrelated investigation into a stolen vehicle. Detective Roskey learned from that investigation that Defendant was on state probation and that Officer Perez was his supervising probation officer. Detective Roskey also learned that Defendant was associated with a certain white Buick Regal registered to a “Bobbie Jo Adkins.” Detective Roskey contacted Officer Perez on June 26, 2018, and Officer Perez informed Detective Roskey that Defendant had absconded from post-release supervision and asked Detective Roskey to detain Defendant if he was located. (TR. 12-14, 24, 39-41, 44-47).

         On the morning of June 27, 2018, Detective Roskey and members of the Omaha fugitive task force convened at a motel off of 78th and Dodge Streets to locate a fugitive with an arrest warrant. (TR. 10-12, 35). During Detective Roskey's surveillance of the motel, he happened to observe Defendant's white Buick Regal parked in the parking lot near room 119. (TR. 12-13, 161-162). Pursuant to a tip from a reliable confidential informant, Detective Roskey and the fugitive task force knocked on room 119's door, believing that the fugitive was located inside that room. (TR. 35-36, 151-153). The three occupants of the room, including Defendant, complied with the officers' instructions to step outside of the room and were handcuffed. (TR. 15-16, 30). Detective Roskey called Officer Perez to let him know Defendant had been located. Officer Perez asked Detective Roskey to detain Defendant until Officer Perez arrived. (TR. 17-18, 48).

         Officer Perez and two colleagues, including Officer Assman, arrived approximately fifteen to twenty-five minutes later. (TR. 18, 49). Officer Perez asked Defendant questions about his failure to call and asked whether he had been driving the Buick and staying in room 119. Defendant admitted to driving the Buick and agreed to Officer Perez's request to search it. (TR. 49-50, 53-54, 74, 87). Officer Perez also asked Defendant and the other room occupants for consent to search room 119, and all parties agreed. (TR. 50-51). Defendant was present for both searches, although he remained handcuffed throughout. (TR. 55). Officer Assman testified that, to the best of her recollection, the probation officers searched the motel room first, followed by the Buick. (TR. 88). During the probation officers' search of room 119, they found white pills, marijuana, and a substance that appeared to be methamphetamine. (TR. 52). The probation officers recovered a handgun in a toolbox in the Buick. (TR. 57, 91, 101-102). Officer Perez asked Defendant questions about the recovered items and Defendant made certain incriminating responses regarding the handgun. (TR. 76-78).

         Defendant was transported to Omaha Police Department Central Headquarters and was placed in an interview room for questioning. (TR. 102). Defendant was read his Miranda rights, signed a written waiver (Ex. 2), and made incriminating statements in response to Officer Kruse's questioning. (TR. 106-107). On October 17, 2019, Defendant was indicted in this Court with one count of being a felon in possession of a handgun, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2).

         Defendant filed the instant motion seeking suppression of any evidence and statements derived from the warrantless searches of the motel room and the Buick. (Filing No. 15). At the close of the suppression hearing held on February 26, 2019, Defendant raised additional arguments not addressed in his opening motion or brief. Specifically, Defendant additionally argued that Detective Roskey did not have reasonable suspicion to initially detain Defendant, and that any evidence and statements obtained as a result should be suppressed as fruit of the unlawful detention. Defendant also contends that Officer Perez conducted a custodial interrogation of Defendant without advising him of his Miranda rights. (TR. 133-134). The government asserts that Defendant was lawfully detained because he was in “absconding status” under a state conviction post-release supervision order, that the searches were conducted after receiving consent, and that Defendant's statements were not the result of any unlawful police conduct.

         ANALYSIS

         I. Defendant's Detention

         Defendant argues that Detective Roskey did not have any basis to initially detain Defendant. The undersigned magistrate judge disagrees. Defendant was akin to a state probationer subject to certain terms and conditions of supervision, including a requirement that he submit to random searches and seizures of his person and vehicle. (Ex. 3). Probationers have limited expectations of privacy. See United States v. Knights, 534 U.S. 112, 121 (2001); United States v. Rodriquez, 829 F.3d 960, 961 (8th Cir. 2016); United States v. McCoy, 847 F.3d 601, 605 (8th Cir. 2017). Broad search conditions imposed on a probationer for prior criminal activity “significantly diminishe[s] [a probationer's] reasonable expectation of privacy” and serves the state's “legitimate interests in preventing, detecting, and punishing additional criminal activity.” Rodriguez, 829 F.3d at 962 (quoting Knights, 534 U.S. at 120-21). Accordingly, “[g]iven that balance of interests, the Fourth Amendment require[s] no more than reasonable suspicion” that a probationer is “engaging in criminal activity or otherwise violating the terms of his probation” to justify a warrantless search. Id.(quoting Knights, 534 U.S. at 121-22)(internal quotation marks omitted); accord United States v. Brown, 346 F.3d 808, 811 (8th Cir. 2003)(“[W]hen a probationer is subject to a probationary search condition, the Fourth Amendment permits an officer to search pursuant to that condition without a warrant based only upon that officer's reasonable suspicion that the probationer is violating his probation's terms.”). Although these prior cases primarily address the validity of warrantless searches pursuant to a condition of probation, the same reasoning applies to the seizure of Defendant's person pursuant to a similar condition of supervision.

         In this case, Defendant was serving a period of post-release supervision imposed as part of his punishment for his Nebraska felony conviction. As a condition of his supervision, Defendant expressly consented to “[s]ubmit to random searches and seizure of [his] person, premises, or vehicle upon request of a probation officer or a law enforcement officer who has been authorized and directed by the probation officer.” (Ex. 3)(emphasis added). At the time Defendant was detained at the motel, Officer Perez had reasonable suspicion to believe that Defendant was violating his terms of supervision. See Rodriguez, 829 F.3d at 962 (finding the Fourth Amendment permits a warrantless search upon reasonable suspicion that a probationer is “engaging in criminal activity or otherwise violating the terms of his probation.”). Specifically, Defendant had supplied an incorrect address and had failed to contact Officer Perez for approximately thirty days, despite his supervision terms requiring him to “[r]eport as directed by the Court or probation officer” and to “permit the probation officer to visit the defendant at all times and places.” (Ex. 3). Therefore, Officer Perez authorized and directed Detective Roskey to briefly detain Defendant for such noncompliance with his supervision terms. See Brown, 346 F.3d at 812 (finding it permissible for a probation officer to direct a law enforcement officer to conduct a warrantless search of a probationer). Detective Roskey detained Defendant for ...


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