United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
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.
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
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. (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).
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).
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).
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).
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).
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
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.
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