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 (Filing
No. 18) filed by Defendant, David L. Rogers. Defendant filed
a brief (Filing No. 19) in support of the motion and the
government filed a brief (Filing No. 25) in opposition.
Court held an evidentiary hearing on the motion on June 20,
2019. Defendant was present with his attorney, David
Stickman. The government was represented by Assistant United
States Attorney, Thomas Kangior. Dodge County Deputy Sheriff
Michael Schlesiger testified on behalf of the government.
Exhibits 1 and 2 offered by the government were received by
the Court. The Court's Exhibit 201 was received without
objection from the parties. A transcript (TR.) of the hearing
was prepared and filed on June 28, 2019. (Filing No. 32). The
matter is now fully submitted to the Court. For the following
reasons, the undersigned magistrate judge recommends that the
motion be denied.
approximately 1:00 a.m. on October 18, 2018, Deputy
Schlesiger was on patrol and traveling eastbound on Highway
30 near Ames, Nebraska, when he observed a
westbound-traveling Buick swerve. Deputy Schlesiger turned
around and began following the Buick because he was concerned
that the Buick's driver may have been under the influence
of drugs or alcohol. (TR. 7, 9-10). Deputy Schlesiger
initiated a traffic stop of the Buick after observing the
Buick swerve to the right of the solid white fog line onto
the shoulder and then to the left, crossing the center line.
Schlesiger approached the Buick to make contact with the
driver, later identified as Defendant. (TR. 18). As Deputy
Schlesiger approached the Buick, he shined his flashlight
into the vehicle and noticed a glass pipe with burnt residue
in the backseat. Deputy Schlesiger testified that the female
passenger seemed very sensitive to the light from his
flashlight, which in Deputy Schlesiger's experience could
be an indication that she was under the influence of drugs.
Deputy Schlesiger also testified that he smelled the strong
odor of cologne and observed that Defendant appeared nervous
and that his hands were shaking. Defendant did not have a
driver's license or the registration for the Buick, but
identified himself as David Rogers. (TR. 18-20). Deputy
Schlesiger returned to his cruiser to run the Buick's VIN
number and Defendant's name through dispatch. Deputy
Schlesiger also called for a drug detection canine officer.
Schlesiger returned to the Buick and asked Defendant to step
out of the vehicle. Defendant denied consent to search the
Buick. Deputy Schlesiger detained Defendant and his passenger
until the canine officer arrived. (TR. 21). The drug
detection canine alerted to the odor of narcotics from the
Buick and a subsequent search resulted in the recovery of
controlled substances and related contraband. (TR. 23-24).
has filed the instant motion to suppress all evidence
obtained from the traffic stop, arguing that the stop was not
supported by probable cause or reasonable suspicion and that
Deputy Schlesiger prolonged the traffic stop without
reasonable suspicion of criminal activity, in violation of
the Fourth Amendment. (Filing No. 18; Filing No. 19).
well established that “[a] traffic violation, no matter
how minor, creates probable cause for a law enforcement
officer to stop [a] vehicle.” United States v.
Lopez, 564 F.3d 1001, 1003 (8th Cir. 2009). Nebraska law
provides, with certain exceptions that do not apply in this
case, “No person shall drive on the shoulders of
highways[.]” Neb. Rev. Stat. § 60-6, 142. Nebraska
courts have held that “any crossing of the fog line
onto the shoulder constitutes driving on the shoulder and is
a violation of § 60-6, 142.” State v.
Magallanes, 824 N.W.2d 696, 701 (Neb. 2012).
argues that Deputy Schlesiger did not have probable cause to
stop the Buick because Defendant did not violate any traffic
laws. (Filing No. 19 at p. 2). Specifically, Defendant
contends that the video of the traffic stop does not show the
Buick crossing the center line or the white solid fog line.
(Filing No. 19 at p. 1). However, careful review of Exhibit 1
refutes Defendant's contention. The video clearly shows
the Buick cross the solid white fog line onto the right
shoulder of the highway and supports Deputy Schlesiger's
testimony that he observed such traffic violation. (Ex. 1 at
01:04:57). The Court's Exhibit 201 is a screenshot from
the video at the moment Defendant's vehicle crossed the
fog line and clearly depicts this traffic violation. (Ex.
201). Based on the credible testimony of Deputy Schlesiger
and the video evidence, the undersigned magistrate judge
finds that Deputy Schlesiger had an objectively reasonable
basis to believe a traffic law was violated and therefore
lawfully stopped Defendant's vehicle.
next argues that Deputy Schlesiger did not have reasonable
suspicion of criminal activity to prolong Defendant's
detention after the stop, in violation of the Fourth
Amendment and the holding of Rodriguez v. United
States, 135 S.Ct. 1609 (2015). (Filing No. 19 at p. 3).
“An officer conducting a traffic stop who discovers
information leading to reasonable suspicion of an unrelated
crime may extend the stop and broaden the
investigation.” United States v. Woods, 829
F.3d 675, 679 (8th Cir. 2016)(citing United States v.
Anguiano, 795 F.3d 873, 876 (8th Cir. 2015)). An officer
may extend an otherwise-completed traffic stop to conduct a
dog sniff only if the officer develops reasonable suspicion
of criminal activity during course of the traffic stop. See
Rodriguez, 135 S.Ct. at 1615-16. Reasonable
suspicion requires “particularized, objective facts
which, taken together with rational inferences from those
facts, reasonably warrant suspicion that a crime is being
committed.” United States v. Donnelly, 475
F.3d 946, 952 (8th Cir. 2007)(quotation omitted).