United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION AND ORDER
R. Zwart United States Magistrate Judge
23, 2018, Defendant Nathan Rey Musquiz was detained and spoke
with law enforcement. Contraband was discovered in his
vehicle, and the discovery of an existing warrant led to his
arrest. He now moves to suppress the statements he made and
any evidence gathered, arguing that it was obtained during an
unlawful search, seizure, and interrogation. For the reasons
stated below, the motion to suppress should be denied.
hearing testimony and reviewing the documentary evidence, the
undersigned magistrate finds the following facts are
23, 2018, Officer Wendy Baumeister was dispatched to a home
in Grand Island, Nebraska to investigate a suspicious
vehicle, a blue truck in an alley. (Filing No. 54 at
CM/ECF p. 11). Baumeister arrived at the reporting
individual's home at approximately 6:10 a.m. and pulled
into the driveway. (Filing No. 54 at CM/ECF p. 18).
The resident informed the officer that there was a blue
pickup truck parked in an alley that had not been parked
there the night before, and the resident did not know who
owned the truck. (Id. at pp. 11-12). The truck in
the alley was visible from the driveway. (Id. at
33-34). Baumeister believed the alley to be owned by the City
of Grand Island. The alley is accessible to pedestrians.
(Filing No. 54 at CM/ECF p. 20-21)
approached the truck and saw a man who appeared to be asleep
in the driver's seat with his head against the
driver's side window. (Filing No. 54 at CM/ECF p.
21). The man was wrapped in a blanket and his breathing
was slow and steady. (Id.). It was unclear to
Baumeister whether the man was injured or needed medical
attention. (Id.). She removed her ASP (baton) and
knocked on the window with it. (Id. at 22). It took
a couple of minutes of knocking with her hands and the baton
to wake him. (Id., Filing No. 54 at CM/ECF p.
she was knocking, and before the man awakened, Baumeister
noticed a glass pipe on the center console. (Id. at
22-23, Exhibit 7). The pipe was visible from outside of the
car, before the door was opened. (Filing No. 54 at CM/ECF
p. 24). Based upon her experience in law enforcement,
Baumeister believed that the pipe was the type used to ingest
drugs, specifically methamphetamine. (Id.). A
portion of the tube was darkened and there was a white
residue in the curve of the pipe, indicating the pipe has
been used. (Id., Filing No. 54 at CM/ECF pp.
the man awakened, Baumeister instructed him to open the car
door. It appeared to Baumeister that the man had trouble
understanding and executing her instructions. (Filing No.
54 at CM/ECF p. 25). Baumeister observed that the truck
was turned off, the keys were in the ignition, and it was in
reverse. (Filing No. 54 at CM/ECF p. 26). Baumeister
advised the man that he was being detained. Since she was the
only officer at the scene and had observed the glass pipe in
the vehicle, she placed the man in handcuffs as a precaution
and to “secure the scene.” (Id.).
had a conversation with the man, who stood next to the truck.
Baumeister asked him his name, who owned the truck, and why
he was parked in the alley. The man identified himself as the
defendant herein, Nathan Musquiz, and he stated he was
waiting to pick up a woman from a nearby home. He told
Baumeister that the truck belonged to his uncle, Paul.
also asked questions about the dirt bike secured in the back
of the truck. Musquiz stated that he had purchased it the
night before, but he could not recall details regarding the
cost of the bike or from whom he purchased it. (Filing
No. 54 at CM/ECF pp. 27-28). During this questioning,
Baumeister did not use a raised voice or deceptive tactics,
and Musquiz responded voluntarily to her questions.
(Filing No. 54 at CM/ECF p. 30). Officer Stegman
arrived, and Baumeister received feedback from dispatch that
there was an active warrant for Musquiz's arrest in Hall
County. (Filing No. 54 at CM/ECF p. 29). Musquiz was
then advised that he was the subject of an arrest warrant.
(Id. at 31). The time between when Musquiz exited
the truck and the time he was advised he was under arrest was
merely three to four minutes.
was placed in the back of Stegman's patrol vehicle.
(Id.). Baumeister then searched the truck and found
a purple drawstring Adidas bag which contained drugs,
personal items, and U.S. currency. (Id. at pp.
31-32). Baumeister also found prescription drug bottles
which, according to the labels, belonged to Paul.
(Id. at 32). Baumeister also observed an Apple cell
phone inside of the truck. After searching the truck,
Baumeister advised Musquiz of his
Miranda rights and asked if he would like to speak
with her. He responded by shaking his head, which Baumeister
interpreted as a negative response. (Id.).
arrived and claimed ownership of the truck. He did not claim
ownership of the dirt bike or the contraband. (Filing No.
54 at CM/ECF p. 44). The truck was released to him.
Later, Baumeister went to Paul's home to ask whether the
cell phone in the truck belonged to him and he denied
ownership. Baumeister asked if she could have it and Paul
gave her the phone. (Filing No. 54 at CM/ECF p. 49).
On August 21, 2018, the Grand Island Police Department
applied for a warrant to search the digital contents of the
cell phone seized on July 23, 2018. (Filing No. 59 at
CM/ECF pp. 11-13). The warrant was issued on the same
day. (Filing No. 59 at CM/ECF p. 14).
asserts the initial encounter was void of reasonable
suspicion that a crime was being committed. He argues that
the police reports do not indicate that he was trespassing or
in violation of the law, and the vehicle was not located on
the property of the individual who contacted the police,
therefore the officer approaching the truck and knocking on
the window was “not reasonable and justified.”
(Filing No. 37 at CM/ECF p. 3). Thus, he argues,
because the initial interaction was illegal, the items seized
should be suppressed.
Grand Island Police Department received a call about a truck
parked in an alley behind homes in a residential area.
Baumeister testified that the alley is owned by the City of
Grand Island and it is open and accessible to pedestrians. It
was not improper for Baumeister to enter the alley and
approach the truck in response to the report of a suspicious
vehicle. Further, Baumeister was not without reasonable
suspicion to believe that a crime was committed, because, as
she testified, it is illegal to park in an alley. (Filing
No. 54 at CM/ECF p. 33).
Baumeister approached the truck, she found an individual
asleep behind the wheel and she was unsure whether he needed
help or medical attention. An officer has the right to ask
questions as to the safety of the occupants and general
questions about why they were sleeping in a car. United
States v. Mayfield, No. 8:10CR390, 2011 WL 344108, at 3
(D. Neb. Feb. 1, 2011). A police officer is not only
permitted, but expected, to exercise community caretaking
functions when “the officer has a reasonable belief
that an emergency exists requiring his or her
attention.” United States v. Harris, 747 F.3d
1013, 1017 (8th Cir. 2014). See also, Samuelson v. City
of New Ulm, 455 F.3d 871, 877 (8th Cir. 2006) (quoting
Winters v. Adams, 254 F.3d 758, 763 (8th Cir.2001)
(holding a seizure without suspicion was reasonable because
allowing a “possibly intoxicated individual to drive
[a] vehicle” created a serious risk to the public).
had both reasonable suspicion that a crime had occurred (as
the truck was parked illegally), and justification for
contacting a vehicle occupant who was located in a parked
vehicle with keys in the ignition, was difficult to rouse,
and appeared to possess drug paraphernalia. The evidence