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United States v. Musquiz

United States District Court, D. Nebraska

July 18, 2019



          Cheryl R. Zwart United States Magistrate Judge

         On July 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.


         After hearing testimony and reviewing the documentary evidence, the undersigned magistrate finds the following facts are credible.

         On July 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)

         Baumeister 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. 38).

         While 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. 39, 51).

         When 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.).

         Baumeister 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.

         Baumeister 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.[1]

         Musquiz 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[2] 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.).

         Paul 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).


         I. Initial Contact

         Musquiz 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.

         The 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).

         When 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).

         Baumeister 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 ...

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