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United States v. Chenier

United States District Court, D. Nebraska

August 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NICHOLAS CHENIER, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge.

         This matter is before the Court on the Findings and Recommendation (F&R), ECF No. 28, issued by Magistrate Judge Susan M. Bazis. The Magistrate Judge recommended that the Motion to Suppress filed by the Defendant Nicholas Chenier, ECF No. 16, be denied. Defendant filed an Objection to the F&R, ECF No. 29, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded to the Objection, ECF No. 31. For the reasons set forth below, the F&R will be adopted, and the Motion to Suppress will be denied.

         BACKGROUND

         Defendant is charged with one count of possession with intent to distribute methamphetamine. Indictment, ECF No. 1. Defendant seeks to suppress any evidence obtained by law enforcement on August 24, 2018, asserting that Omaha Police Detectives Andrew Ramsay (Detective Ramsay) and Cortes Clark (Detective Clark) impermissibly extended the traffic stop in order to conduct a dog sniff and lacked reasonable suspicion to conduct a dog sniff on Defendant's vehicle. Defendant did not directly object to the Magistrate Judge's factual findings. Having reviewed the record, the Court adopts those findings and provides the following by way of summary:

         On August 24, 2018, Detective Ramsay and Detective Clark saw a Chevy Camaro fail to properly signal a traffic move, in violation of Neb. Rev. Stat. § 60-6, 161, and began to follow the Camaro in their cruiser. It appeared to the detectives that the Camaro made several arbitrary turns to avoid the police cruiser and did not take the most direct route to its destination. The detectives believed the driver of the Camaro knew the detectives were behind him during this time.

         The detectives pulled the Camaro over at 36th and Ames Street. Detective Ramsay approached the passenger side of the vehicle. Defendant was the driver and Brittani Garrison was his passenger. Detective Ramsay asked Defendant for the vehicle's registration and for identification from both Defendant and Garrison. Defendant could not produce any identification or anything with his name on it but was able to provide the vehicle registration information. The vehicle was not registered to Defendant or Garrison. Garrison provided her identification to Detective Ramsay. Detective Clark then approached the passenger side of the vehicle, and Detective Ramsay moved to the driver's side. Detective Ramsay asked Defendant for his name, date of birth, address and social security number in order to run the data check.

         Upon returning to the cruiser, Detective Ramsay started running data checks on Defendant, Garrison, and the vehicle. Detective Ramsay first performed a background check on the occupants through a local data system, accessible from his cruiser. According to the results of the local Nebraska system check, Defendant had a suspended driver's license in Nebraska, and he had felony convictions for possessing methamphetamine and being a felon in possession of a firearm. The Nebraska data check also showed a violation in Iowa but did not provide detailed information about the violation. Detective Ramsay determined that he needed to perform an NCIC interstate background “Channel 5” check. Because the Channel 5 check could not be completed from the cruiser, he used a radio to call into Central Headquarters. Overall, the background checks took longer than a standard check because Defendant did not have identification.

         While Detective Ramsay was working on the data check, Detective Clark spoke to Defendant. Detective Clark asked Defendant if there was anything illegal in the vehicle. Defendant responded no. Detective Clark asked Defendant if he could search his vehicle. Defendant responded by saying it was not his vehicle so he could not give his permission. Detective Clark testified that it appeared Defendant was trying to separate himself from the vehicle, which raised Detective Clark's suspicion. Adding to Detective Clark's suspicion, Defendant appeared to be frustrated, nervous, and would not make eye contact with Detective Clark. Detective Clark testified that, based on his experience, this type of behavior is common in individuals who are trying to hide something about their vehicles. As a result of Defendant's answers and reactions, Detective Clark thought there might be something illegal in the vehicle.

         Detective Clark returned to the cruiser and told Detective Ramsay about Defendant's behavior. At that point, given what the detectives knew from Defendant's behavior and the local background check, they decided to call for a K-9 unit. Detective Ramsay requested the K-9 unit approximately eight minutes into the traffic stop. Following the request, Detective Clark and Detective Ramsay discussed Defendant's criminal record. Detective Ramsay informed Detective Clark that Defendant was a felon with convictions for drug and gun charges.

         At that point, Defendant's Iowa record check had not been completed. Detective Ramsay also had not yet completed the background check on Garrison. Detective Clark returned to Defendant's vehicle to remove Defendant and Garrison from the vehicle. At that time, Detective Ramsay radioed in the Channel 5 check. Detective Ramsay's call came approximately nine minutes into the traffic stop and approximately five minutes after Detective Ramsey started the local checks on his computer.

         When Detective Clark returned to Defendant's vehicle, he asked Defendant multiple times to exit the vehicle. Defendant repeatedly refused and asked why he had to exit the vehicle. Detective Clark explained that Defendant was under arrest for driving while under suspension. Defendant eventually exited the vehicle and Detective Clark performed a pat-down search. Defendant became somewhat aggressive and resisted Detective Clark's efforts to place him in handcuffs. Detective Ramsay exited the cruiser and approached Defendant's vehicle because Defendant was not following Detective Clark's commands. At that point, the Channel 5 check was still not complete. As Defendant was being placed in handcuffs, approximately ten minutes into the traffic stop, K-9 Officer Pignotti arrived on the scene with his dog.

         Once Defendant and Garrison were in handcuffs, the dog performed a sniff search and indicated to narcotics in the vehicle. Officers then searched the vehicle and located what appeared to be methamphetamine. The Channel 5 check results did not come back until after the dog alerted and the officers' search had begun.

         STANDARD OF REVIEW

         Under 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a), the Court shall make a de novo review of the portions of the Magistrate's Findings and Recommendation to which objections have been made. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings and recommendations. The Court may ...


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