United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge.
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.
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:
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
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.
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.
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.
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.
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.
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.
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.
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 ...