United States District Court, D. Nebraska
R. ZWART UNITED STATES MAGISTRATE JUDGE.
Swisher has moved to suppress all evidence found during the
search of her apartment. (Filing No. 28). Swisher was on
parole at the time of the search and was subject to
conditions of parole, including a search and seizure
condition. Nonetheless, Defendant claims her parole
officer's entry and search of her apartment violated the
of an evidentiary hearing, the parties filed stipulated
facts. (Filing No. 38). The parties agree that if a
suppression hearing was held, Swisher's parole officer,
Rachele Brown, would testify consistent with her report.
(Filing No. 38, at CM/ECF p. 5-6).
Swisher was convicted on March 17, 2017, in the District
Court of Cherry County, Nebraska, on a charge of possessing
methamphetamine with the intent to deliver. She was sentenced
to serve three to eight years in prison. (Filing No. 38, at
CM/ECF p. 1).
May of 2018, Defendant was incarcerated within the Nebraska
Department of Correctional Services. On May 23, 2018, a
certificate of parole was issued which allowed her to be
released provided she agreed to conditions of parole and to
supervision by a Nebraska parole officer. (Filing No. 38, at
CM/ECF pp. 3-4). The Certificate of Parole included a search
and seizure requirement which stated:
Your parole officer and/or personnel of the Division of
Parole Supervision is permitted to conduct routine searches
of your person, residence, vehicle or any property under your
control, at such times as they deem necessary.
(Filing No. 38, at CM/ECF p. 3). Defendant agreed to comply
with the terms of parole on June 8, 2018, including a search
and seizure condition. (Filing No. 38, at CM/ECF pp. 3-4).
She was released on parole in June of 2018. (Filing No. 38,
at CM/ECF p. 1).
approximately 3:00 p.m. on November 19, 2018, Brown and
parole officer Oscar Lopez drove to Swisher's residence
for an unannounced home visit. (Filing No. 38, at CM/ECF p.
5-6). After arriving at the residence and before exiting the
vehicle, Brown called Swisher and asked what she was doing.
Swisher paused, then stated she was at CVS and putting money
on her debit card to pay for her vehicle's licensing.
Brown suspected this statement was not true because Swisher
directed Swisher to return to her residence so the officer
could inspect it. Swisher again paused at length, then asked
the officer to come back another time because a friend was
fixing Swisher's door. Brown denied this request and
stated Swisher must immediately return to the apartment; that
the officers were waiting. Swisher agreed to do so.
Brown suspected Swisher was trying to hide something. So,
Brown and Lopez exited their vehicle and approached the
apartment. In the hallway outside of Swisher's apartment,
they smelled the odor of something burning and could hear
someone in Swisher's apartment. Brown knocked on the
apartment door several times, and when no one answered, she
knocked loudly and announced, "This is parole, you need
to open the door." (Filing No. 38, at CM/ECF p. 5-6).
opened the door. Brown stated she was there to see Swisher.
The man said Swisher was not home, he did not know when she
would return, and he was there to fix the door. Brown
identified herself as Swisher's parole officer,
explaining she had just talked to Swisher on the phone and
the officers were going to enter the apartment and wait for
officers entered the apartment and noticed the air was very
smoky with a strong scent of perfume. When asked to explain
the smoke, the man claimed a grinder he was using overheated
and started smoking. Upon questioning by Lopez, the male
identified himself as Jeffrey Halvorsen, a parolee supervised
by another Nebraska parole officer.
Lopez continued his interview of Halvorsen, Brown began a
walkthrough of the apartment. She found a small
"shooter" bottle of Jagermeister in the freezer and
advised Halverson that the bottle would be confiscated. As
Brown approached a closet in the apartment, the closet door
flew open. Swisher jumped out and began yelling at Brown.
Brown and Lopez asked her why she was in the closet; if there
was a back door to the apartment or if Swisher had been
hiding in the closet all along.
after being reminded of the search condition of her parole,
Swisher was agitated, yelling that the officers were not
allowed to enter her home and they had no right to search.
Brown and Lopez advised Swisher that she would be restrained
for the remainder of the apartment search, and they commanded
her to put her hands behind her back. Swisher remained
agitated and refused to comply. The officers pat-searched
Swisher, finding a cell phone in her left front pocket along
with some dollar bills and change. In her right pocket, the
officers found a set of keys and a small baggie with a white
crystal-like substance. Swisher admitted the baggie contained
"meth." (Filing No. 38, at CM/ECF p. 5-6). Brown
contacted her supervisor and the Lincoln Police Department
asked Swisher if there was anything else the officer would
find in the apartment. Swisher claimed she did not know,
explaining people come and go from her apartment. Brown
searched a backpack that was on the floor next to the closet.