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United States v. Wright

United States District Court, D. Nebraska

September 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT LEE WRIGHT, Defendant.

          FINDINGS, RECOMMENDATION AND ORDER

          Cheryl R. Zwart, United States Magistrate Judge.

         On March 19, 2019, Robert Lee Wright (“Robert Wright”) was indicted on two counts: Transportation of Child Pornography and Possession of Child Pornography. On May 22, 2019, a Superseding Indictment was returned adding two counts: Production of Child Pornography and Distribution of Child Pornography. (Filing No. 19). Defendant now moves to suppress all evidence and statements obtained as the result of a December 23, 2018, stop and search, arguing that he was subject to an unlawful expansion of a traffic stop in violation of his Fourth Amendment rights. (Filing Nos. 24, 25). For the reasons stated below, the motion to suppress should be denied.

         STATEMENT OF FACTS

         After hearing testimony, observing the witnesses as they testified, and reviewing the documentary and video evidence, the undersigned magistrate judge finds the following facts are credible:

Nebraska State Patrol Trooper Warren Gibson is trained to visually estimate speed to an accuracy of plus or minus five miles per hour. His cruiser was equipped with a radar speed measurement device the trooper uses to confirm his visual speed estimates. The radar equipment was calibrated and properly working when the December 23, 2018 traffic stop occurred, and it works when the cruiser is stationary or moving.

         On December 23, 2018, Gibson was traveling eastbound on Interstate 80 in a marked cruiser. Gibson observed a Nissan Altima with Georgia license plates traveling westbound on Interstate 80 in Hamilton County, Nebraska. The posted speed limit was 75 miles per hour and Gibson estimated the Altima was traveling in excess of 85 miles per hour. Using his radar equipment, Gibson confirmed the Altima was traveling 88 miles per hour. Gibson watched the Altima pass, entered the median to turn around, and then watched as the Altima exited the interstate at mile marker 332. Gibson activated his vehicle's emergency lights and initiated a traffic stop. The Altima pulled onto the shoulder and stopped.

         Gibson approached the passenger side of the car and observed two occupants. The front-seat passenger was later identified as Defendant Robert Wright, and the driver was later identified as Ashlee Wright, the defendant's wife.

         As he approached and stood by the Altima, Gibson noticed there were various bags and containers in the back seat, including a green “ammo can, ” a book bag, retail store bags, a soft-sided tool bag, and a cooler. Upon seeing the ammo can, Gibson suspected the occupants may be hauling ammunition or other items that “go along with firearms.” (Filing No. 29). Gibson also observed a radar detector attached to the windshield. He could see that it was plugged in and the display was turned on. Gibson observed that Robert Wright had a fixed-blade knife in a sheath on his hip. Ashlee Wright said there was a knife in the door. (Filing No. 29, Exhibit 1)

         Gibson informed Ashlee Wright that she was stopped for speeding. The officer asked for her license, registration, and proof of insurance. Ashlee Wright told Gibson that the vehicle was rented, and the rental agreement was on her phone. As reflected in that rental agreement, Ashlee Wright did not rent the Altima, but she was an authorized driver. Robert Wright was not an authorized driver. Ashlee Wright told Gibson that the rental agreement was in her mother's name. Ashlee Wright's mother was not in the vehicle.

         Gibson asked Ashlee Wright to exit the Altima and be seated in the patrol car. Gibson noticed Ashlee Wright was very nervous and shaking, and he asked her why she was shaking so much. Her first response was, “I am cold, ” explaining it was cold in her car because the air “helps [her] stay more alert.” Gibson had not noticed any cold air when he approached the open passenger's side window. Gibson again Ashlee Wright if she was shaking because she was cold in her vehicle. This time, she explained, “There's a hereditary condition that my grandmother and my dad has that causes us to shake a little bit.” When Gibson asked what the hereditary condition was, Ashlee Wright stated she could not remember its name. Gibson asked if she was claiming her shaking was due to the hereditary condition, even though she did not know what the hereditary condition was. Ashlee Wright responded, “I've never been diagnosed.”

         Gibson questioned why Ashlee Wright exited the interstate after the traffic stop was initiated. She stated that she did not need fuel and that she was planning to go to the truck stop to make a sandwich from ingredients in the cooler in the back of the Altima. Gibson inquired about the radar detector. Ashlee Wright said it belonged to Robert Wright, and she was not familiar with how it worked. But when questioned by Gibson, Robert Wright said he did not know how to operate the radar detector, noting he had heard it alert prior to the stop.

         Gibson asked Ashlee Wright about her travel plans. The rental car was picked up in Tennessee. According to Ashlee Wright, she and Robert Wright were driving approximately 20 hours from Tennessee to Cheyenne, Wyoming on December 23, 2018, to pick up Ashlee Wrights' nephew. The officer's own online research during the stop indicated the trip would actually take close to 25 hours. Ashlee Wright explained that they planned to stop at a friend's house to shower and freshen up, and then immediately turn around and take the nephew back to Tennessee to see his daughter, hoping to arrive in Tennessee before Christmas breakfast. Then, one or two family members, possibly Robert and Ashlee Wright, were going to drive the nephew back to Wyoming, and again immediately drive back to Tennessee to return the rental car. The car was due to be returned by noon on Thursday, December 27. Ashlee Wright explained that her nephew just started a new job and did not have the money to get from Cheyenne to Tennessee, and he did not have a car; Robert Wright acknowledged the trip plans were unusual, but the nephew needed the Wrights' transportation assistance because he is incompetent.

         Gibson asked about the friend the Wrights would contact in Cheyenne. Ashlee Wright provided two different last names for this friend, later explaining one name was a maiden name and the other a married name. Robert Wright stated he did not know the friend's last name.

         Gibson asked Ashlee Wright about the couple's employment statuses. She stated she is a stay-at-home mom to a 13-year old daughter, and Robert Wright runs a company with his father providing painting services. She stated she did not know the name of her husband's employer.

         After approximately one-half hour, Gibson completed the traffic stop, provided Ashlee with a citation and answered her questions about it. He asked if she had a minute for some questions and she replied “Yeah.” (Exhibit 1: 00:24:35)

         Gibson again verified the Wrights' travel plans and informed Ashlee Wright that his duties include locating illegal items that are transported through Nebraska on the Interstate. Gibson asked her for consent to search the vehicle. Initially she said there was nothing illegal in her vehicle, there was just “so much stuff.” Then she said that she preferred that he ask her husband. (Exhibit 1: 00:26:30). She repeatedly deflected the question, stating that there was nothing illegal in the vehicle and asked why the officer wanted to search the vehicle. (Exhibit 1: 00:26:00-00:28:00) Ultimately, she declined the search. (Exhibit 1: 00:28:00)

         Gibson asked for her consent for a drug detection canine to conduct a sniff of the vehicle. (Exhibit 1: 00:28:00) Ashlee Wright did not answer the question. Gibson informed her that he interpreted her “silence as a no”, and that she would be detained. (Id. at 00:29:15)

         Gibson requested a Nebraska State Patrol K9 unit to come to the location of the traffic stop. An off-duty Trooper, Justin Davis, was called. About five minutes later, dispatch informed Gibson that Davis was en route. Davis had to travel approximately 35 miles from his residence to the site of the traffic stop. Davis and his service dog, J.D., are a certified narcotics detection team, and they arrived approximately 45 minutes after they were requested. J.D. is a dual-discipline canine trained in finding and apprehending humans, as well as marijuana, methamphetamine, cocaine, and heroin. (Filing No. 30). Davis deployed J.D., who alerted and indicated on an odor of narcotics emanating from the vehicle. Gibson and Davis conducted a search of the Altima.

         During the search of the vehicle the troopers found methamphetamine and drug paraphernalia. (Exhibit 102, p. 5). They also found numerous electronic devices, electronic storage media (hard drives, flash drives, S.D. cards, micro S.D. cards), six cellular phones, and three tablets. (Exhibit 102, pp. 5-6). The Wrights were arrested for ...


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