675 F.Supp.2d 973 (D.Neb. 2009), 4:09CR282, United States v. Stewart

Docket Nº:4:09CR282.
Citation:675 F.Supp.2d 973
Opinion Judge:JOSEPH F. BATAILLON, Chief Judge.
Party Name:UNITED STATES of America, Plaintiff, v. Keith B. STEWART, Defendant.
Attorney:Thomas J. Kangior, Assistant United States Attorney, Omaha, NE, for Plaintiff.
Case Date:December 15, 2009
Court:United States District Courts, 8th Circuit, District of Nebraska

Page 973

675 F.Supp.2d 973 (D.Neb. 2009)

UNITED STATES of America, Plaintiff,

v.

Keith B. STEWART, Defendant.

No. 4:09CR282.

United States District Court, D. Nebraska.

December 15, 2009

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[Copyrighted Material Omitted]

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Thomas J. Kangior, Assistant United States Attorney, Omaha, NE, for Plaintiff.

MEMORANDUM OPINION AND ORDER

JOSEPH F. BATAILLON, Chief Judge.

This matter is before the court on the defendant's objections, Filing No. 40, to the report and recommendation (R & R) of the magistrate judge, Filing No. 29. The magistrate judge recommended denial of the defendant's motion to suppress, Filing No. 14. See Filing No. 29, Report, Recommendation and Order; Filing No. 35, Transcript (Tr.) at 99-100.

Pursuant to 28 U.S.C. § 636(b)(1)(A), the court has conducted a de novo determination of those portions of the R & R to which the defendant objects. United States v. Lothridge, 324 F.3d 599, 600-01 (8th Cir.2003). The court has reviewed the entire record including the transcript of the suppression hearing on September 21, 2009, and the digital video disc (DVD) of the encounter at issue. See Filing No. 35, Transcript; and Hearing Exhibit (Hr'g Ex.) 1, DVD. The court generally accepts the factual findings of the magistrate judge, but disagrees with the magistrate judge's application of the law to those facts. Accordingly, for the reasons set forth below, the court finds that defendant's motion to suppress should be granted.

The defendant has been charged with possession with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Filing No. 1, Indictment. The evidence adduced at the suppression hearing shows that Douglas County Sheriff's Deputy Andrew Woodward observed a red SUV parked in the parking lot of a Kwik Shop at 72nd Street & Crown Pointe Avenue in Omaha in the early morning hours of March 11, 2009. Filing No. 35, Tr. at 5. Deputy Woodward testified that the area surrounding the convenience store had been a " hot spot for a lot of criminal activity," including robberies, thefts and disturbances. Id. at 7. Deputy Woodward testified that he thought the vehicle was suspicious because it " looked out of place" in the particular area of the Kwik Shop parking lot because " any normal person would have been parked up front close to the doors" due to the cold weather. Id. at 6. He testified he was also suspicious because the vehicle pulled up to a gas pump but he did not see anyone exit the vehicle to obtain gas. Id. at 7. He admitted, however, that he had no knowledge of how long the defendant had been at the gas station or what had previously transpired there. Id. at 26.

While the defendant's vehicle was at the gas pump, Deputy Woodward drove his cruiser past it and obtained the license plate number. Id. at 7. At some point, he ran a computer check on the plates. Id. at

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28. He stated that the license check had revealed no adverse information and he had not observed the defendant driving erratically. Id. at 29-30. He testified that he attempted to follow the vehicle once it left the station but lost sight of it, and stated that " it looked like the vehicle had ran from me." Id. at 8. Deputy Woodward testified that he did not stay in the Kwik Shop parking lot for the entire time the defendant's vehicle was there, but could not specify where he had gone, what he had done, or how long he was gone from the Kwik Shop. Id. at 27. He testified that at some point he had contacted Douglas County Deputy Sheriff Jason Stelik on his cellphone. Id. at 52.

After he lost sight of the vehicle, Deputy Woodward drove into a nearby neighborhood to look for it, at deputy Stehlik's suggestion. Id. at 9, 56. He eventually located the SUV, parked with the engine running, in front of a residence at 69th Street and Ogden Avenue in Omaha. Id. at 9. Deputy Woodward illuminated the interior of the defendant's vehicle with his spotlight, and approached the vehicle to ask for the driver's license. Id. at 12, 13. He asked to see identification and asked the defendant what he was doing in the neighborhood. Id. at 39-40. Deputy Woodward advised the defendant that he was being questioned because of criminal activity at the Kwik Shop, including several robberies and thefts, though Deputy Woodward conceded he had no reports of criminal activity at the Kwik Shop, no reports that would have related to the defendant or anyone who matched his description, and no reason to connect the defendant with any other criminal activity. Id. at 25, 40, 42. In response to Deputy Woodward's inquiries, the defendant stated that he " was there for a friend of his who was sneaking around behind her husband's back." Id. at 40. The defendant later made reference to the woman's " boyfriend," which Deputy Woodward regarded as an inconsistency and as " suspicious." Id. at 40. Deputy Woodward testified he also doubted the defendant's explanation that he had been at the Kwik Shop to assist a friend with her car, though he conceded that he had no knowledge of any events that transpired before he arrived at the Kwik Shop. Id. at 41.

Deputy Woodward testified that the defendant looked for identification as requested, and that as the defendant did so, Deputy Woodward became concerned for his safety because the defendant was moving around and looking in the console, under the seat and under his jacket. Id. at 11-12. He also stated that the defendant acted nervous and fidgety. Id. at 12. Deputy Woodward " became very fearful that the party possibly had a weapon on him and was going to use it on me," and began to unholster his service weapon. Id. at 11.

Deputy Woodward testified that he left the defendant in the vehicle and returned to his cruiser to run a computer records check of the defendant's driver's license. Id. at 33. The check revealed that the defendant " was a convicted felon with some type of drug history and some type of violent behavior," but no active warrants for his arrest and no problems with his license. Id. at 13, 34. Deputy Woodward then remained in the vehicle until Deputy Stehlik arrived at the scene as backup. Id. at 14, 52. After a brief discussion, the two officers then approached the defendant's vehicle. Id. at 57-58. Deputy Woodward asked the defendant to step out of the car and patted him down for weapons. Id. at 14. Deputy Woodward testified that the defendant consented to a search of his pockets. Id. at 15. He found a mesh pipe filter inside a cellophane bag in the defendant's pocket. Id. at 18. Deputy Woodward testified that he had no intention of issuing a citation for

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possession of drug paraphernalia to the defendant. Id. at 16, 53. He stated that his " main concern was just getting down information to pass along to our criminal investigations division" by way of a " field interview card." Id. at 16. He testified that it was standard operating procedure to " complete a field interview card any time [they] have contact with a suspicious person." Id. at 18. He stated that his intention was to have the defendant fill out the card and then to let him go. Id. at 53. Before letting the defendant go, Deputy Woodward wanted to assure that he " wasn't going to be robbing the Kwik Shop or that he didn't have a weapon inside the vehicle." Id. Deputy Stehlik accompanied the defendant to the police cruiser while Deputy Woodward " searched the immediate area" of the front seat of the SUV for a weapon. Id. at 19. In the center console of the vehicle, Deputy Woodward found a tote bag that contained several bundles of U.S. currency, drugs and drug paraphernalia. Id. at 19-20.

The evidence shows that the police cruiser is equipped with a video recording device. Id. at 13. The camera and body microphone are activated when the cruiser's overhead emergency light or siren is turned on. Id. at 63. The recording equipment also has a separate switch to activate the body mike. Id. at 24. Woodward testified that the cruiser's lights and siren were never on. Id. at 23. He testified that he activated the video recording equipment after he approached the defendant for the first time. Id. at 33. He further testified that he " hit the record button on [his] dash camera" and believed that it would also activate the body microphone. Id. at 24. The video recording does not include sound from a body mike. Id. at 22. Deputy Stehlik was not wearing his body mike at the time he approached the vehicle. Id. at 62-63. Both officers testified that they had been trained to use the equipment. Id. at 24, 64.

Deputy Stehlik also testified at the hearing. Id. at 54-66. He testified that after he arrived at the parked vehicle, he spoke to Deputy Woodward about what had transpired " [a]nd while we were discussing this, I noticed the driver inside the vehicle motioning towards the center console and then underneath the seat several times while we were having this short conversation between the two of us." Id. at 57. He testified that the defendant was cooperative during the pat-down search. Id. at 59.

The defendant testified that he did not consent to a search of his pockets, and responded " no" to Deputy Woodward's inquiry. Id. at 67-68. He also testified that he had in fact purchased gas at the Kwik Shop and had been at the Kwik Shop to help a friend with a car that had been overheating. Id. at 70-71.

The DVD recording depicts Deputy Stehlik arriving at the location of the defendant's vehicle. See Hr'g Ex. 1, DVD at 2:53. One officer can be seen approaching the driver's side of the car, followed by another officer approaching the passenger side. Id. at 2:56. The defendant is shown exiting the car, immediately turning and placing his hands on the roof. See id. Both officers surround the defendant and one officer can be seen searching the defendant, including...

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1 practice notes
  • 631 F.3d 453 (8th Cir. 2011), 10-1030, United States v. Stewart
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 1 Febrero 2011
    ...judge recommended that the motion to suppress be denied, but the district court sustained the motion. United States v. Stewart, 675 F.Supp.2d 973 (D.Neb.2009). The Government now appeals, arguing that the search of Stewart's vehicle was constitutional as a protective search under Terry v. O......
1 cases
  • 631 F.3d 453 (8th Cir. 2011), 10-1030, United States v. Stewart
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 1 Febrero 2011
    ...judge recommended that the motion to suppress be denied, but the district court sustained the motion. United States v. Stewart, 675 F.Supp.2d 973 (D.Neb.2009). The Government now appeals, arguing that the search of Stewart's vehicle was constitutional as a protective search under Terry v. O......