U.S. v. Marasco
| Citation | 446 F.Supp.2d 1073 |
| Decision Date | 24 July 2006 |
| Docket Number | No. 8:05CR381.,8:05CR381. |
| Parties | UNITED STATES of America, Plaintiff, v. Richard D. MARASCO and Angela D. Harms, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Thomas J. Kangior, Assistant United States Attorney, Omaha, NE, for Plaintiff.
David R. Stickman, Federal Public Defender's Office, John D. McDermott, Omaha, NE, Jay W. Mez, Mez Law Office, Council Bluffs, IA, for Defendants.
This matter is before the Court on the Report and Recommendation (Filing No. 44) issued by Magistrate Judge Thomas D. Thalken recommending: the motion to suppress filed by the Defendant, Richard D. Marasco, (Filing No. 24), be denied; and the motion to suppress filed by the Defendant, Angela D. Harms, (Filing No. 26), be granted in part and denied in part. The government, Marasco, and Harms each filed a statement of objections to the Report and Recommendation and supporting briefs (Filing Nos. 53 and 54, government; Filing Nos. 49 and 50, Marasco; Filing Nos. 46 and 47, Harms) as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 57.3(a).
The Indictment charges: Marasco and Harms with conspiracy to manufacture 50 grams or more of a mixture or substance containing methamphetamine (Count I); Marasco and Harms with manufacturing 5 grams or more of methamphetamine (Count II); and Marasco and Harms with possessing equipment, chemicals, product and material to manufacture a controlled substance (Count III). Marasco seeks an order suppressing evidence seized during: a March 27, 2005, search of a pick-up truck he was driving in Plattsmouth, Nebraska; a May 20, 2005, search of a residence at 720 1st Ave., Plattsmouth, Nebraska; and an August 24, 2005, search of a motel room at the Offutt Motor Court in Bellevue, Nebraska. (Filing No. 24.) Harms seeks an order suppressing: evidence seized during the August 24, 2005, motel room search; and statements made as a result of the motel room search. (Filing No. 26.)
Following two evidentiary hearings,1 Judge Thalken issued a Report and Recommendation in which he concluded: Marasco met his burden of showing that he had standing on the evening of March 27, 2005, to contest the search of the pick-up; the March 27, 2005, encounter in the alley with Marasco was consensual and not an investigatory stop or seizure; the observation of materials in the bed of the pick-up together with the strong smell of anhydrous ammonia provided probable cause for the search of the trash bag and the seizure of materials in the pick-up bed; alternatively, in light of the anhydrous ammonia odor, exigent circumstances existed for the search of the pick-up bed; the trash pull at 720 1st Ave., Plattsmouth, Nebraska, supplied probable cause for issuance of the search warrant for the residence; alternatively, assuming that the search warrant affidavit was not based on sufficient probable cause, the Leon good faith rule applied, and none of the four exceptions to the good faith rule applied; items seen in plain view while officers were in the motel room arresting Marasco are admissible against both Marasco and Harms; items seized from Marasco's pockets during the search incident to his arrest are admissible; Marasco voluntarily consented to the search of the motel room; Harms objected to officers searching "her stuff," and therefore specific items are not admissible against her; and Harms's statements made to law enforcement after the search of the motel room were fruits of the illegal search and are therefore excluded.
On the basis of these determinations, Judge Thalken recommended that Marasco's motion to suppress be denied and that Harms's motion be granted as to the following: 1) items W-3, W-4, W-9, W-18, and W-21 seized from Room 12 of the Offutt Motor Court on August 24, 2005; and 2) her August 25, 2005, statement made to Detective Simones. Otherwise, Judge Thalken recommended that Harms's motion be denied.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and NECrimR 57.3(a), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which the Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
The Magistrate Judge provided a detailed factual account of the relevant events. The Court has considered the transcripts of the hearings conducted by the Magistrate Judge (Filing Nos. 37, 43). The Court also carefully viewed the evidence (Filing Nos. 35, 40). Based on the Court's de novo review of the evidence and arguments, including the objections to Judge Thalken's factual determinations, the Court adopts Judge Thalken's factual findings in their entirety.
Judge Thalken's Report and Recommendation sets out a thorough statement of facts. Briefly, the facts involve a series of three events. First, on March 27, 2005, Officer Kennan of the Plattsmouth, Nebraska, police department and a certified methamphetamine lab specialist saw a pick-up truck that he thought was driven by a suspended driver named Saun Mauk. Kennan found that the driver was not in fact Sean Mauk, but while leaving the pickup he smelled a very strong odor of anhydrous ammonia coming from the bed of the pick-up. The pick-up was driven by the Defendant, Richard D. Marasco, with permission from Marasco's roommate who owned of the vehicle. Another officer arrived. Two patrol cars blocked the path of the pick-up from the alley in which it was stopped to the street. Kennan shined his flashlight into the bed of the pick-up, and saw a black trash bag, a Rubbermaid tote container, and a black bucket that held a bag of Morton Rock salt. Kennan opened the black bag, thinking that the bag was the source of the anhydrous ammonia odor, and inside he found a five-gallon white bucket with a blue liquid. The liquid had a white sediment, and the odor was stronger. Kennan believed he had found an active methamphetamine lab, and he seized the items.
On May 19, 2005, Detective Walker of the Plattsmouth police department applied for and was issued a search warrant for the premises at 720 1st Avenue, Plattsmouth, Nebraska, based on a trash pull that revealed drug and methamphetamine paraphernalia. Some of the items tested positive for methamphetamine. The warrant was executed on May 20, 2005, and numerous items were seized.
On August 24, 2005, Sergeant Wood and other officers of the Bellevue, Nebraska, police department were looking for drug activity in areas including the Offutt Motor Court, a Bellevue motel known for drug activity. Wood saw a 20-county license plate that aroused his suspicions because of the reputation of the motel and because methamphetamine labs recovered from the motel in the past were started by persons from Plattsmouth and the surrounding Cass County area. A 20-county license plate is from Cass County. A check was run on the plate, and the vehicle was found to be registered to Marasco, who was determined to be the subject of an outstanding felony warrant. Officers also learned that Marasco had a drug history. Officers obtained a past booking photograph of Marasco and conducted surveillance at the motel. They saw a Toyota 4Runner arrive and observed Marasco and a woman, later identified as codefendant Angela D. Harms, exit the vehicle and enter room 12. Detective Simones was told by the motel manager that room 12 was rented by Harms. Officers learned that Marasco had a Toyota 4Runner and Harms had a prior methamphetamine arrest. The officers knocked on the door of room 12, and Marasco answered. He was asked to step outside, and instead he stepped back into the room. He was arrested and handcuffed. When asked if he had anything dangerous in the room, he responded that he had acid. Simones asked Harms to step outside, which she did. Harms said that she rented the room and that Marasco had recently paid for another week. She stated that both shared the room equally and came and went as they pleased. When Simones asked Harms for permission to search the room, she answered that she would rather not have officers looking through her "stuff."
While Simones was outside with Harms, Wood searched Marasco's person incident to his arrest. He found baggies of methamphetamine, advised Marasco of his Miranda rights, asked him for permission to search the room and stated that Marasco did not need to consent. Marasco told Wood that there was a gas generator and acid in the room.
Simones went into the room and talked with Marasco. When asked who had a room key, Marasco said that he had the only key and kept it with him at all times. Marasco said that Harms rented the room but he had paid for it. Marasco said that he and Harms shared the room equally, coming and going as they pleased.
Based on Marasco's consent to search, officers searched room 12. Many items of methamphetamine manufacture, actual methamphetamine, and methamphetamine paraphernalia were found. The items are detailed in Judge Thalken's Report and Recommendation. (Filing No. 44, at 7-8.)
Simones went outside and advised Harms of her Miranda rights. Harms then made incriminating statements.
Each party has objected to Judge Thalken's Report and Recommendation. The objections are discussed below.
Marasco objects to the following portions of the Report and Recommendation:
1. p. 4—the factual finding that Kennan saw a black bucket containing a bag of Morton rock salt when he shined his flashlight into the bed of the pick-up, because the bucket was in an opaque Rubbermaid tote that had to be opened in order to see the salt;
2. pp. 11-12—the conclusion that the March 27, 2005, encounter between Marasco and Kennan was a consensual encounter and not an investigatory stop,...
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