U.S. v. Neemann

• Decision Date: 16 March 1999
• Docket Number: No. 4:97CR3010.,4:97CR3010.
• Citation: 61 F.Supp.2d 944
• Parties: UNITED STATES of America, Plaintiff, v. Gregory A. NEEMANN, Defendant.
• Court: U.S. District Court — District of Nebraska

61 F.Supp.2d 944

UNITED STATES of America, Plaintiff, v. Gregory A. NEEMANN, Defendant.

No. 4:97CR3010.

United States District Court, D. Nebraska.

March 16, 1999.

COPYRIGHT MATERIAL OMITTED

Brent M. Bloom, Jerold V. Fennell, Domina Law Office, Omaha, NE, for Gregory A. Neemann.

Sara E. Fullerton, Assistant United States Attorney, Lincoln, NE, for U.S. Attorneys.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on the Magistrate Judge's Report and Recommendation (filing 80) and the objections to such Report and Recommendation (filings 84) filed as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.

I have conducted, pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, a de novo review of the portions of the Report and Recommendation to which objection has been made. As Judge Piester has carefully and correctly found the facts and applied the law, I need only state that the Report and Recommendation should be adopted and Defendant's motion to suppress, (filing 54), must be denied.

Accordingly,

IT IS ORDERED:

1. the Magistrate Judge's Report and Recommendation (filing 80) is adopted;

2. Defendant's objections (filing 84) are overruled; and

3. Defendant's motion to suppress (filing 54), is denied.

MEMORANDUM, ORDER AND RECOMMENDATION

PIESTER, United States Magistrate Judge.

In a superseding indictment filed on June 17, 1997 the defendant, Gregory A. Neemann, was charged with two counts of willfully and knowingly possessing with intent to distribute methamphetamine, in violation of 18 U.S.C. § 841(a)(1), one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846, and one count of criminal forfeiture, in violation of 21 U.S.C. § 853. (Filing 16). Defendant has filed a motion to suppress evidence obtained as a result of the unlawful search of his vehicle on February 6, 1997, as well as his subsequent statements to police. (Filing 54). In his motion defendant also argues that police unlawfully detained him and unlawfully searched his vehicle on February 26, 1997, and therefore any evidence seized as a result of the unlawful detention and search must be suppressed. On September 18, 1998 and January 22, 1999 a hearing was held before me on the motion. For the reasons set forth below, I conclude that defendant's motion to suppress should be denied in its entirety. I shall so recommend.

BACKGROUND

February 6, 1997

On February 6, 1997 Charles LaFollette, a Deputy United States Marshal, was engaged in surveillance of a home located in the 4700 block of North 70th Street in Lincoln, Nebraska. (Transcript of Sept. 18, 1998 Suppression Hearing, Filing 62, at 5:6-18). The purpose of the surveillance was to locate Richard Maher, who was wanted for violating the conditions of his pretrial release. (Id. at 5:9-25). To aid in his identification of Richard Maher, LaFollette had a picture of him while on surveillance. (Id. at 16:9-16). At approximately 6:30 p.m. LaFollette saw two people leave the residence and enter a vehicle. (Id. at 6:7-7:22). LaFollette testified that he believed that the passenger in the vehicle was Richard Maher; however, because it was dark, he was a block to a block and half away from the home, and the passenger had a hat on, LaFollette could not tell for certain if the passenger was Mr. Maher. (Id.) Nor could LaFollette be certain after the vehicle passed by the car LaFollette was in. (Id. at 7:18-22). Nevertheless, LaFollette radioed the Lincoln Police Department and requested a marked cruiser and a uniformed officer to stop the vehicle. (Id.)

In response to a dispatch, two uniformed Lincoln police officers, Officers Clark Wittwer and Steven Niemeyer, inseparate cruisers, stopped defendant's vehicle. (Id. at 71:4-13). Officer Wittwer testified that at the time he stopped the vehicle, he knew only that an arrest warrant had been issued for one of the occupants of the vehicle; he did not know the name of the individual. (Id. at 70:13-71:2). Officer Wittwer exited his vehicle and approached the passenger side of the vehicle; as he was doing so, LaFollette was right behind him. (Id. at 73:18-74:18). Officer Niemeyer approached the driver side of the vehicle. (Id. at 73:20-22). Officer Wittwer then asked the passenger to exit the vehicle. The passenger did. (Id. at 73:25-74:4). Officer Wittwer testified that at some point, although he could not remember exactly when, he asked the passenger for identification, to which the passenger replied that he did not have any identification with him. (Id. at 82:2-6). The passenger did tell Officer Wittwer that his name was Gary Borland. (Id. at 82:7-10). Contrary to Wittwer's testimony, LaFollette testified that at the time he approached the passenger and Officer Wittwer, Officer Wittwer already had the passenger's driver's license. (Id. at 11:21-25). LaFollette testified that he compared the driver's license and the passenger with his photo of Richard Maher. (Id. at 12:24-13:2). LaFollette testified that it took him a little bit of time to determine whether the passenger was Richard Maher.¹ (Id. at 28:13:19).

Either before LaFollette approached or while LaFollette was determining whether the passenger was Richard Maher, Wittwer performed a pat-down search of the passenger for safety reasons.² (Id. at 29:1-30:15; 74:5-24). As he was patting down the passenger, Officer Wittwer felt a round, long object in the left breast pocket of the passenger's denim jacket. (Id. at 76:1-8). Wittwer testified that he believed that the object was a knife, so he pulled the item out of the passenger's pocket. The item turned out to be a plastic toothbrush case. (Id. at 76:11-16). Wittwer then placed the toothbrush case on top of the car. Wittwer also felt a smaller, tapered, cylindrical object which he thought could be a knife; it was actually a pencil butane torch.³ (Id. at 77:5-14; 78:3-5). When he pulled the torch out of the passenger's pocket, he also removed a syringe and a small bag containing marijuana. (Id. at 77:21-78:2). Wittwer, who spent ten years in the narcotics unit, testified that he had seen similar butane torches used for heating rocks of crack cocaine. (Id. at 79:22-81:9). He also testified that he knew of no other use for the butane torch. (Id. at 105:13-16). He then continued to search the passenger and discovered other narcotics. (Id. at 81:12-82:1). Wittwer then arrested Borland.

At some point after the search of the passenger, LaFollette determined that the passenger was not Richard Maher. (Id. at 28:20-30:15; 82:14-83:10). LaFollette then conveyed this information to Officer Wittwer. (Id. at 24:13-19). LaFollette then entered the passenger side of the vehicle to talk to the defendant, Gregory A. Neemann. (Id. at 13:8-15). LaFollette asked defendant if Richard Maher was staying in a house on North 70th Street, and defendant replied that he was. (Id. at 14:2-7). Because LaFollette had no interest in either Borland or the defendant at that time, he left the scene. (Id. at 14:10-15:6).

After Wittwer arrested Borland and placed him in a cruiser, he approached the driver side of the vehicle where Niemeyer was talking with defendant. Wittwer told Niemeyer to place defendant in Niemeyer's cruiser until he finished a search of the vehicle. (Id. at 85:24-86:3). Wittwer testified that defendant was not under arrest at this time. (Id. at 86:4-5). Niemeyer and Wittwer proceeded to search defendant's vehicle, and discovered a fanny pack containing an appointment book with defendant's name on it and several bags of methamphetamine. (Id. at 86:18-87:10). Wittwer then placed defendant under arrest and read him his Miranda rights in the back of Niemeyer's cruiser. (Id. at 87:20-88:3). Wittwer testified that defendant stated that he understood his rights and that he was willing to speak with him. (Id. at 89:22-90:3). Wittwer did not threaten, coerce, or promise defendant anything to induce him to waive his rights. (Id. at 90:4-15). According to Wittwer, defendant understood the questions and responded appropriately to them. (Id. at 90:20-91:11). Wittwer further testified that he did not believe that defendant was under the influence of drugs at the time. (Id. at 91:12-18).

Borland and defendant were then transported to the jail. Niemeyer testified that while on the way to the jail, he had a conversation with the defendant. Niemeyer testified that defendant never asked for an attorney during the questioning, nor requested that the questioning stop. Niemeyer also testified that he did not threaten, coerce, or promise defendant anything to induce him to answer his questions. He further testified that defendant did not appear to be under the influence of drugs. Finally, he testified that defendant appeared to understand the questions asked and that his responses tracked the questions.

Wittwer testified that when he arrived at the jail, he told Sergeant Miller and Investigator James A. Sydik of the Lincoln Police Department that he had read defendant his Miranda rights and that defendant had agreed to waive them. (Id. at 92:10-18). Investigator Sydik testified that he and Sergeant Miller spoke with defendant in an interview room at the Lancaster County Jail. (Id. at 107:10-24). Although Wittwer had told Miller and Sydik that defendant had waived his rights, Sydik testified that Miller asked defendant whether he understood that he had a right to remain silent. Defendant stated that he did. He also acknowledged that he had previously waived his rights. Sydik further testified that defendant indicated a willingness to talk to him and Miller. (Id. at 108:11-110:7). Defendant was not restrained during this conversation. (Id. at 110:25-111:2). Sydik did testify, however, that defendant seemed "rather hyper" and "his movements were a little bit jerky." (Id. at 111:10 & 111:12). In Sydik's opinion, this behavior was consistent with a person who was coming down off drugs. Also, defendant had told Sydik that he had been using...