United States v. Bauer, No. 8:99CR226 (D. Neb. 2000)
| Decision Date | 01 January 2000 |
| Docket Number | No. 8:99CR226.,8:99CR226. |
| Parties | UNITED STATES OF AMERICA v. DAVID JON BAUER and ANTHONY W. KLCO. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the court on the following motions:
David Jon Bauer's (Bauer) motion to suppress statements and evidence (Filing No. 24); and.
Anthony W. Klco's (Klco) motion to suppress evidence (Filing No. 26).
BAUER'S MOTION TO SUPPRESS (Filing No. 24)
Bauer argues the statements made by Bauer were involuntary and subsequent to Bauer's invocation of his Miranda right to request an attorney be present. See Filing No. 24. Bauer argues the search of his person and vehicle led to the illegal seizure of items subsequent to an improper stop. See Filing No. 24. Bauer is charged in a two count indictment with conspiracy to distribute and possession with the intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and forfeiture under 21 U.S.C. § 853. See Filing No. 1.
On November 23, 1999, the court held an evidentiary hearing on Bauer's motion. City of Fremont police officers Jesse J. Hilger (Hilger) and Eric D. Nordby (Nordby) testified at the hearing. The court received no documents into evidence. On December 10, 1999, a transcript (TR36.) of the hearing was filed (Filing No. 36), and there was no post-hearing briefing.
Officer Hilger has been a police officer for the City of Fremont for two years (TR36 5-6). Officer Hilger has been a police officer for four years and estimates he has made over 200 DUI arrests with approximately half of those arrests being for a controlled substance (TR36. 28). Officer Hilger has received special training in the detection of driving under the influence and controlled substance cases (TR36. 6). On May 16, 1999, at approximately 2:44 a.m., Officer Hilger was working in uniform and in a marked patrol car (TR36. 7). Officer Hilger was turning from westbound 10th Street onto southbound Bell when he observed a vehicle turning from southbound Bell onto eastbound Military about two blocks away (TR36. 7). Officer Hilger observed the vehicle fail to signal to make the left-hand turn (TR36. 8). Officer Hilger approached and observed the vehicle turn right onto Grant Street without signaling (TR36. 8). Officer Hilger activated the overhead lights and stopped the vehicle (TR36. 8).
Officer Hilger approached the driver, Bauer, who was the only occupant of the vehicle (TR36. 9). Officer Hilger observed Bauer acting "very nervous" and sweating (TR36. 9). Officer Hilger detected the odor of marijuana (TR36. 9). Officer Hilger observed Bauer acting very agitated and upset, and Bauer demanded to know the reason for the stop (TR36. 9). Officer Hilger detected signs of impairment including facial twitching, rapid hand movements and rapid speech (TR36. 9-10). Officer Hilger called for a second police unit to assist him in conducting a field sobriety test (TR36. 10). Approximately two minutes later, Sergeant Hansen arrived on the scene. Officer Hilger asked Bauer to step away from the vehicle to begin the field sobriety test (TR36. 11). Officer Hilger testified Bauer seemed upset and very nervous (TR36. 11). Officer Hilger noted Bauer kept attempting to put his hands in his pockets and was having body and facial tremors (TR36. 11). Although Officer Hilger did not smell alcohol, Bauer was exhibiting signs of impairment, and Officer Hilger suspected Bauer to be under the influence of a controlled substance (TR36. 12). Bauer refused to do the first field sobriety maneuver, but performed the Romberg balance maneuver (TR36. 12). Officer Hilger testified Bauer followed directions, but swayed throughout the test (TR36. 13). Officer Hilger asked Bauer to perform a one-leg balancing test (TR36. 14). Officer Hilger observed Bauer getting jittery, belligerent and showing signs of impairment (TR36. 14). Officer Hilger asked Bauer to perform a walk and turn maneuver, which Bauer had extreme difficulty doing (TR36. 15-16). Based on Officer Hilger's training, experience and observations of Bauer, Officer Hilger placed Bauer under arrest for driving under the influence of a controlled substance (TR36. 17).
Officer Hilger conducted a search of Bauer and the vehicle. Officer Hilger found a baggie with a white substance and a large quantity of money (TR36. 19). Officer Hilger believed the white substance to be cocaine or methamphetamine and the money to be in excess of $1,000, although Officer Hilger did not count the money at the scene (TR36. 19-20). Officer Hilger transported Bauer to the Fremont Police Department to undergo a urine analysis (TR36. 20). Deputy Shane Wimer and Officer Nordby from the III Corps Drug Task Force met Officer Hilger at the police department (TR36. 21). Officer Nordby advised Bauer of his Miranda rights and began questioning Bauer until Bauer stated he thought he needed an attorney (TR36. 22-23, 60-61). Officer Nordby testified Bauer appeared to understand his rights (TR36. 60) Officer Hilger transported Bauer to Dodge County Judicial Center where to two waited in the lobby (TR36. 23). After Officer Hilger counted the money, which totaled $4,211, he called Sergeant Hansen to inquire whether the money should be confiscated (TR36. 23-24). Bauer was seated approximately ten feet from Officer Hilger (TR36. 30). After the phone call, Bauer told Officer Hilger the money was not Bauer's. Bauer said the money was from a trust fund, then the money was from an accident settlement (TR36. 26). Officer Hilger testified he did not ask Bauer where the money came from and Officer Hilger was seated at a desk doing paperwork (TR36. 26).
A[A] police officer who personally observes a traffic violation has probable cause to stop the vehicle." United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 646 (8th Cir. 1999) citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977). Additionally, probable cause exists when the totality of circumstances demonstrates that a prudent person would believe that an individual has committed or was committing a crime. Kuehl v. Burris, 173 F.3d 646, 650 (8th Cir. 1999). The courts must give law enforcement officers "substantial latitude in interpreting and drawing inferences from factual circumstances." United States v. Washington, 109 F.3d 459, 465 (8th Cir. 1997). Whether a traffic stop is pretextual is measured against a standard of "objective reasonableness." United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990), cert. denied, 502 U.S. 962 (1991) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). "Even assuming [the police officer] was looking for [the defendant], it would be "objectively reasonable" to pull over a vehicle which was" engaging in a traffic offense. United States v. Miller, 20 F.3d 926, 929 (8th Cir. 1994).
Police officers may make a valid investigatory stop of a vehicle based on reasonable suspicion that the occupants of the vehicle are engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 25-31 (1968); United States v. Sharpe, 470 U.S. 675, 682 (1985); United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th Cir. 1999). The reasonable suspicion necessary to justify an investigatory stop must include "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; see Navarrete-Barron, 192 F.3d at 790. Furthermore, "[a]fter making a valid Terry stop, police officers must diligently work to confirm or dispel their suspicions in a short period of time." United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999). Contemporaneous with a valid traffic stop, a police officer may detain the motorist while completing a number of routine tasks such as computerized checks of the vehicle registration, driver's license and criminal history, and issuing a citation. $404,905.00, 182 F.3d at 647; see also United States v. Sokolow, 490 U.S. 1, 7 (1989). Additionally, the police officer may inquire about the motorist's destination, purpose of the trip and whether the police officer may search the vehicle. $404,905.00, 182 F.3d at 647; U.S. v. Allegree, 175 F.3d 648, 650 (8th Cir. 1999). The police officer may take further action as necessitated by the information volunteered by the motorist, observations of the contents of the vehicle, perceptions made the police officer regarding illegal drug use, and divergent information from the passengers. $404,905.00, 182 F.3d at 647; Allegree, 175 F.3d at 650-51.
In this case, Officer Hilger personally observed Bauer committing the same traffic violations twice — failing to use turn signals (TR36. 8). The court finds Officer Hilger had probable cause to make the initial traffic stop of Bauer's vehicle. Shortly after the initial stop, Officer Hilger observed Bauer engaging in suspicious behavior. Officer Hilger testified he detected the odor of marijuana (TR36. 9-10). The court finds Officer Hilger's perceptions related to the demeanor of Bauer justified the further detention of Bauer. Officer Hilger diligently worked to dispel or confirm his suspicious of illegal drug use by performing a series of field sobriety tests (TR36. 11-14). Officer Hilger placed Bauer under arrest after determining Bauer was under the influence of a controlled substance.
Officer Hilger conducted a search of Bauer shortly after arrest (TR36. 19). Such searches incident to arrest are per se reasonable. Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973). "The arrest itself justified the search of [the defendant's] person . . . and of the passenger compartment of his automobile." United States v. Dawdy, 46 F.3d 1427, 1430 (8th Cir.), cert. denied, 516 U.S. 872 (1995) (citations omitted). The court finds the search of Bauer was incident to arrest after a valid traffic stop and reasonable detention. The evidence...
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