United States v. Smith

• Docket Number: 8:22CR200
• Decision Date: 24 August 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MARK A. SMITH, Defendant.
• Court: U.S. District Court — District of Nebraska

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UNITED STATES OF AMERICA, Plaintiff,
v.
MARK A. SMITH, Defendant.

No. 8:22CR200

United States District Court, D. Nebraska

August 24, 2023

FINDINGS AND RECOMMENDATION

Michael D. Nelson, United States Magistrate Judge.

This matter is before the Court on the Amended Motion to Suppress (Filing No. 47) filed by Defendant, Mark A. Smith. Defendant filed a brief (Filing No. 48) in support of the motion and the government filed a brief (Filing No. 52) in opposition. The government also relies on its previously filed brief (Filing No. 32) filed in opposition to Defendant's original motion to suppress (Filing Nos. 26-27).

The Court held a pre-hearing status conference with counsel on June 16, 2023, and held an evidentiary hearing on the motion on June 20, 2023. Defendant was present at the evidentiary hearing proceedings with his attorneys, Frankie Hass and Jeff T. Courtney. The government was represented by Special Assistant United States Attorney, Joseph P. Meyer. The Court received into evidence, without objection, the government's Exhibits 1-3. Omaha Police Department (OPD) Officers Kyle Graber (Officer Graber) and Robert Seitzer (Officer Seitzer) testified at the hearing. A transcript (TR.) of the hearing was prepared and filed on July 13, 2023. (Filing No. 60). The matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that the motion be denied.

BACKGROUND

On July 16, 2022, Officer Graber and Officer Seitzer were on patrol in North Omaha in their roles with the gang suppression unit. At approximately 8:43 p.m., the officers initiated a traffic stop of a Chevrolet Cruze for committing an illegal wide turn from North 48^th Street onto Ames Ave. into the outside lane, and for failing to signal a hundred feet prior to making the turn. The Chevrolet contained three occupants; two women were seated in the front, and Defendant was seated in back. (TR. 8-10). Officer Seitzer's Body Worn Camera (Ex. 1-2) and Officer Graber's Body Worn Camera (Ex. 3) recorded the events of the stop.

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Officer Seitzer approached the driver's side of the Chevrolet and Officer Graber approached the passenger side. As the officers approached, they both noticed a bottle in a brown paper bag sitting on the back seat near the Defendant. (TR. 11, 40). Officer Seitzer requested the driver's identification and confirmed that it was her car. Officer Graber asked for Defendant's identification, which he did not have, but replied with his full name and date of birth. Officer Seitzer asked the occupants of the vehicle, “What kind of bottle is that, do you know?” Defendant picked up the bottle from the back seat and handed it to Officer Graber while it was still in the paper bag and replied, “A 40-ounce. They just picked me up from my house. It was frozen in my freezer.” Officer Graber asked Defendant, “Is that opened?” and Defendant responded, “No, she just cracked it a minute ago, but I told her it was frozen.” (Ex. 1 at 1:10-1:37; Ex. 3 at 1:15-1:46). Officer Graber's body cam reflects the condition of the bottle as Defendant handed it to Officer Graber (Ex. 3 at 1:38):

(Image Omitted)

and in Officer Graber's hand (Ex. 3 at 1:46):

(Image Omitted)

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Officer Graber testified he observed it was Olde English malt liquor, a 42-ounce bottle, inside a brown paper bag. Officer Graber testified he identified the beverage based on the stamp on the top of the bottle. Officer Graber is familiar with the term “40-ounce” from his training and experience and understands that to relate to alcohol, and also knows that containers in brown paper bag typically are alcohol containers. (TR. 11, 28, 34-35).

Officer Graber then placed the bottle on top of the car and stated, “He said he cracked it.” The front seat passenger responded, “No, I did.” Defendant stated, “It hasn't been opened,” and the front passenger repeated, “I did it.” Officer Graber again stated, “He said it's been cracked.” (Ex. 3 at 1:46-2:00). Officers made all three occupants exit the Chevrolet. As Defendant was getting out of the vehicle, Officer Graber told Defendant that because he admitted he “cracked” open the bottle they were going to search the car because of the open container violation. The front passenger again said, “I did that.” Defendant replied the bottle is “not open” and “the seal isn't broken man” and took the bottle off the top of the car to hand it back to Officer Graber. Officer Graber again stated, “you said it was cracked” and Defendant replied, “I said it's not open” and “If you twist it like that then it's not open.” (TR. 12; Ex. 3 at 2:25-3:01; Ex. 1 at 2:49-3:00). Officer Graber placed the bottle back inside the Chevrolet while all the occupants were near the police cruiser. (Ex. 1 at 3:35-3:40). Both officers testified they did not smell the odor of alcohol emanating from the vehicle or the passengers, and no one appeared intoxicated. (TR. 28, 30-31, 50-51).

Officer Graber testified he took the statement that the bottle was “cracked” to mean the seal to the bottle was broken, which made it an open container under Nebraska law. Officer Seitzer likewise testified he understood the statement the bottle had been “cracked” to mean the seal had been broken and the bottle was open. (TR. 12, 42). Officer Graber testified that “it appeared that [the seal of the bottle] had been severed, broken,” and explained that not every bottle would have a “big gap” after the seal is broken because “If you screw a bottle down tight enough, it will appear closed.” (TR. 22-23). Officer Graber later clarified, “I do believe part of the seal was broken on this bottle when I looked at it,” and “I believe part of the seam was cracked.” Officer Graber testified he could not have confirmed whether the seal was broken without attempting to twist the cap himself. (TR. 25-26, 36).

After all the occupants were out of the vehicle, Officer Seitzer began a “probable cause” search of the Chevrolet, starting in the back seat where the officers had first observed the bottle,

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and saw a black drawstring bag on the floorboard near where Defendant had been sitting. (TR. 15, 42-43). Officer Seitzer searched inside the drawstring bag and felt the handle of a handgun. Officer Seitzer then handcuffed Defendant before resuming his search of the drawstring bag, and located four black bags containing suspected methamphetamine, a digital scale, and $411 in cash. (TR. 44).

Officer Seitzer returned to the other occupants of the vehicle and asked again about who “cracked” the bottle. The front passenger explained that when Defendant first got into the car, he handed the bottle to her and told her it was frozen. Officer Graber suggested, “You cracked it to relieve the pressure?” The front passenger replied, “I didn't crack it,” and gestured that she “little twisted” the bottle's cap and then “the thing came out.” Officer Graber again suggested she cracked it to “release tension” and the front passenger replied, “I was just going to take a drink, that's all.” (Ex. 1 at 7:05-7:30; Ex. 3 at 7:09-7:32).

At some point during the course of the search, the bottle of alcohol ended up in the street. At the conclusion of the stop and search, Officer Seitzer picked up the bottle out of the street and took it out of the brown paper bag to examine and log it in a report. (Ex. 2 at 8:15-9:07). Officer Seitzer returned the driver's identification and told the other occupants of the Chevrolet they were free to leave. Officer Seitzer then twisted off the top of the bottle, producing the distinct sound of carbonation releasing from the bottle, and poured the beverage into the street. (Ex. 2 at 32:4033:11). Defendant had been arrested and transported for booking.

On September 20, 2022, the grand jury returned a three-count indictment against Defendant charging him with knowing and intentional possession with intent to distribute 50 grams or more of methamphetamine (actual), knowing possession of a firearm during and in furtherance of a drug trafficking crime, and possession of a firearm having previously been convicted of a felony. (Filing No. 1). Defendant has filed the instant motion to suppress the evidence obtained from the warrantless search of his drawstring bag during the traffic stop on July 16, 2022. Defendant argues the warrantless search of his drawstring bag violated his Fourth Amendment rights because the “mere possibility of an open container within an automobile” did not establish probable cause for officers to search the automobile and each passenger's personal effects therein. (Filing No. 48 at p. 1). Defendant also asserts the search of the bag was the direct result of a prolonged and unlawful detention of...