United States v. Perez

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UNITED STATES OF AMERICA, Plaintiff, v. NICANDRO GARCIA PEREZ, Defendant.

No. 4:23CR3117

United States District Court, D. Nebraska

May 29, 2024

FINDINGS, RECOMMENDATION AND ORDER

JACQUELINE M. DELUCA, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendant Nicandro Garcia Perez's motion to suppress and request for a Franks hearing. Filing No. 34. Perez seeks to suppress any and all evidence obtained as a result of a detention of his person and search of his vehicle on June 9 2023. Perez argues the detention and search violated his Fourth Amendment rights because (1) Nebraska State Patrol Trooper Alexander Winters lacked reasonable suspicion to detain him and (2) he did not voluntarily consent to the search. Perez also argues that a warrant issued by a Douglas County, Nebraska judge on June 9, 2023 (the “Warrant”) is fruit of the unlawful detention and search. He requests a Franks hearing on the Warrant.

The Court held an evidentiary hearing on Perez's motion to suppress on April 16, 2024. The Court stated the motion would be deemed submitted upon receipt of the transcript. The transcript was filed on May 6, 2024. The matter is now ripe for disposition. For the reasons discussed below, the undersigned recommends Perez's motion to suppress and Perez's request for a Franks hearing should be denied.

STATEMENT OF FACTS

After reviewing the evidence admitted at the hearing and listening to the testimony of Trooper Winters, the undersigned magistrate judge finds the following facts are credible.

On June 9, 2023, Perez was traveling on Interstate 80. While on patrol, Trooper Winters received a call from a York County Deputy. The York County Deputy informed Trooper Winters that a vehicle with a missing front license plate had pulled into the eastbound York rest stop near mile marker 350. Filing No 55 at 9:17-10:6; 28:11-17.

Trooper Winters proceeded to such rest stop and, when there, observed a vehicle (a gray BMW with black wheels and windows) matching the York County Deputy's description. Filing No. 55 at 11:6-16. The Vehicle did not have a front license plate but had a rear California license plate. Filing No. 55 at 11:17-22.

Trooper Winters approached the Vehicle and asked Perez if the Vehicle was his, to which Perez responded in the affirmative. Filing No. 29-2 at 1 (Exhibit 102). The bodycam footage indicates Perez and Trooper Winters interacted for approximately seventeen minutes before Trooper Winters asked for Perez's consent to search the Vehicle. Exhibit 101 at 0:00-16:48. During this seventeen-minute interaction, Trooper Winters was the sole law enforcement officer at the scene and Perez is freely walking around the rest stop. Filing No. 55 at 16:15-17:5, 19-23. Perez is not provided his Miranda warnings during this time and is never advised he is “free to leave.” Filing No. 55 at 16:18-17:5, 22:18-20. The Court will set forth the portions of the interaction between Trooper Winters and Perez relevant to this motion:

• Trooper Winters and Perez had a conversation as to whether he was driving alone. Perez ultimately clarified he was driving alone, and his wife was waiting for him in Omaha. Exhibit 101 at 0:40-1:07.

• After this initial exchange, which pursuant to the bodycam footage lasted less than a minute and a half, Trooper Winters asked, “Can I chat with you?” Perez agreed- “Yeah.” Exhibit 101 at 1:15-1:17. Trooper Winters followed up by asking, “You have time to chat?” Perez responded, “No. I'm just I'm talking to her.” Exhibit 101 at 1:15-1:20. Trooper Winters continued to ask Perez questions about where he was from, and Perez continued to respond. Exhibit 101 at 1:20-1:50.

• During their conversation, Perez clarified the difference between Orange County, California and Orange, California and identified the part of the state in which he lived to Trooper Winters. Exhibit 101 at 1:20-1:50.

• During their conversation, Perez also initiated questions and conversations to Trooper Winters, including:

o Asking whether he has been to California (Exhibit 101 at 1:53-1:55); o Complimenting his sunglasses^[1] (Exhibit 101 at 2:07-2:11); and o Asking whether Trooper Winters was married. Exhibit 101 at 2:57-3:00.

• There are no significant delays between the time Trooper Winters asks a question and Perez answers the question set forth in the bodycam footage. Perez also easily answers questions posed by Trooper Winters using more complex or uncommon words like “fentanyl,” “cocaine,” and “methamphetamine.” Exhibit 101 at 16:11-16:27.

• Perez uses English to tell the person he is talking to on the phone that, “It is going to be a moment.” Exhibit 101 at 4:39-4:43.

• Perez tells Trooper Winters, after talking with him for over four and a half minutes, “Sorry, I speak a little bit of English, you know.” Trooper Winters responds, “No, you're doing great, man. I'm having like a full conversation with you.” Perez says, “I'm, I'm trying, you know?” Trooper Winters comments, “Good practice for you.” Perez then says, “I'm trying all the time, you know? Especially here, you know.” Exhibit 101 at 4:51-5:05.

• Trooper Winters asks Perez what he does for work. Perez initially responded that he worked for “Uber, DoorDash, [and] Lyft.” After Trooper Winters indicated Perez must work quite a bit to afford a BMW like the Vehicle, Perez clarified that those were his secondary jobs, and his primary job was working in a supply warehouse. Exhibit 101 at 11:50-12:25.

• During their encounter, Trooper Winters asked Perez if he had his driver's license, which Perez turned over to Trooper Winters. Exhibit 101 at 4:35-4:50.

• Trooper Winters was parked 4-5 car lengths away from the Vehicle and, by extension, Perez, who was standing in front of the Vehicle. Filing No. 55 at 12:68, 15-16. After speaking with Perez for approximately five minutes, Trooper Winters walked back to his patrol car to run Perez's license. Exhibit 101 at 5:325:50. Perez followed Trooper Winters to the patrol car, despite any request or demand by Trooper Winters for Perez to do so. Exhibit 101 at 5:31-7:13; Filing No. 55 at 17:10-13. After he finished running the license, Trooper Winters asked Perez, “We can go stand back over there, if you want?” Perez said, “No, no, that's okay.” Exhibit 101 at 10:10-10:18; Filing No. 55 at 39:14-18. Trooper Winters then stated, “We can walk back over there if you want?” before he began walking back to the Vehicle. Perez followed Trooper Winters and their conversation continued. Exhibit 101 at 10:18-10:33.

After viewing the bodycam footage and listening to the testimony of Trooper Winters, this Court finds the interaction between Trooper Winters was non-confrontational and concludes Trooper Winters' testimony to this effect is credible. Furthermore, after viewing the bodycam footage and listening to the testimony of Trooper Winters, this Court finds Trooper Winters' conclusion that Perez could speak English is credible.

After Trooper Winters and Perez had been interacting for approximately seventeen minutes, Trooper Winters asks Perez, “Can I search your car?” Perez responds, “You search my car? Why, I don't do nothing, you know.” Exhibit 101 at 16:45-16:53. After Trooper Winters explains why, Perez says, “Yeah,” Filing No. 55 at 21:4-17, gestures towards the car, and then walks around the car. Exhibit 101 at 16:45-17:20. Trooper Winters advises he is going to get some gloves and asks whether that is okay, to which Perez says, “That's okay.” Exhibit 101 at 17:15-17:21. Trooper Winters then returns to his car to obtain gloves and, when he comes back, asks Perez whether the car is unlocked. Perez then unlocks the Vehicle with his key fob. Exhibit 101 at 18:20-18:33; Filing No. 55 at 25:23-26:4. During the search of the Vehicle, Trooper Winters asked Perez to stand in front of the car so he could see him. Filing No. 55 at 24:20-25:8. Perez was not restrained in any way. See Filing No. 55 at 16:15-17. Trooper Winters ultimately located cocaine in the Vehicle and Perez was placed under arrest. Filing No. 55 at 16:1014.

On June 9, 2023, Nebraska State Patrol Sergeant Kevin Finn requested-and a Nebraska state court issued-a search warrant for Perez's phones. Filing No. 29-3 (Exhibit 103).

ANALYSIS

I. Detention.

Perez alleges he was unlawfully detained without reasonable suspicion. In support of this argument, Perez argues the original encounter between Trooper Winters and Perez was not consensual because: (1) Perez could not appropriately understand the English language and (2) Trooper Winters continued to question Perez after Perez answered “no” in response to Trooper Winters asking whether he had “time to chat.” Perez also argues Trooper Winters lacked reasonable suspicion to detain Perez as it was unlawfully prolonged.

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .” However, “not all personal encounters between law enforcement and citizens fall within the ambit of the Fourth Amendment.” United States v. DaCruz-Mendez, 970 F.3d 904, 908 (8th Cir. 2020) (quotations omitted). “Determining which police-citizen contacts fall within the protections of the Fourth Amendment and which do not is fact intensive and turns on the unique facts of each case.” United States v. Griffith, 533 F.3d 979, 983 (8th Cir. 2008) (internal citations omitted).

A. Consensual Encounter.

Defendant argues Perez's Fourth Amendment right was violated when Trooper Winters detained him without reasonable suspicion that he had committed a crime. However, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place,...