Filed: Feb. 07, 2017
Latest Update: Feb. 07, 2017
Summary: MEMORANDUM AND ORDER RICHARD G. KOPF , Senior District Judge . Magistrate Judge Zwart has issued a Findings and Recommendation (Filing 107 ) that Defendants' motions to suppress (Filings 57 & 74 ) be denied. Defendants have filed objections (Filings 109 & 111 ) to the Findings and Recommendation. After de novo review, and because Magistrate Judge Zwart has thoroughly and correctly analyzed the facts and the law, I shall adopt the judge's Findings and Recommendation. However, I shall
Summary: MEMORANDUM AND ORDER RICHARD G. KOPF , Senior District Judge . Magistrate Judge Zwart has issued a Findings and Recommendation (Filing 107 ) that Defendants' motions to suppress (Filings 57 & 74 ) be denied. Defendants have filed objections (Filings 109 & 111 ) to the Findings and Recommendation. After de novo review, and because Magistrate Judge Zwart has thoroughly and correctly analyzed the facts and the law, I shall adopt the judge's Findings and Recommendation. However, I shall a..
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MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
Magistrate Judge Zwart has issued a Findings and Recommendation (Filing 107) that Defendants' motions to suppress (Filings 57 & 74) be denied. Defendants have filed objections (Filings 109 & 111) to the Findings and Recommendation. After de novo review, and because Magistrate Judge Zwart has thoroughly and correctly analyzed the facts and the law, I shall adopt the judge's Findings and Recommendation. However, I shall address a few matters for purposes of clarity.
Traffic Stop
The crux of the defendants' objections to Magistrate Judge Zwart's Findings and Recommendation involves Officer Mayo's stop of the defendants' vehicle based on his observation—confirmed by repeated stopwatch testing—that the defendants' RV was following other vehicles too closely in violation of Neb. Rev. Stat. § 60-6,140(1) (Westlaw 2016) ("The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, and such driver shall have due regard for the speed of such vehicles and the traffic upon and the condition of the roadway.").
"Any traffic violation, however minor, provides probable cause for a traffic stop." United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc). Further, a traffic stop based on a vehicle following too closely is a valid traffic stop. United States v. Beck, 140 F.3d 1129, 1134 (8th Cir. 1998) (Ark.); United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir. 1998) (Neb.); United States v. Poulack, 82 F.Supp.2d 1024, 1029-30 (D. Neb. 1998) (following another vehicle by less than two seconds provided valid basis for trooper to stop vehicle for violation of Neb. Rev. Stat. § 60-6,140); United States v. Romero, No. 8:09CR104, 2010 WL 378246, at *2 (D. Neb. Feb. 1, 2010); State v. McGinnis, 608 N.W.2d 605, 609 (Neb. App. 2000) (officer's observation that defendant was getting "right up real close to the bumper of the vehicles ahead of him following way too close—well, less than the two-second rule . . . . and went on around [the pack]" constituted probable cause to stop driver).
Therefore, Defendants' objections based on the stop of the defendants' vehicle must be denied.1
Daubert Issue
The defendants also object to the testimony of Deputy Henkel that his drug dog alerted and indicated while sniffing the perimeter of the defendants' vehicle during the traffic stop—an issue that was part of their motion to suppress, as well as a motion in limine (Filing 55). At the hearing on which Judge Zwart's Findings and Recommendation is based, testimony and other evidence were elicited relevant to both the defendants' motions to suppress and their rather all-encompassing motion in limine, which requested a hearing "to determine . . . the qualifications of a Deputy Henkel [the dog handler] as a witness and/or the admissibility of testimony to be offered by Deputy Henkel regarding the drug dog . . . . This hearing is also based upon the United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceutical, [5]09 U.S. 579 (1993)." (Filing 55.)
Judge Zwart did not make an explicit recommendation on the defendants' motion in limine—perhaps because Deputy Henkel was not characterized as a Fed. R. Evid. 702 "expert" to which Daubert applies or because it is far from clear that a Daubert challenge is appropriate in these circumstances.2 Nevertheless, to the extent that such a motion was appropriate, Judge Zwart clearly took testimony and evidence related to the motion and discussed the reliability of the drug-sniffing dog and its handler in the Findings and Recommendation. (Filing 89 at CM/ECF pp. 3-5 (the defendants argue that the drug dog did not alert and that the drug dog alert should not be relied upon by the court); Filing V107 at CM/ECF pp. 14-18 (discussing reliability of drug dog and handler and the pair's training, certification, and testing scores).) For the reasons expressed in Judge Zwart's thorough Findings and Recommendation, I find that Deputy Henkel's testimony concerning the dog sniff is relevant, reliable, and admissible, and the defendants' motion in limine shall be denied.
IT IS ORDERED:
1. The Findings and Recommendation (Filing 107) is adopted;
2. Defendants' objections (Filings 109 & 111) to Judge Zwart's Findings and Recommendation are denied; and
3. Defendants' motion in limine (Filing 55) and motions to suppress (Filings 57 & 74) are denied.
