Submitted: May 15, 2019
from United States District Court for the District of
Nebraska - Lincoln
COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
MELLOY, CIRCUIT JUDGE.
approximately 11:30 p.m. on August 9, 2017, a dispatcher
alerted Lincoln Police Department ("LPD") Officer
Christopher Monico to a possible disturbance near the trailer
court where Defendant Samuel Turner lives. As Monico drove
through Turner's trailer court looking for a suspect,
Monico observed a woman standing next to a cluster of
mailboxes and stopped to talk to her. The woman was Kimberlie
Bridges, an acquaintance of Turner's and the mother of
his child. Officer Craig Price arrived on the scene shortly
thereafter to serve as backup.
Monico and Price were talking to Bridges, Turner walked over
to them. As Turner approached, Monico shined a flashlight on
Turner and asked him about the reported disturbance. Turner
asked Monico to lower the flashlight because it was in his
face. As Monico did so, he saw that Turner was standing on
what looked like a bag containing a large quantity of
ordered Turner and Bridges to place their hands on a nearby
vehicle. Turner did not comply. The officers approached
Turner. As they did, Turner reached down, touched the bag of
methamphetamine, and attempted to grab it. The officers
physically seized him and, after some resistance, handcuffed
him and placed him in a cruiser. As they did, Turner stated
that the "dope" was not his.
second bag of methamphetamine was discovered near Bridges.
Price secured the bag. He and Monico arrested Bridges. They
then searched Turner and found, among other things, a cell
phone, which Turner said was his.
days later, Monico asked Officer Corey Weinmaster to process
Turner's cell phone pursuant to a search warrant.
Weinmaster extracted information from the phone, including
photographs and text messages. The photographs included one
of Turner, two of cash in different denominations, and a
screenshot of a text-message conversation between two people.
The conversation ended with a message that said, in part,
"[S]am said you better bring him his money stop playing
games with ppl." The text messages included one sent
from Turner's phone which told the recipient to pick up a
pool and to "[b]ring that money." A second outgoing
message made a reference to the intended recipient exchanging
sexual favors for "dope." A third outgoing message
said, "Hey this is sam calling see if you got that
was indicted on October 17, 2017, and charged with knowingly
and intentionally possessing with intent to distribute five
or more grams of methamphetamine in violation of 21 U.S.C.
§ 841(a)(1). He subsequently pled not guilty at an
filed a motion "to suppress [his] stop and subsequent
arrest." He claimed that Monico and Price lacked a
reasonable suspicion to detain and question him when they
stopped near his house to investigate the disturbance. A
magistrate judge conducted a suppression hearing, finding
that: (1) the officers had not seized Turner when they
questioned him about the disturbance; and (2) they had a
right to detain Turner when they found what looked like a bag
of methamphetamine under his foot. The district court,
the magistrate judge's recommendation, denied the motion.
also filed a motion requesting that the court issue a
subpoena duces tecum. Turner sought "investigative
reports and materials prepared by [the LPD]" about
"calls" officers made to his "home at the time
of his arrest," "calls" they made at his home
over "the two days prior" to his arrest, and
"calls" they made "to [his] trailer court or
[the] immediately surrounding area." Turner claimed that
the reports would provide "exculpatory evidence"
because they would show that he had not been trafficking
drugs and that someone else may have dropped the bag of
methamphetamine. The district court denied Turner's
motion for a subpoena after a hearing.
district court then held a three-day jury trial in February
2018. Monico and Price testified about the events of August
9, 2017, as described above. A forensic scientist testified
that the bag found under Turner's foot contained more
than thirty grams of actual methamphetamine. Weinmaster
described how he extracted materials from Turner's phone
and what he extracted. Over Turner's objections-Turner
claimed that the exhibits consisted of inadmissible hearsay
and were not properly authenticated-the photographs and text
messages were admitted into evidence. Weinmaster stated that
by looking at the exhibits alone, he could not tell whether
the pictures originated on Turner's phone or were sent to
it. Weinmaster could, however, tell that the text messages
had been sent from the phone. He and two officers from the
LPD's drug unit testified that the photographs and text
messages were significant because they contained images and
language often found on drug dealers' phones.
officers described an interview they conducted with Turner
after he was arrested and had waived his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). The
officers described how Turner confessed to being a
methamphetamine user and told them that they might find
evidence of people contacting him about drugs on his cell
phone. Yet another officer testified that the ...