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United States v. Brewer

United States District Court, N.D. Indiana, Hammond Division

December 7, 2017

United States of America,
v.
Artez Brewer

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE

         Defendant Artez Brewer moved to suppress various evidence the government may use against him at trial on bank robbery charges. The Court held an evidentiary hearing and the parties briefed the issues. Having considered the evidence and the parties' arguments, the Court denies Defendant's motions to suppress.

         A. Factual Background

         Beginning in February 2016, the government began suspecting that Defendant and his co-defendant, Robin Pawlak, were involved in a series of bank robberies. On April 28, Centier Bank in Griffith was robbed and, on May 6, the Main Source Bank in Crown Point was robbed. Before each of these robberies, a young black man would come into the bank making unusual requests. On May 27, the Horizon Bank in Whiting was robbed, and the FBI investigators, noticing the pattern from the previous two robberies asked one of the employees if she observed anything unusual before the robbery. The employee told the investigators that the day before the robbery a young black man came in near closing time asking about gold coins. The man didn't make any transactions at the bank. The employee said she took a good look at the man because he acted suspiciously and said she would be able to recognize him in the future. The agents then showed the employee images from surveillance videos related to the earlier bank robberies and the employee identified the person in the images as the same person who inquired about the gold coins. The agents then secured the image of the person who came to inquire about the gold coins from the surveillance video of the Horizon Bank. The image was distributed to area law enforcement officers and one of them recognized the person in the image as Defendant.

         As a result of the FBI's investigation, on June 2, 2016, the government sought and obtained warrants from an Indiana judge to install GPS tracking devices on four cars associated with Defendant, including a silver Volvo. The warrant limits the tracking of the cars to Indiana territory.

         A few days after the GPS tracker was installed on the Volvo, Defendant and Pawlak began driving the car to Los Angeles, and the government continued tracking the car. Along the way, on June 7, they were stopped in Omaha by an Omaha criminal interdiction police officer, Jeffrey Vaughn. The stop had nothing to do with the bank robbery investigation; rather, Officer Vaughn saw the Volvo drive twice for a second or two over the white lane dividers separating the lanes. Officer Vaughn believed that Defendant, the driver of the car, violated Nebraska law requiring drivers to maintain a single lane of traffic, Nebraska State Statute 60-6, 139 (“. . . a vehicle shall be driven as nearly as practicable within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety . . .”).

         Officer Vaughn, who has been a police officer for almost twenty years, is a police dog handler and assists with narcotics investigations. He also patrols highways in Omaha, looking for persons involved in criminal activity. When Officer Vaughn approached Defendant's car, he smelled perfume emanating from the car.

         To avoid being hit by passing vehicles, Officer Vaughn told Defendant to come to his police car. He asked Defendant where he was coming from and where he was going and for what purpose. (He later asked Pawlak the same questions and received inconsistent answers from her.) While waiting on the dispatcher to check out Defendant's driver's license and to determine if any warrants were outstanding for him, Officer Vaughn took out his dog, Nacho, to sniff around the Volvo. While he was walking Nacho around the front of the car, Nacho got excited, moving faster toward the driver's window. Once there, it lifted its nose toward the open driver window and sat down, thus alerting Officer Vaughn to the odor of narcotics.

         After this, Officer Vaughn called for additional officers and once they arrived, the car was searched. Officer Vaughn could smell marijuana but no actual drugs were found.

         Meanwhile, FBI Special Agent Michael Peasley had been monitoring Defendant's drive across the country. He became concerned when he saw that the car had stopped for a prolonged time on a highway in Omaha. Concerned that Defendant was stopped by police and that his investigation might be derailed, Agent Peasley contacted Special Agent Hallock in Omaha and asked him to drive to the location where Defendant was stopped. Agent Peasley asked Agent Hallock to take pictures if certain items were found in the car. After about an hour and a half from the moment Defendant was stopped, he was let go with just a warning ticket.

         Soon after their arrival in Los Angeles, on June 10, Defendant and Pawlak began staking out a bank to rob. Agent Peasley, seeing GPS indications that the Volvo was near a bank, alerted the FBI in Los Angeles about a possible plan to rob the bank. Defendant and Pawlak did indeed rob the bank but the FBI was ready for them and they were arrested.

         Defendant was then interviewed by Special Agent Jonathan Bauman and Detective Joseph Harris. Agent Bauman read Defendant his Miranda rights, to which he responded “[y]ou know we don't sign shit like this, right?” (Gov't Exh. B at 8). The following exchange ensued:

Agent Bauman: Well, if you want to talk, without signing anything, we can do that. I just-you got to tell us that it's okay to talk.
Artez Brewer: Sure. I can talk-what you want to know but shit, I'm-aint' gon' sign nothing, bro, cause I ain't-hey, you know. Come on, man. You know better than that.
Agent Bauman: Okay. Well, then what I'll do is I'll fill it out, and say you refused to sign, but we're gonna talk to you.
Artez Brewer: Okay. That's fine, yeah.
Agent Bauman: Okay?
Artez Brewer: Yeah; okay. Sure.

(Id. at 8-9.)

         About a minute later, Agent Bauman again confirmed that Defendant wanted to speak with them:

Agent Bauman: So you refused to sign. We read you your rights, but you're willing to talk to us. You just don't want to sign ...

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