JOSEPH BATAILLON, District Judge
Introduction
The defendant stands indicted on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1) and one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1)and (b)(1). Filing No. 9. Before me now is the objection, Filing No. 24, of the defendant to the magistrate judge's report and recommendation, Filing No. 23. The magistrate judge recommended that this court deny the defendant's motion, Filing No. 15, to suppress.
I have conducted a careful de novo review of the record pursuant to 28 U.S.C. § 636(b)(1)(A)and NELR 72.3(d), including the transcript of the suppression hearing. I have also reviewed the objections, brief in support of objections, brief in opposition to objections, and relevant case law. I decline to adopt the report and recommendation and grant defendant's motion to suppress.
Factual Background
The facts are fairly straightforward. The 911 operator received a hang-up call and thereafter dispatched an Omaha police officer to the apartment wherein the call originated. Officer Adele Tomsu answered the call. She spoke with Richard Jordan who expressed that he wanted to have his estranged wife arrested. Within a few minutes Officer Richardson arrived on the scene. Officer Richardson stayed with Mr. Jordan and Officer Tomsu went to find Annette Evans-Jordan, the defendant in this case. Upon seeing Evans-Jordan, a records check was done on both Jordan and Evans-Jordan. Both had previous felonies, but neither report showed either of the individuals to be dangerous. The officers found nothing to substantiate the story of either party and determined that no laws had been broken. Officers Tomasu and Richards then went outside to discuss how to handle the situation. They decided that one of the parties, preferably Evans-Jordan since she did not appear to live in the apartment, should leave the premises. The officers decided to pretend that if one of the parties did not leave, that arrests might be made. With that encouragement, Evans-Jordan agreed to leave. At some point Officer Tomsu realized that Evans-Jordan did not have a vehicle. Officer Tomsu offered to give Evans-Jordan a ride to either a halfway house, or a relative's home, although the destination had not been determined. Evans-Jordan agreed and told Officer Tomsu that she had left her purse in the apartment manager's office. Officer Tomsu went in to retrieve the purse. While there the apartment manager handed Officer Tomsu the purse and a butcher knife that allegedly Evans-Jordan had brought with her. Officer Tomsu indicated to the manager that she should keep the knife, as it was not relevant to the issues at hand, and it would be more dangerous for Officer Tomsu to take and dispose of the knife. The apartment manager retained the knife.
As Officer Tomsu exited the building, she decided to do a "cursory inspection" of Evans-Jordan's purse. Officer Tomsu stated that she did so for officer safety. Officer Tomsu did not ask for or receive consent to search the purse. While searching the purse, Officer Tomsu discovered a substance that appeared to be an illegal drug. The substance was later identified as methamphetamine. Officer Tomsu then arrested Evans-Jordan and took her into custody.
Discussion
Evans-Jordan filed a motion to suppress the search of her purse contending it violated the Fourth Amendment to the United States Constitution. The magistrate disagreed and concluded that the search fell squarely under Terry v. Ohio, 392 U.S. 1, 27 (1968), wherein the court discussed the test for officer safety. The magistrate concluded that Officer Tomsu had "reasonable suspicion" that a weapon could be in the purse, relying on United States v. Condelee, 915 F.2d 1206, 1210 (8th Cir. 1990). Defendant filed objections to the report and recommendations arguing that Terry only applies in the case of investigative detentions where the officer has a reasonable belief that a suspect is dangerous and might have a weapon.
Officer Tomsu clearly stated that there were no grounds for arrest of Evans-Jordan (Tr. 27:10-28:12; 30:1-4). Asking Evans-Jordan to leave was a ruse to separate the two parties. Id. No laws had been broken. No one was injured. Nothing illegal had occurred. There was no detention; there was no arrest. No consent was received prior to the search. There was no pat-down search of Evans-Jordan even prior to her getting into a police cruiser. Officer Tomsu volunteered to escort Evans-Jordan to a different location. Officer Tomsu was not worried about the butcher knife, as she left it at the manager's apartment. The knife was not involved with the issues before the officers (Tr. 34:4-35:12). The record check disclosed a felony, but it did not reveal that the officers should proceed with caution. Officer Tomsu did not feel a need to obtain more information on the criminal history as she stated that "it wasn't necessary." (Tr. 26:23-27:9). Officer Tomsu admitted that this was a cursory review of Evans-Jordan's purse. If a weapon had not been at the top of the purse and visible, Officer Tomsu would not have seen a weapon, absent a full inspection (Tr. 31:10-32:3). Further, if Officer Tomsu had been concerned about the purse, she could have retained it in the police cruiser until such time as Evans-Jordan exited the vehicle. Or, Tomsu could have told Evans-Jordan that her purse would be searched if the offer to give her a ride was accepted. No search needed to occur in this case based on the testimony of Officer Tomsu. No reasonable, articulable suspicion existed to justify this search. Accordingly, I conclude that the warrantless search is unconstitutional, and I grant the defendant's motion to suppress.
THEREFORE, IT IS ORDERED:
1. The defendant's motion to suppress, Filing No. 15, is granted.
2. The defendant's objections to the magistrate's report and recommendation, Filing No. 24, are granted.
3. The report and recommendation of the magistrate, Filing No. 23, shall not be adopted.