In February, Robert Duncan was driving from the Denver airport to his Nebraska home when he was pulled over by deputies from the York County Sheriff’s Office.
Reprinted from York News-Times
Robert Duncan at his home in Swanton in Saline County, which he bought off Craigslist 10 years ago. While driving to Swanton in February, Duncan was pulled over on Interstate 80 in York County and charged with possession of less than one ounce of marijuana — an infraction that comes with a $300 fine. He is fighting the charge because he believes his vehicle was wrongfully searched by the York County Sheriff’s Office.
BY WILLIAM SWETT, NEWS-TIMES
At first, he thought it was because he was on the phone — he was talking to his son. But the deputy proceeded to tell him his brake lights were not on, which Duncan said he thought seemed plausible.
Duncan, a native of Washington state who owns a second home in southeast Nebraska and splits his time between both, was driving a 2022 white Chrysler Pacifica he had rented in Denver. His dashboard lights were on and so he had mistakenly assumed that meant his front beams and taillights were also on.
Soon after informing him of why he had been stopped, though, Duncan said he felt the mood shift. The stop no longer became about his headlights, something corroborated by recent testimony from a deputy on the scene.
“When I go up to the window, there’s some things that strike me as odd,” Sgt. Tyler Samek of the York County Sheriff’s Office said as he described the traffic stop at a court hearing in August.
Samek noticed Duncan was a single man in a minivan. In his experience, larger vehicles are often used to store drugs. Plus, Duncan told him he had rented the vehicle in Denver, where marijuana is legal.
“We have a lot of issues with people purchasing marijuana or marijuana products in Colorado and then transporting them either across Nebraska or to a community in Nebraska,” Samek testified.
Then there was another fact that raised Samek’s suspicion: Duncan had no luggage even though he planned to stay in Nebraska for a few weeks. Duncan told Samek during the stop that he was driving to his house in Swanton, which he thinks should have explained the lack of luggage.
“Those indicators, in and of themselves, aren’t necessarily criminal in nature,” Samek testified. “But when you couple them together with my experience on the interstate working in York County, that’s indicative of somebody who is possessing or trafficking drugs.”
Samek asked to search the vehicle; Duncan refused. Samek told Duncan to step out of his car and sit in the patrol car with another deputy who reviewed Duncan’s rental information, which was on his phone, while Samek deployed a canine. Samek said the canine indicated there was something in the vehicle, which gave the deputies probable cause to search it.
Only the deputies didn’t find what they were looking for.
“It’s all there; it’s just not there,” Samek told the other deputies on scene, at least one of whom was in training, according to bodycam footage shown during the August hearing.
And that’s how Robert Duncan of Washington state wound up in York, Nebraska, fighting an infraction filed against him for possessing $15 worth of marijuana — less than an ounce.
Duncan argues evidence can’t be used in court
Duncan, who mostly lives with his wife and kids in Washington state, told the News-Times he bought the Swanton home off Craigslist 10 years ago for $10,000. He doesn’t go a lot, he said, but when he does, he flies to Denver, where he rents a car, drives to Swanton and spends a few weeks there.
He primarily works in maintenance in the Vancouver area. In the past, during trips to Swanton, he has worked maintenance around southeast Nebraska. But he recently stopped due to illness. That’s part of why he smoked marijuana, he said: to relieve pain.
The question posed to County Court Judge Lynelle D. Homolka during the Aug. 8 hearing was whether the state could use the marijuana recovered during the search of Duncan’s vehicle to support its charge against him: a class III misdemeanor for improper/defective vehicle lighting and an infraction for the possession of less than 1 ounce of marijuana.
Duncan, who represented himself in court, felt strongly that they couldn’t.
“Evidence that a motorist is returning to his or her home state in a vehicle rented from another state is not inherently indicative of drug trafficking when the officer has no reason to believe the motorist’s explanation is untrue,” Duncan wrote in his motion to suppress. He testified that he’d selected the minivan because it was cheaper.
Assistant County Attorney Chris Johnson disagreed. “You don’t get much more clear cut than this, your honor,” he told the judge, pointing to Samek’s testimony: Duncan was a single individual with little to no luggage driving a large rental car from Denver on a “known drug corridor.”
Johnson argued that was enough articulable suspicion for Samek to deploy his K9 deputy, Justice. But Duncan felt it wasn’t and questioned whether Justice, the dog, had really detected the less than 1 ounce of sealed marijuana. Samek testified that he had.
Daniel Stockmann, a defense attorney who leads the Nebraska Interstate Drug Defense firm, could not comment on Duncan’s case but said those are common indicators used by law enforcement in traffic stops. Some of them are supported in case law and some have been debunked, he said — in part it comes down to the judge.
Judge Homolka has not yet ruled on Duncan’s motion to suppress. The trial is set for Oct. 31 in the York County Courthouse, though whether it goes to trial depends on how the judge rules and what the County Attorney’s Office decides.
Johnson declined to comment in detail because the judge is still deciding how to rule on Duncan’s motion to suppress. He explained that if the motion to suppress prevails, that means the “crucial” evidence recovered during the stop can no longer be used. Either way, Johnson said, “Once the judge makes the decision, we re-evaluate the case and decide how to proceed.”
Samek also declined to comment. “I am unable to provide comment on this case since the motion is still under advisement and the outcome of the case as a whole is still pending,” he wrote in an email.
Two sides of the equation
Regardless of what happens, Duncan’s case — an individual pulled over on the interstate by deputies from the York County Sheriff’s Office — is one of countless drug-related cases that play out in the York County Courthouse every year. Many face far more serious charges.
Of all the counties in Nebraska with more than 10,000 residents, York County is tied with Madison County for having the highest incarceration rate — sending people to the Nebraska prison system at a higher rate than nearly any other county in the state, according to a 2022 report from the Nebraska Criminal Justice Reinvestment Working Group.
York’s location is thought to be a major contributing factor. York sits at the intersection of two major roadways, Interstate 80 and U.S. 81, something that both benefits York economically and contributes to social issues, according to York County Attorney Gary Olson.
During his tenure, Olson has made efforts to change York’s high rate of incarceration and benefit York’s community through diversion programming, which diverts people away from the legal system and to educational programming. His office, in collaboration with Four Corners Health and the Sheriff’s Office, was recently accepted to a federal initiative to help rural communities address substance abuse issues and has received over $1 million in federal grant money to expand juvenile diversion programs.
But there is another aspect to York’s high rate of incarceration: an intentionally proactive approach to policing on the part of the York County Sheriff’s Office, which not only impacts York County residents, but also people passing through.
In an April interview with the News-Times, Lt. Alex Hildebrand said York’s location at the intersection of I-80 and Highway 81 is the main reason for York’s high incarceration rate.
But he also said a “huge contributing factor” was the department’s proactive approach to policing.
“Ultimately, none of this ever happens without that part of the equation,” Hildebrand said. “If we had 14 people that just sat around every day and didn’t do anything proactive, then yeah, I’m sure that incarceration rate would be significantly lower.”
In 2023, the York County Sheriff’s Office conducted searches on about 7% of vehicles it had pulled over for a traffic stop, according to data from the Nebraska Crime Commission. In 2022, that number was about 14% and in 2021 it was about 10%.
Those search rates are higher than those of the Seward County Sheriff’s Department, which patrols the stretch of Interstate 80 to the east of York and has come under statewide scrutiny for its practice of seizing the assets of motorists on I-80 without criminal charges.
While the Seward department conducted more traffic stops than the York department from 2021 to 2023, its rate of searches during those years was lower, according to the Crime Commission data. In 2022, for instance, the data says Seward conducted searches on only 1% of vehicles.
When asked about his office’s search rates, Hildebrand said the department is young and proactive. “They’re taking the traffic stop to the next level and ensuring that there’s not other criminal activity afoot,” Hildebrand said during the April interview.
Sheriff Paul Vrbka agreed. “They’re real aggressive,” he said about the younger members of the department, speculating that it could serve as a crime deterrent.
Stockmann said he was not familiar with the crime rates in York County specifically, but he questioned whether the searches conducted on I-80 prevented local crime.
“My experience with interstate drug cases is that the overwhelming majority of the people who are pulled over are out-of-state residents, so I don’t know how that would have any impact on a local crime rate, because those people weren’t intending on distributing the drugs in Nebraska, for the most part anyway, they were just passing through,” Stockmann said.
“The only bad thing about it is the jail’s always full,” Vrbka said about his department’s approach. A full jail, he said, costs York taxpayers because the county sometimes has to pay for inmate medical bills or pay to house individuals in other facilities. “That’s the cost of doing business,” Vrbka said, though he added that the full jail can cause problems among the individuals incarcerated there.
‘You got to have a traffic violation’
The traffic stop data available from the Nebraska Crime Commission’s website between 2018 and 2020 is wonky. It says, for instance, the sheriff’s office conducted searches on 92% of vehicles it pulled over in 2019, something Hildebrand said was “definitely not accurate.”
Drew Bigham, who directs the organization’s systems, research and pardons administration division, said over email the traffic stop data is submitted by the law enforcement agencies themselves. Hildebrand said the inaccuracy was likely because the department changed its records management and data systems between 2019 and 2020. The data from the previous records management program, Hildebrand said, is “virtually unsearchable.”
The traffic stop data for the most recent period that is available — 2021 to 2023 — suggests there is racial disparity in terms of which vehicles get searched. In 2021, the York County Sheriff’s Office searched the vehicles of Black drivers they had pulled over at nearly three times the rate they searched white drivers’ vehicles.
Hildebrand said he was not aware of data that showed his department conducts searches of Black drivers at a higher rate than white drivers but pointed to the fact that in terms of total searches, as opposed to percentages, the department searches more white drivers than drivers of other races. In 2022, for instance, the department conducted 934 traffic stops, 74 with Black drivers. That year it searched 131 vehicles, including 84 white drivers, 26 Hispanic drivers and 16 Black drivers.
The Crime Commission’s data from those years suggests a similar disparity exists for the York Police Department. In 2022, the department searched Black drivers’ vehicles at about four times the rate of white drivers’.
In an email, York Police Chief Ed Tjaden pointed to the overall traffic stop numbers, which he said offered a more comprehensive view. In 2022, the police department conducted 2,105 stops, 75 of them with Black drivers. That year it searched 77 vehicles, including those of 63 white drivers, 12 Black drivers and 1 Hispanic driver. Tjaden said his department conducts searches based on a range of criminal indicators, but race is not one of them.
During his testimony, Duncan suggested that Samek may have been more suspicious of him because his hair was in an afro. His driver’s license says he is white, but Duncan said he is of mixed race ancestry.
Johnson pushed back against that, asking it to be struck from the record, because Duncan did not invoke race in his motion to suppress filing, and called the accusation of racial profiling “inflammatory.”
Vrbka said his deputies are carefully trained about what counts as a fair reason to pull someone over. “You got to have a traffic violation,” Vrbka said. “You just don’t stop somebody because there’s five Hispanics in that vehicle.”
And before conducting a search, Vrbka said, his deputies have been trained to look for a range of different factors. Unrelated to Duncan, he said, someone traveling down the interstate from Denver with no luggage was an example of suspicious activity.
The department also uses vehicle-mounted license plate readers that can tell officers where else a vehicle has traveled, which Hildebrand said officers can use to corroborate a driver’s story during a traffic stop. The software is from Vigilant Solutions, a license plate recognition technology company owned by Motorola Solutions.
After Duncan was pulled over in February and charged with possession of marijuana less than 1 ounce, he made the unusual move of writing a letter and filing it in his court records.
“There were several ‘mis-steps’ by the officers from my traffic stop. If this ticket cannot be dismissed, I kindly ask that a trial date be set, and I plead ‘no-contest’ here in writing. Traveling to York is difficult for me, and I would prefer to show up once, for a trial,” Duncan wrote.
In fact, since the day he was charged for possession of less than 1 ounce of marijuana, Duncan has traveled to the York courthouse three different times for hearings, which has cost him hundreds of dollars. He may have to travel again to York at the end of October for the trial, depending on the outcome of his motion to suppress.
The penalty for a first-time offender caught with less than an ounce of marijuana in Nebraska is similar to a traffic offense. It is an infraction, which includes a fine of $300, and the judge may require the offender to take an educational course.
Voters in November will get to decide whether they want to legalize medical marijuana. But Duncan’s decision to fight the charges was not about Nebraska’s marijuana laws. He told the News-Times he just didn’t understand how the interaction with the York County Sheriff’s Office went from an ordinary traffic stop to a search of his vehicle and charges against him — and he wants to be heard in court about it.
Toward the end of his testimony during the Aug. 8 hearing, Duncan said, “If what was used here today is enough to get inside somebody’s vehicle, I have no liberty, I have no faith, if my vehicle can be gone through like this.”
