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United States of America v. David Wayne Holleman

December 12, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DAVID WAYNE HOLLEMAN, DEFENDANT.



ORDER

TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. RELEVANT PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 IV. RELEVANT FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . 3 V. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. Western Iowa Stop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Basis for stop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Scope and duration of stop . . . . . . . . . . . . . . . . . . . . . . . . . 9 a. Reasonable suspicion . . . . . . . . . . . . . . . . . . . . . . . 10 b. But-for cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. Search of Truck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1. Reliance on automobile exception . . . . . . . . . . . . . . . . . . . 13 2. Trespass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3. Probable cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 4. Miranda violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. INTRODUCTION

The matter before the court is Defendant David Wayne Holleman's Objections (docket no. 82) to United States Magistrate Judge Jon S. Scoles's Report and Recommendation (docket no. 75), which recommends that the court deny Defendant's "Motion to Suppress" ("Motion") (docket no. 21).

II. RELEVANT PROCEDURAL HISTORY

On May 22, 2012, a grand jury returned an Indictment (docket no. 2) against Defendant. The Indictment charges Defendant with knowingly and intentionally possessing with the intent to distribute 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).

On June 29, 2012, Defendant filed the Motion. On July 9, 2012, the government filed a Resistance (docket no. 29). On July 13, 2012, Judge Scoles held a hearing on the Motion. See Minute Entry (docket no. 35). Defendant appeared in court with his attorney, Dean A. Stowers. Assistant United States Attorney Dan Chatham represented the government. Judge Scoles received evidence and continued the hearing to August 6, 2012. On July 31, 2012, the government filed a Supplemental Brief (docket no. 50). On that same date, Defendant filed a Reply (docket no. 52) to the government's Resistance. On August 6, 2012, the hearing resumed. See Minute Entry (docket no. 55). Judge Scoles received evidence and continued the hearing, which was concluded on August 16, 2012. See Minute Entry (docket no. 62). On August 20, 2012, the government filed a Second Supplemental Brief (docket no. 70). On August 30, 2012, Defendant filed a Reply (docket no. 74) to the government's Second Supplemental Brief. On that same date, Judge Scoles issued the Report and Recommendation, which recommends that the court deny the Motion. On September 13, 2012, Defendant filed his Objections. On September 20, 2012, the government filed a Response (docket no. 89) to Defendant's Objections. On October 12, 2012, Defendant filed a Reply (docket no. 100) to the government's Response.

In his Objections, Defendant requests that the court hold a hearing on the matter "because the record is complex and extended and the [c]court would benefit from the knowledge of both counsel of record in reviewing the Report and Recommendation."

Objections at 2 (footnote omitted). The court finds that a hearing is unnecessary. The matter is fully submitted and ready for decision.

III. STANDARD OF REVIEW

When a party files a timely objection to a magistrate judge's report and recommendation, a "judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b)(3) ("The district judge must consider de novo any objection to the magistrate judge's recommendation."); United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (noting that a district judge must "under[take] a de novo review of the disputed portions of a magistrate judge's report and recommendations"). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b)(3) ("The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions."). It is reversible error for a district court to fail to engage in a de novo review of a magistrate judge's report when such review is required. Lothridge, 324 F.3d at 600. Accordingly, the court reviews the disputed portions of the Report and Recommendation de novo.

IV. RELEVANT FACTUAL BACKGROUND*fn1

On May 8, 2012, Iowa State Patrol Officer Jerod Clyde was driving westbound on Interstate 80 after finishing a training session in Des Moines, Iowa. Trooper Clyde saw a white Chevy truck headed eastbound. According to Trooper Clyde, the white Chevy truck was traveling at 73 miles per hour in a 70 mile per hour zone. Trooper Clyde continued westbound until he found a place to turn around. By the time he caught up with the white Chevy truck, there was a semi-truck ahead of it. According to Trooper Clyde, the semi-truck was traveling at 70 miles per hour and the white Chevy truck was closing the gap between itself and the semi-truck. Trooper Clyde activated his lights and initiated a traffic stop.

After the white Chevy truck pulled over to the side of the road, Trooper Clyde approached the passenger side window. Trooper Clyde observed a single occupant in the truck, whom he later determined to be Defendant. Trooper Clyde asked Defendant to roll down the passenger side window. Defendant proceeded to roll down the window approximately one inch and, when Trooper Clyde asked him to roll it down farther, Defendant responded "no." Transcript Vol. II (docket no. 108) at 39. Trooper Clyde asked Defendant for his license, registration and insurance card, and Defendant complied by sliding the requested documents through the one-inch opening in the passenger side window. Trooper Clyde then asked Defendant to follow him back to the patrol car and Defendant complied. Once inside the patrol car, Trooper Clyde told Defendant that he was going to write him a warning ticket for speeding and following another vehicle too closely. Trooper Clyde proceeded to check Defendant's license, conduct a criminal history check and input information onto the warning memorandum. As Trooper Clyde conducted these tasks, he asked Defendant a number of questions, including where Defendant was headed, what kind of machinery was in the bed of his truck and how he was employed.

Approximately seven minutes into the stop, Trooper Clyde called the El Paso Intelligence Center ("EPIC") to conduct an additional check on Defendant. After EPIC returned no results, Trooper Clyde proceeded to ask Defendant additional questions, including whether Defendant had any guns, drugs or other contraband in his truck. Defendant responded no. Trooper Clyde then asked Defendant for permission to search Defendant's truck and deploy a drug dog. Defendant declined to give permission. At this point, Trooper Clyde decided to deploy his drug dog despite Defendant's response. While Defendant waited in the patrol car, Trooper Clyde got his dog out of the patrol car and walked the dog around Defendant's truck. The dog, however, did not successfully sniff the truck because it was distracted by a "fur ball type thing of some animal that was hit," id. at 64. Trooper Clyde returned the dog to the patrol car and told Defendant that he was free to leave.

After Defendant left, Trooper Clyde "felt like [the] stop didn't go the way a normal traffic stop should go" and "was adamant that something was still not right and . . . wanted to pass that information on to another . . . K9-unit or another department." Id. at 69-70. Ultimately, Trooper Clyde contacted Drug Enforcement Administration ("DEA") Task Force Officer Nick Nolte and told him about the traffic stop, described Defendant's truck and relayed that Defendant was headed toward Cedar Rapids, Iowa.

Agent Nolte consulted with his supervisor and decided to further investigate. He positioned himself at a rest stop off of Interstate 80 near Grinnell and watched for Defendant's truck. At approximately 7:00 p.m. on May 8, 2012, Agent Nolte saw a truck matching Trooper Clyde's description pass the rest stop. Agent Nolte followed the truck and confirmed that it was Defendant's truck. Eventually, Defendant exited the interstate and drove to a hotel in Williamsburg, Iowa. Agent Nolte followed Defendant and called local law enforcement to ask whether there was a K9-unit in the area. Shortly thereafter, Defendant left the hotel and went to a nearby restaurant. After Defendant returned and went back inside the hotel, Agent Nolte called Deputy Mark Tiedt, the K9 deputy in the area.

Deputy Tiedt arrived and, at approximately 9:00 p.m., he deployed his dog, Henri, to sniff Defendant's truck in the parking lot of the hotel. According to Deputy Tiedt, he deployed Henri by "start[ing] the free air sniff on the vehicles on the northeast corner of the parking lot." Transcript Vol. I (docket no. 44) at 88. Deputy Tiedt directed Henri to sniff a total of four vehicles before reaching Defendant's truck. Henri did not alert, indicate or otherwise change his behavior when sniffing the first four vehicles. Deputy Tiedt then directed Henri to sniff Defendant's truck. When Henri reached the passenger side of the truck, Henri "stop[ped] dead in his tracks and be[gan] to really detail the area between the bed of the truck and the cab of the truck." Id. at 89. Deputy Tiedt characterized Henri's reaction as an "alert." Id. at 90. Deputy Tiedt then pulled Henri away from the truck and directed Henri to sniff the vehicle next to the truck. Henri did so and did not alert, indicate or otherwise change his behavior. Deputy Tiedt then took Henri back to Defendant's truck and directed him to sniff the truck again. On this second sniff, Henri "stopped and detailed the same area as the first time." Id. at 92.

Based on Henri's reaction to Defendant's truck, law enforcement obtained a search warrant and ultimately located approximately 250 pounds of marijuana inside the arc ...


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