United States District Court, N.D. Iowa, Eastern Division
REPORT AND RECOMMENDATION
JON STUART SCOLES, Chief Magistrate Judge.
On the 3rd day of January 2014, this matter came on for hearing on the Motion to Suppress (docket number 21) filed by the Defendant on December 19, 2013. The Government was represented by Assistant United States Attorney Dan Chatham and Special Assistant United States Attorney Ravi Narayan. Defendant Geoffrey Scott Gaffney appeared in person and was represented by his attorney, Jill M. Johnston.
II. PROCEDURAL HISTORY
On November 5, 2013, Defendant Geoffrey Scott Gaffney was charged by Indictment with possession with the intent to distribute methamphetamine. At the arraignment on November 21, Defendant entered a plea of not guilty and trial was set for January 21, 2014.
On December 19, 2013, Defendant timely filed the instant motion to suppress. The Government filed its resistance on December 30. Because of the pending motion, the trial was continued to February 24, 2014.
III. RELEVANT FACTS
On August 21, 2013, Officer Albert Bovy of the Waterloo, Iowa, Police Department was on routine patrol. At approximately 12:24 a.m., while sitting at a stop light facing west on Franklin Street in Waterloo, Bovy observed a car approaching him from the opposite direction. Bovy believed that the car was traveling at "a high rate of speed, " and estimated its speed at the hearing at 50 to 55 miles per hour. The speed limit on Franklin Street is 35 miles per hour.
Officer Bovy waited at the intersection as the light changed and the subject vehicle passed going the opposite direction. Bovy immediately made a u-turn and followed the subject vehicle. Before Bovy activated his lights or siren, the subject vehicle "braked hard" and turned right at the next intersection onto Rhey Street and stopped immediately. A video recording of the events (Defendant's Exhibit A) shows that Bovy turned on his emergency lights just as the subject vehicle was turning right. Bovy testified, however, that he could see the other vehicle was pulling over to the side of the street when he activated his emergency lights. That is, the subject vehicle was "pulling over" even before Bovy turned on his top lights. The video recording reflects the subject vehicle was stopped at 12:25:06. Defendant was the driver and sole occupant of the vehicle.
After the vehicle was stopped, Officer Bovy immediately approached the vehicle on the driver's side. According to Bovy, he generally prefers to "call in" the license plate and his location before approaching the vehicle, but in this case he noticed movements by the driver and wanted to make sure he wasn't obtaining a weapon. Bovy told Defendant that he stopped him for speeding and estimated his speed at 50 to 55 miles per hour. Defendant replied that he "thought I was only going in the 40s." At Bovy's request, Defendant produced his driver's license and insurance card, although Bovy determined that the insurance card was expired. While Defendant was searching for a valid insurance card, Bovy went to the back of the vehicle and called in to dispatch the license plate, Defendant's name, and date of birth. According to Bovy, dispatch responded within a short period of time, advising that Defendant's driver's license was valid, that he had no active warrants for his arrest, and that he had a "previous narcotics history."
When Officer Bovy reapproached the driver's window, he could tell Defendant was "getting more nervous." According to Bovy, Defendant had "beads of sweat forming on his forehead, " his voice was shaky, his hands were shaking as he "fumbled" for his insurance papers, and he was breathing heavily. Bovy testified that the longer he dealt with Defendant, the more nervous Defendant became. Bovy opined that the nervousness exhibited by Defendant was beyond that normally observed in a traffic stop.
Eventually, Defendant produced valid insurance information. As he was examining the document, Officer Bovy was advised by Officer Gann on "channel 4" that Defendant was still involved in illegal narcotics activity. Bovy testified that Gann, who is assigned to the violent crimes unit, was working that night and heard Bovy call in Defendant's name. According to Bovy, it is not uncommon for officers to provide "pertinent information" on a secure channel for the benefit of the officer conducting the stop.
Early on, Officer Bovy asked Defendant where he was going and he responded "to a friend's house." Later, Bovy asked Defendant again where he was going and Defendant said he was going to a convenience store to purchase sandwich meat. Defendant told Bovy that he had stopped at a different convenience store first, but it did not have what he wanted. When Bovy questioned Defendant regarding the inconsistency in his responses. Defendant did not respond. Bovy asked if there were any drugs in the car and Defendant looked down and said "no." Bovy then asked if there were any weapons in the car. Defendant looked at Bovy and said "no." At that point, Bovy asked for consent to search Defendant's vehicle. Defendant declined, stating that his probation officer had told him never to let the police search his vehicle, because "that's how he had gone to prison before."
Officer Bovy, who has been a canine officer since 2007, then told Defendant that he intended to get out his dog to conduct a sniff of the vehicle. Bovy asked Defendant to step out of the car, and he complied. Defendant got out of the vehicle at 12:30:05, or precisely five minutes after the initial stop.
Rather than proceed directly to the back of the vehicle, Defendant appeared to drift a few feet toward the center of the street. Officer Bovy then placed his hand on Defendant's back, grabbing his t-shirt, and directed him to the area in front of Bovy's squad car. Bovy opined that Defendant seemed "almost in a daze, " and recalls that Defendant's shirt was wet from sweat. Officer Watson, who had arrived on the scene a couple of minutes earlier, directed Defendant to an area near the curb, just outside of view from Bovy's vehicle camera.
At that point, Officer Bovy patted Defendant down for weapons. According to Bovy, the location was a high crime area, with high drug traffic, numerous shootings, and a homicide two blocks away a couple of months earlier. Bovy ...