United States District Court, N.D. Iowa, Central Division
MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION CONCERNING DEFENDANT'S MOTION TO SUPPRESS
MARK W. BENNETT, District Judge.
I. INTRODUCTION AND BACKGROUND
A. Procedural Background
On May 21, 2014, an Indictment was returned against defendant Christopher Isiah Mosley charging him with possessing with intent to distribute 280 grams or more of crack cocaine, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851, possessing with intent to distribute less than 50 kilograms of marijuana, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 851, possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On July 21, 2014, Mosley filed a motion to suppress in which he seeks to suppress evidence seized in a warrantless search of a bag he dropped in his backyard as he fled from the police. He also seeks to suppress evidence subsequently seized pursuant to a warranted search of his residence.
The prosecution filed a timely resistance to Mosley's motion. Mosley's motion to suppress was referred to United States Magistrate Judge Leonard T. Strand, pursuant to 28 U.S.C. § 636(b). On September 3, 2014, Judge Strand conducted an evidentiary hearing and subsequently held oral arguments on September 15, 2014. On September 26, 2014, Judge Strand filed a Report and Recommendation in which he recommends that Mosley's motion to suppress be granted. In his Report and Recommendation, Judge Strand initially concluded the police's entry onto Mosley's property did not violate the Fourth Amendment because the entry was a reasonable response to exigent circumstances. Judge Strand next determined that the police were justified in conducting a Terry stop of Mosley. Judge Strand also concluded that the police had reasonable and articulable suspicion to temporarily seize duffel bag Mosley dropped when fleeing the police. Judge Strand went on to determine that Mosley did not abandon the duffel bag by dropping it in his own yard and that the plain view/plain smell doctrine did not apply to the duffel bag. Judge Strand, alternatively, concluded that even if he assumed, arguendo , that the police testified truthfully about seeing and smelling the marijuana in the duffel bag, the plain view/plain smell doctrine did not authorize a warrantless search of the duffel bag. Thus, Judge Strand concluded that the search of the duffel bag was illegal and all evidence discovered as a result of that search must be suppressed. Judge Strand determined that evidence found during a subsequent search of Mosley's residence was derivative evidence acquired as a consequence of the illegal search of the duffel bag and inadmissible under the "fruit of the poisonous tree" doctrine.
Both the prosecution and defendant Mosley have filed objections to Judge Strand's Report and Recommendation. The prosecution filed a timely response to Mosley's objections. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Mosley's motion to suppress.
B. Factual Background
In his Report and Recommendation, Judge Strand made the following factual findings:
At approximately 10:43 p.m. on May 7, 2014, the Fort Dodge Police Department Communications Center received a 911 call from a female caller who described an incident of domestic abuse. She identified herself to the dispatcher, Robin Ulicki, as "Chiesa" but did not give a last name. She reported that her assailant, "Chris Towns, " had put his hands around her neck and pushed her down, causing her to scrape her knee. She told Ulicki she was "ok" and did not need medical attention. When asked about her location, Chiesa was unable to give a street address. She told Ulicki she was outside a yellow house on 11th Avenue SW, near the cross street of "10th or something." She agreed to wait outside the yellow house until police arrived and advised that her assailant was inside the house. She stated that she was not aware of any weapons that her assailant might possess.
FDPD Officer Leighton Walker was the first officer to arrive in the general location Chiesa described, followed closely by Officer Joe Roetman. Lieutenant Dennis Mernka arrived in the area a few minutes later. After a brief search of the area, Walker and Roetman were unable to locate Chiesa. Ulicki advised the officers that her attempt to re-contact Chiesa failed but that the phone number Chiesa used was in the FDPD's records Management System (RMS). The RMS indicated that the number had previously been associated with the address of 1100 10th Avenue SW, which is in the area Chiesa had described. A brown house owned by defendant Christopher Mosley is located at that address.
Based on this information, Walker parked in front of Mosley's house and approached the front door to investigate Chiesa's report. As Walker approached, he saw an African-American man slam the door closed. Walker knocked loudly on the screen porch door, identified himself as a police officer and yelled for the occupant to open the door and answer questions about the reported domestic abuse. When Roetman arrived, he joined Walker at the front door, began knocking and threatened to kick the door in if they were not allowed entry. As Roetman continued knocking and yelling at the front door, Walker walked through Mosley's yard to the back of the house. As Walker reached the back of the house, an African-American man, later identified as Mosley, ran from the back door with a black duffel bag in hand towards the tree line north of the property.
Walker chased Mosley, radioed to his fellow officers that Mosley was running and commanded him to stop. Mosley ignored the command and continued to run. When Mosley was close to a line of parked cars on his property, he threw the black duffel bag between two of the cars and then changed directions, running away from the bag and around the side of the house toward the front yard. Walker saw Mosley drop the bag but continued the chase. Walker and Roetman stopped Mosley in the front yard. Mosley struggled with the two officers to the point that Mernka, who had just arrived at the scene, had to help secure him in handcuffs. Mosley was arrested for interference with official acts and was placed in the back of a squad car.
Once Mosley was secured, Walker told Roetman and Mernka about the duffel bag. Mernka instructed Walker to find the bag and secure it. Walker returned to the back of the house, went to the line of parked cars and located the bag. Walker testified that he could smell marijuana when he approached the bag but did not include this detail in his incident report. Walker also testified that the bag was approximately twenty percent unzipped and that he could see a plastic or glass container inside. He testified that based on his experience, he thought the container could be drug packaging and marijuana.
During this time, heavy rain began to fall. Mernka joined Walker in the back yard and testified that he, too, could smell marijuana emanating from the duffel bag. However, Mernka failed to note this fact in his incident report. Mernka testified that the bag was unzipped approximately 6 to 12 inches and that he was able to look into the bag by focusing a flashlight into the opening. He testified that he saw plastic-cellophane wrapping inside the bag which, based on his experience, he believed could be drug packaging. However, he could not actually see any drugs or contraband in the bag.
Mernka directed Walker to find a camera and document the situation. Walker went to his squad car, retrieved his camera and returned to the back of the house to take photos of the bag and scene. Walker testified that he was able to take only one photograph of the bag before the camera flooded and shut down due to the heavy rain. Walker further testified that he uploaded that photograph to his computer upon returning to the station. For reasons that were not explained, the photograph was lost.
The duffel bag was taken to Walker's squad car, placed in the trunk, and delivered to Detective Ryan Gruenberg at the Fort Dodge Law Enforcement Center. Both Walker and Mernka testified neither of them touched the zipper on the bag or any of the contents. No warrant was issued prior to the seizure of the duffel bag.
Roetman testified that after Mosley was secured, he entered the house without a warrant to find out if Chiesa was inside. After Roetman determined she was not present, Mernka entered the home and told Roetman that the duffel bag contained a large quantity of narcotics. Roetman noted this comment in his incident report. While Chiesa was not ...