United States District Court, N.D. Iowa, Cedar Rapids Division
REPORT AND RECOMMENDATION
JON STUART SCOLES, Chief Magistrate Judge.
On the 25th day of June 2015, this matter came on for hearing on the Motion to Suppress (docket number 13) filed by the Defendant on June 15, 2015. The Government was represented by Assistant United States Attorney Dan Chatham. Defendant DeShaun Anderson appeared in person and was represented by his attorney, F. Montgomery Brown.
II. PROCEDURAL HISTORY
On May 14, 2015, Defendant DeShaun Anderson was charged by Indictment with possession with intent to distribute heroin. Defendant appeared on May 20 and entered a plea of not guilty. Trial was scheduled before Chief Judge Linda R. Reade on July 13, 2015.
On June 12, a Superseding Indictment was filed adding co-Defendant Max Julian Wright to the action, and charging Defendant with possession with intent to distribute heroin and Fentanyl (Count 1), conspiracy to distribute heroin and Fentanyl resulting in serious bodily injury (Count 2), and distribution of heroin and Fentanyl resulting in serious bodily injury (Count 3).
On June 15, Defendant timely filed the instant motion to suppress. The Government filed its resistance on June 19. Because of the superseding indictment, the addition of co-Defendant Wright, and the pending motion to suppress, the trial was continued to August 24, 2015.
III. RELEVANT FACTS
In April 2015, Investigator Nick Nolte of the Cedar Rapids Police Department was asked by the Narcotics Bureau commander (Sgt. Dave Dostal) to investigate a "rash of heroin overdoses." On April 10, Nolte and Dostal met with Cameron Weber, an inmate in the Linn County Jail. Weber had overdosed on heroin in January 2015. Weber told Nolte that he had obtained the heroin from an individual known as "Shady, " who Weber believed may live in the area of Westdale Court Apartments. Weber also reported that Shady drove a light blue minivan, with a license plate that included the letters CPV. Weber could not recall the numbers on the license plate. Following the interview, Nolte and Dostal drove to Westdale Court Apartments in an effort to locate a vehicle matching that description. They were unsuccessful.
Three days later, on April 13, Investigator Nolte learned that a female had overdosed at Westdale Court Apartments and was taken to Mercy Hospital. Nolte went to the hospital to interview the overdose victim. After Nolte was at the hospital for a very short time, however, he was contacted by Sgt. Dostal and instructed to respond to Westdale Court Apartments, where a second overdose victim had been located. During his investigation, Nolte learned from the first victim that she had obtained the heroin from "Shady, " and she then gave some of the heroin to the second victim. The first overdose victim survived, but the second overdose victim died.
The following day, April 14, Sgt. Dostal informed Investigator Nolte that the vehicle described by Cameron Weber had been located at Westdale Court Apartments. Dostal advised Nolte that the vehicle was registered to Defendant DeShaun Anderson, but that the vehicle registration had expired. Nolte and Dostal obtained a photo from Defendant's driver's license and went to the jail, where they showed it to Weber. Weber told Nolte that the person in the photo was "Shady" - Weber's source for heroin. Weber also advised Nolte that he had seen Shady near a white house at the corner of A Avenue and 13th Street.
Investigator Nolte then proceeded to the corner of A Avenue and 13th Street, where he sat for several hours conducting surveillance. At approximately 12:45 p.m., Nolte observed a light blue minivan pull into the driveway of a white house located at the corner of A Avenue and 13th Street. Almost immediately, a female came out of the house and got in the van, where she remained for 3-5 minutes. The female then exited the van and returned to the house. As the female was walking back to the house, Nolte observed that her arm was bent at the elbow, with her hand near her head. Nolte believed this was consistent with an intravenous injection. Nolte, who had previously served for four-and-a-half years on a DEA Task Force, believed that he had likely witnessed a drug transaction.
When the minivan left the area and headed eastbound on A Avenue, Investigator Nolte caught up to the van and confirmed that the license plate matched the plate number given earlier by Sgt. Dostal. Because he was in plain clothes and driving an unmarked car, Nolte called for a uniformed officer to conduct a traffic stop. According to Nolte, Defendant's vehicle was being stopped for two reasons: Nolte believed that the vehicle had an expired registration, and Nolte believed that the occupant of the vehicle was involved in drug activity.
Officer Justin Boecker of the Cedar Rapids Police Department initiated the traffic stop on I-380 southbound, near the Wilson Avenue exit. Investigator Nolte pulled up directly behind Boecker's squad car. Boecker approached the van on the driver's side, while Nolte approached the van on the passenger side. Defendant was driving and was alone in the vehicle. Boecker apparently obtained Defendant's license, registration, and insurance, and returned to his squad car to process a citation for operating without valid registration. During that time, Nolte remained near the minivan and engaged in "small talk" with Defendant. Nolte testified that "I didn't want any evidence to be destroyed."
Meanwhile, Officer Boecker called on the radio for backup assistance. Officer Justin Kaczinski testified that he heard Boecker ask for assistance because, while the minivan was pulling to a stop, Boecker observed the driver engage in "nonconforming movements." Specifically, Defendant was seen reaching back behind his seat. Kaczinski arrived at the scene approximately six minutes after the initial stop, spoke briefly with Boecker (and was told by Boecker that a K-9 unit was coming), and then stood by.
Officer Buckles, who works with a drug detection dog, arrived approximately three minutes later. Buckles intended to have his dog conduct a "free air sniff" around the exterior of the vehicle. Defendant was asked to exit the van for this process to begin, and he complied. At that point, Defendant had been stopped for ten minutes. Defendant walked with Officer Kaczinski to a grassy area between the van and Officer Boecker's squad car. Kaczinski asked Defendant if he had "anything on him that I needed to be concerned about." Defendant said no, but Kaczinski then asked if he could "pat him down." Defendant agreed. Defendant was wearing shorts and high socks. ...