United States District Court, N.D. Iowa, Cedar Rapids Division
REPORT AND RECOMMENDATION
JON STUART SCOLES, Chief Magistrate Judge.
On the 22nd day of June 2015, this matter came on for hearing on the Motion to Suppress (docket number 50) filed by the Defendant on April 14, 2015. The Government was represented by Special Assistant United States Attorney Erin R. Eldridge. Defendant Donell Alfred Hopkins appeared in person and was represented by his attorney, Mark C. Meyer.
II. PROCEDURAL HISTORY
On October 30, 2014, Defendant Donell Alfred Hopkins was charged by Indictment with possession with intent to distribute controlled substances and being a prohibited person in possession of a firearm and ammunition. Defendant appeared on March 10, 2015 and entered a plea of not guilty. Trial was scheduled before Chief Judge Linda R. Reade on May 11, 2015.
On April 14, 2015 Defendant timely filed the instant motion to suppress. The Government filed its resistance on June 18. Because of the pending motion to suppress, the trial was continued to August 10, 2015.
III. ISSUES PRESENTED
Defendant claims that his Fourth Amendment rights were violated by an unlawful search and a wrongful seizure, and the fruits of the search must be suppressed. First, Defendant claims that officers obtained a warrant to search his residence by relying on evidence obtained through an unlawful dog sniff. Second, Defendant argues the warrant was wrongfully executed during nighttime hours. Third, Defendant asserts that officers seized him, searched his person, and arrested him without probable cause.
IV. RELEVANT FACTS
A. Dog sniff
At approximately 10:00 p.m. on October 22, 2013, Officer Al Fear, of the Cedar Rapids Police Department K-9 unit, and his dog, Marco, went to Cambridge Townhouses, a residential complex on North Towne Lane NE in Cedar Rapids, to investigate possible drug-related activity. Fear had obtained information from another officer that a black male with a street name of "Smoke" had been dealing narcotics from that location.
Cambridge Townhouses consists of multiple buildings under the same management. A large main sidewalk runs parallel to two buildings on either side. Three smaller sidewalks branch off the main sidewalk, leading to a shared cement space adjacent to the doorways of two neighboring units. Odd-numbered units are on the east side of the building, and even-numbered units are on the west side. Officer Fear testified he did not notify management that he would be conducting a dog sniff that particular evening. However, the Cedar Rapids Police Department has standing permission from the complex's management to patrol the area and investigate alleged violations or offenses of law occurring at the complex, and the police have written tickets for offenses occurring in the outside common areas. According to Fear, the management "encourages officers to come to the location and patrol" and has given the police department "numerous tips of narcotics use and illegal activities, " which the department then investigated.
Upon arriving at the townhouses on October 22, Officer Fear unleashed Marco to run alongside the building, starting on the southeast side, where the odd-numbered units were located, and then continuing on to the northwest side of the unit, where the even-numbered units were located. According to Fear, Marco ran mostly in the grassy areas and sniffed along the bottom of each door, getting within approximately six to eight inches of the door. Marco stopped at Apartment 6 and indicated the presence of a controlled substance by passive alert. Fear testified that this behavior indicated the presence of a controlled substance inside the unit.
B. Warrant Issuance and Surveillance
The next day, on October 23, Officer Fear applied for and obtained a state search warrant for Apartment 6, along with any other storage units, garages or vehicles registered to the apartment. In the application for the warrant, Fear noted that he had received a tip from another officer about alleged narcotics activity at the complex, and provided evidence of Marco's behavior upon visiting Apartment 6 the day prior. After the state judicial magistrate issued the warrant, Fear conducted additional surveillance on Apartment 6 that day and the Sunday following. Fear testified that he observed the same black male coming and going from the apartment, meeting with other individuals outside the apartment, and completing what he believed to be quick narcotics transactions.
C. Warrant Execution
At approximately 10:00 p.m. on October 28, Officer Fear was a part of group of eight to ten officers who executed the search warrant on Apartment 6. Upon approaching the building, Fear saw two male subjects coming from Apartment 6 and walk across the grass toward steps leading to a parking area. One of the subjects was the same individual Fear observed during his surveillance in the days proceeding. Fear testified that he and the other officers immediately drew their weapons, shouted "police, " and ordered the two men to the ground. The subject Fear had previously observed (later identified as Defendant Donnell Hopkins) immediately complied with the request, but the other subject (later identified as Defendant's brother Robert Hopkins) fled on foot. When asked why officers ordered the two subjects to the ground, Fear testified that it is "common practice" to pat down subjects for "officer safety issues." Fear acknowledged the warrant only authorized a search of the residence.
Officers handcuffed Defendant and, when patting him down, felt a "bulky" item on Defendant's right side. The officer conducting the pat-down asked Defendant what the item was, and Defendant responded that it was a gun. Subsequently, officers retrieved a loaded.357 caliber Smith and Wesson revolver, 45 baggies of crack cocaine (totaling 3.16 grams), and 7 baggies of marijuana (totaling 2.5 grams) from the Defendant's person. Officer Fear testified that the packaging of the ...