United States District Court, N.D. Iowa, Eastern Division
December 21, 2016
UNITED STATES OF AMERICA, Plaintiff,
DAYTOVIANE DAPREE McLEMORE, Defendant. UNITED STATES OF AMERICA, Plaintiff,
JOSHUA ADAM RODE, Defendant.
REPORT AND RECOMMENDATION
STUART SCOLES, CHIEF MAGISTRATE JUDGE
Was the Vehicle Stop Lawful?..........................7
Was the Vehicle Stop Unlawfully Prolonged?
Was McLemore's Pat-Down
CONCLUSION ....................................... 19
5th day of December 2016, these matters came on for hearing
on the Motion to Suppress (docket number 27) filed by
Defendant Daytoviane Dapree McLemore on November 21, 2016,
and the Motion to Suppress (docket number 19) filed by
Defendant Joshua Adam Rode on November 23, 2016. The
Government was represented by Assistant United States
Attorney Ravi Narayan. McLemore appeared in person and was
represented by attorney Melanie Keiper. Rode also appeared in
person and was represented by attorney Stephen Swift. Due to
time constraints, the hearing was suspended and completed on
December 15. All counsel and both Defendants were present.
October 18, 2016, Defendant Daytoviane Dapree McLemore was
charged by indictment with one count of possession of a
firearm by an unlawful drug user. On the same date, Defendant
Joshua Adam Rode was charged in a separate indictment with
the same crime. Both charges arise from the same vehicle stop
on July 1, 2016. It is my understanding the Defendants were
charged separately and will be tried separately due to a
potential Bruton issue.
appeared for an arraignment on October 24 and entered a plea
of not guilty. Rode pled not guilty at his arraignment on
October 27. Both cases were set for trial on December 19.
Because of the pending motions to suppress, however, both
trials were subsequently continued to February 21, 2017.
Status conferences are set on January 25, 2017.
charges arise from a vehicle stop by Waterloo Police Officer
Diana Del Valle on July 1, 2016. To place the vehicle stop in
context, however, it is necessary to discuss events occurring
two days earlier. On June 29, officers responded to a
"shots fired" call in the 800-block area of Logan
Avenue. Del Valle was riding at that time with Sergeant Kye
Richter. Both Del Valle and Richter are assigned to the
Violent Crime Apprehension Team ("VCAP").
Richter testified that the 800-block area of Logan Avenue is
well known for being a high crime area, with a lot of drug
activity, weapons violations, "disorderlies, " and
other street level crimes. Officer Del Valle had previously
responded to several "shots fired" calls in that
area of Logan Avenue. The area was known to VCAP as the home
of the L Block gang. Believing the shooting may be
gang-related, Del Valle and Richter did not respond
immediately to the area of the shooting, but instead drove to
other areas where opposing gangs were located to look for
patrolling the area, Officer Del Valle and Sergeant Richter
observed a BMW traveling southbound on East Mullan. At that
time, the officers had no particular reason to believe the
BMW may have been involved in the shooting. The officers saw
the BMW a second time when it was parked in the "zero
block" of Mulberry Street, surrounded by several people.
The officers saw the vehicle a third time - approximately one
hour after the shooting - in the 1000 block of Logan Avenue.
According to Del Valle, two persons were seen "walking
rapidly" from the vehicle to a nearby
residence. Richter described the persons as a
"light skinned male and a darker skinned
Officer Del Valle and Sergeant Richter neared the scene of
the shooting, they stopped and questioned two females who
were walking in the area. The females reported they heard
shots fired in the area and saw two cars leaving the area at
a high rate of speed. The vehicles were described as a
coffee-colored Impala and a white Chevy Malibu. Obviously,
the vehicles described by the witnesses did not match the
Del Valle and Sergeant Richter then proceeded to the scene of
the shooting and conferenced with other officers who were
investigating. Del Valle was told by Officer Jurgenson that
he had just learned Rode had been shot at near his home a
couple of days earlier, and the June 29 shooting may have
been in retaliation. Del Valle was told that Rode, who is
believed to be associated with the L Block gang, lives at
1025 Logan Avenue (the house Del Valle saw him entering). The
shooting which allegedly occurred a couple of days earlier
was not reported to authorities and was not investigated by
Ullom advised Sergeant Richter and Officer Del Valle that he
had seen a BMW going the wrong way on a one-way street as he
neared the scene of the shooting, but did not stop the
vehicle because Ullom was responding to the shots fired. The
BMW was seen about four or five blocks from where the
shooting took place. Del Valle retrieved information
regarding Rode, including his photograph, from the computer
in her car. Authorities did not attempt to question Rode on
June 29 regarding either shooting.
days later, on July 1, Sergeant Richter was patrolling the
area and observed Daytoviane McLemore standing outside the
BMW in the driveway at 820 Logan Avenue. Richter knew
McLemore from prior dealings. Richter believed McLemore to be
a member of the L Block gang. In January 2016, officers
executed a search warrant at the house of Defendant's
mother, Star McLemore, and found evidence allegedly
associated with Daytoviane which was consistent with the sale
of marijuana. A subsequent search of McLemore's phone
revealed evidence of buying and selling guns, and buying and
Richter instructed Officer Del Valle to "come to the
area and kind of just linger" until the vehicle left.
Del Valle proceeded to the area and parked one block north of
where the BMW was parked. Del Valle observed the BMW leave
and followed it. Del Valle testified that "our interest
in the vehicle came from that June 29th incident and the fact
that the vehicle was at 820 Logan, which is a residence we
know L Block members hang out at was probably what caught his
attention and he relayed that information to me."
Officer Del Valle was following the BMW, Sergeant Richter and
Officer Sullivan, who was riding with him, conducted an
unrelated traffic stop. Del Valle told Richter on the radio
that she had seen "no violations yet." Sullivan
asked Del Valle about the license plate. The BMW had a dealer
advertising plate where the metal plate would generally be
located, with a temporary paper plate in the back
window. Del Valle told Sullivan that "you can
see a plate, but you can't read what's on it."
Sullivan responded "there you go."
Del Valle testified that she followed the car for "about
a block-and-a-half, " drove within seven to ten feet of
the BMW, and could still not read the paper plate. When asked
on cross-examination whether she used her spot light, Del
Valle testified it was "likely, " but "I'm
not sure." She did not use her high beams. Del Valle
then pulled the BMW over at approximately 10:00 p.m.
According to Del Valle, she could not read the paper plate
until she approached the vehicle and was standing next to the
trunk. As she approached the car, Del Valle's focus was
on the two occupants of the car, and she did not look at the
paper plate or determine whether the paper plate appeared to
be valid. She subsequently determined it was a valid DOT
temporary registration card, presumably affixed by the
dealer. Del Valle testified that as she
"approached" the car she could smell "an odor
of fresh marijuana." In her report, however, Del Valle
wrote that "[i]n speaking with Rode, I detected an odor
of fresh marijuana coming from the
approached the vehicle, Officer Del Valle recognized both
Rode and McLemore. Del Valle had several dealings with
McLemore over the past year, including an incident in April
2016 when McLemore was the victim of a
shooting. Prior to that, Del Valle had obtained a
search warrant for McLemore's phone and discovered text
messages relating to the purchase and sale of guns. Del
Valle's knowledge of Rode was only acquired as part of
the investigation of the June 29th shootings.
was extremely nervous, his hands were visibly shaking, he was
breathing rapidly, and his voice was "cracking." It
also appeared to Sergeant Richter that Rode attempted to
conceal the contents of the glove box when retrieving the
vehicle's purchase documents. Both Rode and McLemore were
required to exit the vehicle. Richter patted McLemore down
and found a gun on his person.
their motions to suppress, Defendants raise three arguments.
First, Defendants argue that Officer Del Valle lacked
probable cause or reasonable suspicion to stop the vehicle in
which they were riding. Second, Defendants argue that even if
the vehicle stop was constitutionally permitted, the scope of
the detention exceeded that permitted by Terry.
both Defendants assert that Sergeant Richter lacked a
reasonable suspicion that McLemore was armed and dangerous
and, therefore, the protective pat-down of his person
violated the Constitution.
Was the Vehicle Stop Lawful?
regarding vehicle stops is well-established, and was recently
summarized by the Eighth Circuit Court of Appeals:
The Fourth Amendment prohibits unreasonable searches and
seizures. A traffic stop constitutes a seizure of a
vehicle's occupants, including any passengers. A traffic
stop must be supported by reasonable suspicion or probable
cause. A law enforcement officer has reasonable suspicion
when the officer is aware of particularized, objective facts
which, taken together with rational inferences from those
facts, reasonably warrant suspicion that a crime is being
committed. Any traffic violation, however minor, provides
probable cause for a traffic stop. The determination of
whether probable cause, or reasonable suspicion, existed is
not to be made with the vision of hindsight, but instead by
looking to what the officer reasonably knew at the time.
United States v. Hollins, 685 F.3d 703, 705-06 (8th
Cir. 2012) (internal quotations and all citations omitted).
The Government argues that Officer Del Valle had an
"objectively reasonable suspicion that the vehicle did
not have a clearly legible license plate." Alternatively,
the Government argues that there was an objectively
reasonable suspicion that other unspecified criminal activity
Code § 321.25 permits a vehicle to be lawfully operated
for a period of 45 days after the date of delivery of the
vehicle to the purchaser from the dealer, "if a card
bearing the words 'registration applied for' is
attached on the rear of the vehicle." It is undisputed
that Rode had recently purchased the BMW and the temporary
registration card in the rear window was validly issued by
the dealer and properly displayed in compliance with §
321.25. However, because Officer Del Valle was unable to read
the paper plate, the Government argues there was reasonable
suspicion to believe that it may not comply with
have wrestled with the question of whether the inability to
read a temporary paper plate authorizes an officer to conduct
a traffic stop. In United States v. Givens, 763 F.3d
987 (8th Cir. 2014), a case arising in the Northern District
of Iowa, the Court considered facts which are nearly
identical to those presented here:
While stopped at a stop sign at approximately 2:00 a.m. on
October 7, 2010, Officer Nathan Baughan of the Cedar Rapids
Police Department observed a vehicle driven by Givens pass in
front of him that did not have registration plates. Officer
Baughan turned to follow the vehicle and saw what appeared to
be a temporary paper registration card in the rear window,
but he could not read it due to the angle of the window and
the darkness of the night.
Givens, 763 F.3d at 988. Similarly, Officer Del
Valle observed the BMW had a dealer advertising plate where
the permanent registration plate would otherwise be
displayed. Del Valle also observed what appeared to be a
temporary paper plate in the rear window, but she could not
read it. It was dark (the stop occurred at approximately
10:00 p.m.) and photographs of the vehicle show the rear
window has a substantial angle. See McLemore Exhibit
Givens Court noted that "[o]perating a vehicle
on the highway without displaying valid registration plates
or a temporary paper registration card amounts to a simple
misdemeanor." Id. at 990 (citing Iowa Code
§ 321.98). Givens argued that because the officer could
not read the temporary registration card, "he could not
reasonably suspect that the card was forged, altered, out of
date, or otherwise illegal." Id. The Court
rejected Givens' argument, however, noting that while the
officer could see what "appeared" to be a temporary
paper registration card, he "did not know whether the
paper was in fact a registration card." Id. The
Court found that this was "critical, particularly
because we have previously upheld a traffic stop under
conditions where a vehicle did not display a metal license
plate and the officer saw only what appeared to be a paper
tag posted in the rear window, but did not know whether the
paper affixed to the window was a valid registration
tag." Id. (citing United States v.
Mendoza, 691 F.3d 954, 959 (8th Cir. 2012)). It should
be noted, however, that the paper tag in Mendoza had
what the officer believed was a suspicious color scheme, and
the officer was "confident that it was not an Iowa
temporary tag." Mendoza, 691 F.3d at 959.
Court in Givens concluded that "it was
objectively reasonable for Officer Baughan to expect that a
properly displayed valid registration card would be readable
from his location." Givens, 763 F.3d at 990.
Because he could not decipher any information on the paper
affixed to the rear window, Officer Baughan reasonably
suspected that the vehicle lacked valid registration. It is
not uncommon for officers to stop vehicles due to the lack of
an apparent temporary registration tag, and such stops are
generally upheld as supported by reasonable suspicion.
Givens, 763 F.3d at 990 (citing United States v.
Edgerton, 438 F.3d 1043, 1047-48 (10th Cir. 2006);
United States v. Tipton, 3 F.3d 1119, 1122 (7th Cir.
1993)). The Court concluded that "because Givens's
vehicle did not have metal license plates and lacked a
readily apparent temporary paper registration card, Officer
Baughan had reasonable suspicion that the vehicle did not
comply with state law." Id. at 991.
support of their argument, however, Defendants in the instant
action cite United States v. Wilson, 205
F.3d 720 (4th Cir. 2000), a case considered and distinguished
by the Givens Court. Wilson was driving a car with a
temporary paper license tag placed by the dealer in
compliance with North Carolina law. While traveling in South
Carolina, an officer noticed the car had a North Carolina
temporary tag, and he began following it. It was dark, and
the officer was unable to read me expiration date on the tag.
He saw nothing illegal about the tag or the operation of the
car, but stopped the vehicle "[s]olely because he could
not read the handwritten expiration date 'in the bottom
little corner of the paper tag.'" Id. at
722. The Fourth Circuit Court of Appeals concluded the
officer lacked reasonable suspicion that there was anything
illegal about the temporary tag. The Court concluded that
"[t]he Fourth Amendment does not allow a policeman to
stop a car just because it has temporary tags."
Id. at 724.
Court in Givens distinguished Wilson,
however, because the officer in Givens could not
determine whether the paper affixed to the rear window was in
fact a temporary registration card.
Unlike the officer in Wilson, who observed a valid
temporary tag but simply could not read the expiration date,
Officer Baughan could not determine whether the paper affixed
to the rear window of Givens's vehicle was in fact a
temporary registration card. Moreover, Officer Baughan
indicated that he is often able to read temporary cards at
night despite dark conditions. This directly contrasts with
the officer in Wilson who admitted that the
inability to completely read temporary tags was common in his
experience, making suspicion of wrongdoing less likely in
Givens, 763 F.3d at 991. Here, the record is silent
regarding Officer Del Valle's prior experience with being
able to read temporary cards at night. I believe
Givens provides authority, however, for the
proposition that if an officer can only see what
appears to be a temporary registration card in the
rear window, then he or she may conduct a traffic stop to
determine whether, in fact, it is a valid temporary
registration tag. Id. (when a vehicle lacks "a
readily apparent temporary paper registration card, "
then the officer has "reasonable suspicion that the
vehicle did not comply with state law").
argue that the reason given by Officer Del Valle for stopping
the vehicle was mere pretext. It is clear that Sergeant
Richter targeted the BMW because of its possible involvement
in the shooting two days earlier. Richter knew it was
Rode's car and saw McLemore standing next to it on July
1. Richter then contacted Del Valle and instructed her to
mere fact that the officers may have had an ulterior motive
in conducting the traffic stop does not make the stop
unconstitutional if the officer otherwise has probable cause
or reasonable suspicion of a law violation. "Subjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis." United States v. Gunnell,
775 F.3d 1079, 1083 (8th Cir. 2015) (quoting Whren v.
United States, 517 U.S. 806, 813 (1996)).
A pretextual traffic stop violates the Fourth Amendment. It
is well established, however, that any traffic violation, no
matter how minor, provides a police officer with probable
cause to stop the driver of the vehicle. To determine whether
a stop was based on probable cause or was merely pretextual,
we apply a "standard of 'objective
reasonableness.'" So long as the officer is
doing nothing more than he is legally permitted and
objectively authorized to do, his actual state of mind is
irrelevant for purposes of determining the lawfulness of the
United States v. Pereira-Munoz, 59 F.3d 788, 791
(8th Cir. 1995) (internal citations omitted) (emphasis
added). See also United States v. Eldridge, 984 F.2d
943 (8th Cir. 1993); United States v. Coney, 456
F.3d 850, 855-56 (8th Cir. 2006) (an officer may conduct a
traffic stop for a minor traffic violation "even if a
valid traffic stop is a pretext for other
summary, Officer Del Valle credibly testified she was unable
to read what appeared to be a temporary registration card in
the window of the BMW. McLemore's Exhibit E supports her
testimony in that regard. Given the angle of the rear window,
the placement of the temporary registration card, and the
lighting conditions, I believe Del Valle was unable to read
the paper plate until after she stopped and approached the
vehicle. The officer in Givens stopped a vehicle
under similar circumstances. The Court in Givens
concluded that no constitutional violation occurred.
Givens, 763 F.3d at 991 ("because Givens's
vehicle did not have metal license plates and lacked a
readily apparent temporary paper registration card, Officer
Baughan had reasonable suspicion that the vehicle did not
comply with state law"). For the same reason, I believe
Officer Del Valle's stop of the BMW was constitutionally
Was the Vehicle Stop Unlawfully Prolonged?
Defendants argue that the vehicle stop "exceeded the
permissible scope of a Terry stop." In their
briefs, Defendants argue that "after determining that
Rode was legal to drive, that he had the purchasing papers
for the car, and that there were no outstanding warrants for
his arrest, the legitimate investigative purposes of the
traffic stop were completed. " At the hearing, however,
McLemore's counsel argued for the first time that the
purpose of the stop was completed before Officer Del
Valle approached Rode. That is, Defendants now apparently
argue that when Del Valle approached the rear of the BMW on
foot and could read the temporary registration card, it was
necessary for her to immediately return to the squad car and
abandon the traffic stop.
Rodriguez v. United States, ___ U.S.___, 135 S.Ct.
1609 (2015), the Court recognized that "[a] seizure for
a traffic violation justifies a police investigation of that
violation." Id. at 1614. "Like a
Terry stop, the tolerable duration of police
inquiries in the traffic-stop context is determined by the
seizure's 'mission' - to address the traffic
violation that warranted the stop, and attend to related
safety concerns." Id. (internal citation
omitted). "Authority for the seizure thus ends when
tasks tied to the traffic infraction are - or reasonably
should have been - completed." Id.
Del Valle testified that when she approached the vehicle her
attention was on the two occupants - whom she recognized as
Rode and McLemore - and she did not immediately inspect the
temporary tag. It is undisputed, however, that she would have
been able to read the temporary registration card when she
was near the trunk of the BMW. While not citing
Rodriguez, Defendants presumably argue that the
"mission" of the stop was completed when Del Valle
approached the vehicle and was able to read the temporary
registration card. The Government did not cite
Rodriguez either, but presumably argues that an
"investigation" into whether the temporary card was
valid would include questioning the driver.
party cited any authority on the issue of whether an officer
may approach a driver during a traffic stop when the probable
cause or reasonable suspicion for the stop has dissipated
prior to speaking with the driver. The Court has searched for
Eighth Circuit authority on this issue and has found none.
The Iowa Supreme Court addressed this issue in State v.
Jackson, 315 N.W.2d 766 (Iowa 1982). There, the
defendant's car was stopped by a sheriff's deputy
because it bore no license plates. "Upon being alerted
to the reasons for the stop, defendant directed the
officer's attention to a properly displayed department of
transportation paper plate." Id. at 767. After
the driver was unable to produce a valid driver's
license, he was charged with operating a motor vehicle under
suspension. After concluding that the vehicle was properly
stopped, the Court also concluded that the driver was
properly questioned. "When the department of
transportation paper plates were pointed out to the officer
there arose no requirement that he treat the defendant as if
he had never seen him." Id. But see State v.
Coleman, 884 N.W.2d 223 (Iowa App. 2016) (table)
(questioning the continuing validity of the decision in
United States v. Edgerton, 438 F.3d 1043 (10th Cir.
2006), the Court concluded that the trooper properly stopped
the defendant's vehicle "not only because he could
not read its temporary registration tag while following at a
safe distance, but also because he could not determine
whether the document posted in the rear window was, in fact,
a temporary tag." Id. at 1047. Nonetheless, the
Court concluded that the defendant's motion to suppress
should have been granted because as the trooper approached
the vehicle on foot he was able to establish the validity of
the temporary tag. At that point, according to the Tenth
Circuit Court of Appeals, the trooper "as a matter of
courtesy, should have explained to Defendant the reason for
the initial stop and then allowed her to continue on her way
without requiring her to produce her license and
registration." Id. at 1051. The Court
recognized, however, "the possibility in similar
circumstances that the brief encounter between an officer and
driver authorized by McSwain might independently
give rise to facts creating reasonable suspicion of criminal
activity, thus warranting further investigation."
Givens, the officer exited his vehicle and upon
reaching the rear window determined that the paper in the
window was a valid temporary registration card. 763 F.3d at
988-89. "However, by that time, he smelled the odor of
marijuana emanating from the vehicle." Id.
Accordingly, the officer was justified in continuing his
investigation and questioning the driver. In the instant
action, Officer Del Valle smelled the odor of fresh
marijuana, but only after "speaking with
"mission" of the traffic stop in this case was to
determine whether the BMW was displaying a valid temporary
registration card. I believe an investigation of that issue
requires more than simply glancing at the card and judging
its apparent validity. In my view, under these circumstances,
an appropriate investigation includes speaking with the
driver, determining whether the vehicle was recently
purchased, and establishing the apparent validity of the
temporary registration card. Accordingly, Officer Del
Valle's "mission" was not complete until she
spoke with the driver and, therefore, approaching the driver
did not improperly prolong the stop or violate the holding in
one concludes that the mission of the stop was complete after
viewing the temporary registration card in the window, I
could not find any authority which would require the officer
to simply turn on his or her heel and return directly to the
squad car. That is, Edgerton - which held a driver
could not be required to produce her driver's license -
found that "as a matter of courtesy, " the officer
should have explained to the driver the reason for me stop.
While Edgerton held the officer was not permitted to
require the driver to produce a license and registration as a
part of the initial stop, it recognized the possibility that
circumstances during the brief encounter between the officer
and the driver "might independently give rise to facts
creating reasonable suspicion of criminal activity, thus
warranting further investigation." 438 F.3d at 1051.
officer's suspicion of criminal activity may reasonably
grow over the course of a traffic stop as the circumstances
unfold and more suspicious facts are uncovered."
United States v. Linkous, 285 F.3d 716, 720 (8th
Cir. 2002). Here, Officer Del Valle observed that Rode was
extremely nervous, his hands were visibly shaking, he was
breathing rapidly, and his voice was "cracking."
Furthermore, in speaking with Rode, Del Valle detected an
odor of fresh marijuana coming from the vehicle. At the
least, the odor of marijuana authorized Del Valle to expand
her investigation. United States v. Caves, 890 F.2d
87, 91 (8th Cir. 1989) (noting that the odor of marijuana
alone was enough to justify a search of the vehicle).
Sergeant Richter was then authorized in asking McLemore to
exit the vehicle. Maryland v. Wilson, 519 U.S. 408,
415 (1997) ("An officer making a traffic stop may order
passengers to get out of the car pending completion of the
instructive is the recent opinion by the Illinois Supreme
Court in People v. Cummings, 46 N.E.3d 248 (111.
2016). There, an officer pulled over a van because there was
a warrant out for the arrest of the van's female
registered owner. Upon approaching the van, however, the
officer saw that the driver was a man and could not be the
person for whom the warrant was issued. Nonetheless, the
officer asked the driver for his driver's license, and
the driver was subsequently cited when it was discovered his
license was suspended. The case raised the issue of
"whether asking for a driver's license in a lawfully
initiated stop, without reasonable suspicion of a traffic
violation or that the driver is subject to arrest, violates
the fourth amendment by impermissibly prolonging the
stop." Id. at 249. Initially, the Illinois
Supreme Court concluded that "once [the officer's]
reasonable suspicion evaporated, the request for
identification was unrelated to the reason for the stop, and
it impermissibly extended the stop." Id. The
state appealed, and the Supreme Court remanded following its
decision in Rodriguez. On remand, the Illinois
Supreme Court unanimously concluded that asking the driver
for his driver's license did not impermissibly prolong
the stop. "Though his reasonable suspicion the driver
was subject to arrest vanished upon seeing defendant, [the
officer] could still make the ordinary inquiries incident to
a stop." Id. at 252-53. See also United
States v. Tipton, 3 F.3d 1119, 1123 (7th Cir. 1993)
(concluding the officers were not "obliged to abort the
stop even if they had noticed the improperly affix sticker
prior to questioning").
summary, I do not believe the "mission" of the stop
was completed when Officer Del Valle walked up to the BMW and
would have been able to read the temporary registration card.
Instead, I believe an appropriate investigation would have
allowed her to speak with the driver. Even if the
mission of the stop was completed at that time, however, I
could find no authority for me argument that Del Valle was
required to simply return to her squad car. Edgerton
suggested that under similar circumstances the officer should
approach the driver and explain the reason for the stop.
Either way, when Del Valle approached Rode, observed his
demeanor, and smelled the odor of fresh marijuana, there was
reasonable suspicion of criminal activity and she was
authorized to expand the vehicle stop. I find no
Was McLemore's Pat-Down Authorized?
Defendants argue that Sergeant Richter lacked a reasonable
suspicion that McLemore was armed and dangerous and,
therefore, the protective pat-down search was
unconstitutional. To justify a pat-down of a passenger
during a traffic stop, the officer "must harbor
reasonable suspicion that the person subjected to the frisk
is armed and dangerous." Arizona v. Johnson,
555 U.S. 323, 327 (2009). The "sole justification"
of a pat-down search is "the protection of the police
officer and others nearby." Terry v. Ohio, 392
U.S. 1, 29 (1968). The Terry Court concluded that
for the protection of the police officer, he may search for
weapons "where he has reason to believe that he is
dealing with an armed and dangerous individual."
Id. at 27. See also United States v.
Davison, 808 F.3d 325, 329 (8th Cir. 2015). The Court
employs an objective test in determining whether an officer
may have reasonable suspicion that a person with whom they
are dealing might be armed and dangerous. United States
v. Preston, 685 F.3d 685, 689 (8th Cir. 2012). In
determining whether reasonable suspicion exists, the Court
considers "the totality of the circumstances in light of
the officers' experience and specialized training."
Id. "A pat-down is permissible if a
'reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was
in danger.'" Id. (quoting United States
v. Horton, 611 F.3d 936, 941 (8th Cir. 2010) (in turn
quoting Terry, 392 U.S. at 27.).
these general principles in mind, I now turn to the facts in
the instant action. Oliver, 550 F.3d at 735 (noting
that determining whether an officer had reasonable suspicion
to believe a person was armed and dangerous is a
"fact-intensive issue of law"). Here, Sergeant
Richter knew that both Rode and McLemore are associated with
the L Block gang. Gang affiliation is a factor the Court may
consider in determining whether it was reasonable to believe
McLemore was armed and dangerous. United States v.
Feliciano, 45 F.3d 1070, 1074 (7th Cir. 1995)
("Knowledge of gang association and recent relevant
criminal conduct, while of doubtful evidentiary
value in view of the strictures against proving guilt by
association or by a predisposition based on past criminal
acts, it is a permissible component of the articulable
suspicion required for a Terry stop.") (quoted
with approval in United States v. Roelandt, 827 F.3d
746, 749 (8th Cir. 2016)). As a member of the Violent Crimes
Apprehension Team, Richter knew that the L Block gang had
been feuding with opposing gangs in Waterloo. There was a
shooting just two days earlier, with 8-10 shots fired, in the
area where Rode and McLemore lived. A few days before that,
Rode had allegedly been shot at near his home. Two months
earlier, McLemore was shot in the foot as he was standing in
front of his home. Furthermore, Richter knew from an earlier
search of McLemore's phone that McLemore may be involved
in the buying and selling of guns.
to ordering Rode and McLemore to exit the vehicle, Officer
Del Valle smelled the odor of fresh marijuana coming from the
vehicle. An earlier search of the residence where McLemore
was living, and a subsequent search of his phone, suggested
McLemore may be distributing marijuana. "It is
reasonable for an officer to believe a person may be armed
and dangerous when the person is suspected of being involved
in a drug transaction." United States v.
Gaffney, 789 F.3d 866, 870 (8th Cir. 2015) (quoting
United States v. Bustos-Torres, 396 F.3d 935, 943
(8th Cir. 2005)). Moreover, Rode appeared extremely nervous.
Extreme nervousness may bolster an officer's belief that
a subject may be armed and dangerous. Gqffhey, 789
F.3d at 870 (quoting United States v. Hanlon, 401
F.3d 926, 930 (8th Cir. 2005)). Furthermore, it appeared to
Sergeant Richter that Rode was attempting to conceal the
contents of the glove compartment as he reached for the
car's purchase papers.
level of suspicion necessary to justify a protective pat-down
search "is considerably less than proof of wrongdoing by
a preponderance of the evidence" and "is obviously
less demanding than that for probable cause." United
States v. Roggeman, 279 F.3d 573, 578 (8th Cir. 2002)
(quoting United States v. Sokolow, 490 U.S. 1, 7
(1989)). "Traffic stops are 'especially fraught with
danger to police officers, ' so an officer may need to
take certain negligibly burdensome precautions in order to
complete his mission safely." Rodriguez, 135
S.Ct. at 1616 (internal citation omitted). Given all of the
circumstances, I believe that a "reasonably prudent
man" would be warranted in believing that his safety or
the safety of others may be in danger. Terry, 392
U.S. at 27. Accordingly, I believe Sergeant Richter was
authorized to conduct a protective pat-down for officer
she could not read what appeared to be a temporary
registration card, Officer Del Valle stopped the BMW to
determine whether it was validly issued. Under nearly
identical circumstances, the Eighth Circuit Court of Appeals
held in Givens that the officer "had reasonable
suspicion that the vehicle did not comply with state
law." 763 F.3d at 991. Accordingly, I believe the
vehicle stop complied with the "reasonable
suspicion" requirement of the Fourth Amendment.
Del Valle would have been able to read the temporary
registration card as she approached the vehicle, although her
focus at that time was on the occupants. Even though the
temporary registration card appeared to be genuine, I believe
an appropriate investigation would have included questioning
the driver about the apparent recent purchase of the vehicle.
Even // one concludes that the "mission" of the
stop was completed when Del Valle was able to read the
temporary registration card, she was nonetheless permitted to
approach the driver and ask routine questions. The scope of
the stop was then expanded after Del Valle smelled the odor
of fresh marijuana and observed Rode's demeanor.
the officers were authorized to order both the driver and the
passenger out of the vehicle. For the reasons detailed above,
Sergeant Richter had a reasonable suspicion that McLemore
might be armed and dangerous. Accordingly, Richter was
justified in conducting a protective pat-down search for his
safety and the safety of others.
summary, I find no constitutional violations in the vehicle
stop, the scope of the stop, or the pat-down of McLemore. I
respectfully recommend that the motions to suppress filed by
Defendants be denied.
reasons set forth above, I respectfully that the Motion to
Suppress (docket number 27) filed by Defendant Daytoviane
Dapree McLemore and the Motion to Suppress (docket number 19)
filed by Defendant Joshua Adam Rode be DENIED. The parties
are advised, pursuant to 28 U.S.C. § 636(b)(1), that
within fourteen (14) days after being served with a copy of
this Report and Recommendation, any party may serve and file
written objections with the district court. The parties are
reminded that pursuant to Local Rule 72.1, "[a] party
asserting such objections must arrange promptly for a
transcription of all portions of the record the district
court judge will need to rule on the objections. "
Accordingly, if the parties are going to object to this
Report and Recommendation, they must promptly order a
transcript of the hearing held on December 5 and 15, 2016.
 Officer Del Valle was asked on direct
examination whether "[a]t that time did you recognize
either of those individuals?" Del Valle responded that
she recognized one of them as Joshua Rode. Del Valle
testified that she looked at Rode's photograph on the
computer in her car as they approached the 900 block of Logan
Avenue and recognized him as the person going into the house.
Sergeant Richter, who was in the car with Del Valle,
testified he could not recognize either person. In her
report, Del Valle suggests she first learned Rode's
identity later that night. I don't find the inconsistency
material to the issues now before the Court.
 Defendant Rode is white and Defendant
McLemore is African American.
 This theory is confusing to me. Rode
is believed to be associated with the L Block gang and lives
nearby. If the June 29th shooting was in
"retaliation" for Rode being shot at earlier, then
it seems more likely the shooting would have occurred in an
area occupied by a rival gang.
 'Photos of the temporary plate and
advertising plate were introduced as McLemore Exhibits E and
 The conversation can be heard on
McLemore Exhibit A.
 Supplemental Incident Report of Diana
Del Valle (McLemore Exhibit B) at 1.
 Officer Del Valle testified she did
not know who was in the car prior to pulling it over.
Sergeant Richter testified, however, that he had seen
McLemore standing next to the car and it was owned by Rode,
so he assumed Rode and McLemore were in the car when Del
Valle reported she was following it.
 According to Officer Del Valle,
another member of the L Block gang hit the mother of an
opposing gang member and me shooting was in retaliation.
McLemore was not believed to be the target. Del Valle opined
mat McLemore was "in me wrong place at the wrong
 Government's Brief (docket number
24-1) at 1.
 At the hearing. Officer Del Valle
was asked why the recordings between herself and Sergeant
Richter were incomplete, and she responded: "Because
Sergeant Richter advised he covered the initial pretext of
the stop." Hearing Transcript (McLemore docket number
37) at 39:17-18. In responding to the next question, however,
Del Valle is apparently referring to information that was not
included in her report. In any event, it does not appear that
Del Valle was using the term "pretext" as a term of
 Because I believe there was
reasonable suspicion regarding the validity of the temporary
registration card, I find it unnecessary to address the
Government's alternative argument that there was
reasonable suspicion to believe the occupants of the vehicle
were engaged in other unspecified criminal activity. If I
were to address that argument, however, I would reject it.
Simply because the BMW and its occupants may have been
involved in the shooting on June 29 does not establish
reasonable suspicion to believe they were engaged in criminal
activity on July 1.
 McLemore Brief (docket number 27-1)
at 6. Rode filed an identical brief.
 None of the parties addressed the
issue of whether Rode has standing to challenge the
constitutionality of the pat-down search of McLemore.