United States District Court, N.D. Iowa, Eastern Division
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 ...