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United States v. McLemore

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

December 21, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DAYTOVIANE DAPREE McLEMORE, Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA ADAM RODE, Defendant.

          REPORT AND RECOMMENDATION

          JON STUART SCOLES, CHIEF MAGISTRATE JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ......................................2

         II. PROCEDURAL HISTORY.................................2

         III. RELEVANT FACTS.....................................2

         IV. DISCUSSION.........................................6

         A. Was the Vehicle Stop Lawful?..........................7

         B. Was the Vehicle Stop Unlawfully Prolonged? ............... 12

         C. Was McLemore's Pat-Down Authorized?.................. 17

         V. CONCLUSION ....................................... 19

         VI. RECOMMENDATION.................................. 20

         I. INTRODUCTION

         On the 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.

         II. PROCEDURAL HISTORY

         On 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.

         McLemore 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.

         III. RELEVANT FACTS

         These 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").

         Sergeant 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 suspicious activity.

         In 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.[1] Richter described the persons as a "light skinned male and a darker skinned male."[2]

         As 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 BMW.

         Officer 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.[3] 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 the police.

         Officer 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.

         Two 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 selling marijuana.

         Sergeant 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."

         As 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.[4] Del Valle told Sullivan that "you can see a plate, but you can't read what's on it." Sullivan responded "there you go."[5]

         Officer 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 ...


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