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United States v. McLemore

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

February 28, 2017

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

          ORDER

          LEONARD T. STRAND, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before me on a Report and Recommendation (R&R) (CR16-2048, Doc. No. 44; CR16-2050, Doc. No. 33) in which the Honorable Jon Stuart Scoles, then-Chief United States Magistrate Judge, recommends that I deny defendants' motions to suppress (CR16-2048, Doc. No. 27; CR16-2050, Doc. No. 19).[1]

         I. APPLICABLE STANDARDS

         A district judge must review a magistrate judge's R&R under the following standards:

Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.

         Any portions of an R&R to which no objections have been made must be reviewed under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court judge] would only have to review the findings of the magistrate judge for clear error”).

         As the Supreme Court has explained, “[a] finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under a more-exacting standard even if no objections are filed:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

         II. BACKGROUND

         A. Procedural History

         On October 18, 2016, the grand jury returned indictments (CR16-2048, Doc. No. 2; CR16-2050, Doc. No. 2) charging each defendant with one count of unlawful possession of a firearm by a drug user. The defendants filed their motions to suppress on November 21, 2016, and November 23, 2016. The Government filed a resistance (CR16-2048, Doc. No. 31; CR16-2050, Doc. No. 24) on December 1, 2016. Judge Scoles conducted a hearing on December 16, 2016, and issued his R&R on December 21, 2016. Both defendants filed timely objections (CR16-2048, Doc. No. 51; CR16-2050, Doc. No. 36).[2] The defendants than appeared before Chief United States Magistrate Judge C.J. Williams and entered conditional guilty pleas. CR16-2050, Doc. No. 46; CR16-2048, Doc. No. 64. Both guilty pleas are currently pending before me based on R&Rs from Judge Williams. Id.

         B. Relevant Facts

         Based on my de novo review of the facts, which included reviewing the transcript of the hearing, Government exhibit 1 and defendants' exhibits A through L, I find the following facts.[3]

         Waterloo, Iowa, police officer Diana Del Valle responded to a call of shots fired on June 29, 2016, near the 800 block of Logan Avenue. Tr. at 14. However, Del Valle later testified that the reported shots were fired from the Newell Sanders Funeral area, approximately the intersection of Newell Street and Fourth Street in Waterloo. Tr. at 29. Thus, it appears that although the shots were reported near the Newell Sanders Funeral area, Del Valle responded to the area of 800 Logan because of her previous experience with gangs in that area and her desire to monitor gang activity. See Tr. at 14-16, 29-30. However, this testimony is not clear. What is clear is that upon being informed that shots were fired, Del Valle suspected a gang altercation between the “L Block Gang” and members of the “Hood” gang. Tr. at 16. Believing the shots to be a result of a feud between the two gangs caused Del Valle to respond in the way that she did, proceeding directly to the area where she believed the suspects might be located rather than to the scene of the shooting. Id.

         Once in the Logan Street area, Del Valle saw a dark-colored BMW automobile traveling south on East Mullan Street. Tr. at 17. Within an hour, Del Valle saw the BMW three times. However, because it was not the vehicle described in the initial bulletin, Del Valle did not stop it. Id. The last time Del Valle observed the vehicle that night, she saw two people exit it, including Rode.[4] Del Valle testified that after she reported seeing Rode to other officers, she was informed that one officer had seen the BMW driving the wrong way down a street shortly after the shooting, and that another officer had received a tip that Rode had been shot days earlier but did not seek medical treatment. Tr. at 18-20. Most important to the issues now pending, Del Valle testified that she took note of the BMW's dealer plates.[5] Tr. at 30. Additionally, on one instance when she saw the vehicle, it was parked. Tr. at 62. Del Valle stated she was sitting in the passenger seat of a squad car as it passed the parked BMW. Tr. at 65. However, even though she was within feet of vehicle, she testified that she did not look at the temporary registration tag located in the rear windshield area. Tr. at 65.

         Del Valle saw the BMW again a few days later, on July 1, 2016, at approximately 8:15 p.m. Tr. at 20-22. On that night, Del Valle had been directed by Sergeant Kye Richter to stay in the area of the BMW because law enforcement hoped to stop it. Tr. 37-39. Del Valle testified that she was following the BMW closely, approximately seven to ten feet away, but that she could not read temporary license plate that was lawfully affixed to the rear windshield. Tr. at 21. Accordingly, Del Valle conducted a traffic stop. She testified that once she stopped the vehicle, she walked up to the vehicle from behind and could read the temporary tag once she was near the trunk area. Id.

         The events from the few moments leading up to the traffic stop are also covered by defendants' exhibit A, a law enforcement recording of the incident. Judge Scoles described what was recorded:

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. Del Valle told Sullivan that “you can see a plate, but you can't read what's on it.” Sullivan responded “there you go.” “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.

CR16-2050, Doc. No. 33 at 5 (citing Def. Ex. A). Prior to the stop, Del Valle's comment “you can see a plate, but you can't read what's on it” was in response to Richter's prompting question, “can you read their plate through the back window?” Additionally, although Del Valle's car was equipped with a front view camera, she testified that, “unfortunately, you cannot see the front view of that camera for some reason.” Tr. At 27.[6]

         Once Del Valle stopped the vehicle, she approached the driver, who turned out to be Rode. McLemore was also in the vehicle. Tr. at 22. Del Valle indicated that the defendants appeared nervous and that she smelled marijuana.[7] Id. at 23-24. She and Richter decided to conduct a pat down of the suspects. Del Valle explained that they patted down the suspects because:

No. 1 was that Rode -- I could smell the odor of marijuana coming from the vehicle. I could -- at that time I wasn't certain if it was Rode or McLemore or it was just in the vehicle. The second thing was that I identified Rode as an L Block gang member, but Daytoviane McLemore in specific was someone we knew who was shot at in April who had an ongoing feud with the Hood gang and particularly one person that we knew about. We knew he was carrying weapons based on that information or information we had received. I also had conducted a search warrant on [McLemore's] phone in January where there was several conversations about selling or buying guns.

Tr. at 25-26. During the pat down, Richter discovered a gun on McLemore.

         C. Judge Scoles' Findings

         The defendants raise three arguments. First, the stop was not lawful because there was no reasonable suspicion of criminal activity. Second, the stop was unlawfully prolonged. Third, the pat down was not lawfully authorized.

         Regarding whether the stop of the vehicle was proper, Judge Scoles set out the proper standard and stated:

Iowa 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.” … 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 permitted.

CR16-2050, Doc. No. 33 at 7, 12.

         As for prolonging the traffic stop, ...


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