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United States v. Sallis

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

June 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIC SALLIS, Defendant.

          REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO SUPPRESS

          C.J. Williams Chief United States Magistrate Judge.

         I. INTRODUCTION

         This case is before me pursuant to defendant's motion to suppress evidence allegedly seized in violation of the Fourth Amendment to the United States Constitution. (Doc. 12). The grand jury charged defendant in a two-count indictment. (Doc. 2). Count 1 charged defendant with possessing ammunition as a felon on November 27, 2016, and Count 2 charged defendant with possessing a firearm as a felon on December 10, 2016. The motion to suppress evidence arises out of an incident on December 9, 2016, when officers arrested defendant on outstanding warrants. Defendant was found in a car outside an apartment building in Waterloo, Iowa. Officers searched an apartment in that building and seized a handgun. In his motion to suppress, defendant argues that the officers unlawfully entered the apartment where he was staying and, as a result, had contact with defendant's niece, which led to searching a tote in which officers found marijuana. Defendant argues that without that unlawfully seized evidence, the search warrant obtained for the apartment lacked probable cause. Defendant argues, therefore, that the Court should suppress evidence of the firearm discovered as a result of the allegedly unlawful search, and any incriminating statements defendant subsequently made to officers.

         The Honorable Linda R. Reade, United States District Court Judge, referred this motion to me for a report and recommendation. On Thursday, June 22, 2017, I held an evidentiary hearing on defendant's motion at which FBI Task Force Officer Ed Savage, Waterloo Police Officer Matthew Woodward, and Sergeant Kye Richter of the Waterloo Police Department testified. The Court admitted into evidence the search warrant (Exhibit 1), and two compact discs containing videotapes from the body cameras of numerous officers who participated in the arrest and search (Exhibits 2 & 3).

         For the reasons that follow, I respectfully recommend that the Court deny defendant's motion to suppress.

         II. FINDINGS OF FACT

         On November 27, 2016, a man was admitted to a Waterloo, Iowa, hospital with multiple gunshot wounds. He and other witnesses identified defendant as the shooter. Officers executed a search warrant at defendant's residence where they recovered a 9mm bullet, a 9mm shell casing, and blood spatter, among other evidence, but defendant was not present and officers did not find a firearm. Warrants for defendant's arrest for unrelated offenses were already outstanding. The Waterloo Police Department disseminated information about defendant, the outstanding warrants, and his suspected involvement in the November 27, 2016, shooting to all of its departments, including the Violent Crime Apprehension Team (VCAT). The VCAT unit consists of a group of officers whose primary duty is to investigate and apprehend violent criminals in Waterloo, particularly those involved in gun violence.

         Sergeant Richter is the supervisor of the VCAT unit. Sergeant Richter previously served on the Tri-County Drug Task Force for three and half years, and on the VCAT's predecessor unit (called the Community Response Unit). Sergeant RichterHe attended the Hawkeye Community College studying criminal justice, graduated from the Iowa Law Enforcement Academy, and has received more than 250 hours of additional training in areas including drug trafficking and violent crimes.

         On December 9, 2016, a confidential source provided information to Officer Sullivan stating that defendant was staying at an apartment on Pine View with a female named Ecstacy Marshall. The search warrant in this case reflects that Officer Sullivan had known the confidential source for a year, and: the confidential source was a mature individual who was regularly employed; was of truthful reputation; had no motivation to provide false information; had otherwise demonstrated truthfulness; had supplied information in that past on more than four occasions that led to the discovery and seizure of stolen property, drugs, or other contraband; had not given false information in the past; and that officers had corroborated information provided by the confidential source in the instant investigation. (Exhibit 1, at 8.) At the hearing, Officer Woodward and Sergeant Richter testified that the confidential source also told Officer Sullivan that more than one child was present in the apartment, although the officers conceded that there was no mention of the confidential source mentioning children in any of the reports regarding this case.[1] Officers researched Marshall using public databases, including Iowa Department of Transportation records, and learned that Marshall was a relative of defendant and resided at 3860 Pine View Place, Apartment 205. Members of the VCAT team were ordered to conduct surveillance of that residence.

         Officers described the residence as part of a multi-unit apartment complex. Videos from the officers' body cameras also depict the residence. 3860 Pine View Place is a three-story, twelve-unit building within that complex. The building is divided in half by an open stairwell, with the apartments opening onto the stairwell. Apartment 205 is on the second floor of the building, on the far side from the parking lot from where officers arrested defendant.

         On the night of December 9, 2016, members of the VCAT unit began surveillance. At approximately 9:30 PM, officers observed defendant descend the stairs at 3860 (although the officers did not see from which apartment defendant came) and walk out to a Chevrolet Impala parked in the parking lot. Defendant got into the front passenger seat. After a moment the driver got out, went to the rear of the car, opened the trunk, retrieved a small, silver bag, and got back into the vehicle. Officers observed defendant and the driver smoking, though the officers could not determine whether they were smoking cigarettes or marijuana. Defendant then got out of the car, took off his coat, wrapped it around the silver bag, and returned to the apartment building. The driver of the Impala then drove off. Officers did not stop that vehicle. This entire event lasted less than five minutes.

         Officer Woodward, one of the surveillance officers, testified that he has a bachelors' degree in criminal justice, graduated from the Iowa Law Enforcement Academy, received ongoing training regarding drug trafficking and violent crime, has served as a patrol officer, and has been on the VCAT unit for approximately one year. Officer Woodward testified that based on his training and experience, the short term contact and conduct exhibited by defendant in connection with the Impala was consistent with drug trafficking. Officer Woodward conveyed his observations to other members of the surveillance team and to Sergeant Richter (who was located out of sight of the apartment building at the time).

         At approximately 10:00 PM, officers saw defendant descend the same stairs in the apartment building and come out to another vehicle that had pulled into the parking lot. Defendant was carrying a silver bag that looked like the same one he had when he left the Impala. This vehicle was occupied by a male driver and a female in the front passenger seat. Defendant got into the right rear passenger seat. Officer Richter decided to arrest defendant based on the outstanding warrants.

         Officers descended upon the car and arrested defendant. They searched defendant and found cash and a baggie containing marijuana on his person. On the back seat of the car where defendant had been sitting, officers also found a cellular telephone, the silver bag containing approximately ¼ pound of marijuana, and more than $1, 500 in cash. Officer Woodward and Sergeant Richter testified that, based on their training and experience, the quantity of marijuana and cash were consistent with drug trafficking. Defendant would not identify the apartment he had been in, and denied living there, stating he was just “visiting.” (Exhibit 3, Sullivan, 22:12).[2] Defendant denied anyone else was present in the apartment but said the female who lived there (whom he did not initially name) was “on the way back.” (Id.). Defendant made no mention of children being present in the apartment.

         Sergeant Richter testified that he decided at that time to apply for a search warrant for the apartment based on all of the evidence obtained that night during the surveillance, together with knowledge that firearms are tools of the drug trade, of defendant's involvement with a shooting on November 27, 2016, and of the fact officers did not recover the firearm during the search of defendant's residence that date or during the current arrest. Twice, once just prior to and once during a search of the backseat of the car, Sergeant Richter can be heard to say “SW” and something to the effect of “we'll need it for the SW.” (Exhibits 2, Richter 22:17). Sergeant Richter testified that the reason for the non-continuous video is during those times he was speaking to his supervisor about obtaining a search warrant for the apartment he made references to the confidential source. Accordingly, those portions of the video were redacted to protect the confidential source's identity.

         Sergeant Richter testified at the hearing that “SW” stood for search warrant and the reference reflected his decision at that time to search the apartment. Also, before the officers made entry into apartment, Sergeant Richter is heard to say something about the “kids inside.” (Exhibit 2, Richter 22:19). At the hearing, Sergeant Richter testified that at this point in the video he was saying that they needed to check on the kids.[3] Sergeant Richter's body camera video consists of multiple different clips. (Exhibits 2 & 3).

         Sergeant Richter obtained Marshall's telephone number from defendant and attempted to call her. A female answered and Sergeant Richter identified himself as a law enforcement officer. He asked the female if she lived in apartment 205. She gave an evasive reply. Sergeant Richter then asked where she lived and the female hung up on him. Sergeant Richter decided to secure the apartment while officers applied for a search warrant. Officers placed defendant in a police car and advised him of his constitutional rights. (Exhibit 2, Sullivan 22:25).

         Sergeant Richter and other officers, including Officer Diana Del Valle, but excluding her partner Officer Woodward, went to Apartment 205. Sergeant Richter approached the door and could not hear anything coming from the apartment. He tried the door knob to see if the door was locked so that he could determine how to proceed. When he tried the door knob, the door opened a short distance. Still standing outside, Sergeant Ricer called out to see if anyone was in the apartment. He heard the voice of a small child in reply and then saw a small boy, whom Sergeant Richter estimated was four or five years old, come into view from a back hallway. Sergeant Richter asked the boy if anyone else was home. The boy did not immediately respond, so Sergeant Richter pushed the door open a little further so he could have a full view of the living room. The boy then indicated that other children were there and presently other children emerged from the same hallway. At this point, Sergeant Richter and other officers entered the apartment and conducted a protective sweep, confirming that no adults were present. Five children, between the ages of four and ten, were present. Sergeant Richter decided to secure the apartment until officers could find an adult to care for the children and pending the search warrant; he instructed Officer Del Valle to leave with her partner, Officer Woodward, and proceed to the police department to draft a search warrant application.

         Officers remained in the apartment and soon Marshall arrived at the apartment with another woman who was the mother of some of the children. Officers informed Marshall that they had defendant in custody and had applied for a search warrant. They asked Marshall whether defendant lived in the apartment. Marshall stated that defendant did not live in the apartment. Marshall indicated that defendant stops by sometimes and that he had stayed overnight the prior night, but that he did not really have anything in her apartment other than some clothes. (Exhibit 3, Wilson, 22:31-33). She pointed out some of defendant's clothes laying on a nearby couch. In response to Marshall's statement that she had nothing to do with drugs and did not want anything like that in her house, officers asked if she would provide consent to search her apartment. She asked to speak to defendant to find out if he had anything illegal in her apartment. Sergeant Richter granted her request.

         Officers accompanied Marshall and the other female down stairs and to the parking lot where defendant was brought out of the police car. Officers allowed the females hug defendant. Marshall asked defendant what he had in her apartment and explained that the officers were going to search her apartment. Although defendant initially denied anything illegal was in the apartment, he then admitted there was marijuana and more cash in the apartment and stated that he did not want officers tearing her apartment apart during a search. He told Marshall to “go get my bag.” (Exhibit 3, Sullivan, 22:39). Defendant repeatedly told the officers that “I'll give it to you, ” referring to the marijuana, and said Marshall would get the bag. (Id.).

         Officers returned to the apartment with Marshall and ultimately decided to proceed with obtaining the search warrant rather than rely on a consent to search. While waiting for the warrant, Marshall requested to use the restroom. An officer accompanied her to the bathroom, and with Marshalls' consent briefly searched it, found nothing, then left to allow Marshall to use the restroom. When Marshall finished in the bathroom, she returned to the living room carrying a plastic tote holding clothes and a zippered bag. She brought the tote to the officers, indicating that it belonged to defendant. Officers could smell marijuana coming from ...


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