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United States v. Harry

United States District Court, N.D. Iowa, Cedar Rapids Division

August 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT MICHAEL HARRY, Defendant.

          REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO SUPPRESS

          C.J. WILLIAMS CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         The matter now before me is defendant's Motion to Suppress evidence allegedly seized in violation of the Fourth Amendment to the United States Constitution. (Doc. 20). The grand jury charged defendant in a one-count indictment with Possession with Intent to Distribute Methamphetamine in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A), and 851. (Doc. 2). The charge arose from evidence found during a traffic stop of the vehicle defendant was driving on February 10, 2017. Defendant argues that the traffic stop was not supported by either probable cause or reasonable suspicion that criminal activity was afoot; defendant does not challenge any events that occurred subsequent to the actual stop of the vehicle.

         The Honorable Leonard T. Strand, Chief United States District Judge, referred this motion to me for a Report and Recommendation. Upon defendant's request, I held an evidentiary hearing on August 3, 2017. For the reasons that follow, I respectfully recommend that the Court deny defendant's Motion to Suppress.

         II. FINDINGS OF FACT

         Dubuque Drug Task Force investigator Adam Williams began working with a confidential informant (“CI”) in the summer of 2016, after the CI had been arrested. At that time, Investigator Williams spoke with the CI who told him, among other things, that Scott Harry was involved with transporting methamphetamine into the Dubuque area. Investigator Williams was familiar with both defendant and Dennis Thul and their physical descriptions.[1] After the CI had been released from jail in later 2016, he made contact with Investigator Williams to let Investigator Williams know he was out of jail.

         On February 10, 2017, at approximately 11:00 AM, Investigator Williams received a text message from the CI stating that “Scott” had left Dubuque around 4:00 AM to “pick up, ” that the CI believed “Scott” would be driving approximately four hours each way for the meeting, and that the CI expected “Scott” to return to Dubuque around noon. The CI further indicated that “Scott” would be riding with Dennis Thul in a newer white, single-cab pickup truck that was registered to Dennis Thul's father, Dale Thul. Investigator Williams also filed a report detailing this information. This was the first tip the CI provided to Investigator Williams. At approximately 12:24 PM that same day, the CI informed Investigator Williams by text message that defendant was expected to return to Dubuque in about one hour. The text message indicated that defendant and his companion were then driving and were roughly one hour's drive away from Dubuque.

         Based on this information, law enforcement officers identified two different pickup trucks registered to Dale Thul, one of which matched the description given by the CI. Officers set up surveillance on roads leading to Dubuque. Investigator Williams subsequently observed a truck matching the description of the subject truck travelling on Highway 151 toward Dubuque. Investigator Williams, who was driving an unmarked police vehicle, pulled in behind the truck and ultimately passed it. Although he could not look at the faces of the occupants, Investigator Williams otherwise concluded that this was the truck driven by defendant based on the CI's description and Investigator Williams' familiarity with defendant and Thul. Investigator Williams called Dubuque County Deputy Daniel Kearney, whom Investigator Williams knew was also patrolling Highway 151, to inform him of the sighting.

         A short while later, Deputy Kearney, a K9 officer who was traveling southbound on Highway 151 (away from Dubuque) observed the subject pickup truck travelling northbound on Highway 151. Deputy Kearney used his radar gun to record the pickup truck travelling 75 miles per hour in a 65 mile per hour zone. Deputy Kearney routinely calibrated his radar gun himself using two different methods: at the beginning of each shift, Deputy Kearney verified the accuracy of the radar gun by comparing the speed recorded by the radar gun against a second, objective measurement of speed, and at the beginning of each work week, Deputy Kearney used tuning forks to ascertain the accuracy of the radar. Additionally, the radar gun was calibrated by the manufacturer on an annual basis; the radar was up to date on its manufacturer-calibration as of February 10, 2017. Deputy Kearney further testified that based on his own visual observations and significant experience as a seasoned law enforcement officer tasked with enforcing traffic laws that it was his belief that defendant was travelling in excess of the speed limit. The radar's recorded speed served to confirm Deputy Kearney's visual observations.

         Deputy Kearney crossed the median and pulled in behind the pickup truck. When Deputy Kearney caught up with the pickup truck and reached a safe location he then activated the lights on his patrol vehicle and pulled the white pickup truck over. Deputy Kearney was also familiar with defendant and Thul from past contact. When he approached the pickup truck from the passenger side and made contact with the occupants, he confirmed defendant's identity as the driver and that of Thul as passenger. During discussions with Deputy Kearney, defendant estimated that he was travelling 70 miles per hour in the 65 mile per hour zone.

         Within a few minutes of stopping the pickup truck, Deputy Kearney retrieved his K-9 unit and the dog alerted on the truck. Following the alert, law enforcement officers searched the pickup truck. Officers located approximately 691 grams of methamphetamine in the bed of the truck.

         I found that the testimony of Investigator Williams and Deputy Kearney during the evidentiary hearing was credible.

         III. ANALYSIS

         Defendant argues that the Court should suppress the evidence obtained as a result of the traffic stop because Deputy Kearney did not have probable cause or a reasonable suspicion to stop the vehicle. (Doc. 20-1, at 2). Defendant does not challenge events occurring after the stop itself, such as the duration of the stop or the validity of the dog search (Doc. 20-1); therefore, it is unnecessary to analyze any issue that does not pertain to the lawfulness of the actual traffic stop itself. The lawfulness of the traffic stop can be considered according to whether: 1) Deputy Kearney had probable cause to believe that defendant was travelling in excess of the speed limit; and 2) the CI's ...


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