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United States v. Harry

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

November 14, 2017

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

          ORDER

          Leonard T. Strand, Chief Judge

         This matter is before me on a Report and Recommendation (R&R) (Doc. No. 34) and Supplemental R&R (Doc. No. 55) in which the Honorable C.J. Williams, Chief United States Magistrate Judge, recommends that I deny defendant's motion (Doc. No. 20) to suppress and supplemental motion (Doc. No. 53) to suppress.

         I. BACKGROUND

         A. Procedural History

         On June 7, 2017, the grand jury returned an indictment (Doc. No. 2) charging defendant Scott Michael Harry (Harry) with one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Harry filed a motion (Doc. No. 20) to suppress on July 24, 2017. The Government filed a resistance (Doc. No. 24) on July 28, 2017. Judge Williams held a hearing on August 3, 2017. During that hearing, the following exhibits were admitted into evidence:

. Government Exhibit 1 - confidential informant (CI) contact record
. Defense Exhibit A - a video of the traffic stop

         Judge Williams issued his R&R (Doc. No. 34) on August 8, 2017. Harry's counsel withdrew and new counsel was appointed for Harry on August 9, 2017. Harry filed his objections (Doc. No. 49) to the R&R on September 27, 2017, along with a motion (Doc. No. 48) requesting permission to file an amended motion to suppress. Judge Williams held a hearing on the motion on October 13, 2017, and Harry filed his supplemental motion (Doc. No. 53) to suppress that same day. The parties indicated they had no new evidence to present regarding the supplemental motion. See Doc. No. 54. Judge Williams issued his Supplemental R&R (Doc. No. 55) on October 23, 2017. Harry filed objections (Doc. No. 59) on November 6, 2017. Trial is currently scheduled to begin December 18, 2017.

         B. Relevant Facts

         Judge Williams made the following findings of fact in the initial R&R:

Dubuque Drug Task Force investigator Adam Williams began working with a [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 from 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.

Doc. No. 34 at 2-4 (footnote in original). Judge Williams found both officers to be credible. Id. He made the following additional findings of fact in his Supplemental R&R:

On February 10, 2017, at approximately 12:50 p.m., Deputy Kearney stopped the vehicle driven by defendant in Dubuque County, Iowa. Deputy Kearney is the Dubuque County Sheriff canine officer and at the time of the stop, he had a canine in his patrol car with him. At 12:51 p.m., Deputy Kearney spoke with the driver about the speeding violation, obtained defendant's driver's license in relation to that mission, and returned to the patrol car. At 12:52 p.m., Deputy Kearney discussed conducting a canine search with Investigator Adam Williams, who was also present at the scene to advance the drug investigation. At approximately 12:52:54 p.m., Deputy Kearney removed the canine from the patrol car and had the canine conduct a sniff ...

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