United States District Court, N.D. Iowa, Cedar Rapids Division
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S
MOTION TO SUPPRESS
WILLIAMS, CHIEF UNITED STATES MAGISTRATE JUDGE.
matter comes before me on defendant's motion to suppress
evidence allegedly obtained in violation of the Fifth
Amendment to the United States Constitution. (Doc. 21). A
grand jury indicted defendant, charging him with four
offenses: Count 1 charges him with being a felon in
possession of a firearm; Count 2 charges him with possession
with the intent to distribute a controlled substance; Count 3
charges him with possession of a firearm in furtherance of a
drug trafficking offense, and; Count 4 charges him with being
in possession of a stolen firearm. (Doc. 27). These charges
arose from an eyewitness's identification of defendant.
Defendant argues that police used an impermissibly suggestive
show-up technique to have the eyewitness identify defendant
at the scene of the crime. On November 26, 2017, the
government timely filed its resistance to the motion. (Doc.
Honorable Linda R. Reade, United States District Court Judge,
referred this motion to me for a Report and Recommendation.
On December 1, 2017, I held an evidentiary hearing on the
motion. The government called Cedar Rapids Police Department
officers Shawn Burke and John O'Brien. I also admitted
the government's exhibits 1 through 5. Exhibits 2, 3 and
4 were admitted over defendant's relevancy objections.
Exhibit 1 contains a recording of 9-1-1 calls. Exhibits 2
& 3 contain recordings of statements the witness made on
the telephone to another person about his identification of
defendant. Exhibit 4 is a recording of a jail house call
between defendant and defendant's girlfriend regarding
what he was wearing the night of the accident. Exhibit 5 is
Officer Burke's Call for Service Report. I also had
Officer Burke draw a diagram of the scene at the time of the
show-up identification and admitted it as Court's Exhibit
reasons that follow, I respectfully recommend the Court
deny defendant's motion to suppress.
FINDINGS OF FACT
evening of July 30, 2017, defendant was in a car accident. A
woman drove the other car. The accident occurred near the
interchange of Glass Road and Interstate 380 in Cedar Rapids,
Iowa. The Cedar Rapids Police Department received several
9-1-1 calls, including one from J.S., a civilian. J.S. was a
passenger in the front seat of a car driven by his wife. They
were traveling south on Redbud Road. The car in which J.S.
was a passenger was not involved in the accident.
Defendant's car was parked in the northbound lane of
Redbud. J.S. and his wife passed by defendant's vehicle
and proceeded to the stop sign at the corner of Glass Road.
(See Court Exhibit 1).
approximately 7:16 PM, J.S. called 9-1-1 and reported seeing
a “shorter” black male with a white hat and
darker clothes involved in the accident throw a gun in the
ditch on Redbud. J.S. described the person as “parked
on Redbud right at the end of the fence.” Exhibit 5.
The testimony of Officer Burke established that there are a
couple of groups of trees near the ditch on Redbud. J.S. did
not indicate in the call where exactly the black male threw
the gun. Defendant stands five foot, eight inches tall.
Burke was dispatched to the scene at 7:53 PM and arrived at
8:02 PM. Exhibit 5. He may not have been the first officer at
the scene. Officer Burke saw defendant at the scene.
Defendant wore dark clothes. Based on J.S.'s call,
officers searched the ditch on Redbud. At 8:13 PM, officers
found a package of marijuana, and at 8:25 PM they found a
handgun. Defendant was arrested and placed in the back of
Police Sergeant Omar's squad car. (See Court
Exhibit 1; Officer Omar's car is marked as “P
officer then called J.S. and asked him to return to the scene
to make an identification of the suspect. J.S. drove alone to
the scene and arrived at approximately 8:49 PM. It was dusk.
J.S. parked behind Officer Burke's patrol car, which was
parked on Glass Road, near the corner of Redbud Road.
(See Court Exhibit 1; Officer Burke's car is
marked as “P me, ” and J.S.'s car is marked
with an “x W”). Officer Burke approached
J.S.'s car and spoke with J.S. through the driver's
side window. After Officer Burke determined that J.S. was the
eyewitness, Officer Burke used the passenger-side spot light
on his squad car to illuminate the side of Officer Omar's
car and had Officer Omar turn off the flashing yellow lights
on her car so as to increase visibility. Officer Omar removed
defendant from the back right passenger seat of her patrol
car and had him stand and face J.S.'s car, holding onto
defendant's arm. (See Court Exhibit 1; defendant's
location next to the car is marked with an x; the arrow from
Officer Burke's car depicts the direction of the spot
light). Defendant was handcuffed behind his back. Officer
Burke indicated the distance from J.S. to defendant was
approximately 20 to 25 feet.
Burke then said something about having someone in custody or
having a suspect and that they wanted to see if J.S. believed
it was the same person he saw throwing something into the
woods. Officer Burke testified that J.S. did not
hesitate in stating that defendant was the person he saw
earlier. J.S. added a caveat, however, that the person he had
seen earlier was wearing a white hat and the individual
before him was not. Officer Burke yelled to Officer Omar that
the witness had identified the suspect and she could place
defendant back in her squad car. Officer Burke then obtained
some additional identifying information from J.S., who then
left the scene.
J.S. left the scene, officers reached him again by telephone
and asked him to come down to the police station to provide
some additional information about what he saw that night.
Although J.S. expressed frustration because he had other
things he wanted to do, he complied and later met with
officers at the police station.
following day, July 31, 2017, defendant called his girlfriend
from the Linn County Jail. During the recorded call,
defendant stated he could not be identified because he had
put his white hat in the car.
month and a half later, on September 14 and 15, 2017, Kendra
Hatcher, an acquaintance of defendant, called J.S. about his
status as a witness. Exhibits 2 & 3. During the phone
calls, J.S. indicated that he was certain of his