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United States v. Heard

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

December 4, 2017





         This 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. 33).

         The 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 1.

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


         On the 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).[1]

         At 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.

         Officer 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.[2] 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 sgt”).

         Another 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.

         Officer 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.[3] 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.

         After 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.

         The 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.

         About a 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 ...

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