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United States v. Parker

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

December 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD LEROY PARKER, Defendant.

          REPORT AND RECOMMENDATION

          C. J. Williams Chief United States Magistrate Judge.

         TABLE OF CONTENTS

         I. Factual Background ............................................................................ 2

         A. Summary ...................................................................................... 2

         B. Questioning At the Apartment ............................................................. 3

         C. Questioning at the Police Department .................................................... 6

         D. Defendant's Arrest at the Hospital ........................................................ 7

         E. Search of Defendant's Residence .......................................................... 8

         II. Discussion ........................................................................................ 9

         A. Defendant's Incriminating Statements .................................................. 9

         B. The Search Warrant ..................................................................... 18

         III. Conclusion .................................................................................... 22

         This matter is before the Court on defendant's Motion to Suppress Evidence. (Doc. 36). The government timely filed its resistance on November 20, 2017 (Doc. 43), and the Court held a hearing on the motion on November 29, 2017. At the hearing the government called Dubuque Police Officers Brendan Welsh, Matt Walker, Bruce Deutsch, and Dave Randall to testify. The Court also admitted without objection government exhibits 1 through 9.

         For the following reasons, I respectfully recommend the Court grant in part and deny in part defendant's motion.

         I. FACTUAL BACKGROUND

         A. Summary

         Shortly after midnight on April 17, 2017, Dubuque Police officers and paramedics responded to a 9-1-1 call placed by defendant reporting that a woman was not breathing. Defendant and the victim had spent the prior day and evening with Donte Richards and Ashley Ostrander in the apartment Richards and Ostrander shared on Rhomberg Avenue in Dubuque. Attempts to resuscitate the victim at the scene were unsuccessful and she was later pronounced dead at the hospital. During the first fifteen to twenty minutes at the scene, officers questioned the occupants about everyone's activities the prior day, including whether they and the victim consumed alcohol and/or controlled substances. During this interaction, defendant made incriminating statements about his and others' drug usage. After that, the officers and occupants remained in the apartment until about 2:45 AM. At that point the officers asked Richards, Ostrander and defendant to accompany them to the police department for further questioning. Richards and Ostrander declined and were ultimately taken to another residence. Defendant agreed and officers transported him to the police department. At the police department defendant waived his constitutional rights and made further incriminating statements. A short time after the interview, defendant stated he was not feeling well and paramedics took him to the hospital. Officers arrested defendant at the hospital for a parole violation. Officers also obtained a search warrant to search defendant and his residence.

         Defendant alleges that his initial questioning at the apartment violated his Fourth and Fifth Amendment rights, and thereby tainted the subsequent questioning at the police department. Defendant also alleges that probable cause did not support the search of his residence. Therefore, these events require more detailed facts.

         B. Questioning At the Apartment

         Officer Matthew Walker conducted the questioning of defendant at the apartment.[1]When Officer Walker first made contact with defendant, defendant was in the living room where Richards, Ostrander and another officer were present. An officer asked Richards about a statement the officer believed defendant made to another officer to the effect that defendant had choked the victim. Richards vehemently denied it, although in the video of the encounter the officer's notes about the comment are visible.

         Officer Walker stepped into the living room and asked defendant's name. Defendant then left the living room, passed through the dining room, and stepped into the kitchen while Officer Walker remained in the living room. A minute or so later defendant walked back into the dining room and approached the living room, paused, and then turned to walk away again. Officer Walker stated something to the effect of “Hey, Richard, do you have a moment.” Defendant turned around and Officer Walker then asked questions about defendant's date of birth and residence. Defendant answered Officer Walker, then turned away from him and walked into the kitchen where he got a drink of water from the kitchen faucet. Officer Walker followed defendant into the kitchen and asked more questions about defendant's apartment and telephone numbers. Defendant indicated he lived nearby. After getting a drink from the kitchen faucet, defendant walked past Officer Walker and into the dining room again. Officer Walker followed defendant into the dining room. Defendant indicated he had been with the victim in the bedroom and was the last to see her breathing. Officer Walker asked defendant if the victim had been drinking or taking drugs. Defendant said she had been drinking and took some cocaine about two hours before. When defendant started to move toward the kitchen again, Officer Walker said something to the effect of “I need to talk to you; kinda just stay here.”

         After Officer Walker conveyed the information about the victim's drug use to the paramedic, Officer Walker and defendant again spoke briefly in the dining room about the victim's drug use. On the video one can hear loud, emotional laments from Ostrander who was in the living room adjoining the dining room. One can also see other officers and paramedics occasionally walking through the dining room and between Officer Walker and defendant. Officer Walker asked defendant to go outside so they could talk without the distractions. As Officer Walker and defendant walked through the kitchen to leave the apartment they had a discussion about getting defendant a shirt as he had none on. It appeared to me on the video that defendant was sweating while Officer Walker was talking to him. The temperature outside was about 50 degrees Fahrenheit. Defendant's shirt was in the bedroom where emergency personnel were attempting to save the victim's life, however, so they were unable to retrieve defendant's shirt.

         Once outside, Officer Walker continued to ask defendant questions. At first, Officer Walker asked questions to determine if defendant had assaulted the victim in any way, which defendant denied. Officer Walker then asked defendant questions about his own drug use that day and more questions about the victim's drug use and her medical health generally, such as whether she showed signs of having difficulty breathing earlier in the night. On three occasions during this conversation defendant moved toward the house and Officer Walker asked him to stay back, including one time when it was apparent that the paramedics were entering the house with a gurney and would be leaving soon with the victim's body. Defendant complained about being cold. Officer Walker entered the apartment again to inquire about trying to get defendant's shirt. Defendant followed and moved into the vestibule on his own.

         Officer Walker then stayed with defendant in the vestibule for a few minutes, continuing to ask defendant questions about the details of the evening, including whether the group went anywhere. Defendant stated that they went to a nearby store to buy beer and soda. After a few minutes, however, another officer suggested Officer Walker and defendant move because the paramedics were about to remove the victim and would have to move through the vestibule. One of the officers also suggested that defendant would be warmer in the dining room anyway. Defendant moved into the dining room. Officers gave defendant a sweatshirt, which defendant wrapped around his shoulders. Officers also retrieved an ottoman from the living room for defendant to sit on. Defendant sat on the ottoman and leaned his back against the wall. Defendant remained seated in that general posture until investigators arrived at the apartment around 2:45 AM, at one point appearing to sleep. During this time period, Officer Walker generally stayed in the dining room standing opposite defendant and, on occasion, another officer would be in the room for short periods. Although officers asked defendant a couple questions during this time period, they did not ask about defendant's criminal activity or involvement with drugs and defendant did not make any incriminating statements.

         In total, Officer Walker spoke with defendant for approximately twenty minutes. Neither during this time period, nor afterwards while defendant sat in the dining room did any officer tell the defendant he was under arrest, but they also did not tell him he was free to leave. On the other ...


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