United States District Court, N.D. Iowa, Western Division
ORDER REGARDING REPORT AND RECOMMENDATION
LEONARD T. STRAND, CHIEF JUDGE.
matter is before me on a Report and Recommendation (R&R)
(Doc. No. 49) in which the Honorable Kelly K.E. Mahoney,
United States Magistrate Judge, recommends that I deny
defendant's motion (Doc. No. 28) to suppress. Defendant
Dustin Herbst has filed objections (Doc. No. 56) to the
R&R and the Government has filed a response (Doc. No. 57)
to the objections, and Herbst as replied to the
Government's response (Doc. No. 58).
district judge must review a magistrate judge's R&R
under the following standards:
Within fourteen days after being served a copy, any party may
serve and file written objections to such proposed findings
and recommendations as provided by rules of court. A judge of
the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Crim.
P. 59(b). Thus, when a party objects to any portion of an
R&R, the district judge must undertake a de novo review
of that portion.
portions of an R&R to which no objections have been made
must be reviewed under at least a “clearly
erroneous” standard. See, e.g., Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that
when no objections are filed “[the district court
judge] would only have to review the findings of the
magistrate judge for clear error”). As the Supreme
Court has explained, “[a] finding is ‘clearly
erroneous' when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573-74 (1985) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
However, a district judge may elect to review an R&R
under a more exacting standard, even if no objections are
Any party that desires plenary consideration by the Article
III judge of any issue need only ask. Moreover, while the
statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the
request of a party, under a de novo or any other
Thomas v. Arn, 474 U.S. 140, 150 (1985).
September 20, 2017, the grand jury returned an indictment
(Doc. No. 2) charging Herbst with one count of possession of
methamphetamine with the intent to distribute and one count
of possession of a firearm in furtherance of a drug
trafficking crime. Defendant filed a motion (Doc. No. 28) to
suppress evidence on October 24, 2017, and the Government
filed a resistance (Doc. No. 35) on October 30, 2017. Judge
Mahoney conducted a hearing on December 7, 2017. The
Government presented the testimony of Detective Dylan
Grimsley, Officer Julian Loera and Officer Jacob Noltze from
the Sioux City Police Department (SCPD), as well as expert
witness Michael Morgan. Herbst presented the testimony of
expert witness Jim Pauley. The following
exhibits were received without objection:
Video (Sergeant Hoogendyk's patrol vehicle)
Certification records (K-9 Odin)
Training records (K-9 Odin)
Dogs for Law Enforcement Bylaws & Certification
Photograph (intersection at Rustin & Paxton
Photograph (close up of Exhibit 3A)
Video (Officer Loera's patrol vehicle)
Drug Enforcement Administration interview report
Sioux City Police reports
State search warrant & application
Excerpt of training records (K-9 Odin)
Curriculum Vitae of Jim Pauley
Google map printout
Google map printout (Ex. G with handwritten
Mahoney issued her R&R on December 21, 2017. On the same
day, the grand jury returned a superseding indictment (Doc.
No. 46) amending the charges against defendant to include an
additional count of conspiracy to distribute methamphetamine.
Herbst has filed an objection (Doc. No. 56) to the R&R.
This matter is scheduled for jury trial on February 8, 2018.
objects to several of Judge Mahoney's factual
conclusions. See Doc. No. 56. Thus, I will review
the record de novo to make independent findings of fact.
August 12, 2017, Detective Grimsley received information from
a confidential informant (CI) about a source of methamphetamine
in the Sioux City area. Ex. C at 8. The CI identified
“a white male named Dustin who is staying on S. Paxton
St. . . . driving a Colorado plated gold four door car with a
dent in the back bumper . . . [who] brought back a
significant amount of methamphetamine and possibly cocaine
from Colorado to be sold here in Sioux City.”
Id. Grimsley located the residence and the car-a
gold Toyota Corolla with Colorado license plates (the
Toyota)-and conducted surveillance from approximately half of
a block away. Doc. No. 54 at 10. Grimsley watched Herbst exit
the house and open the back seat and then the trunk of the
Toyota. Ex. C at 8-9. Herbst appeared to move items around
for a couple of minutes in both the back seat and the trunk.
Id. at 9. Herbst then got into the driver's seat
and drove away. Grimsley followed at a distance of
approximately one block. He intended to stop Herbst's
vehicle if justification arose in order to further his drug
investigation. Doc. No. 54 at 31-32.
testified that at the intersection of South Rustin and
Peters, he saw Herbst “slow and roll” through the
stop sign at the corner. Id. at 10-12, see
also Ex. C at 9. The traffic violation was not recorded
on camera or observed by any other officers. Grimsley
requested that a marked patrol unit conduct a traffic stop of
the Toyota for the stop sign violation. Id. at 9. He
testified that this is his normal procedure when conducting
undercover surveillance. Doc. No. 54 at 8. Officer Loera
responded to the request. Within approximately one minute,
Loera located the recently-parked Toyota, activated his
vehicle's police lights and pulled in behind the vehicle.
Ex. C at 4, see also Doc. No. 54 at 40, 50.
got out of his car and walked towards Loera. Doc. No. 54 at
41. He had to be told several times to get back into the car
before he complied. Id. Herbst denied being the
driver of the vehicle several times and initially refused to
give Loera his license, insurance, and registration.
Id. He accused Loera of trying to “put him in
the driver's seat, ” and claimed that his
girlfriend-who was not currently present-had been the driver.
Ex. C at 5. During this time, Herbst was nervous and
argumentative. He fumbled around the car and his right
knee and calf area and had to be told several times to keep
his hands on the steering wheel. Id. Another
officer, Sergeant Hoogendyk, arrived on the scene and
assisted while Loera ran Herbst's license and
registration. While standing beside the passenger window,
Hoogendyk saw Herbst call his girlfriend and ask her to come
to the scene. Ex. C at 12.
Loera was checking Herbst's license and registration, he
called a K-9 officer to the scene. Ex. C at 6. Loera learned
that Herbst did not have a valid license. Id.
Herbst's girlfriend, Jazmine Keutz, arrived on the scene
and was warned by K-9 Officer Noltze, who had also just
arrived with narcotics dog Odin, to stay away from the
vehicle. Doc. No. 56 at 77. Loera returned to the car and
asked Herbst to step out of the car. Id. at 12.
Although Herbst did so, he stated he would not cooperate when
Loera told Herbst to turn and put his hands behind his back.
Doc. No. 54 at 46, Ex. C at 6, 12. Loera needed
Hoogendyk's assistance to cuff Herbst. Meanwhile, Keutz
reached into the front seat of the Toyota. Hoogendyk left
Loera and Herbst to pull Keutz from the Toyota and Grimsley,
who had been observing up to that point, came forward to
assist. Id. at 9. Odin became increasingly agitated
by the events and barked every time Herbst yelled. Doc. No.
56 at 78. A .22 caliber, Derringer-style handgun was found in
Herbst's right shorts pocket during a pat-down, along
with $705 in cash. Ex. C at 13. Herbst and Keutz were placed
in separate patrol cars. Id.
of the facts surrounding Odin's sniff of the Toyota are
disputed. Noltze testified that after he gave Odin some time
to calm down, Odin led Noltze into Herbst's Toyota, which
was open. Ex. C at 15-16. The videos of the sniff indicate
that the break lasted approximately 30 seconds. Ex. 1 at
8:34-8:59. It is also not entirely clear from the video
whether Odin lead Noltze to the car or vice-versa: Ex. 1 at
8:55-8:59, Ex. A at 11:27-11:29. According to Noltze, Odin
“alerted” to the presence of narcotics in two
bags in the back seat of the Toyota. Doc. No. 54 at 77-79.
This occurred while Odin was in the front of the Toyota. The
video evidence indicates that Odin was in the front of the
Toyota for only about 12 seconds. Ex. 1 at 8:59-9:11; Ex. A
it is difficult to see the inside of the vehicle through the
tinted windows, it is almost impossible to determine if Odin
put the front of his body in the back seat of the Toyota
during that time, an occurrence that would be necessary to
make Noltze's testimony plausible. Noltze testified that
Odin “alerted” by scratching at the bags.
Id. at 78. He also testified that he noticed passive
alert behavior, including a change in breathing and possible
drool. Id. at 79. Noltze does not dispute that Odin
did not give a final “indication” that there were
narcotics in the bags. Id. at 78-79. He testified that
this was likely due to Odin's position-he was in the
front seat, with his front half extended into the backseat in
a way that made it difficult for Odin to sit. Id. at
78-79. Noltze conceded that Odin was distracted during the
search and had to be redirected several times. Id.
not clear whether Odin was rewarded for this search,
no one testified clearly as to how Noltze informed the other
officers that Odin had alerted to narcotics before they began
searching the car. Odin reluctantly entered the Toyota a
second time, this time in the back seat. He was in the back
of the Toyota for less time than he was in the front seat.
Ex. 1 at 10:13-10:21; Ex. A at 12:39-12:50. Noltze agrees
that Odin did not alert a second time while he was in the
back seat. See Doc. No. 54 at 78-79 (describing
alert to narcotics in the back seat from Odin's position
in the front seat) and 91 (no reported alert or indication
while he was in the back seat).
officers searched the car and seized ammunition, a cell
phone, two thumb drives and two bags. One of the bags
contained syringes, a straw, a baggie with crystal residue
and a safe. Ex. C at 8-10. In the trunk, the officers found
additional syringes and drug paraphernalia. Id.
Herbst admitted in a post-Miranda statement that he
was a methamphetamine user and that the safe contained
additional cash. Doc. No. 54 at 17-18. At the police station,
Odin conducted a second sniff of the safe in which he again
alerted to the presence of narcotics. However, the record is
unclear as to the details of that second sniff. Noltze
testified that he “believe[d] Detective Grimsley”
had placed the safe in the office for search. Id. at
96. Grimsley did not testify to doing so, and did not testify
at all as to how the safe was placed prior to the search.
Id. at 34-35. Grimsley's police report (Ex. C at
8-11) did not reference a second sniff. However, he described
that sniff in his affidavit in support of the application for
search a warrant, stating that Hoogendyk and Noltze conducted
the second sniff. Ex. D at 4. Hoogendyk's report (Ex. C
at 11-14) likewise says nothing about conducting the second
sniff while Noltze's report states that Grimsley placed
the safe in the office. Id. at 16.
applied for a warrant to search the safe, cell phone and
thumb drives seized from the Toyota. Ex. D. The affidavit
recounted the CI's information, Grimsley's
surveillance and the traffic stop. Id. at 4. It
stated that officers found $705 in currency and a .22 caliber
handgun on Herbst's person and that Odin had alerted to
the presence of narcotics in the back seat of the Toyota.
Id. It detailed all of the items found after
Odin's alert and Herbst's admissions that he was a
methamphetamine user and that the safe would contain
additional money. Id. Finally, the affidavit stated
that Odin again alerted to the presence of narcotics in the
safe after it was seized. Id. However, the affidavit
and the application for a warrant did not address the thumb
drives or the phone, other than to state that they were
seized. See Ex. D. The warrant was signed by a state
court magistrate. Upon execution of the warrant, officers
found an additional $18, 000 in the safe, along with 20 grams
of methamphetamine. Ex. C at 7, 10. Although the officers did
not find anything of value on the thumb drives, they found
records they believed were related to drug sales on the cell
seeks to suppress the evidence seized on August 12, 2017,
arguing that (1) officers lacked justification to stop his
vehicle; (2) the K-9 sniff by Odin failed to provide probable
cause to search a safe found inside his vehicle (or,
alternatively, that the application for the warrant to search
the safe was fatally defective in its description of
Odin's sniff); and (3) officers lacked probable cause to
search the cell phone and two thumb drives seized from the
The Traffic Stop
Mahoney began by determining whether there was probable cause
for the initial traffic stop;
“It is well established that a traffic
violation-however minor- creates probable cause to stop the
driver of a vehicle.” United States v. Lyons,
486 F.3d 367, 371 (8th Cir. 2007) (alteration in original)
(quoting United States v. Barry, 98 F.3d 373, 376
(8th Cir. 1996). Iowa law requires vehicles to stop at
intersections with stop signs. Iowa Code § 321.222.
There is no dispute that the Toyota was required to stop at
the intersection in question. See Ex. A. Herbst
agrees that if the court finds that Detective Grimsley saw
him fail to stop at the stop sign, then probable cause
supports the stop. He argues, however, that Detective
Grimsley's testimony should not be credited because it is
not corroborated by another witness or video recording and
further because of Detective Grimsley's motivation to
stop the vehicle. Herbst implies that Detective
Grimsley's underlying motivation (to further his drug
investigation) affected what he saw that day and calls into
question his testimony that he observed a traffic violation.
Detective Grimsley testified that when he followed the Toyota
away from the residence, he intended to stop it if
justification arose to do so. When probable cause supports a
traffic stop, the stop is objectively reasonable and an
officer's ulterior motive is not relevant. United
States v. Fuehrer, 844 F.3d 767, 772 (8th Cir. 2016).
“Subjective intentions play no role in the ordinary,
probable-cause Fourth Amendment analysis.” Id.
(citing Whren v. United States, 517 U.S. 806, 813
(1996)). This is true even if the officer would have ignored
the traffic violation but for the underlying motive to stop
the vehicle. Id.
Detective Grimsley testified that he saw the Toyota roll
through the stop sign at Rustin and Paxton, rather than
coming to a complete stop as required by law. He made this
observation during daylight hours and from a distance of no
more than one block. There is no indication that Detective
Grimsley's view of the Toyota at that intersection was
obscured. Nothing in this record suggests that Detective
Grimsley has credibility issues or that he has provided false
information in the past. Both Officer Loera and Officer
Noltze each testified about hearing Detective Grimsley
request a traffic stop contemporaneous to when he reported
seeing the stop sign violation, which provides some
corroboration for his testimony. Further, I find Detective
Grimsley's testimony to be credible based on my own
observations during the suppression hearing. Although,
ideally, the traffic violation would have been captured on
video or by a second witness, the law makes no such
requirement. See United States v. Mendoza, 677 F.3d
822, 828 (8th Cir. 2012) (finding the credible testimony of
one officer regarding apparent traffic violation sufficient
to establish probable cause to conduct a traffic stop). Thus,
I find probable cause existed to stop the Toyota for a
traffic violation, and the stop was objectively reasonable
and not in violation of the Fourteenth Amendment. See
Fuerher, 844 F.3d at 772.
Doc. No. 49 at 10-12.
Probable Cause to Search the Safe
Mahoney next addressed whether Odin's sniff established
probable cause to support the warrant to search the safe.
Herbst attacks several aspects of the sniff: Odin's
training and reliability, the fact that Odin provided an
alert and not a final indication to the presence of
narcotics, whether Odin actually alerted to the presence of
narcotics at all, and the omission from the warrant
application of the fact that Odin failed provide a final
Mahoney first considered whether Odin was qualified to locate
narcotics. After reviewing his training and certifications,
as well as Odin's admittedly spotty performance in
narcotics training, she concluded that Odin had the requisite
qualifications on the day in question:
Odin has performed over one thousand training sniffs in
total, and he conducts approximately ten to fifteen sniffs
per month. Officer Noltze testified that Odin has improved in
his ability to indicate and that he considers Odin reliable
in locating narcotics. Morgan also opined that Odin is
reliable in narcotics based on his review of Odin's
certification and training records (Exhibits 2 and 2A), from
watching the video of Odin's sniff of Herbst's
Toyota, and from listening to Officer Noltze's testimony
during the suppression hearing. . . . I find that the
testimony of Officer Noltze and Morgan, in addition to
Odin's training and certification records, demonstrate
that Odin was trained and certified to detect narcotics odors
on August 12, 2017. This factor weighs in favor of finding
reliable his alert from August 12, 2017.
There is no question that Odin has had issues with detecting
narcotics. The relevant inquiry, however, requires
consideration of his overall record to determine whether his
narcotics-detection skills are trustworthy. Weighing all the
evidence, I do not find that the training records support the
conclusion that Odin is unreliable.
Doc. No. 49 at 15, 18.
Mahoney also discussed the difference between an
“alert” and an “indication” in
response to Herbst's argument that an alert without an
indication does not provide probable cause.
Herbst further argues that Odin providing an alert and not a
final indication means that the court cannot find probable
cause existed to search the safe. He believes that this
factor and the terminology used by Officer Noltze demonstrate
that Odin merely showed interest and did not alert or
indicate while inside the vehicle. Herbst's argument
rests on the finding in Jacobs that, in part, a mere
interest (as compared to a trained alert) cannot support a
finding of probable cause. See [United States v.
Jacobs, 986 F.2d 1231, 1234-35 (8th Cir. 1993)].
Morgan provided testimony consistent with that of Officer
Noltze . . . about when narcotics dogs alert versus indicate.
Morgan testified that for an “alert, ” the
dog's behavior changes and its sniffing becomes more
intense. He believes this is based on a dog's training,
where it learned it will receive a reward if it find[s]
narcotics. According to Morgan, dogs alert in different ways
because they are individuals, just like humans. A handler is
trained to recognize his dog's alert. Morgan testified a
K-9 “indication” comes after an alert and may be
shown by the dog sitting.
Morgan testified during cross examination that a narcotics
dog who pushed a package around and scratched at it twice
(that fact pattern outlined in Jacobs, except with
the dog scratching rather than sniffing) would have provided
an alert. He elaborated that a K-9 may show
“interest” in an item but not provide a narcotics
alert or indication. Morgan provided an example of a K-9
sniffing lockers at a school. The K-9 may stop to check the
locker of a student who owns a cat, but that would be
different than the behavioral changes associated with a
narcotics alert. An alert, according to Morgan, involves a
change in the K-9's behavior that occurs only with the
odor of narcotics. In his experience, handlers usually give
their K-9s a reward during an alert or indication, although
it may depend on the situation.
In Pauley's experience, an “alert” and
“indication” have the exact opposite meanings as
compared to the testimony of Officer Noltze and Morgan. To
him, an alert is the final step and involves a definite
change in behavior where the K-9 bites or scratches at the
odor source (if an aggressive-alert K-9) or sits (if a
passive-alert K-9) (what Officer Noltze and Morgan described
as an indication). An indication, in Pauley's experience,
is a lower-level response (what Officer Noltze and Morgan
described as an alert). In Pauley's training and
experience, a dog that detects narcotics will do everything
possible to give a final alert (or indication, according to
Officer Noltze's and Morgan's terminology), which in
this case would have been to sit. This is because, in
Pauley's experiences, narcotics dogs learn they receive
their reward only when they provide their final, trained
response. Morgan provided similar testimony about a narcotics
dog wanting to do what is needed to receive its reward.
I understand Herbst's concern with the terminology used
in this case. Although words can matter, I do not believe
that the use of the term “alert” versus
“indicate” affects Odin's reliability in this
case. Either term refers to a specific, trained response for
Odin. I, likewise, do not believe the facts of this case are
analogous to Jacobs, in which the narcotics dog
“had not given its trained response when confronted
with a package containing drugs, coupled with the dog
handler's admission that he could not say with certainty
that drugs were in the package.” Jacobs, 986
F.3d at 1235. In this case, Officer Noltze provided
unequivocal testimony that Odin alerted but did not give a
final indication while inside the vehicle, and he did not
alert or indicate during the subsequent exterior and interior
vehicle sniffs. Morgan believed that Odin alerted based on
Officer Noltze's description that Odin moved toward the
area, pawed at the location, and most significantly, possibly
drooled. According to Morgan, that drooling (which
demonstrates anticipation) provides clear evidence of an
alert because it is an uncontrolled response that cannot be
provoked by the handler, nor faced by the K-9. He likened
this drooling to a Pavlovian response and explained it is
developed during narcotics training where the K-9 learns that
it will receive its reward if it finds narcotics.
Doc. No. 49 at 23-24.
this background in mind, Judge Mahoney considered whether the
circumstances of the sniff at issue-where Odin is alleged to
have alerted to the presence of narcotics, but not to have
provided a final indication-provided probable cause to
support the application for the warrant to search the safe.
Further, Judge Mahoney addressed the credibility of the
officers reporting the alert, in light of Herbst's claim
that Odin did not alert at all according to the video
The events in question happened outside on a warm, August
day. Odin was panting according to both Officer Noltze and
the video. Ex. 1 at 8:00-8:57. Officer Noltze testified that
he did not believe this affected Odin's ability to detect
narcotics that day. By way of contrast, the training records
show that on July 11, 2017, one month prior to the Herbst
encounter, Odin “was struggling due to heat, ”
but after wrapping him in cold towels and giving him ice
water, Odin “recovered quickly.” Ex. 2A at 389.
There is no indication that Odin required such measures here.
Herbst offered the opinion testimony of Jim Pauley that
Odin's panting meant he was not able to sniff properly
because he was breathing to take in air rather than scent.
Both Morgan and Pauley testified that narcotics K-9s are
often excited to do the work they are trained for, ...