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United States v. Herbst

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

January 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DUSTIN HERBST Defendant.

          ORDER REGARDING REPORT AND RECOMMENDATION

          LEONARD T. STRAND, CHIEF JUDGE.

         This 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).

         I. APPLICABLE STANDARDS

         A 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.

         Any 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 filed:

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 standard.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

         II. BACKGROUND

         A. Procedural History

         On 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[1] were received without objection:

Exhibit No.

Description

1

Video (Sergeant Hoogendyk's patrol vehicle)

2C

Certification records (K-9 Odin)

2A

Training records (K-9 Odin)

2B

Dogs for Law Enforcement Bylaws & Certification Rules

3A

Photograph (intersection at Rustin & Paxton streets)

3B

Photograph (close up of Exhibit 3A)

A

Video (Officer Loera's patrol vehicle)

B

Drug Enforcement Administration interview report

C

Sioux City Police reports

D

State search warrant & application

E1-E17

Excerpt of training records (K-9 Odin)

F

Curriculum Vitae of Jim Pauley

G

Google map printout

GG

Google map printout (Ex. G with handwritten notations)

         Judge 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.

         B. Relevant Facts

         Herbst 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.

         On August 12, 2017, Detective Grimsley received information from a confidential informant (CI)[2] 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.

         Grimsley 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.

         Herbst 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.[3] 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.

         While 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.

         Several 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 at 11:26-11:38.

         Because 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.[4] 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. at 80.

         It is not clear whether Odin was rewarded for this search, [5] and 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).

         The 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.

         Grimsley 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 phone. Id.

         Herbst 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 vehicle.

         C. The R&R

         1. The Traffic Stop

         Judge 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.

         2. Probable Cause to Search the Safe

         a. The sniff

         Judge 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 indication.

         Judge 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.

         Judge 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.

         With 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 evidence.

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, ...

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