United States District Court, N.D. Iowa, Eastern Division
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S
MOTION TO SUPPRESS
WILLIAMS CHIEF UNITED STATES MAGISTRATE JUDGE
matter comes before the Court pursuant to defendant's
motion to suppress evidence allegedly seized in violation of
the Fourth Amendment to the United States Constitution. (Doc.
21). The grand jury charged defendant in a one-count
indictment of being a drug user in possession of a firearm in
violation of Title 18, United States Code, Sections 922(g)(3)
and 924(a)(2). (Doc. 2). The charge arose, in part, from
evidence found during the execution of a state search warrant
of defendant's urine on August 30, 2017. Defendant argues
the Court should suppress this evidence because the search
warrant had become stale in the time between its issuance and
execution. (Doc. 21-1, at 4).
Honorable Linda R. Reade, United States District Court Judge,
referred this motion to me for a Report and Recommendation.
On February 7, 2018, I held an evidentiary hearing on
defendant's motion at which Dubuque Investigator Nicholas
Schlosser and forensic criminalist Staci Schmeiser testified.
I admitted government's Exhibit 1 (application, search
warrant, and return for defendant's urine sample),
Exhibit 2 (toxicology report of defendant's urine
sample), and Exhibit 3 (chart of detection windows for
drugs). For the reasons that follow, I respectfully recommend
that the Court deny defendant's motion
FINDINGS OF FACT
August 22, 2017, A.N. went to the Dubuque Police Department
and reported that her boyfriend, defendant, had strangled her
during a dispute in their apartment. In conversation with
police, A.N. reported that defendant used cocaine weekly and
marijuana daily. She explained that defendant sold cocaine
and manufactured and sold “dabs” of marijuana
wax. A.N. further reported that defendant kept an AR-15-style
rifle in the apartment. Based on A.N.'s information,
investigators executed a search warrant on the
defendant's residence on August 22, 2017, where they
found “a loaded Rock River Rifle, ”
“several extended magazines and rounds of ammunition,
” and drug paraphernalia, a scale, white residue that
tested positive to be cocaine, along with packaging material
that is consistent with the selling of marijuana wax and
cocaine.” (Exhibit 1, Doc. 28-1, at 2).
to the search, but on the same day, Dubuque Investigator
Nicholas Schlosser sought a search warrant for a urine sample
from defendant. In his affidavit, Investigator Schlosser
summarized the information provided by defendant's
girlfriend and the evidence seized from the apartment, as
described above. (Id.). Investigator Schlosser also
listed defendant's prior controlled substance conviction.
(Id.). In the affidavit, Investigator Schlosser
requested to search defendant's urine “to determine
the presence of controlled substances in [defendant's]
system, while he is currently being a drug user in possession
of firearms and ammunition.” (Id.). An Iowa
district judge issued the search warrant on August 22, 2017.
(Id., at 4). On August 30, 2017, investigators found
and arrested defendant and executed the search warrant for
defendant's urine sample. Defendant's urine tested
positive for the presence of drugs. (Exhibit 2. Doc. 28-2).
Fourth Amendment to the United States Constitution provides
that “no [search] Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. Amend. IV.
The Eighth Circuit Court of Appeals has stated that the
timeliness of a search warrant should be “measured in
terms of whether probable cause still existed at the time
the warrant was executed.” United States v.
Shegog, 787 F.2d 420, 422 (8th Cir. 1986) (internal
quotation marks and citation omitted) (emphasis in
original)). Probable cause is determined “under a
totality-of-the-circumstances approach.” United
States v. LaMorie, 100 F.3d 547, 553 (8th Cir. 1996).
“A delay in executing a search warrant may render stale
the probable cause finding.” United States v.
Gibson, 123 F.3d 1121, 1124 (8th Cir. 1997) (citation
omitted). “Important factors to consider in determining
whether probable cause has dissipated, rendering the warrant
fatally stale, include the lapse of time since the warrant
was issued, the nature of the criminal activity, and the kind
of property subject to the search.” Id.
concedes the search warrant was validly issued on August 22,
2017, but argues the eight day delay between issuance and
execution rendered stale the probable cause finding
underlying the search warrant. Considering the totality of
the circumstances in this case, I find the eight day delay in
this case does not render stale the probable cause finding
for two reasons.
the government sought evidence to prove defendant committed
the federal offense of being an unlawful drug user in
possession of a firearm. The phrase “unlawful user of
... any controlled substance” in 18 U.S.C. §
922(g)(3) is not defined by statute and “runs the risk
of being unconstitutionally vague without a
judicially-created temporal nexus between the gun possession
and regular drug use.” United States v.
Turnbull, 349 F.3d 558, 561 (8th Cir. 2003) (emphasis
added), vacated, 543 U.S. 1099, 125 S.Ct. 1047, 160
L.Ed.2d 993 (2005), reinstated, 414 F.3d 942 (8th
Cir.2005) (per curiam). Courts have thus created a
requirement that there be a temporal nexus between a
defendant's possession of a firearm and the
defendant's drug use. In short, the government must prove
defendant was a regular user of drugs at the time he
possessed the firearm. Turnbull, 349 F.3d at 561.
The Eighth Circuit Court of Appeals affirmed a district
court's jury instruction explaining what this means:
Such use is not limited to the use of drugs on a particular
day, or within a matter of days or weeks before, but rather
that the unlawful use has occurred recently enough to
indicate that the individual is actively engaged in such
conduct. A person may be an unlawful current user of a
controlled substance even though the substance is not being
used at the precise time the person seeks to acquire a
firearm. An inference of current use may be drawn from
evidence of a recent use or possession of a controlled
substance or a pattern of use or possession that reasonably
covers the present time.
United States v. Boslau, 632 F.3d 422, 429-30 (8th
Cir. 2011). Therefore, evidence that defendant used drugs
after his possession of the firearm would be relevant to the
question of whether he was a drug user at the time he
possessed the firearm when, as here, it is part of a pattern
of drug usage both before and after his possession of the
firearm. See, e.g., United States v.
Clanton, 515 Fed. App'x 826, 830 (11th Cir. 2013)
(finding that evidence that a positive urine test, from urine
seized from defendant six days after he was found in
possession of a firearm, helped to establish he was a regular
user of unlawful drugs); United States v. Sanders,
43 Fed. App'x 249, 258 (10th Cir. 2002) (finding evidence
of defendant's drug use both before and after the date
when he was found in possession of a firearm supported a
finding that he was a regular drug user).
for the sake of argument, the government found the firearm in
defendant's residence on August 22, but waited until
defendant was arrested on August 30 to apply for the search
warrant for defendant's urine sample. On August 30,
probable cause still would have existed for the crime charged
because the government, under the crime charged, must prove
defendant was a regular user of controlled substances. Thus,
any evidence of drug use, before or after August 22,
2017, would have helped the government establish defendant
was a regular user of drugs when he possessed the firearm.
Therefore, even if the government waited eight days to apply
for the search warrant, the government still would have been
able to establish the probable ...