United States District Court, N.D. Iowa, Western Division
ORDER ON REPORT AND RECOMMENDATION
Leonard T. Strand, Chief Judge.
matter is before me on a Report and Recommendation (R&R)
in which the Honorable Judge Kelly K.E. Mahoney, United
States Magistrate Judge, recommends that I deny
defendant's motion (Doc. No. 43) to suppress.
See Doc. No. 67.
district judge must review a magistrate judge's R&R
under the following standards:
Within fourteen days after being served with 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”).
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
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.
v. Arn, 474 U.S. 140, 150 (1985).
22, 2017, a grand jury returned an indictment (Doc. No. 2)
charging defendant Marc Gibbons with one count of illegally
possessing a firearm in violation of 18 U.S.C. §§
922(g) and 924(a)(2). Gibbons filed a motion to dismiss (Doc.
No. 18), which was denied (Doc. No. 41). Gibbons then filed a
motion to suppress evidence (Doc. No. 43) on October 2, 2017.
The Government filed a resistance (Doc. No. 54) on October 7,
2017. Judge Mahoney conducted a hearing on October 30, 2017,
during which Government's Exhibits 1 and 2 and
defendant's Exhibits A through I were
received. Judge Mahoney issued her R&R on
December 21, 2017. Gibbons filed objections (Doc. No. 75) on
January 26, 2018, and the Government filed a resistance (Doc.
No. 78) on February 2, 2018. This matter is scheduled for
jury trial beginning May 14, 2018.
Mahoney made detailed factual findings in her R&R. Doc.
No. 67 at 2-9. With one exception, Gibbons does not
specifically object to any of those factual
findings.Based on my de novo review, which included
reviewing the transcript of the hearing as well as the
exhibits admitted during the hearing, I adopt Judge
Mahoney's factual findings and will summarize them
March 10, 2017, two officers, Deputy Matthew Julius and
Deputy Nathan Krikke, were searching for Mason Van Den Brink,
who was suspected of committing a burglary in which multiple
firearms were stolen from a residence. They obtained
information that Gibbons was a possible acquaintance of Van
Den Brink and went to see him at the residence of another
acquaintance, James Kolbeck. When they entered the house to
speak with Gibbons and Kolbeck, Deputy Julius spotted a white
tube, which he believed was drug paraphernalia, on the
kitchen table in front of the chair on which Gibbons had been
sitting. Gibbons became nervous and agitated as Julius
questioned him about the tube. Eventually, Gibbons positioned
himself between the two deputies and it was clear that he was
being placed under arrest, though he was not handcuffed. At
that point, Julius asked Gibbons if he needed his coat. There
were two coats and a sweatshirt piled on top of each other,
draped across the back of the chair on which Gibbons had been
sitting. Except when referring specifically to the
sweatshirt, I will refer to these three items collectively in
this order as the “coats.”
Judge Mahoney explained:
Deputy Julius asked Gibbons, “you need your
coat?” Ex. G at 10:30. Deputy Julius had noticed a
sweatshirt, a camouflage coat, and a leather coat on the
chair where Gibbons had been sitting; Gibbons was wearing a
t-shirt and jeans. Gibbons said “no” in response
to whether he needed his coat. Ex. G at 10:33. This made
Deputy Julius suspicious because based on his training and
experience, individuals at times tried to leave items such as
clothing behind to avoid officers finding illegal items in
the clothing. Deputy Julius also reported concern for
Gibbons' wellbeing because of the cold weather. Deputy
Julius asked if there was “anything in there [the
coat]” and then asked, “mind if I look?”
Ex. G at 10:38-10:43. After a notable pause, Gibbons said,
“Oh man, no, ” and then said, “oh
fuck.” Ex. G at 10:49-10:55. Deputy Julius then asked
Kolbeck if he wanted Gibbons to leave his coat there
“if there was anything dirty” inside it. Ex. G at
10:57. Kolbeck said he did not know, and Deputy Julius
finished asking, “or should we bring it with
[us]?” Kolbeck then said “maybe” Gibbons
should take his coat along as it was “cold out there,
” and Deputy Julius responded by describing the weather
outside. Ex. G at 10:57-11:15. Kolbeck told Gibbons again,
“maybe you should grab [your jacket].” Ex. G at
11:18. Deputy Julius took a brief step toward the coats and
asked which one belonged to Gibbons (“that one, not
that one?”). Gibbons then stepped in front of Deputy
Julius and began handling the coats. Deputy Julius testified
that he was watching Gibbons mainly due to safety concerns
and that he saw a shiny item that he believed was a firearm.
Deputy Julius said, “Wait, wait a minute, what's
that underneath that coat?” and told Gibbons to stop
and step back. Ex. G at 11:24-11:31. Gibbons complied and
said, “I don't need a coat or anything.” Ex.
G at 11:36. Deputy Julius picked up a sweatshirt and noticed
it was quite heavy. Upon feeling the right sleeve of the
sweatshirt, Deputy Julius felt an item he believed was a
firearm. Deputy Julius asked, “is this yours . . .
too?” and Gibbons responded, “that's not
mine.” Ex. G at 11:40. It is unclear from the video if
Deputy Julius was referring to the jacket or a firearm,
although it seems he was referring to the jacket. Deputy
Julius removed the heavy item from the sweatshirt, which
turned out to be a .45 caliber handgun stolen from the
burglary that officers suspected Van Den Brink of committing.
Deputy Julius also found a water bong underneath the coats
where Gibbons had been sitting. Gibbons at one point said the
camouflage coat was his, and Deputy Julius then asked,
“and this gun here, feels like a gun-this isn't
yours?” Ex. G at 12:19. Gibbons responded it was not
his. Kolbeck again said, “take it on the porch”
and denied that the sweatshirt and coats were his. Ex. G at
12:32. Deputy Julius asked if the firearm was loaded, and
Gibbons said he did not know “what that is, it's
not mine.” Gibbons was then handcuffed because the
deputies were nervous. Ex. G at 13:15. The deputies put
Gibbons' coat on or around him and read him his Miranda
warnings before taking him to the sheriff's office. Ex. G
Id. at 4-6 (alterations in original; footnotes
March 10, 2017, Gibbons had his initial appearance in state
court and was appointed an attorney. He then spoke to Deputy
Julius on March 13 and to Detective Rick Bos on March 14
without his attorney present. As Judge Mahoney explained:
March 13, 2017, Deputy Krikke was conducting jail duties when
he encountered Gibbons in the Osceola County Jail. Gibbons
told Deputy Krikke that he wanted to speak with Deputy
Julius. Deputy Krikke was uncertain whether Gibbons had an
attorney at that point, and he relayed Gibbons' request
to Deputy Julius. Deputy Krikke was not present during Deputy
Julius' subsequent interview of Gibbons on March 13th.
During that interview, Deputy Julius read Gibbons his Miranda
warnings, which Gibbons waived. Deputy Julius noted that
Gibbons appeared to be in better shape.
admitted that he had swallowed a baggie containing four grams
of methamphetamine the night of his arrest. Deputy Julius
testified he had never heard of anyone using four grams of
methamphetamine at one time and acknowledged that a person
who did so would be in pretty bad shape. He clarified,
however, that the effect of swallowing a baggie of four grams
of methamphetamine would depend on whether the baggie
remained intact. Deputy Julius testified that during this
interview, Gibbons was still hard to follow, nervous, and
bouncing around from point to point in his story. He
acknowledged that Gibbons said he was concerned the baggie of
methamphetamine had broken open and that he was feeling the
effects of methamphetamine. Gibbons declined medical
March 14, 2017, Detective Bos went to the Osceola County
Sheriff's Office to interview Gibbons, who was still in
custody. Detective Bos knew Gibbons had pending charges but
was uncertain and did not inquire whether Gibbons had an
attorney. Detective Bos testified he had gone to interview
Gibbons about the burglary allegedly committed by Van Den
Brink. This included the firearm recovered during Gibbons
arrest on March 10, 2017. Detective Bos testified that in
interviewing Gibbons regarding the burglary, he wanted to see
where Gibbons had gotten the firearm from. Detective Bos read
Gibbons his Miranda warnings, and Gibbons agreed to speak
with Detective Bos. Detective Bos testified he limited or
focused his questions to the Van Den Brink burglary
investigation. He began by asking Gibbons about his
relationship with Van Den Brink and questioned Gibbons about
giving Van Den Brink a ride on the day of Gibbons'
arrest. He asked where Gibbons had gotten the gun (the
possession of which had resulted in two of Gibbons'
Osceola County charges), and Gibbons said from Van Den Brink.
Gibbons told Detective Bos that Van Den Brink had thrown a
firearm into Gibbons' vehicle as Van Den Brink jumped
from the vehicle on March 9th. At one point, Detective Bos
asked Gibbons who he obtained drugs from, and Gibbons
responded that if there were no other questions about Van Den
Brink, Gibbons wanted his lawyer before answering any more
questions. Detective Bos continued to talk to Gibbons about
Van Den Brink, asking whether Gibbons was aware that Van Den
Brink stole guns or committed home burglaries.
at 7-8. Gibbons seeks to suppress the firearm and water bong
discovered on March 10, as well as other evidence obtained as
a result of the seizure of the sweatshirt, the statements
made to Deputy Julius on March 13 and the statements made to
Detective Bos on March 14.
Judge Mahoney's Analysis
the seizure of the sweatshirt, Judge Mahoney set out the
proper standard and stated:
Deputy Julius did not compel Gibbons to take his sweatshirt
such that a seizure took place prior to Gibbons handling the
coats and sweatshirt. I first note that although Deputy
Julius questioned Gibbons about his coat and testified that
Gibbons would not have been free to leave without his coat,
nothing was said about Gibbons' sweatshirt. Even if this
is not a relevant distinction, the fact that Deputy Julius
would have required Gibbons to take his coat with him has no
bearing on whether a seizure occurred, as “[t]he
subjective intent of the seizing officer is irrelevant if not
communicated to the suspect.” United States v.
Bloomfield, 40 F.3d 910, 916 (8th Cir. 1994) (citing
United States v. Mendenhall, 446 U.S. 544, 554 n.6
(1980)). At no point did Deputy Julius order Gibbons to take
his coat: Deputy Julius asked for consent to search, Kolbeck
suggested (“maybe”) Gibbons grab his coat (after
being questioned by Deputy Julius), and Deputy Julius took a
step toward the coats and asked which one belonged to
Gibbons. At this point, no meaningful interference with the
sweatshirt had occurred. Although Deputy Julius may have been
on the brink of grabbing a coat or a sweatshirt from the
pile, he had not yet exerted control over any of the clothing
in a manner that interfered with Gibbons' possessory
interests. A reasonable person might have believed that
Deputy Julius was about to search or seize the coat, but a
reasonable person would not have felt compelled to grab the
coat himself (as Gibbons did).
Id. at 12.
Mahoney also found that Julius would have been justified in
searching the coats even before Gibbons moved towards them
under the search-incident-to-arrest exception to the warrant
The purpose of this rule is to allow the officer “to
remove any weapons that the [arrestee] might seek to use . .
. to resist arrest or effect his escape” and “to
prevent . . . concealment or destruction” of evidence.
Chimel, 395 U.S. at 762-63; see also
Perdoma, 621 F.3d at 750. Here, Gibbons was unrestrained
and not handcuffed, and he was near enough to the chair
containing the coats and sweatshirt (even before he moved)
that he might reach a weapon or drugs hiding there. . . .
That an officer might have been standing in between Gibbons
and the pile of clothing does not change that Gibbons, with
one lunge, would have been able to reach anything on the
chair containing the coats and sweatshirt-indeed, Gibbons was
able to move quickly to the pile of clothing when Deputy
Julius took a step in that direction. . . . Moreover, Deputy
Julius was understandably concerned about Gibbons destroying
evidence or obtaining a weapon, which underlies the purpose
of the search-incident-to-arrest rule.
Id. at 12-13. Judge Mahoney noted that the search
took place within minutes of Gibbons' arrest and while he
was unrestrained and handling the coats. Id. at
16-17. Finally, Judge Mahoney found that even if the search
incident to arrest exception did not apply because the search
was too remote in time to the arrest, the search would have
been permissible under Terry v. Ohio, 392 U.S. 1
(1968),  as Julius “had a reasonable,
articulable suspicion that [the sweatshirt] contained a
weapon.” Doc. No. 67 at 18.
Regarding Gibbons' statements, Judge Mahoney first
discussed the Sixth Amendment right to counsel:
Once the Sixth Amendment right to counsel has attached,
although a defendant is of course “entitled to a lawyer
during [an] interrogation, ” that right may be waived
through a knowing and voluntary Miranda waiver.
Id. at 791, 794-95, 797. Here, Gibbons' Sixth
Amendment right to counsel had attached for the pending
Osceola County charges, but it could be waived; his request
for an attorney to represent him on the pending charges
through a ...