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United States v. Gibbons

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

February 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARC GIBBONS, Defendant.

          ORDER ON REPORT AND RECOMMENDATION

          Leonard T. Strand, Chief Judge.

         This 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.

         I. APPLICABLE STANDARDS

         A 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.

         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 June 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.[1] 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.

         B. Relevant Facts

         Judge 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.[2]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 briefly.

         On 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.”

         As 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 at 13:58.

Id. at 4-6 (alterations in original; footnotes omitted).

         On 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:

         On 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.

         Gibbons 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 attention.

         On 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.

         Id. 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.

         C. Judge Mahoney's Analysis

         Regarding 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.[3]

         Judge 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 requirement:

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), [4] as Julius “had a reasonable, articulable suspicion that [the sweatshirt] contained a weapon.” Doc. No. 67 at 18.[5]

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 ...

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