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United States v. Ross

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

April 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KELVIN LEE ROSS, Defendant.

          REPORT AND RECOMMENDATION

          KELLY K.E. MAHONEY, UNITED STATES MAGISTRATE JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 1

         II. BACKGROUND ............................................................................. 3

         III. DISCUSSION ................................................................................ 8

         A. Search of the Motel Room and Vehicle Under the Warrant and the Leon Good-Faith Exception ................................................. 8

         1. Ross' Vehicle .............................................................. 12

         2. Room 33 .................................................................... 15

         B. Search of the Vehicle Under the Automobile Exception ...................... 20

         C. Failure to Read Ross His Rights Under Miranda .............................. 23

         IV. CONCLUSION ............................................................................ 26

         I. INTRODUCTION

         The grand jury charged Defendant Kelvin Lee Ross in an indictment with conspiracy to distribute a controlled substance (along with codefendants William Hill and Shane Monell) and possession with intent to distribute a controlled substance (along with codefendant Hill). Doc. 4. Ross filed an amended[1] motion to suppress (Doc. 29), which the Government resists (Doc. 25). I conducted a hearing on the motion on March 13, 2018. Docs. 31, 32. The Government presented testimony from Officer Heather Albrecht of the Sioux City Police Department, and formerly of the Drug Enforcement Administration's Tri-State Drug Task Force (Tri-State Drug Task Force) (the search warrant affiant and case agent in this case); Officer Paul Yaneff of the Sioux City Police Department; Resident Agent in Charge Brian Hunt, and Task Force Officers John Howard, Brenton Heald, and Eric Davis, all of the Tri-State Drug Task Force. Doc. 31. The following Government exhibits were also received by the Court:

Exhibit 1 motel registration card (Doc. 25-1);
Exhibit 2 search warrant, application, and affidavit (Doc. 25-2);
Exhibit 3 photograph-motel room #33 (Doc. 25-3); and
Exhibit 4 photograph-wider view of motel (Doc. 25-4).

         Ross' attorney discussed Defendant's Exhibit 1 (Officer Yaneff's police report) during cross-examination of Officer Yaneff, but this exhibit was not offered into evidence. During the hearing, the parties made a request to delay their final oral arguments on the motion until the production of a transcript from the hearing had been completed. Doc. 31, 32. The transcript of hearing was filed on March 20, 2018 (Doc. 32), and I conducted a hearing on the final oral arguments on the motion on March 26, 2018. Doc. 35.

         Ross seeks to suppress evidence seized during a search of a motel room and vehicle by arguing that the search warrant was not supported by probable cause and that the search warrant description for the vehicle was not sufficiently particular. Doc. 22-1 at 3-9; Doc. 30 at 4-10. Ross also seeks to suppress statements he made during the search of the motel room by asserting the statements were made in response to interrogation and in violation of Ross' rights under Miranda v. Arizona, 384 U.S. 436 (1966). Doc. 22-1 at 9-10; Doc. 30 at 10-12.

         For the reasons explained below, I respectfully recommend that the Defendant's amended motion to suppress (Doc. 29) be granted in part and denied in part.

         II. BACKGROUND[2]

         On the morning of November 8, 2017, Officer Albrecht received information from a confidential informant about a drug deal involving Monell. The informant relayed that Monell had called, asking whether the informant wanted to buy methamphetamine. Monell had explained that a source from California had spent the night in Omaha and was on the way to Sioux City with five pounds of methamphetamine. Based on this information, officers set up surveillance of Monell's residence in Dakota City, Nebraska.

         Monell called the informant and asked the informant to meet him at Monell's father's house in Sioux City, Iowa, and officers followed Monell there. Around 2:18 p.m., a gray Kia with California license plates arrived at Monell's father's house. The driver of the Kia (later identified as Hill) went into the residence for a few minutes. Around the same time, the informant advised officers that Monell had said, “it's on, ” “come over, ” and “[his] California guy was here and staying at a hotel waiting for money.” Around 2:25 p.m., Monell and Hill exited the house. Monell left in his vehicle, and Hill went back into the house. Some officers remained at Monell's father's house, while others followed Monell.

         Officers arrested Monell for traffic violations and took him into custody. Monell told officers that he had previously purchased 1¼ pounds of methamphetamine from Hill (who he referred to as Will) and that Hill had come to town to deliver five pounds of methamphetamine. Monell also said “his guys” and “they” were coming with methamphetamine, implying that more people were involved than just Hill.[3] Monell said that he had not yet seen the drugs, but he believed they were in Hill's car parked at his father's residence. While officers (including Officer Davis) interviewed Monell, Officer Albrecht prepared a search warrant application for the gray Kia that Hill had driven to Monell's father's house and that was still parked there. During this time, Officer Albrecht heard Monell's phone ring several times, and she also saw text messages appear on the phone's lock screen from a contact named “Kelsey Monell, ” informing Monell that his “packages” had arrived and asking when he would return. Officer Albrecht obtained a search warrant for the gray Kia driven by Hill, which was eventually searched at the police station because it was starting to get dark, but officers did not find a “large amount” of methamphetamine.

         At some point while Officer Albrecht was appearing before a judge to obtain a search warrant for the gray Kia, Hill exited Monell's father's house, which was still under surveillance, and he was arrested. Officers recovered two cell phones: an iPhone on Hill's person and a flip phone that he had thrown under his vehicle when he saw officers approaching. A few hours after officers had obtained the phones, Agent Hunt observed text messages from a California area code popping up on the iPhone's lock screen, which read, “Where you at, cuzo?”; asked why Hill was not ...


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