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United States v. Ross

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

April 23, 2018

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

          ORDER ON REPORT AND RECOMMENDATION

          Leonard T. Strand, Chief Judge

         This matter is before me on a Report and Recommendation (R&R) (Doc. No. 40) in which the Honorable Kelly K.E. Mahoney, United States Magistrate Judge, recommends that I grant in part and deny in part defendant's amended motion (Doc. No. 29) to suppress.[1] Defendant Kelvin Ross has filed objections (Doc. No. 51) and the Government has filed a response (Doc. No. 53).

         I. BACKGROUND

         A. Procedural History

         On November 30, 2017, the grand jury returned an indictment (Doc. No. 4) charging Ross with one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 851, and 846 and one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 851. Co-defendant William Hill was charged with the same two counts and co-defendant Shane Monell was charged with the conspiracy count only. Ross filed a motion (Doc. No. 22) to suppress on January 16, 2018. The Government filed a resistance (Doc. No. 25) on January 30, 2018. Ross then filed an amended motion (Doc. No. 29) to suppress and response (Doc. No. 30) to the Government's resistance on March 1, 2018. Judge Mahoney held a hearing on March 13, 2018. The following exhibits were admitted into evidence:

• Government Exhibit 1 - a copy of the registration card for the Town and Country Motel
• Government Exhibit 2 - a copy of the state search warrant for Ross' vehicle and room 33 at the Town and Country Motel
• Government Exhibit 3 - a photo outside room 33 at the Town and Country Motel
• Government Exhibit 4 - a photo of the general layout of the Town and Country Motel

See Doc. No. 31. The Government also presented testimony from the following witnesses: Heather Albrecht, Brian Hunt, John Howard, Brenton Heald, Eric Davis and Paul Yaneff. The parties presented their final arguments on March 26, 2018. See Doc. No. 35.

         Judge Mahoney issued her R&R (Doc. No. 40) on April 11, 2018. Ross filed his objections on April 17, 2018, and the Government filed its response on April 19, 2018. Trial is scheduled to begin May 7, 2018.

         B. Relevant Facts

         Judge Mahoney summarized the following relevant facts in her R&R based on the affidavit submitted with the search warrant (Doc. No. 25-2 at 5-7) and testimony presented during the suppression hearing:

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.[2] 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 answering his phone; directed Hill to find “us” another hotel; and stated that if Hill did not respond, “we” are hitting the road.[3]
Officer Albrecht searched the phone number sending text messages to Hill's phone on Facebook and discovered that the phone number was linked to Ross' Facebook account (which included a picture of Ross). Officers (including Officer Howard) began searching hotels in the area for vehicles with California license plates and running the license plates in the system to see if any belonged to Ross. Officer Howard found a rental vehicle with California plates, a minivan at a Holiday Inn, but Ross was not registered at the hotel, and officers moved on. Around 8:00 p.m., officers eventually discovered a dark blue Kia with California plates registered to Ross parked at the Town and Country Motel, which was located “within a mile” of Monell's father's house. The vehicle registration listed an address for Ross in Palm Springs, California. Although Ross was not registered at the motel, motel employees informed officers that a woman named Karina Watts from Carson, California, had rented room 33 and listed a Kia with California plates on her motel registration card. Doc. 25-1; Doc. 32 at 17. The license plate number of the Kia registered to room 33, however, differed from Ross' vehicle and the vehicle driven by Hill. Doc. 25-1; Doc. 25-2 at 6; Doc. 32 at 17, 19. Ross' vehicle was parked directly in front of room 33, and no other vehicles were parked nearby. Officers conducting surveillance kept eyes on the vehicle registered to Ross from the time it was discovered until it was eventually searched, and it remained parked in front of room 33 the entire time. Officer Howard assisted in surveillance of the vehicle when it was discovered, and at one point, he observed a person he believed to be Ross walk from near Ross' vehicle to the restaurant parking lot where Officer Howard and his partner were parked. Officer Howard and his partner then left because Ross appeared to be looking at them in concern (and other officers had arrived to continue surveillance).
Officer Albrecht prepared a search warrant, application, and affidavit, seeking to search Ross' vehicle and room at the motel (room 33). The affidavit set forth some of the information about Monell obtained from the confidential informant and the information about Hill gathered during the interview with Monell, as well as the officers' observations while surveilling Monell's father's house. Doc. 25-2 at 6. The affidavit included the text messages officers had observed on Monell's and Hill's phones (and linked the text messages to Hill as being from Ross). Id. The affidavit also described the officers discovering the vehicle registered to Ross at the Town and Country Motel. Doc. 25-2 at 6-7. The only information about room 33 was that “owners indicated that room 33 is rented to [Watts] of Carson, [California, ] and listed [Ross'] vehicle on the hotel” registration card. Id.[4]Finally, the affidavit included belief statements:
From my experience as a police officer, and through conversations with other law enforcement officers, . . . I am . . . aware that drug dealers will use vehicles as safe houses to hide their illegal drugs and to transport illegal drugs from one point to another . . . . I am also aware that drug dealers often use electronic pagers and cellular telephones as tools in illegal drug trafficking. . . . Based on my training and experience I know it is not uncommon for large drug dealers to show up at a buy location without any drugs. I know large drug dealers want to see the money before showing the drugs to the buyer and they will keep the shipment of methamphetamine close for quick retrieval.
Doc. 25-2 at 5, 7. The affidavit did not state that the vehicle Hill drove to Monell's father's residence had been searched earlier in the day. Neither did the affidavit include the text message from Ross asking Hill to find a different hotel for them.
The search warrant and application described the car accurately except for a typo spelling Kia: they described the vehicle as a “2016 Kai 4 door, ” listed the correct vehicle identification number (VIN number), and stated the vehicle was registered to Ross. Doc. 25-2 at 1-4. The affidavit attached to the search warrant application, however, listed the wrong license plate number for the vehicle but otherwise described it accurately as “a dark blue Kia 4 door with California plates . . . registered to [Ross].” Doc. 25-2 at 6.[5] Officer Albrecht testified that she inadvertently used the license plate number of the rental minivan parked at the Holiday Inn because she had multiple license plate numbers written down in her notes.
After officers obtained the search warrant for room 33 and for the Kia registered to Ross, officers first secured the people inside room 33: Ross, Watts, and another woman, Neiya Poellnitz. Ross was lying on the bed when officers entered the room. Later, while the room was being searched and Ross was handcuffed, Officer Davis spoke to Ross, asking him where he was from (California), where they had been traveling to, and what they had been doing. Officer Davis also asked whether a tattoo on Ross' arm that said “KC” stood for Kansas City. Ross ...

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