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United States v. Carter

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

May 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIE JUNIOR CARTER, Defendant.

          REPORT AND RECOMMENDATION

          C.J. Williams, Chief United States Magistrate Judge

         I. INTRODUCTION

         This matter is before me pursuant to Willie Junior Carter's (“defendant”) motion to suppress evidence allegedly obtained in violation of the Fourth Amendment to the United States Constitution. (Doc. 292). The grand jury charged defendant in two counts of a fourteen-count Superseding Indictment. (Doc. 170). Count One (1) charges defendant with Conspiracy to Distribute Cocaine and Cocaine Base in violation of Title 21, United States Code, Section 846. (Id.). Count Thirteen (13) charges defendant with Possession with Intent to Distribute Cocaine Base in violation of Title 21, United States Code, Section 841(a)(1). (Id.). Defendant seeks to suppress evidence stemming from a January 12, 2017, traffic stop of defendant in Waterloo, Iowa, arguing that the officer lacked reasonable suspicion to initiate the traffic stop. (Doc. 292, at 3).

         The Honorable Linda R. Reade, United States District Court Judge, referred this motion to me for a Report and Recommendation. On May 21, 2018, I held an evidentiary hearing on defendant's motion at which Waterloo Police Officers Albert Bovy and Michael Girsch, and Cedar Rapids Police Officer Brian Furman testified. I admitted into evidence government exhibits that included videos of Waterloo police camera footage of the traffic stop (Exhibits 1 & 2), a CD containing audio recording clips of intercepted phone calls, transcripts of those calls and SMS text messages intercepts, and letters from cellphone provider Sprint identifying the subscriber information for the telephone numbers identified in the intercepted phone calls.

         For the following reasons, I respectfully recommend the Court deny defendant's motion to suppress.

         II. FINDINGS OF FACT

         From October 2016 through January 2017, a task force of counter-narcotic agents conducted wiretap surveillance of William Campbell, a known distributor of crack cocaine in Waterloo, and a co-conspirator in this case. Between approximately the fall of 2016 through January 2017, the agents intercepted a series of text messages and phone calls between two cellphone numbers, one belonging to Campbell and the other to defendant. The series of intercepted messages and calls culminated in a call on January 12, 2017, at 1:02 PM, that led agents to believe that defendant would be obtaining drugs from Campbell later that day. Task Force Officer Furman testified that he identified the male voice on the January 12, 2017 intercepted call as defendant's because defendant was a “daily caller, ” with Campbell and because Officer Furman also recognized the incoming phone number as one previously identified as belonging to defendant's cellphone through records checks. (Exhibit 150, page 7). Officer Furman was unaware of anyone other than defendant using that phone number previously. The call on January 12, 2017, at 1:02 PM involved a discussion between Campbell and defendant about the number of phone calls defendant had received and the number of calls he anticipated receiving that day, a discussion about money, and a plan for defendant to go to Campbell's residence. (Exhibit 411 & 411A).

         Based on his interpretation of the conversation, Officer Furman informed Officer Girsch, a member of the counter-narcotics task force, that it was likely that defendant would be going to Campbell's house to engage in a drug transaction. Officer Girsch ordered other officers to surveil Campbell's house, and at approximately 1:55 P.M., a surveillance officer saw a gold Monte Carlo coupe arrive at Campbell's house. Officer Girsch testified that the same officer that saw the Monte Carlo arrive saw a male matching defendant's description exit the car and enter the residence. Approximately twenty minutes later, the same male exited the house, got into the Monte Carlo, and drove to a residence on Columbia Street. That officer, however, was unable to positively identify the male as the defendant. Officer Girsch testified that he believed that defendant had a family connection to the residence on Columbia Street.

         At approximately 2:25 P.M, roughly ten minutes after arriving at the address on Columbia Street, the same male left the house and got into the gold Monte Carlo and drove toward West Parker Street. When the male left the house on Columbia Street and got into the Monte Carlo, Officer Girsch was able to positively identify the male as defendant. Officer Girsch testified his positive identification was possible because Officer Girsch had previously arrested defendant, and had frequently observed defendant and the gold Monte Carlo at the Campbell residence after intercepted drug-related calls. Officer Girsch was aware that defendant did not possess a valid driver's license.

         Officer Girsch contacted Officer Bovy, who was on patrol duty, and informed Officer Bovy that defendant was driving without a license and that Officer Bovy was to conduct a traffic stop of defendant if possible. Officer Girsch testified that he did not recall telling Officer Bovy of a drug-related rationale for stopping defendant, only that defendant did not have a valid driver's license. Officer Bovy testified that he confirmed that defendant was, in fact, barred from driving by checking defendant's information on Officer Bovy's in-car computer. Officer Bovy also testified he looked at defendant's arrest picture on the in-car computer. Officer Bovy did not recall any prior interactions with defendant.

         Shortly after receiving the order from Officer Girsch to stop defendant, Officer Bovy observed a gold Monte Carlo matching Officer Girsch's description in the vicinity of the intersection of Newton Street and Ashland Avenue. Defendant was driving south on Ashland Avenue while Officer Bovy was approaching the intersection driving west on Newton Street. Officer Bovy observed the driver of the Monte Carlo attempt to come to a stop at the Newton Street and Ashland Avenue intersection. It was an uncontrolled intersection, meaning that there were no stop signs on either street. Officer Bovy arrived at the intersection prior to defendant, and thus defendant should have yielded to Officer Bovy's vehicle. Officer Bovy testified that the Monte Carlo was traveling too fast for the icy and snow-covered road conditions, preventing the vehicle from coming to a stop. Officer Bovy testified that he observed the car's wheels lock up as the car slid through the intersection. Officer Bovy testified that had he not slowed down, defendant would have collided with Officer Bovy because defendant was driving too fast. Officer Bovy testified that based on his experience defendant's speed combined with the icy road conditions would have prevented defendant from stopping in time to avoid a collision. As the Monte Carlo slid through the intersection, Officer Bovy visually identified the driver as defendant, based on Officer Bovy having viewed the arrest photograph immediately prior on his in-car computer.

         Officer Bovy turned onto Ashland Avenue behind defendant and activated the top lights of his marked patrol car. After Officer Bovy activated the top lights on his patrol car, defendant did not immediately pull to the side of the road, but proceeded approximately one-half of a block to Kern Street. While attempting to stop at the stop sign on Kern Street, defendant slid past the sign before coming to a complete stop. Defendant then made a right turn onto Kern Street and stopped approximately three-quarters of a block away from the intersection.

         Officer Bovy got out of his patrol car, approached the gold Monte Carlo, and when at the driver's window asked, “Aren't you Willie Carter?” Defendant responded, “Yes I am, Sir.” (Exhibit 2). Defendant also acknowledged to Officer Bovy that defendant did not have a license. (Id.).

         Officer Bovy testified that he directed defendant to turn off the car and hand over his car keys because Officer Bovy believed that defendant might attempt to drive off. Officer Bovy testified that defendant was sweating profusely despite the cold temperatures, and that defendant was acting nervous. Officer Bovy testified he requested back-up because he believed that defendant might flee based on the circumstances. After another officer arrived, Officer Bovy instructed defendant to get out of his car. Officer Bovy believed he saw defendant put something between the seats and asked defendant about it, but defendant denied putting anything between the seats. The officers then attempted to handcuff defendant. Defendant spun free and ran from the officers, but was tackled when he slipped in the snow a few houses down the street, at ...


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