United States District Court, N.D. Iowa, Eastern Division
REPORT AND RECOMMENDATION
Williams, Chief United States Magistrate Judge
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).
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.
following reasons, I respectfully recommend the Court
deny defendant's motion to suppress.
FINDINGS OF FACT
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).
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.
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.
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
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.
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.
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.).
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 ...