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United States v. Leick

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

June 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KYLE DANIEL LEICK, Defendant.

          ORDER

          LINDA R. READE JUDGE

         I. INTRODUCTION

         The matter before the court is Defendant Kyle Daniel Leick's Objections (docket no. 36) to United States Chief Magistrate Judge C.J. Williams's Report and Recommendation (docket no. 31), which recommends that the court deny Defendant's “Motion to Suppress” (“Motion”) (docket no. 21).

         II. RELEVANT PROCEDURAL BACKGROUND

         On December 20, 2017, a grand jury returned an Indictment (docket no. 2) charging Defendant with one count of possession of a firearm by a drug user, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). See Indictment at 1. On January 15, 2018, Defendant filed the Motion. On January 22, 2018, the government filed a Resistance (docket no. 23). On February 7, 2018, Judge Williams held a hearing (“Hearing”) on the Motion. See February 7, 2018 Minute Entry (docket no. 29). Defendant appeared in court with his attorney, Cory Goldensoph. Special Assistant United States Attorney Drew O. Inman represented the government. On February 14, 2018, Judge Williams issued the Report and Recommendation, which recommends that the court deny the Motion. On February 28, 2018, Defendant filed the Objections. The matter is fully submitted and ready for decision.

         III. STANDARD OF REVIEW

         When a party files a timely objection to a magistrate judge's report and recommendation, a “judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendation to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b)(3) (“The district judge must consider de novo any objection to the magistrate judge's recommendation.”); United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (noting that a district judge must “undertake[] a de novo review of the disputed portions of a magistrate judge's report and recommendations”). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b)(3) (“The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.”). It is reversible error for a district court to fail to engage in a de novo review of a magistrate judge's report when such review is required. Lothridge, 324 F.3d at 600. Accordingly, the court reviews the disputed portions of the Report and Recommendation de novo.

         IV. RELEVANT FACTUAL BACKGROUND[1]

         On August 22, 2017, A.N., Defendant's girlfriend, reported to the Dubuque Police Department that Defendant had strangled her during a domestic dispute in their apartment. A.N. also reported that Defendant used marijuana daily and cocaine weekly, and was involved in the sale of narcotics. A.N. further reported that Defendant kept an AR-15-style rifle in the apartment. Based on the information that A.N. provided, law enforcement obtained and executed a search warrant for Defendant's apartment on August 22, 2017. During the search of the apartment, law enforcement located a rifle, ammunition, extended magazines, drug paraphernalia, cocaine residue and packaging material consistent with the sale of narcotics.

         On the same day, based on both the evidence uncovered at Defendant's apartment and the information previously supplied by A.N., law enforcement applied to the Iowa District Court for Dubuque County (“Iowa District Court”) for a search warrant (“Warrant”) for a sample of Defendant's urine. The stated purpose of the Warrant was “to determine the presence of controlled substances in [Defendant's] system, while he is currently . . . a drug user in possession of a firearm and ammunition.” Application for Search Warrant (“Application”) (docket no. 28-1) at 2. On August 22, 2017, the Iowa District Court issued the Warrant. On August 30, 2017, law enforcement located and detained Defendant, and executed the Warrant. Defendant's urine tested positive for the presence of narcotics.

         V. ANALYSIS

         In the Motion, Defendant asserts that, because the Warrant was issued on August 22, 2017, it was stale at the time of its execution on August 30, 2017. See Motion at 1. He argues that a drug test administered eight days after his alleged possession of the firearm was unlikely to show evidence of his use of drugs while he was in possession of the firearm. See Brief in Support of Motion (docket no. 21-1) at 4. Defendant asserts that the delayed drug test would show only evidence of drug use occurring after his alleged possession and, therefore, the Warrant was stale. See id. Judge Williams found that the Warrant was not stale because evidence of Defendant's drug use after August 22, 2017 is relevant to show that Defendant regularly uses controlled substances, which is a part of the government's burden of proof. See Report and Recommendation at 3-5. Judge Williams further found that, because the Iowa District Court had evidence that Defendant is a chronic marijuana user, there was probable cause to believe that evidence of his drug use on or around August 22, 2017 would still be in his urine eight days later. See id. at 5. Defendant objects to both of Judge Williams's findings. See Brief in Support of Objections (docket no. 36-1) at 3-6. The court will address each objection in turn.

         A. Legal Standard

         “A delay in executing a search warrant may render stale the probable cause finding.” United States v. Gibson, 123 F.3d 1121, 1124 (8th Cir. 1997). “A warrant becomes stale if the information supporting the warrant is not sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search.” United States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009) (quotation omitted). “‘There is no bright-line test for determining when information in a warrant is stale.' Rather, [the court] look[s] to the circumstances of the case, including the nature of the crime involved.” United States v. Lemon, 590 F.3d 612, 614 (8th Cir. 2010) (quoting United States v. Pruenda, 518 F.3d 597, 604 (8th Cir. 2008)). “Important factors to consider in determining whether ...


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