United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER ON REPORT AND
Leonard T. Strand, Chief Judge
matter is before me on a Report and Recommendation (R&R)
(Doc. No. 40) in which the Honorable Kelly K.E. Mahoney,
Chief United States Magistrate Judge, recommends that I deny
defendant's motion (Doc. No. 28) to suppress based on a
July 19, 2017, traffic stop and grant in part and deny in
part defendant's motion (Doc. No. 26) relating to his
March 1, 2018, arrest. She recommends that I grant that
motion (Doc. No. 26) only to the extent that the Government
has conceded some evidence should be suppressed. Defendant
Raul Flores Marin (Marin) filed timely objections (Doc. No.
51) on August 27, 2018, and the Government filed a resistance
(Doc. No. 52) on September 2, 2018.
February 21, 2018, the grand jury returned an indictment
(Doc. No. 2) charging Marin with one count of possession with
intent to distribute a controlled substance in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and one
count of possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c). On
April 27, 2018, Marin filed a motion (Doc. No. 26) to
suppress statements made in violation of Miranda v.
Arizona, 384 U.S. 436 (1966) and a motion (Doc. No. 28)
to suppress evidence obtained as a result of a traffic stop
on July 19, 2017. The Government filed a resistance (Doc. No.
30) to both motions on May 3, 2018. Judge Mahoney held a
hearing on May 30, 2018. At the hearing, the Government
presented testimony from three law enforcement officers. Doc.
No. 36. Judge Mahoney admitted 16 Government exhibits,
including video footage of the July 19, 2017, traffic stop.
She also admitted one defense exhibit. Id. Following
the hearing, the parties submitted supplemental briefing
regarding the seizure of evidence from Marin's vehicle
after his arrest on March 1, 2018. Doc. Nos. 38, 39.
Mahoney issued her R&R (Doc. No. 40) on July 26, 2018.
Marin filed his objections (Doc. No. 51) on August 27, 2018.
Trial is scheduled to begin November 5, 2018. See
Doc. No. 44.
Mahoney summarized the following relevant facts in her
R&R based on the exhibits and testimony presented during
the suppression hearing:
July 19, 2017
Sometime after 2:40 a.m. on July 19, 2017, the Osceola
County, Iowa Sheriff's Office received an emergency call
from Jerry Sievert.Sievert reported a suspicious vehicle, a
pickup truck with Minnesota plates, parked in the middle of
his yard. He said that he did not know who it was and that
nobody had gotten out of the vehicle yet, but they were
backing up further onto his property. Ex. 1A. Dispatch sent
Deputy Edwards to investigate. Dispatch first provided the
incorrect address, a location in the small town of Sibley,
Iowa, within minutes of the Sheriff's Office, and Deputy
Edwards arrived at the incorrect address around 2:48 a.m.
When Deputy Edwards learned that the reporting party was
Sievert, he knew the location of the residence (approximately
six to seven miles away), as he had been to Sievert's
residence in rural Osceola County a few weeks before to
investigate another report of a suspicious vehicle. Deputy
Edwards also knew that around a month ago, Sievert had
reported a burglary of firearms and ammunition from his
residence during the daytime.
Deputy Edwards headed to Sievert's residence. He could
have taken one of two roads to get to Sievert's residence
from town, and he chose to take Nettle Avenue, a gravel road
that, like all gravel roads that I am aware of, did not have
marked lanes. At 2:53 a.m., when he was still about two miles
away from Sievert's residence, Deputy Edwards encountered
a Ford F-150 truck traveling northbound on Nettle Avenue
(away from the location of the Sievert residence) as he drove
southbound (toward the Sievert residence). It was the first
vehicle Deputy Edwards had encountered since leaving the
Sheriff's Office. As the truck passed, Deputy Edwards
slowed and noted it had Minnesota plates. Because the vehicle
matched the description of the one Sievert had reported,
Deputy Edwards turned around to follow the truck. Deputy
Edwards testified that shortly after he began following the
truck, it veered onto the left-hand side of the gravel road,
almost into the ditch (the dash-camera video is too far away
and dark to clearly capture whether the truck was in any
danger of leaving the road, although the truck does appear to
be traveling on the left-hand side of the road (Ex. 9,
2:53:45-2:54:13)). When Deputy Edwards caught up to the truck
(about a mile away from when he first saw the truck), he
initiated a traffic stop using his flashing lights. He
radioed dispatch Marin's license plate number to run a
Deputy Edwards approached the truck and asked the driver,
later identified as Marin, what he was up to. Ex. 9, 2:54:48.
Marin responded that he was looking for his friend Clint who
had sold him a trailer, and he needed the title (although
Deputy Edwards misunderstood and believed Marin had been
looking for the trailer itself). Deputy Edwards requested
Marin's driver's license, registration, and insurance
and asked Marin to accompany him to his squad car. As Marin
was walking to the car, Deputy Edwards asked if Marin had any
knives or guns on his person, and Marin responded (jokingly)
something to the effect of “not unless you give me
yours.” Ex. 9, 2:57:59. Deputy Edwards asked again if
Marin had any weapons, and Marin responded in the negative.
Deputy Edwards requested to pat Marin down, and after he had
patted both of Marin's pockets and was checking lower on
his person, Marin told him that he had a Swiss army knife in
his pocket (which Deputy Edwards confiscated along with a
Once they were in the squad car, Marin asked what Deputy
Edwards was doing on Nettle Avenue, as there were not usually
law enforcement officers around. Ex. 9, 2:59:40. Deputy
Edwards told Marin that he had been called in as a suspicious
vehicle when he had been looking for the trailer at the house
“back there.” Ex. 9, 3:00:04. Marin clarified
that he had been looking for the title to the trailer, not
the trailer itself. Deputy Edwards responded that either way,
Marin had been on Sievert's property when he was not
supposed to be, and Sievert had called the Sheriff's
Office and given a description of Marin's vehicle.
Around this time, dispatch informed Deputy Edwards that the
burglary alarm at a local gas station had been triggered.
Because Deputy Edwards was otherwise occupied with Marin and
the only officer on duty, he told dispatch to call Deputy
Julius to respond to the alarm. Deputy Edwards testified that
he recommended dispatch contact Deputy Julius because he is a
certified Drug Recognition Expert (DRE), and Deputy Edwards
believed Marin may have been impaired based on his
observations of Marin and his excited and fast speech. Deputy
Edwards asked Marin about past and current drug use, and
Marin admitted to using marijuana once many years ago, but he
denied any other drug use. Deputy Edwards then obtained
Marin's consent to take his pulse. Marin indicated he
suffered from high blood pressure, so Deputy Edwards asked
Marin his typical heart rate. Marin said that three years
ago, it had been 180 to 190 beats per minute, but he now took
medication. Deputy Edwards informed Marin that he had
measured his pulse at 120 to 125 beats per minute, and Marin
said it was usually higher, around 140 to 145 beats per
Deputy Edwards told Marin that he had seen him “going
off to the left side of the road” earlier. Ex. 9,
3:09:20. Marin explained that he had been “scared of
the cop.” Deputy Edwards asked if Marin had thrown
something out of the front driver-side window and into the
left-side ditch. Marin said no and that the first thing he
did when he noticed the squad car following him was to check
his speed. Deputy Edwards radioed Deputy Julius for
assistance and told Marin that because his pulse was high, he
had called a drug recognition expert to the scene to ensure
Marin was not intoxicated. While Deputy Edwards waited for
Deputy Julius to arrive, he moved Marin to the back of the
squad car to wait and talked further with Marin about Sievert
and the trailer. Marin indicated he was unsure why Sievert
had reported him as a suspicious vehicle because he had been
to the residence several times before. At some point, Deputy
Edwards shut his vehicle off because he was low on gas and
worried about running out (although he ensured that the
dashboard camera was still recording).
When Deputy Julius arrived (about twenty minutes after Deputy
Edwards had radioed him and thirty-five minutes after the
initial stop), one of the first things he asked Marin was
whether he had anything illegal in his vehicle. Marin said he
had a loaded handgun in the backseat under an article of
clothing. Deputy Julius found the firearm where Marin had
said it would be (at the same time, Deputy Edwards checked
under the passenger seat for firearms and recovered nothing).
Deputy Julius checked the serial number of the firearm to see
if it was stolen (it was not). Deputy Edwards asked Marin
whether he had a permit to carry the firearm, and he did not.
Deputy Edwards placed Marin under arrest and took him to
Deputy Julius stayed at the scene with Marin's vehicle
and waited for a tow truck. Deputy Julius began the inventory
process and found methamphetamine, a large amount of cash
($1, 240), and cell phones. The tow truck arrived and took
Marin's vehicle to a secure garage, where Deputy Julius
completed the inventory. See Ex. 6, Doc. 33-4.
B. March 1, 2018
Agent Elsing stopped Marin while he was driving on March 1,
2018, and arrested him pursuant to a warrant. He seized
phones and other evidence from Marin's vehicle after his
arrest. Prior to reading his Miranda rights, Agent
Elsing asked Marin whether he had any drugs at his house.
Marin said that he had a methamphetamine pipe in his barn.
Based on this statement, Agent Elsing obtained a search
warrant for Marin's barn and residence. ...