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United States v. Warren

United States District Court, N.D. Iowa, Cedar Rapids Division

October 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DEANDRE WARREN, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

          MARK A. ROBERTS UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         The matter now before me is Defendant's Motion to Suppress Evidence. (Doc. 10.) On August, 22, 2018, the Grand Jury charged Defendant with Possession with Intent to Distribute a Controlled Substance Within 1000 Feet of a School. (Doc. 2.) The charge arose from an incident that occurred behind a private residence on August 4, 2018. At the time of the incident, Defendant was a passenger in a car parked in a driveway off an alley in Cedar Rapids, Iowa.

         The Honorable Charles J. Williams, United States District Court Judge, referred this motion to me for a Report and Recommendation. On October 12, 2018, I held an evidentiary hearing on Defendant's motion. The Government called the following witnesses:

• Cedar Rapids, Iowa Police Officer Alexander Haas
• Cedar Rapids, Iowa Police Officer Ryan Harrelson
• Cedar Rapids, Iowa Police Officer Amy Schuman
• Cedar Rapids, Iowa Police Officer Benjamin Otis Defendant called the following witness:
• Investigator Tina M. Debban

         For the following reasons, I respectfully recommend that the Court deny Defendant's Motion to Suppress.

         II. FINDINGS OF FACT

         At approximately 8:40 p.m. on August 4, 2018, Cedar Rapids Police Officers Alexander Haas and Ryan Harrelson responded to an anonymous complaint about noise from inside the house located at 1032 9th Street S.E., Cedar Rapids (“the residence”). The officers parked on 9th Street in front of the residence. When the officers arrived, all was quiet. Both officers were in uniform and wore utility belts that held, among other things, their firearms. Neither Haas nor Harrelson wore a body camera, although there were three cameras in their squad car that could pick up three different views of scenes, and microphones that picked up each officer's conversation. The microphones turn on automatically when the lights on top of the squad car are activated and they could be manually turned on at any time by the officers. The lights on top of the squad car were never turned on during the events described below.

         The officers testified that noise complaints are common and it is not unusual for the noise to have ceased by the time officers arrive. When that happens, Hass's and Harrelson's usual procedure is to walk around the immediate area to look for the source of the noise. On this occasion, Officer Harrelson knocked on the front door of the residence to speak to the occupants, while Officer Haas went to the back of the residence to see if he could find the source of the noise.[1]

         When Haas entered the back yard, he saw a car parked in the driveway of the residence, and thought that the car might have been the source of the noise or that it might have been either arriving at, or leaving from, a party there. The car was parked off the traveled portion of the alley, facing toward the residence and could not be driven away without backing up. Because it was dark, [2] and the car's headlights shone into Haas's eyes, he could not see who was in the car. Haas did see both of the driver's hands hanging out of the driver's side window. Haas thought this behavior was suspicious because there was no reason for the driver to have his hands in that position. Haas testified that the driver said he “did not have any weapons on his person, ” which made Haas think it was possible there were weapons inside the car. Haas told the driver of the car that he was there because of a noise complaint, and asked the people in the car what they were doing there. Haas did not have his microphone turned on at this point, so this exchange was not recorded. Haas turned on his microphone 20-30 seconds after he first encountered the occupants of the car. Haas's recording starts while he is asking the driver for identification. (Gov. Ex. 1 at 8:51:00 (Mic. 1).)

         The person behind the wheel, Cedric Jenkins, told Haas that he and his passengers had just arrived at the residence to pick up another person. Haas asked Jenkins to identify himself, and Jenkins stated that he had no driver's license or valid I.D. Haas asked Jenkins how he arrived at the residence, and Jenkins admitted that he had driven there. Haas then asked Jenkins to step out of the car so he could continue to verify Jenkins's identification. Haas testified that at that point, he was treating his questioning of Jenkins as a “traffic stop” and an investigation into whether Jenkins had illegally driven a car that night. Haas dealt almost exclusively with Jenkins from this point on. Fifty-three minutes into the encounter, Haas was still trying to verify Jenkins's identification. (Id. at 9:43:50 (Mic. 1).)

         Defendant Deandre Warren was in the front passenger seat and two women were in the back seat of the car. When Haas told Jenkins to get out of the car, Defendant also tried to exit the car. Haas said, “Sir, can you just stay in there for me, please?” and Defendant complied. (Id. at 8:51:21 (Mic. 1).) At this point, Haas put out a call on his radio to all available officers and the dispatcher informing them he was in back of the residence with four subjects. Approximately 40 to 50 seconds passed between when Haas first encountered the car and when he told Defendant to stay in the car.

         When Harrelson heard Haas's call, he walked to the back of the residence to offer assistance. Harrelson then explained to the passengers in the car that he and Haas were responding to a noise complaint. Harrelson stood by the rear passenger-side door of the car because that position gave him a good view of the whole car. When Harrelson arrived, he noticed a “faint odor of marijuana emanating from the vehicle.” People in the car started smoking cigarettes, which, based on his training and experience, Harrelson believed was done to mask the odor of marijuana.[3] Harrelson began identifying the passengers. Officer Benjamin Otis arrived at the scene less than two minutes after Harrelson and began speaking to Defendant.[4] (Id. at 8:52:19-8:54:05 (Mic.1).) Otis stood by Defendant's door and spoke to him through the open window.

         Otis did not smell marijuana, but did smell cigarette smoke, which he also believed was a way people try to mask the odor of marijuana. Otis found Defendant to be cooperative, but nervous. Otis allowed Defendant to reach into the glove compartment for a cigarette. However, when Defendant appeared to reach under his left leg, Otis shined his flashlight on Defendant's hands, and Defendant stopped this motion. Otis then shined his flashlight down the inside of the front passenger door, and saw a bag of marijuana sticking out from under the passenger seat. Defendant was then removed from the car approximately seven-and-half minutes after Haas told him to stay in the car. (Id. at 8:58:48 (Mic. 2).) The area around where Defendant had been sitting was searched. The officers confirmed that the bag under the seat contained marijuana. Officers also found another bag of marijuana and a small bag of a brown substance that proved to be heroin. (Def. Ex. C at 2.)

         Defendant was handcuffed with his hands behind his back, and placed in the back of Haas's and Harrelson's squad car, which had been moved to the alley. When Defendant complained he was claustrophobic and hot, he was allowed some freedom of ...


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