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United States v. McKenzie

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

December 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TIMOTHY MCKENZIE, 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. 22.) On October 2, 2018, the grand jury charged Defendant with Possession of a Firearm by a Felon. (Doc. 2-1.) The charge arose from an incident that occurred on a public street in front of Defendant's residence on the evening of July 22, 2018 when Dubuque Police Officer Kim Hoover pat searched Defendant and found a gun on his person.

         The Honorable Charles J. Williams, United States District Court Judge, referred this motion to me for a Report and Recommendation. On November 29, 2018, I held an evidentiary hearing on Defendant's motion. The Government called the following witnesses:

• Officer Kim Hoover, Dubuque Police Department
• Officer Brandon Gudenkauf, Dubuque Police Department
• Officer Dylan Doerges, Dubuque Police Department
• Officer Nicholas Schlosser, Dubuque Police Department

         Defendant called no witnesses. The Parties were permitted until December 7, 2018 to file supplemental briefs or authorities in support of their positions. I have reviewed the Government's Supplemental Brief. (Doc. 30.) For the following reasons, I respectfully recommend that the Court grant Defendant's Motion to Suppress.

         II. FINDINGS OF FACT

         On the evening of July 22, 2018, the Dubuque Police Department (“DPD”) received a call about a black male subject with a gun, approximately 17 years old, and wearing a black shirt on Jackson Street in Dubuque. Dubuque Police Officer Nick Schlosser testified at the hearing, although he did not personally respond to the call. Officer Schlosser is part of the ATF task force. Officer Schlosser referred to the incident as a “disturbance” and stated that a gun had been “displayed.” But the evidence regarding what incident the DPD was called to deal with or the crime it may have been investigating is very scanty.

         As far as I can determine, officers were dispatched to the neighborhood because someone saw a gun approximately one block from where the incidents described below took place. There was no evidence that anyone brandished or discharged any weapon. There was no evidence regarding the size or the type the gun. There was no evidence regarding the identity, much less the reliability, of the person reporting the incident. In fact, there was no evidence about what crime either the person reporting the gun or the DPD thought might be afoot. Beyond the allegation that someone was seen with a gun, there was no evidence that anyone was suspected of violating any local, state, or federal law regarding possessing, carrying, or using a firearm.

         Officer Kim Hoover's Testimony.

         Officer Kim Hoover has been an officer with the DPD for three and a half years. She is a 2015 graduate of the Iowa Law Enforcement Academy and has an Associate's Degree from Black Hawk College. She has completed field training and is now assigned as a patrol officer. She was dispatched to the call at issue in this case at 8:03 p.m. on July 22, 2018. It was still light out. Officer Hoover had prior experience responding to calls involving firearms. In her experience, descriptions of suspects are not always accurate because people reporting the incidents “get rattled.” As a result, she testified that such reports may inaccurately state the color of the suspect's clothes. Furthermore, she has encountered cases where reports may have been accurate when initially made, but the circumstances have changed by the time the officer arrives. She testified that people can change their shirts or hand off guns to other persons. When one gun is reported, she becomes concerned that others on scene could also possess a gun.

         Officer Hoover arrived in the 2100 block of White Street which is about a block from the Jackson Street area where the gun was seen. She considers the neighborhood a high-crime area. There had been a “shots fired” call in the alley one year previously. Officer Hoover testified that fellow DPD Officer Gudenkauf arrived behind or in front of her. When Officer Hoover arrived, she passed by the house where she ultimately encountered Defendant. She asked the police dispatcher for a description again and Officer Gudenkauf told her, “I think it's those guys you just passed.” Officer Hoover turned her patrol car around, parked, and “went out” with the subjects. Officer Hoover saw five to six people in the general area, including two black men wearing black shirts. Officer Gudenkauf approached the porch of 2145 White Street where the group was gathered. Unbeknownst to Officer Hoover, this was Defendant's residence.

         As Officer Hoover started walking to the area where Officer Gudenkauf was confronting the group, she saw Defendant starting to walk behind an SUV in the same general area where Officer Gudenkauf was headed. She directed Defendant to stop and he stopped. She testified she was concerned because “who knows what he has on him and there's an officer going there.” Defendant was wearing a royal blue shirt, royal blue shorts, black shoes, and a blue ball cap. Officer Hoover testified that Defendant appears much older than 17, i.e., the reported age of the suspect. The fact that Defendant was going behind the SUV made her think “something was off.” However, she stated there was nothing suspicious about the route Defendant was taking. It was, coincidentally, outside of the area where she could see him clearly. The mere fact that Defendant was outside of her vision for a period of time and moving toward Officer Gudenkauf made Officer Hoover uncomfortable.

         Officer Hoover immediately made the decision that she should do a pat down and announced to Defendant her intent to do so and told Defendant to put his hands behind his back. As Officer Hoover reached to start the pat down and Defendant put his hands behind his back, Defendant told Officer Hoover that he had a gun. Officer Hoover performed a pat down and removed the gun from Defendant's waistband as a third officer arrived and handcuffed Defendant.

         Officer Hoover testified to her concerns regarding officer safety as follows:

Anytime we go to a gun call there's a possibility there are more than just one gun there. It could be possibly retaliation or gang affiliations. It could be a wide variety of issues. So, we don't want the gun in anybody else's hands. We want to remove that from the scenario.

(Hoover Nov. 29, 2018 Hr'g Test.) Officer Hoover admitted Defendant did not match the description given by the person who reported the gun. Officer Hoover also admitted that Defendant did not make any threatening gestures and had been fully compliant. The sole reason she patted Defendant down was for officer safety. She testified, “We're always going to do a weapons pat down because we got the call about the gun.” She intended to search everybody who matched the description as well as anybody who was in the general area. She intended to pat down anybody she came in contact with in response to such a call, even if they did not match the description, for officer safety. She testified that she considered the nature of the call, the location, and the time of day, and that she would have patted down a twelve-year-old black child or a sixty-year old black man for her safety.

         Officer Hoover testified that she was present for an interview with Defendant after he received Miranda warnings. Defendant first said he used the gun for deer hunting, but later admitted he kept it for protection because he was a former gang member.

         Officer Hoover's Body Camera Video.

         Officer Hoover was wearing a body camera that captured her interaction with Defendant, including the pat down. Government's Exhibit 1 (“Exhibit 1”) contains an approximately two-minute clip. The following are my observations from repeated review of this video, ...


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