United States District Court, N.D. Iowa, Cedar Rapids Division
Williams United States District Judge.
case is before the Court pursuant to defendant's
Objections (Doc. 26) to the Report and Recommendation (Doc.
20) of the Honorable Mark A. Roberts, United States
Magistrate Judge, in which Judge Roberts recommends that the
Court deny defendant's motion to suppress evidence. On
September 19, 2018, defendant filed a Motion to Suppress.
(Doc. 10). The government timely filed a resistance. (Doc.
13). On October 12, 2018, Judge Roberts held a hearing on
defendant's motion. On October 31, 2018, Judge Roberts
issued his Report and Recommendation. (Doc. 20). On November
14, 2018, defendant timely filed the Objections. (Doc.
For the following reasons, I overrule defendant's
Objections, adopt in part and modify in part Judge
Roberts' Report and Recommendation, and deny the Motion
STANDARD OF REVIEW
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)(C);
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)(C);
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 and
recommendation when such review is required.
Lothridge, 324 F.3d at 600. Accordingly, I review
the disputed portions of the Report and Recommendation de
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 a house
located at 1032 9th Street S.E., Cedar Rapids (“the
residence”). Officers had previously received
information that there were some subjects with warrants
staying at that residence, and Officer Haas had prior
knowledge of other individuals having used narcotics at 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 officer wore body cameras, 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 can be manually turned on at any time
by the officers. The officers never activated the lights,
however, during the events described below.
officers testified that noise complaints are common, and it
is not unusual for noises to cease by the time officers
arrive. When that happens, the officers' 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.
Officer Haas entered the back yard alone, he saw a car parked
in the driveway of the residence. Officer Haas thought the
car might have been the source of the noise or might have
been either arriving at, or leaving from, a party at the
residence. 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,  and the car's
headlights shone into Officer Haas's eyes, he could not
see who was in the car.
Haas approached the driver's side of the car and told the
driver that officers were there because of a noise complaint.
Officer Haas asked the people in the car what they were doing
there. Officer Haas did not have his microphone turned on at
this point, and this initial exchange was not recorded. Haas
turned on his microphone 20-30 seconds after he first
encountered the occupants of the car. Officer Haas testified
that he “just did not think” of turning on his
microphone at first. Officer Haas's recording starts while
he is asking the driver for identification. (Exhibit 1, at
8:51:00 (Mic. 1)).
driver, Cedric Jenkins, told Officer Haas that he and his
passengers had just arrived at the residence to pick up
another person. Officer Haas asked the driver to identify
himself, and the driver immediately replied that he had no
driver's license or valid identification. Officer Haas
asked the driver how he arrived at the residence, and the
driver admitted that he had driven there. Officer Haas then
asked the driver to step out of the car so he could continue
to verify the driver's identification. Officer Haas
testified that, at that point, he was treating his
questioning of the driver as a “traffic stop” and
was investigating whether the driver had illegally driven a
car that night. Officer Haas dealt almost exclusively with
the driver from this point on. Fifty-three minutes into the
encounter, Officer Haas was still trying to verify the
driver's identification. (Id., at 9:43:50 (Mic.
Deandre Warren was in the front passenger seat and two women
were in the back seat of the car. When Officer Haas told the
driver to get out of the car, defendant also started to get
out of the car. Officer Haas said, “Sir, can you just
stay in there for me, please?” and defendant complied.
(Id., at 8:51:21 (Mic. 1)). Officer Haas then
thanked defendant. Approximately 40 to 50 seconds passed
between when Officer Haas first encountered the car and when
he asked defendant to stay in the car.
Haas informed the dispatcher that he was in the back of the
residence with four subjects and requested officers to assist
him. When Officer Harrelson heard Officer Haas's call, he
walked to the back of the residence to assist. Officer
Harrelson stood by the rear passenger-side door of the car
because that position gave him a good view of the whole car.
When Officer Harrelson arrived, he noticed a “faint
odor of marijuana emanating from the
vehicle.” (Doc. 24, at 49). Officer Harrelson then
explained to the passengers in the car that he and Officer
Haas were responding to a noise complaint. People in the car
started smoking cigarettes, which, based on his training and
experience, Officer Harrelson believed was done to mask the
odor of marijuana. Officer Harrelson began identifying the
passengers. Officer Benjamin Otis arrived at the scene less
than two minutes after Officer Harrelson and began speaking
to defendant. (Id., at 8:52:19-8:54:05
(Mic.1)). Officer Otis stood by defendant's door and
spoke to him through the open window.
Otis did not smell marijuana, but did smell cigarette smoke.
Officer Otis testified that in his training and experience he
also believed people sometimes try to mask the odor of
marijuana by smoking cigarettes. Officer Otis found defendant
to be cooperative, but nervous. Officer Otis allowed
defendant to reach into the glove compartment for a
cigarette. However, when defendant appeared to reach under
his left leg, Officer Otis shined his flashlight on
defendant's hands, and defendant stopped this motion.
Officer 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
Officer 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 later proved to be heroin. (Doc. 17-2, at 2).
was handcuffed with his hands behind his back and placed in
the back of Officers Haas 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
movement, including sitting with the door open and his legs
outside, or standing.
Amy Schuman, who had also responded to Officer Haas' call
for assistance, saw defendant lean against the squad car and,
with his hands in his hip area, make a “strange shaking
motion.” Then she saw a baggie containing smaller
baggies that held a green leafy substance and a tan powdery
substance fall to the ground. The substances tested positive
for marijuana and heroin. Officer Schuman believes that
defendant dropped these bags because she had previously
checked the area for weapons and had not seen the baggies.
After defendant's odd shaking behavior, the drugs were on
the ground at his feet. Officer Otis also saw defendant drop
the drugs on the ground and heard them land. Officer
Otis' report stated that defendant “reached down
inside his boxer shorts and pulled out the bag and dropped it
on the ground.” (Doc. 24, at 111).
the officers testified, and the recordings of the encounter
corroborate, that the entire encounter was relatively
non-confrontational and low key. All passengers were
cooperative, and none of the officers displayed their
firearms or employed their cars' flashing lights or
jury indicted defendant, charging him with Possession with
Intent to Distribute a Controlled Substance Within 1000 Feet
of a School in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(c), and 860. Defendant seeks to exclude evidence
resulting from the August 4, 2018 search, which he contends
violated his Fourth Amendment right to protection against
unreasonable searches and seizures.
Motion to Suppress, defendant argues that the officers lacked
reasonable suspicion to detain him and that the controlled
substances must, therefore, be suppressed as the fruit of an
unlawful seizure. (Doc. 10-1, at 3-5). Defendant argues that
Officer Haas seized him, in violation of the Fourth
Amendment, when Officer Haas asked defendant not to get out
of the car. Judge Roberts found that the encounter with
defendant was part of a traffic stop, that Officer Haas had
reasonable suspicion that the driver had committed a traffic
offense, and that Officer Haas was justified in seizing
defendant, as a passenger of the car, while Officer Haas
investigated a possible traffic violation. (Doc. 20, at
8-13). Judge Roberts additionally found that Officer Otis saw
marijuana in plain view at defendant's feet inside the
car and therefore lawfully seized the marijuana and arrested
defendant. (Id., at 13-14).
argues that Judge Roberts erred in concluding that the
officers' interaction with defendant was part of a
traffic stop. (Doc. 26-1, at 2-3). Defendant argues that
Officer Haas' request that defendant remain in the car
was a command that constituted a seizure. (Id.).
Defendant argues that Officer Haas did not have a reasonable,
articulable basis to believe that defendant was involved in
criminal activity and therefore violated defendant's