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United States v. Warren

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

January 15, 2019



          C.J. Williams United States District Judge.


         This 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. 26).[1] 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 to Suppress.


         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)(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 novo.


         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 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 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 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.

         The 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.[3]

         When 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, [4] and the car's headlights shone into Officer Haas's eyes, he could not see who was in the car.[5]

         Officer 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.[6] Officer Haas's recording starts while he is asking the driver for identification. (Exhibit 1, at 8:51:00 (Mic. 1)).

         The 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. 1)).

         Defendant 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.

         Officer 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.”[7] (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.[8] (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.

         Officer 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).

         Defendant 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.

         Officer 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).

         All of 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 sirens.

         A grand 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.

         IV. ANALYSIS

         In the 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).

         Defendant 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 Fourth ...

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