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United States v. Acosta

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

February 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NICHOLAS RYAN ACOSTA, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

          MARK A. ROBERTS, UNITED STATES MAGISTRATE JUDGE

         TABLE OF CONTENTS

         Page

         I. INTRODUCTION .......................................................................... 3

         II. SUMMARY OF THE EVIDENCE ..................................................... 3

         A. The Stop .............................................................................. 3

         B. Officer Johnson and Duke ........................................................ 7

         C. Duke's Training Records .......................................................... 9

         D. Midwest K-9 and Dogs for Law Enforcement ................................ 12

         E. Hancock County Deputy Sheriff and K-9 Handler Andrew Klein ........ 12

         F. Dog Trainer Jim Stenfeldt ....................................................... 14

         G. Cuing ................................................................................. 17

         III. ANALYSIS ................................................................................. 19

         A. The Parties' Arguments .......................................................... 19

         B. The Warrantless Search of Defendant's Vehicle ............................ 20

         1. The Automobile Exception .............................................. 20

         2. Was There Probable Cause to Search the Vehicle Before the Sniff? ................................................................... 21

         3. Did the Sniff Establish Probable Cause? ............................. 21

         a. Applicable Standards ............................................. 21

         b. Did Duke alert? ................................................... 22

         c. Duke's Certification .............................................. 23

         d. The presumption of reliability based on certification was undetermined .............................................. 26

         i. The absence of standards or policies regarding NPD Dogs .................................................. 27

         ii. The absence of records .................................. 28

         IV. CONCLUSION ........................................................................ 33

         I. INTRODUCTION

         The matter now before me is Defendant's Motion to Suppress Evidence. (Doc. 19.) On September 11, 2018, the Grand Jury charged Defendant with Possession of a Firearm by a Drug User. (Doc. 2.) The charges arose from a traffic stop and a canine search of Defendant's vehicle that occurred on June 10, 2018.

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

• Former Nashua, Iowa Police Officer Stephen Johnson[1];
• Nashua, Iowa Reserve Police Officer Daniel Moore; and
• Hancock County, Iowa Deputy Sheriff Andrew Klein.
Defendant called Jim Steinfeld.

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

         II. SUMMARY OF THE EVIDENCE

         A. The Stop

         At 1:30 a.m. on June 10, 2018, Officer Stephen Johnson and Reserve Officer Daniel Moore were running a stationary radar detector at mile marker 220 on Highway 218 near Nashua, Iowa when they detected a silver Chevy Silverado pickup truck (“the pickup”) traveling at 95-miles-per-hour.[2] (Hr'g Tr. at 16-18.) Officer Johnson was then a patrol officer, field trainer, and K-9 handler for the City of Nashua, Iowa Police Department (“NPD”). (Id. at 6.) With the officers was Duke, the NPD's sole patrol and drug detection dog, who was handled by Officer Johnson. Duke was the City's first and only K-9. (Id. at 96.)

         When the officers detected the speeding violation, they initiated a traffic stop by activating their flashing lights, catching up to the vehicle, and pulling it to the roadside. (Id. at 19.) Officer Johnson's body camera and microphone, as well as the police vehicle's dash camera, captured the events that followed. (Ex. 7, 8.) Both officers initially approached the pickup and decided to issue a citation. (Id. at 20.) While Officer Moore was preparing the citation, the two officers were seated in the patrol car and discussed whether to deploy Duke. (Id. at 82-83.) As captured by the audio and as Officer Johnson testified, at this point Defendant did not seem nervous and was “clean.” (Id. at 82.) The only apparent justification for deploying Duke was Officer Moore's statement that Defendant's pickup was “a perfect vehicle to transport.” (Ex. 7 at 5:45.)

         The Government played portions of Officer Johnson's body camera video at the hearing and Officer Johnson was asked questions about the video and narrated what the video showed. Officer Johnson commenced the search at the downwind side of the pickup, in this case the rear of the vehicle. (Hr'g Tr. at 22.) Officer Johnson “cast” Duke to let him work independently to see if he picked up any scent before he started “detailing, ” that is, pointing to where he wanted Duke to sniff. (Id.) The point of detailing is to keep the dog engaged and his attention where the officer wants it. (Id. at 23.) It is common for a dog to be distracted by other odors by the side of a highway. (Id.) In this case, Duke became distracted by what Officer Johnson suspected was an animal odor under the pickup. (Id.; Ex. 7 at 9:24.) Duke's tail straightened and he tried to go under the driver's side of the pickup. The tail straightening is a behavior that Officer Johnson “just know[s]” means Duke is smelling an animal. (Hr'g Tr. at 24.) Officer Johnson testified this behavior did not indicate Duke was smelling any controlled substance. (Id.) On the contrary, Duke's tail wags when he smells a controlled substance because he is excited and he will get his reward, a cloth tug toy. (Id. at 25.) In addition to the tail wagging, when Duke notices a controlled substance he also engages in closed-mouth breathing and “bracketing” of the area. (Id.) Officer Johnson also testified that Duke is a passive alert dog who sits when he alerts to the presence of a controlled substance. (Id. at 10, 34.) During the sniff, [3] Officer Johnson spoke to Duke repeatedly[4]after telling him, “Find dope.” (Ex. 7 at 8:37- 9:50.)

         While watching the body camera video in court, Officer Johnson described how Duke began closed-mouth breathing and start to bracket the vehicle without the officer detailing him. (Hr'g Tr.at 29; Ex. 7 at 9:30-:48.[5]) Officer Johnson believed he could hear the difference in Duke's breathing at this point. (Hr'g Tr.at 29.) Officer Johnson testified that at 9:47 of the video, Duke sat, an action that he interpreted as an alert to the odor of a controlled substance. (Id.) In reviewing the video from the patrol car's dash camera, it appears to me that Duke sniffed the top of the pickup's bed cover on the driver's side rear of the vehicle and then went into a sitting position. (Ex. 8 at 10:11-:13.) Officer Johnson testified he then kept Duke working along the passenger side of the vehicle after the alert to be sure he covered the entire vehicle. (Hr'g Tr. at 30-31.)

         While reviewing the dash camera video at the hearing, at 10:09, Officer Johnson stated Duke was bracketing the area. (Id. at 33.) At 10:30 of the dash camera video, Officer Johnson testified that he was “detailing, ” i.e., pointing to where he wanted Duke to sniff. (Id.) In addition, during the process, Officer Johnson communicated with Duke with statements such as, “Let's go, come on, find dope, come on, come on.” (Id.) After the alert, Officer Johnson continued to detail the pickup, including by tapping on it at specific places. (Id. at 34.) Officer Johnson testified that he did not tap the pickup in the area where Duke alerted (i.e., at the tailgate) before Duke alerted. (Id. at 35.) Although Officer Johnson continued to detail the pickup after Duke's alert, he concluded he had probable cause to believe there were narcotics present based on Duke's alert. (Id. at 35-36.) Officer Johnson returned Duke to the police vehicle and praised him. (Id. at 71-72; Ex. 7 at 11:22.)

         The officers searched the pickup and found a green leafy substance believed to be marijuana in the rear passenger compartment of the vehicle. (Ex. 9.) The officers also found two white Alazopram tablets, one tablet of MDMA or ecstasy, a cigarillo packet apparently containing marijuana, two gummies believed to contain THC, two tablets of Adderall, and a capsule containing an unknown white powder. (Id.) An unloaded handgun was located in the glove-box. (Id.) Defendant was arrested and the pickup was towed and impounded. The officers found an additional Adderall tablet in Defendant's pocket when they searched him for booking. (Id.) After obtaining a search warrant, the officers' further search disclosed ammunition and firearm accessories in a locked toolbox in the bed of the pickup. (Id.) The officers also located approximately 500 empty plastic bags in the pickup bed and a vapor pen believed to contain THC in the pickup's center console. (Id.)

         No drugs were found in the bed of the pickup. (Id. at 38.) Officer Johnson testified, however, that the odor of narcotics can remain after the drugs themselves are no longer present because it can “stick to certain materials.” (Id.)

         B. Officer Johnson and Duke

         Officer Johnson had been with the NPD since 2014. He attended the Iowa Law Enforcement Academy and has an AA in criminal justice from Hawkeye Community College. (Hr'g Tr. at 6.) He had previously been employed as a reserve officer with the Winnebago County Sheriff's Office for six months. (Id. at 7.) He has been a K-9 handler since February 2017. (Id.) Duke is his first dog as a K-9 handler. (Id. at 8.) Duke is a rescue dog with an unknown background who was approximately one-year-old when Officer Johnson obtained him. (Id. at 40.) He had not been assigned to any handler prior to Officer Johnson. (Id.) Duke lives with Officer Johnson. (Id. at 41.) In addition to drug detection, Duke is trained for tracking and area searches. (Id. at 79-80.)

         At the time of the stop in question, Officer Johnson was the only dog hander with the City of Nashua and Duke was the City's only dog. (Id. at 69.) The NPD has not adopted any standards or regulations regarding Duke's training or record keeping. (Id. at 73.) Rather, Officer Johnson “goes by” what his trainer told him to do. (Id.) The NPD has no performance standards for Duke or any policy regarding removal of a dog from service. (Id. at 74.)

         On February 17, 2017, Officer Johnson and Duke successfully completed a four-week handler course conducted by Midwest K-9 (“MK9”). (Id. at 7, 41.) Prior to this course, Duke had been imprinted by Dennis George of MK9.[6] (Id. at 8-9; Ex. 1.) Officer Johnson did not receive any records from MK9 about Duke from before he took possession of him. After completing the MK9 training, Duke began accompanying Officer Johnson regularly on patrol where he was deployed approximately once per week. (Hr'g Tr. at 11.) Officer Johnson testified he generally trains with Duke sixteen hours per month. (Id. at 69.)

         Initially, Officer Johnson conducted training with confiscated drugs, some of which had not been tested by the Iowa Division of Criminal Investigation lab. (Id. at 59.) Officer Johnson was unsure regarding the appropriate standard for how long drugs should be used for training before replacing them. (Id. at 60.) He stores training drugs in glass jars in a locked container and places them in a locker. (Id.) Approximately two months after completing the MK9 training, Officer Johnson began training with a group called Dogs for Law Enforcement (“DLE”) on a “semi-regular” weekly basis. (Id. at 7, 11-12.) This training consists of searches and tracking. (Id. at 12.)

         In May 2018, Officer Johnson and Duke completed a 40-hour course of training and were tested and certified for narcotics detection by DLE. (Id.; Ex. 2, 3).[7] Some of that 40 hours was spent on classroom training. (Hr'g Tr. at 45; Ex. 4.) The DLE “Narcotics Certification Sheet/Audit Sheet” shows Duke passed the odor recognition tests for cocaine, heroin, marijuana, and methamphetamine. (Ex. 4.) Duke also passed the vehicle search test, although the trainer commented, “Trust the dog!” (Id.; Hr'g Tr. at 46). The trainer, Deputy Sheriff Andrew Klein, whose testimony is discussed below, stated this comment was made because Officer Johnson continued to run his dog around vehicles that did not contain drugs. (Hr'g Tr. at 118.) This concerned the trainer because it might result in “generating a false [positive] out of his dog.” (Id.) He continued,

when he went around the one vehicle where the hide was, the dog hit it right away. He went around the other vehicles two more times and basically I told him “If your dog is telling you there's nothing there, you need to trust that and just move on.”

(Id. at 118-19.)

         Duke also passed a building search test for narcotics and a tracking test. Duke was not tested for marijuana as part of the “vehicle search test” in this certification. (Id. at 46.) As part of the building search test, Duke found “hides” containing cocaine, heroin, marijuana, and methamphetamine. (Ex. 4.) The test record does not show weather conditions. (Id.) Although Duke normally wears an electric collar for obedience (Hr'g Tr. at 47), it is not clear if Duke was recertified by DLE while wearing his electric collar. While dogs are permitted to wear electric collars during DLE testing, the tester takes the collar control from the handler. (Id. at 142-43.) Deputy Klein estimated that 10 to 15 percent of dogs fail to become certified after a 40-week course. (Id. at 150.) If a dog fails a vehicle search test, the dog can be retested the following day. (Id. at 152.) DLE bylaws permit multiple retests, but Deputy Klein testified most trainers would not permit it. (Id.)

         Exhibit 5 documents all of the continuing narcotics training Duke and Officer Johnson undertook from February 20, 2017 (when Duke was first certified) until May 17, 2018 (i.e., about the time he was recertified). (Id. at 15.) Exhibit 5 contains no record of any training in July, September, or November 2017, or January or February 2018.

         C. Duke's Training Records

         Defense counsel requested Duke's training records, certifications, certification evaluations, and field reports. (Hr'g Tr. at 86-87; Ex. E.) The Government's attorney forwarded the email requesting records to Reserve Officer Moore, who is the Government's case agent in this matter. (Hr'g Tr. at 86.) Although the NPD also maintains deployment records for Duke, those records were not produced-not even for the search at issue in this case. (Id. at 48-49.) Reserve Officer Moore testified that he found records he thought might be responsive to the request for field reports. (Id. at 87.) This was a one-and-a-half page deployment log that was similar to the training reports shown in Exhibit 5. (Id.) It contains information shown in Officer Johnson's report (Ex. 9) about the instant stop, as well as about Duke's other deployments for traffic stops. (Id. at 88.) The deployment log shows the NPD case number; the location of the incident; whether Duke was deployed; whether Duke indicated; and what, if anything, was found. (Id. at 88-89, 94.)

         Reserve Officer Moore sought clarification from the Government's attorney about what to produce. (Id. at 87.) After his conversation with the Government's attorney, Reserve Officer Moore did not provide the deployment log in response to the initial email request because he “did not know what field reports meant at the time.” (Id. at 89, 94-95.) Ultimately, the Government did not explain why the deployment records were not produced. Reserve Officer Moore testified:

Q. Okay. So you thought they would be responsive, but you had some conversation with her, and then you decided not to provide them?
A. I don't know why they didn't get provided. I know that I vividly recall e-mailing her back asking if by field reports you meant deployment logs or if they were-if they were two of the same thing or not, so I was trying to gather clarification on that.

(Id. at 96.) Reserve Officer Moore did not know whether Officer Johnson kept separate records for Duke. (Id. at 95.) The records produced did not show what substances Duke was actually certified on by MK9 in his initial training. (Id. at 42.) Officer Johnson testified he was told Duke was trained on marijuana. (Id. at 54.) Although records exist that show what drugs Duke was initially certified on by MK9, those records were not provided. (Id. at 42-43.) Officer Johnson attributed this to “an oversight.” (Id.at 43.) In ...


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