United States District Court, N.D. Iowa, Eastern Division, Dubuque
Williams United States District Judge
case is before the Court pursuant to the government's
Objections (Doc. 39) to the Report and Recommendation (Doc.
31) of the Honorable Mark A. Roberts, United States
Magistrate Judge. On November 7, 2018, defendant filed a
Motion to Suppress. (Doc. 22). The government timely filed a
resistance. (Doc. 23). On November 29, 2018, Judge Roberts
held a hearing on the motion and permitted the parties to
file supplemental briefs. (Doc. 28). On December 7, 2019, the
government filed a supplemental brief. (Doc. 30). On December
19, 2018, Judge Roberts issued the Report and Recommendation,
which recommends that the Court grant the Motion to Suppress.
On January 14, 2019, the government filed its Objections.
Defendant filed a response to the government's
objections, although the response was untimely. (Doc. 42).
For the following reasons, the Court
overrules the government's Objections,
and grants the Motion to Suppress.
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, the Court
reviews the disputed portions of the Report and
Recommendation de novo.
22, 2018, the Dubuque Police Department received an anonymous
report that a black male, approximately 17 years old, wearing
a black shirt, was in possession of a firearm on Jackson
Street in Dubuque. Multiple officers responded to the scene
to investigate. Officer Kim Hoover arrived at the 2100 block
of White Street, approximately one block from where the gun
was allegedly seen. Officer Hoover testified that she
considered the neighborhood a “high-crime” area
and that approximately one year prior the Dubuque Police
Department had received a report of shots being fired in an
alley off of White Street. Officer Brandon Gudenkauf also
arrived on the block and walked toward a group of five or six
people gathered outside a residence. Two individuals in the
group matched the description of the subject from the
Hoover was walking in the same direction as Officer
Gudenkauf, several car lengths behind him when she noticed
defendant, who was approaching the same residence as Officer
Gudenkauf. At this time, Officer Dylan Doerges was also
approaching the residence from the other end of the street.
Defendant did not match the description of the subject from
the anonymous call, being considerably older (defendant is 50
years old) and dressed entirely in royal blue.
Defendant's path of approach took him between two of the
cars parked outside the residence and he headed out of
Officer Hoover's view. Officer Hoover's body camera
footage indicates that, before stepping between the cars,
defendant would have been visible to Officers Hoover,
Gudenkauf, and Doeges.
defendant began to step between the cars, Officer Hoover
called out to defendant and ordered him to step back.
Defendant immediately complied. At the time Officer Hoover
called out to defendant, Officer Gudenkauf would have been
able to see defendant, although Officer Gudenkauf testified
that he did not notice defendant. Officer Hoover approached
defendant and announced that she was going to conduct a pat
down. As Officer Hoover reached out to defendant, defendant
placed his hands above his head and informed Officer Hoover
that he had a gun in his pocket. Officer Hoover pulled the
firearm from defendant's pocket. Officer Doerges then
placed defendant in handcuffs.
Motion to Suppress, defendant argues that the Officer Hoover
did not have reasonable suspicion or probable cause to detain
him nor to conduct a pat down search, that Officer
Hoover's question to defendant was a custodial
interrogation conducted without defendant having been advised
of his Miranda rights, and that the firearm and statements
must be suppressed. (Doc. 22, at 2-3). In the Report and
Recommendation, Judge Roberts found that Officer Hoover
lacked reasonable, articulable suspicion to detain defendant
and lacked reasonable suspicion that defendant was armed and
dangerous. (Doc. 31, at 8-16). Judge Roberts also found that
defendant's statements should be suppressed as the fruit
of an unlawful seizure. (Id., at 17). The government
now objects to each of Judge Roberts' legal conclusions.
The Court will address each objection in turn.
Reasonable Suspicion to Detain Defendant
police officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is
afoot.” United States v. Collins, 883 F.3d
1029, 1031-32 (8th Cir. 2018) (citations omitted).
“Reasonable suspicion exists when an officer is aware
of particularized, objective facts which, taken together with
rational inferences from those facts, reasonably warrant
suspicion that a crime is being committed.” United
States v. Mosley, 878 F.3d 246, 251 (8th Cir. 2017)
(citations omitted). “Reasonable suspicion to conduct a
stop is determined by the totality of the
circumstances.” United States v. Hopkins, 824
F.3d 726, 734 (8th Cir. 2016). “Reasonable suspicion
does not exist solely on the basis of an officer's hunch.
Instead, the officer must be able to articulate some minimal,
objective justification for a Terry stop.”
United States v. Dunning, 666 F.3d 1158, 1164 (8th
Cir. 2012) (citations and internal quotation marks omitted).
case, the government asserts that Judge Roberts incorrectly
“focuse[d] on whether or not defendant himself was
suspected of criminal activity.” (Doc. 39-1, at 7). The
government argues that, instead, it “must prove that
the officer had reasonable suspicion ‘that criminal
activity was afoot, not that the subject of the stop was
actively engaged in a crime.'” (Id.
(quoting United States v. Fields, 832 F.3d 831, 834
(8th Cir. 2016)). In Fields, however, the defendant
appeared poised to commit a crime and the officers detained
him before he did so rather than while he was doing so.
Fields, 832 F.3d at 833-34. This is entirely
consistent with the Supreme Court's guidance that
“[a]n investigatory stop must be justified by some
objective manifestation that the person stopped is, or is
about to be, engaged in criminal activity.”
United States v. Cortez, 449 U.S. 411, 417 (1981)
(emphasis added). To suggest, however, that officers may
detain any person merely because some nearby person may be
engaged in criminal activity flies in the face of the
requirement for “suspicion that the ...