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United States v. Mckenzie

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

February 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TIMOTHY MCKENZIE, Defendant.

          ORDER

          C.J. Williams United States District Judge

         I. INTRODUCTION

         This 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.

         II. STANDARD OF REVIEW

         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, the Court reviews the disputed portions of the Report and Recommendation de novo.

         III. FACTUAL BACKGROUND[1]

         On July 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 anonymous call.

         Officer 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.

         As 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.

         IV. ANALYSIS

         In the 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.

         A. Reasonable Suspicion to Detain Defendant

         “A 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).

         In this 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 ‚Äúsuspicion that the ...


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