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United States v. Mohring

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

April 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRADLEY DEAN MOHRING, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

          MARK A. ROBERTS, UNITED STATES MAGISTRATE JUDGE

         TABLE OF CONTENTS

         Page

         I. INTRODUCTION ........................................................................... 2

         II. FINDINGS OF FACT ...................................................................... 2

         III. ANALYSIS ................................................................................. ..7

A. The Parties' arguments. . .......................................................... 7
B. The warrant was supported by probable cause. . .............................. 8

         C. Even if the warrant was not supported by probable cause, the Leon “good faith” exception applies. . ............................................ 13

         IV. CONCLUSION ......................................................................... 18

         I. INTRODUCTION

         The matter now before me is Defendant's Motion to Suppress Evidence. (Doc. 12.) On October 10, 2018, the Grand Jury charged Defendant with Possession of a Firearm by a Felon in violation of 18 U.S.C. Section 922(g)(1). (Doc. 2.) The charge arose from a search of his residence pursuant to a warrant issued by the Honorable William Patrick Wegman, District Associate Judge of the Iowa District Court.

         The Honorable Charles J. Williams, United States District Court Judge, referred this motion to me for a Report and Recommendation. On March 7, 2019, I held an evidentiary hearing on Defendant's motion. The Government called Chickasaw County Sheriff's Department patrol officer and canine handler Stephen Johnson (“Deputy Johnson”). Defendant called no witnesses.

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

         II. FINDINGS OF FACT

         This case involves a suspicious boxer-a dog not a prizefighter. The boxer appeared on a surveillance video near the time of a burglary of computer equipment from a business in Nashua, Iowa. The ensuing investigation led to three warrants, three searches, an indictment, and the instant motion to suppress.

         Deputy Johnson has been employed as a Chickasaw County Sheriff's Deputy since October 2018. Prior to that, he had been employed as a police officer with the Nashua, Iowa Police Department for four years. He has a two-year degree in criminal justice and is a graduate of the Iowa Law Enforcement Academy. Deputy Johnson is the primary law enforcement officer involved in this matter, having conducted the investigation, as well as applying for, and executing, the search warrants in question. In addition to his employment as a canine handler, Deputy Johnson testified he “grew up with dogs most of [his] life” and is familiar with the breed of dog known as a boxer.

         Deputy Johnson's testimony generally confirmed the facts contained in his affidavit in support of the search warrants referenced below. On the morning of October 9, 2018, he was called to Five Star Co-op (the “co-op”). The address of the co-op is not listed in the application or the affidavit[1]. However, Defendant's Exhibits F and G make it clear that the co-op is on the edge of town near a boat ramp to a river and some green area. Defendant's residence at 205 Main Street, Apartment 1 is only a few blocks west of the co-op. Defendant runs a home business as an “electronic repair and salesman” and has a sign in his window that advertises his services. (Gov. Ex. 1 at 5 ¶ 3.)

         The manager of the co-op reported two identical computer towers were removed after close of business on the previous day. The suspect may have entered through an open window on the co-op's southeast side. The co-op manager called the investigators' attention to video camera footage of a dog, “specifically a ‘boxer'”[2] on the east side of the co-op. The co-op had surveillance cameras pointed at its entrances, but these cameras captured nothing of significance. The co-op also had an overhead camera positioned to look down into grain trucks as they passed over or parked on the co-op's scale on the east side of this building. The co-op apparently used this overhead camera angle to capture surveillance footage, including the rather unusual surveillance footage at issue in this case. The manager had reviewed the video from the time the co-op closed until six o'clock the following morning. There was no physical evidence of a break-in such as broken glass or a damaged door. A window was found open where Deputy Johnson assumed the suspect had entered. Investigators also found a footprint showing where someone could have climbed into the window. A door that was normally locked was found open.

         At 2:43[3] a.m. on October 9, the video shows a dog walking onto the scale. The dog appears to be on a leash. As the dog walks in an arc to the north, an unidentifiable person's hand and arm appears and leads the dog out of the picture. Deputy Johnson testified that the dog on the video was a boxer and that he “positively ID'd the canine” as Defendant's dog from the video. For purposes of the warrant application (Gov. Ex. 1), Deputy Johnson captured and printed still images from the video. (Id. at 12-15.) The still images appear black and white. Deputy Johnson could not recall if the original video was in color. The video itself was entered into evidence as Government's Exhibit 4; however, no video was provided to or played for Judge Wegman as part of the warrant application. In addition to still images from the video, Deputy Johnson also submitted still images derived from his body camera video footage of a months' earlier encounter with the dog when he was executing a warrant at Defendant's residence. Deputy Johnson testified the images in Government's Exhibit 1 were similar in quality to those provided to Judge Wegman.

         As part of the investigation, Chickasaw County Sheriff Martin Hemann spoke to Rodney Macomber. Macomber reported that “he had seen an individual walking a dog on several occasions near the area.” (Gov. Ex. 1 at 5.) Deputy Johnson's affidavit shows he also spoke with Macomber. Macomber confirmed he had seen Defendant walking his dog regularly in the area and “described the dog in question, specifically, the markings” set forth in the affidavit. (Id. at 6 ¶ 10.)

         I have reviewed the video and conclude that even though the scene is poorly illuminated, it depicts a dog that is recognizable to me as a boxer. More importantly, I find Deputy Johnson's identification of the dog as a boxer is credible, even if I could not personally make out the breed of the dog. Deputy Johnson is a resident of Nashua, a town of about 1, 600 people, where he had been a patrol officer for four years at the time that he applied for the search warrant at issue in this case. Deputy Johnson had become familiar with residents of this small community, including people who walked their dogs. He was personally familiar with Defendant and his boxer because of two prior search warrants he had executed at Defendant's residence. The affidavit supporting the warrant states, among other things that Deputy Johnson “vividly recal[led] the dog being present.” (Id. at ¶ 7.) The warrant also states that Defendant called the dog by name and spoke to it as if he were the dog's owner and that Deputy Johnson had regularly seen Defendant walking or driving around town with the boxer. (Id. at 5 ¶3, 6 ¶ 8.)

         Defendant's counsel called into question Deputy Johnson's identification of the dog, including his ability to identify the color and breed of the dog from the video. Deputy Johnson admitted there could be other dogs in Nashua with similar coloring. He conceded that Defendant could not be identified from the brief view of a hand and arm that appears on the video. He also admitted that other people walk their dogs in the area near the boat ramp and the co-op. There was slight confusion regarding the term “brindle” in reference to the boxer. Deputy Johnson was asked by defense counsel ...


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