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United States v. Zarate

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

July 31, 2019





         This matter is before the Court on the government's Objections (Doc. 79) and defendant's Objections (Doc. 80) to the Report and Recommendation (Doc. 76) of the Honorable Mark A. Roberts, United States Magistrate Judge, in which Judge Roberts recommends that the Court grant in part and deny in part defendant's motion to suppress evidence (Doc. 47). On March 1, 2019, defendant filed a Motion to Suppress. (Id.). On March 8, 2019, the government timely filed a resistance. (Doc. 55). On March 12, 2019, defendant filed a reply brief. (Doc. 62). On March 22, 2019, Judge Roberts held a hearing on the motion. (See Doc. 63). On July 3, 2019, Judge Roberts issued the Report and Recommendation. (Doc. 76). On July 17, 2019, defendant and the government timely filed their respective Objections.

         For the following reasons, the government's objections (Doc. 79) are overruled, defendant's objections (Doc. 80) are overruled in part and sustained in part, the Report and Recommendation (Doc. 76) is adopted in part and modified in part, and defendant's motion to suppress (Doc. 47) is granted in part and denied in part.


         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 recommendations 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.

         When no party objects to a magistrate judge's report and recommendation, or when a party objects to only certain portions of a report and recommendation, the district judge is required to review the unobjected-to portions of the report and recommendation for clear error. Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996); United States v. Riesselman, 708 F.Supp.2d 797, 807-08 (N.D. Iowa 2010). When the Eighth Circuit Court of Appeals reviews a motion to suppress for clear error, the Eighth Circuit will “affirm the district court's decision . . . unless it is not supported by substantial evidence on the record; it reflects an erroneous view of the applicable law; or upon review of the entire record, [the Eighth Circuit Court of Appeals is] left with the definite and firm conviction that a mistake has been made.” United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007) (citation and internal quotation marks omitted).

         This Court, similarly, has explained that “[a]lthough the Eighth Circuit Court of Appeals has not explained precisely what ‘clear error' review means in this context, in other contexts, the Supreme Court has stated that the ‘foremost' principle under this standard of review ‘is that a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Powell v. Fayram, 778 F.Supp.2d 952, 962 (N.D. Iowa 2011) (internal quotation marks and alteration omitted) (quoting Anderson v. City of Bessemer City, 470 U.S. 564 573-74 (1985)). Even though Title 28, United States Code, Section 636 “does not require the [district] judge to review an issue de novo if no objections are filed, [the statute] does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.” Thomas v. Arn, 474 U.S. 140, 154 (1986).

         In accordance with these standards, the Court reviews the disputed portions of the Report and Recommendation de novo. The Court has also undertaken to review the facts of this case de novo, and the Court's findings are reflected in the following section. As to those portions of the Report and Recommendation that are neither factual findings nor objected to, the Court has conducted a review under the clearly erroneous standard, and the Court has found no clear error.

         III. FACTS [1]

         On October 10, 2018, a Waterloo Police Department Investigator received a tip from a confidential informant (“CI”) that defendant was “in possession of methamphetamine and a sawed-off shotgun, ” and that “he was also armed with multiple blades, machetes, ax, and also that he was heavily under the influence of methamphetamine and acting crazy.” (Doc. 77, at 6-7). The CI stated that defendant was “staying at the Isle of Capri Casino . . . with his girlfriend, Sierra Patterson.” (Id., at 8). The Investigator had seen both defendant and his girlfriend earlier that day in a red or maroon Hyundai sports utility vehicle (“SUV”). (Id., at 8-9, 41). A short time later, Police Sergeant Robert Duncan saw the unoccupied SUV parked in the Casino's parking lot. (Id., at 9-10). Officer Jordan Ehlers went to the Casino where he and Officer Duncan looked into the SUV. (Id., at 11, 75). They saw a sawed-off shotgun on the floor of the SUV in plain view. (Id., at 11-12, 75).

         Officers then spoke with Casino staff and learned that defendant was staying in room 808, which was located on the eighth floor. (Id., at 13). Officer Ehlers called room 808, pretending to be a hotel employee, and discovered that defendant and a woman were in the room. (Id., at 14-15). Officer Ehlers asked defendant to come to the front desk to “update his information for the room, ” and defendant agreed to do so. (Id., 16). Instead of waiting, however, the officers went to the hallway outside room 808 and waited ten to fifteen minutes. (Id., at 16-17). When defendant did not come out of the room, the officers had a hotel employee knock on the door while the officers stood outside the occupants' view. (Id., at 17, 19). After the employee knocked on the door to room 808 three times, announcing “Hotel front desk, ” defendant finally opened the door. (Exhibit 8).[2]

         Sergeant Duncan entered the room with a handgun drawn and told defendant and Patterson to put their hands up. (Exhibit 11). As defendant stood in the room near the doorway with his hands raised, Officer Ehlers grabbed defendant's left hand and pulled defendant out of the room and into the hallway and directed him to the floor. (Exhibits 8 & 11). Officer Ehlers then handcuffed defendant, told defendant he was being detained, and patted him down for weapons; none were found. (Exhibit 8). Officer Ehlers, from memory, then advised defendant of his constitutional rights as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to talk to an attorney and have one present with you when you're being questioned. If you cannot afford to hire an attorney, one will be appointed to represent you, if you wish. Do you understand these rights I have read to you?

(Exhibit 8). In his report, Officer Ehlers wrote that defendant “stated he understood” his rights. (Exhibit 1, at 1). At the suppression hearing, Officer Ehlers testified that defendant “nodded his head yes” in response to the question of whether he understood his rights. (Doc. 77, at 28). Defendant made no audible response and his face is not visible on the video. (Id., at 29; Exhibit 8). After a pause, Officer Ehlers began questioning defendant, who ultimately made incriminating statements about what was in the room.

         Before Officer Ehlers had defendant taken to the police station, Officer Ehlers conducted another pat-down search. (Id., at 31). This time, Officer Ehlers discovered a methamphetamine pipe in defendant's pocket. (Id., at 31, 34-35). At the police station, Officer Lucas Scarbrough again questioned defendant; defendant again made incriminating statements. (Id., at 37-39; Exhibit 10). Officers did not provide defendant with another Miranda warning before questioning him at the police station. (Doc. 77, at 39, 55).

         Meanwhile, back at the Casino, Sergeant Duncan spoke with defendant's girlfriend in room 808. She told Sergeant Duncan that there was a handgun and marijuana in the room, as well as a shotgun in her car. (Exhibits 8 & 11). Defendant's girlfriend also told Sergeant Duncan about defendant's drug use. (Exhibits 8 & 11).

         Officers then applied for three search warrants: one for the SUV, another for room 808, and a third for defendant's urine. (Exhibits 2 through 4). The affidavit in support of the search warrant for the hotel room made the following factual assertions:

[1.] On October 10th, 2018[, ] officers received information from confidential source in reference a male identified as Adrian Zarate being in possession of a sawed[-]off shotgun and a quantity of methamphetamine while in a maroon 2004 Hyundai Sante [sic] Fe belonging to his girlfriend Sierra Patterson within the past 7 hours.
[2.] On October 10th, 2018[, ] at approximately 1700 hours Tri County Drug Task Force Investigator Diana Del Valle observed the maroon 2004 Hyundai Sante [sic] Fe traveling on Conger Street in Waterloo Iowa. Investigator Del Valle observed Adrian Zarate in the front passenger seat of the vehicle. The vehicle was bearing Iowa license plate HGX848. Investigator Del Valle then lost visual of the vehicle.
[3.] Iowa Department of Transportation records showed the registered owner of the vehicle to be Sierra Patterson, the defendant.
[4.] CS#1 advised that Zarate was staying at the Isle of Capri Casino.
[5.] Sergeant Robert Duncan located the maroon 2004 Hyundai Sante [sic] Fe bearing Iowa license plate HGX848 unoccupied in the parking lot of the Isle of Capri Casino.
[6.] Sergeant Duncan observed a sawed[-]off single barrel shotgun in plain view next to the driver's seat inside the vehicle.
[7.] The vehicle was secured at this time.
[8.] Your [affiant] went into the Isle of Capri Casino and spoke with front desk staff who advised that Adrian Zarate was renting room 808. Your affiant called room 808 and spoke with a female and a male was identified himself as Adrian Zarate.
[9.] Your affiant and officers from the Waterloo Police Department went to room 808 and Zarate came to the door. Officers secured Zarate and a female who was identified as Sierra Patterson in order to conduct a search warrant on room 808.
[10.] Adrian Zarate had a glass pipe in his back pocket when he was detained. Your affiant read Zarate his Miranda Rights. Zarate stated that there was a .380 caliber handgun inside room 808.
[11.] Sierra Patterson was read her Miranda Rights and stated that there was a sawed[-]off shotgun in her vehicle along with a scale. Patterson said there was marijuana inside the room.

(Doc. 55-3, at 6 (Exhibit 3)).[3] The affidavit in support of the search warrant for defendant's urine was identical except ...

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