United States District Court, N.D. Iowa, Eastern Division
MEMORANDUM OPINION AND ORDER
WILLIAMS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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).
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.
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).
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
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.
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).
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).
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
[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
[4.] CS#1 advised that Zarate was staying at the Isle of
[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
[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
[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
[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)). The affidavit in support of the
search warrant for defendant's urine was identical except