United States District Court, N.D. Iowa, Eastern Division
MEMORANDUM OPINION AND ORDER ON REPORT AND
Leonard T. Strand, Chief Judge
matter is before me on a Report and Recommendation (R&R)
(Doc. No. 57) in which the Honorable Mark A. Roberts, United
States Magistrate Judge, recommends that I deny
defendant's motion (Doc. No. 11) to suppress/request for
Franks hearing, motion (Doc. No. 12) to suppress,
motion (Doc. No. 14) to dismiss Counts 1 and 2 of the
Indictment and second motion (Doc. No. 17) to dismiss. Miller
filed timely objections (Doc. No. 62) to the R&R.
8, 2019, the grand jury returned an Indictment (Doc. No. 2)
charging Miller with two counts: possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1) and
possession of a National Firearms Act short-barreled shotgun
not registered to possessor in violation of 26 U.S.C. §
August 1, 2019, Miller filed a motion (Doc. No. 11) to
suppress/request for a Franks hearing, a motion
(Doc. No 12) to suppress and a motion (Doc. No. 14) to
dismiss Counts 1 and 2 of the Indictment. He then filed a
second motion (Doc. No. 17) to dismiss on August 12, 2019.
The Government filed resistances on August 19, 2019.
See Doc. Nos. 30, 32, 33, 34. Miller filed a reply
(Doc. No. 41) regarding his motion to suppress/request for
Roberts held a hearing on October 7, 2019. Doc. No. 53. The
Government presented testimony from Officers Jeremy Berryman,
Alexander Bovy, Steven Thomas and Joseph Saunders of the
Waterloo Police Department. Doc. No. 53-1. Judge
Roberts admitted Government Exhibits 1 through 11. He also
admitted Defense Exhibits 1 through 6. Id. Defendant
later submitted Exhibit 7 and the parties submitted
post-hearing briefs. See Doc. Nos. 55, 56.
Roberts issued his R&R (Doc. No. 57) on November 15,
2019. Miller filed his objections (Doc. No. 62) on November
25, 2019. Trial is currently set to commence during the
two-week period beginning January 21, 2020. See Doc.
Roberts made the following findings of fact:
This case involves Defendant's alleged possession of a
short-barreled shotgun. Defendant's neighbor, Takeela
Latham, called law enforcement to report Defendant possessing
a shotgun and yelling at Ms. Latham for removing items from
her porch and placing them in Defendant's truck. (Gov.
Ex. 1 at 4.) Ms. Latham claimed Defendant pointed the shotgun
at her and Jarrell Cole, after which she and Mr. Cole ran
back into Ms. Latham's apartment. (Id.) Officer
Alexander Bovy, a police officer with the Waterloo Police
Department, was the first to respond to the call regarding
the alleged confrontation between Ms. Latham and Defendant.
Defendant resided in the upstairs apartment of 1005 West
Mullan Avenue in Waterloo, Iowa. (Bovy Oct. 7, 2019 Hr'g
Test.) Ms. Latham and her daughter resided on the ground
floor of the same residence. (Gov. Ex. 1 at 4.)
A. Officers Bovy and Payne's Initial Contact
with Ms. Latham's Daughter and the Daughter's Aunt at
1005 West Mullan Avenue
Officer Bovy arrived at 1005 West Mullan Avenue at
approximately 6:20 p.m. on February 3, 2019. (Id.)
When Officer Bovy first arrived at the residence, he walked
to the back of the residence but did not see anyone (Doc. 24
at 1.) Officer Payne arrived at the residence shortly after
Officer Bovy. (Id.; Berryman Hr'g Test.)
Officers Bovy and Payne then knocked on the back door at 1005
West Mullan Avenue to contact residents. (Doc. 24 at 1; Def.
Ex. 2 at 5:45.)
After knocking on the back door, Officers Payne and Bovy
first made contact with a girl who identified herself as a
ten-year-old resident who lives at 1005 West Mullan Avenue
with her “auntie” (“the aunt”). (Def.
Ex. 2 at 5:50.) The girl later identified herself as Ms.
Latha[m]'s daughter, and stated that Ms. Latham left with
her friends to get some food. (Id. at 7:45-8:00.)
The aunt consented to Officers Bovy and Payne entering the
apartment. (Id. at 6:18.) Officer Bovy asked if the
aunt heard people yelling, but she denied having heard
anything. (Id. at 6:30-6:46.)
B. Officers Bovy and Payne's Contact with Ms.
Latham and Defendant's Neighbor Emmitt
Officers Bovy and Payne next contacted Ms. Latham and
Defendant's neighbor, Emmitt Johnson. The officers
knocked on Mr. Johnson's door to initiate contact.
(Id. at 10:22.) Mr. Johnson initially denied
knowledge of an altercation, stating he had only recently
arrived at his residence (Id. at 10:40.) Mr. Johnson
eventually acknowledged he heard Defendant and
Defendant's wife Sarabeth Miller arguing but stated no
one else was outside and there was no physical altercation.
(Id. at 10:40-11:35.)
C. Law Enforcement Contact with Defendant, Ms.
Miller, and Ms. Randall
In addition to Defendant, Ms. Miller and Michele Randall also
reside at 1005 ½ West Mullan Avenue. (Gov. Ex. 1 at
4.) Officer Bovy knocked on Defendant's apartment door,
and Defendant answered. (Bovy Hr'g Test.) Defendant spoke
with the officers about a number of issues, including a prior
incident involving the discovery of a pipe bomb at a
different residence of Defendant and an altercation where
Defendant asserted he had been beaten by the police.
(Id.) Defendant, Ms. Miller, and Ms. Randall stated
they all went to the back of the residence after hearing a
loud noise because they were concerned someone was damaging
their truck in the back parking lot. (Gov. Ex. 1 at 4.) Ms.
Miller told Officer Bovy she was carrying a broken pool stick
and Defendant was carrying a large knife when they checked
the truck. (Id.) Defendant also stated he was
carrying a large fixed blade knife when he checked the truck
with Ms. Miller. (Doc. 23-2 at 1.) Ms. Miller claimed they
walked past Ms. Latham behind the residence, where Ms. Latham
was in an argument with an unidentified male. (Gov. Ex. 1 at
Officer Bovy requested Defendant consent to a search of the
residence, but Defendant declined. (Bovy Hr'g Test.)
Officer Bovy then spoke with Officer Thomas, who had been
dispatched to 123 Elmwood Street, where Ms. Latham was
located, at approximately 6:45 p.m. (Thomas Oct. 7, 2019
Hrg' Test.) While at 123 Elmwood Street, Officer Thomas
spoke with Ms. Latham, Mr. Cole, Chelsea Cole, and Kayla
Borntreger, who all reported seeing Defendant with a gun.
(Gov. Ex. 1 at 4; Bovy Hr'g Test.) Ms. Borntreger and Ms.
Cole state Defendant was wearing a red shirt and had
dreadlocks pulled into a ponytail. (Gov. Ex. 1 at 4.)
Officers Thomas and Bovy called their sergeant supervisor,
who advised them to obtain a search warrant. (Thomas Hr'g
After deciding to obtain a search warrant, law enforcement
secured the residence to make sure no one was present other
than those with whom law enforcement already made contact,
Ms. Miller, Ms. Randall, and Defendant. (Id.) The
officers decided that securing the residence required them to
enter and conduct a protective sweep of the residence, only
looking in areas large enough for people to hide. (Bovy
Officers Berryman and Bovy testified they believed Defendant,
Ms. Miller, and Ms. Randall could have left the residence if
they desired but did not explicitly tell Defendant and the
other residents they were free to leave. (Id.;
Berryman Hr'g Test.) Officer Berryman testified he was
not told Defendant and the residents were required to stay.
(Berryman Hr'g Test.) Special Agent Saunders, who was not
present when law enforcement secured the residence, reviewed
video of officers securing the residence and could not recall
officers instructing the residents that they were free to
leave if they wanted. (Saunders, Oct. 7, 2019 Hr'g Test.)
Defendant briefly left the residence to look at his truck.
Officer Berryman accompanied him as a precautionary measure
for officer safety. (Berryman Hr'g Test.) If Defendant,
Ms. Miller, or Ms. Randall left the residence, law
enforcement would not have allowed them back in. (Bovy
Hr'g Test.) However, law enforcement did not tell
Defendant, Ms. Miller, or Ms. Randall they were free to leave
with the condition that they could not reenter the residence
until a search was completed.
After informing Defendant, Ms. Miller, and Ms. Randall that
law enforcement intended to obtain a search warrant for the
residence, Ms. Miller told Officer Bovy she was willing to go
to the police department and provide a statement. (Bovy
Hr'g Test.) Defendant and Ms. Randall were unwilling to
provide statements. (Id.) Officer Bovy took Ms.
Miller to the Waterloo Police Department so she could make a
statement. (Id.) Officer Thomas returned to 123
Elmwood Street to bring Ms. Latham, Mr. Cole, Ms. Borntreger,
and Ms. Cole to the Waterloo Police Department for
interviews. (Doc. 23-1 at 1.) Each witness except Ms. Miller
stated Defendant was holding a shotgun when he exited his
residence. The witnesses provided somewhat differing accounts
of whether Defendant pointed the shotgun at the witnesses,
whether Defendant could see the witnesses, and where the
witnesses were located when Defendant exited his apartment
while holding the shotgun.
D. Police Interview with Ms. Latham
Officer Thomas interviewed Ms. Latham at the Waterloo Police
Department on February 3, 2019. (Doc. 23-1 at 1; Def. Ex. 2,
video of Ms. Latham.) During this interview, Ms. Latham
described plans for Ms. Borntreger to give her a ride to the
grocery store prior to the alleged incident. (Def. Ex. 2,
video of Ms. Latham, at 1:05.) Ms. Latham stated that as she
was leaving her apartment to get into Ms. Borntreger's
car, Ms. Latham noticed a suitcase sitting on her porch,
directly outside the back door that leads into her kitchen.
(Id. at 1:18.) Ms. Latham believed this suitcase
belonged to her upstairs neighbors, including Defendant.
(Id. at 1:45.) Ms. Latham asked Mr. Cole to place
the suitcase in Defendant's truck located behind the
apartment building. (Id.) She then stated that
Defendant exited his apartment while Ms. Borntreger was still
sitting in her car and Mr. Cole and Ms. Latham had not yet
reached Ms. Borntreger's car (Id. at 2:30-2:53.)
Ms. Latham claimed to have witnessed Defendant and an
unidentified woman walking towards the pickup truck.
(Id. at 3:10.) Ms. Latham stated that Defendant,
carrying a shotgun, pointed it directly at her and Mr. Cole.
(Id. at 3:45.) She stated she could hear Defendant
say, “These motherfuckers, ” as he walked toward
the pickup truck. (Id. at 3:10.) She stated this
scared her, so she and Mr. Cole started to quickly walk back
to her apartment. (Id. at 3:28.) Ms. Cole followed
closely behind them from the direction of Ms.
Borntreger's car, although the interview does not provide
a clear picture of whether Ms. Cole was sitting inside Ms.
Borntreger's car prior to walking towards Ms.
Latham's apartment or had walked with Mr. Cole and Ms.
Latham from Ms. Latham's apartment towards Ms.
Borntreger's car. (Id.). Ms. Latham stated that
Defendant relaxed his shotgun's position, allowing the
barrel to angle down towards the ground as she and Mr. Cole
hurriedly walked back to her apartment. (Id. at
Ms. Latham described Defendant's shotgun as
“brown” but stated Ms. Borntreger had a better
angle to see the gun because she remained outside while the
others hurried towards Ms. Latham's apartment.
(Id. at 7:00-7:10.) Ms. Latham reiterated that Ms.
Borntreger was in a car during the alleged incident, noting
she could have driven away if Defendant started shooting.
(Id. at 7:20.)
Ms. Latham later stated she had the door to Ms.
Borntreger's car partially open when she heard Defendant
come down the stairs from his apartment. (Id. at
7:38.) This differed from her prior statement that she was
not by the vehicle when Defendant started to come down.
(Id. at 3:20.)
Ms. Latham acknowledged she has a poor relationship with
Defendant and dislikes him. (Id. at 8:55.) She noted
this was not her first encounter with Defendant, and she had
previously called the police about her neighbors.
(Id. at 8:15.) She had previously called the police
to complain that Defendant purposefully moved the bathtub in
his apartment and continuously ran the water, causing her
daughter's bedroom ceiling to collapse. (Id. at
8:28.) She had also called the police to complain that
Defendant yelled racial slurs at her children. (Id.
E. Police Interview with Mr. Cole
Officer Thomas interviewed Mr. Cole at the Waterloo Police
Department on February 3, 2019. (Doc. 23-1 at 1; Def. Ex. 2,
video of Mr. Cole.) During this interview, Mr. Cole described
Defendant descending the stairs from his apartment with a
shotgun in hand. However, he did not clearly describe how
Defendant held the shotgun or who was present with him during
the alleged incident.
Mr. Cole stated he and Ms. Latham were leaving her apartment
building when she noticed a bag that did not belong to her on
her porch. (Def. Ex. 2, video of Mr. Cole, at 1:05) Ms.
Latham asked Mr. Cole to move the bag to her neighbor's
pickup truck. (Id. at 1:35) Mr. Cole did not state
whether he actually placed the suitcase in the pickup truck.
(Id.) He stated Defendant's apartment windows
were open, which allowed Defendant to hear him talking with
Ms. Latham. (Id. at 1:45.)
Mr. Cole stated “they” came downstairs, referring
to Defendant and at least one other person, but he did not
identify who accompanied Defendant. (Id. at 1:45.)
Defendant was allegedly carrying a shotgun as he walked down
the stairs from his residence, saying, “Motherfuckers,
motherfuckers, motherfuckers.” (Id.;
Id. at 2:30, 3:00.) Mr. Cole described how Defendant
held the shotgun, stating Defendant “had [the shotgun]
like this, ” as he mimicked how Defendant held the
shotgun. (Id. at 1:50.) Mr. Cole positioned his
hands to demonstrate holding the shotgun in both hands across
his body. The butt of the weapon is not raised to his
shoulder. Mr. Cole demonstrated holding a shotgun in a
position of readiness to fire, not as one might carry a
shotgun to merely transport it or to avoid a discharge.
(Id.) Mr. Cole stated Defendant
“pointed” the shotgun but did not state whether
Defendant pointed the shotgun at any individual.
(Id. at 2:30.) Mr. Cole described the shotgun as
having a black barrel and brown, “wood-like”
stock. (Id. at 2:00-2:06) He described Defendant as
wearing a red shirt and having dreadlocks pulled back into a
ponytail. (Id. at 2:10.)
Mr. Cole stated that after seeing Defendant descend the
stairs with the shotgun, “we all hurried back in the
house.” (Id. at 2:45.) He did not state who is
included in the term “we.” (Id.) Mr.
Cole stated he could hear Defendant walk back up to his
apartment after Mr. Cole returned to Ms. Latham's
apartment. (Id. at 3:55.)
Mr. Cole acknowledged an existing animosity between Ms.
Latham and her friends and Defendant. (Id. at 3:20.)
He stated that Defendant has called Ms. Latham and her
friends racial slurs in the past but stated this was the
first time he saw Defendant carrying a gun. (Id.)
F. Police Interview with Ms. Cole
Officer Thomas interviewed Ms. Cole at the Waterloo Police
Department on February 3, 2019. (Doc. 23-1 at 1; Def. Ex. 2,
video of Ms. Cole.) Ms. Cole described how she witnessed the
alleged incident from inside Ms. Latham's porch.
Ms. Cole stated she and Ms. Latham were on Ms. Latham's
porch, Ms. Borntreger was in her car, and Ms. Cole was
walking from inside Ms. Latham's apartment towards the
porch immediately before the alleged incident. (Def. Ex. 2,
video of Ms. Cole, at 1:05; 2:20.) Ms. Cole stated Defendant
held a gun as he stood outside with two women, repeatedly
saying, “Motherfuckers.” (Id. at 1:15;
2:10) Ms. Cole did not elaborate on the term “outside,
” so it is unclear whether this means outside on the
porch, outside by the pickup truck, or in another location
outside of the apartment building. She observed Defendant and
the two women from Ms. Latham's porch, as she could look
through the porch's glass door. (Id. at 2:00)
Ms. Cole described the gun Defendant held as a brown shotgun.
(Id. at 1:35; 3:15.) She stated she was unsure
whether Defendant pointed the gun at anyone. (Id. at
2:25.) After seeing Defendant outside with a gun, Ms. Cole
stated that she and Ms. Latham returned to Ms. Latham's
apartment, and Defendant walked up the stairs back to his
apartment. (Id. at 2:40.)
Ms. Cole described Defendant as wearing a red shirt and black
or blue sweatpants. (Id. at 1:40.) She further
described Defendant as having his hair pulled back in a
Officer Bovy's affidavit in support of the search warrant
incorrectly states, “I spoke with” Ms. Cole.
(Gov. Ex. 1 at 4.) Officer Thomas actually spoke with her.
(Id.; Bovy Hr'g Test.) The officers'
testimony was contradictory regarding how this misstatement
occurred. Officer Bovy stated that he and Officer Thomas each
typed a portion of the document. Officer Bovy stated that
Officer Thomas typed “I spoke with” Ms. Cole, but
Officer Bovy signed the document so it should have stated,
“Officer Thomas spoke with” Ms. Cole. (Bovy
Hr'g Test.) Officer Thomas stated Officer Bovy typed
while he dictated. (Thomas Hr'g Test.)
G. Police Interview with Ms.
Officer Thomas interviewed Ms. Borntreger at the Waterloo
Police Department on February 3, 2019 (Doc. 23-1 at 1; Def.
Ex. 2, video of Ms. Borntreger.) Ms. Borntreger's
statements did not align with aspects of the other
witnesses' statements, especially regarding where
witnesses were located during the incident.
Ms. Borntreger stated Ms. Latham called her for a ride to the
grocery store. (Def. Ex. 2, video of Ms. Borntreger, at
1:05.) She then drove to Ms. Latham's apartment and
parked behind the apartment. (Id. at 1:15.) She
entered Ms. Latham's apartment and waited for Ms. Latham
to finish getting ready. (Id. at 1:20.) Ms.
Borntreger stated Ms. Latham saw Defendant's suitcase on
the porch as she, Ms. Latham, Mr. Cole, and Ms. Cole walked
out of Ms. Latham's apartment. (Id. at 1:20;
4:45.) Ms. Latham and Mr. Cole then put the suitcase into the
truck parked behind the apartment. (Id. at 1:35.)
Ms. Latham and Mr. Cole then returned to Ms. Latham's
Shortly after Ms. Latham and Mr. Cole returned to the house,
Ms. Borntreger heard Defendant and two women come down the
stairs outside of the apartment. (Id. at 1:42.) Ms.
Borntreger stated that she, Ms. Latham, Mr. Cole, and Ms.
Cole stayed in the front porch to watch Defendant and the two
women. (Id. at 1:55.) She said that Defendant was
carrying a gun while mumbling, “Fuck motherfuckers,
” and walking behind the apartment building.
(Id. at 2:05; 3:00.) Ms. Borntreger told Officer
Thomas that as Defendant walked around the apartment
building, she, Ms. Latham, Mr. Cole, and Ms. Cole decided to
exit the apartment building through Ms. Latham's back
door and go to Ms. Borntreger's residence to call the
police. (Id. at 2:15.)
Ms. Borntreger described the gun Defendant was holding as
“a regular shotgun” with a wood-grain grip and
stock and a black barrel. (Id. at 2:35-2:50.) She
stated Defendant did not point the shotgun at anyone because
Defendant could not see her or the other witnesses, as they
all watched Defendant from inside Ms. Latham's porch.
(Id. at 4:27-5:00.) Ms. Borntreger instead described
Defendant as carrying the shotgun in a manner that would
allow him to shoot quickly if necessary. (Id.)
Ms. Borntreger described one of the women with Defendant as
approximately the same age as Defendant, with dark hair,
while the other woman appeared to be several years older than
Defendant. (Id. at 3:15.) The woman who was
approximately the same age as Defendant wore a gray and white
striped coat, while the older woman wore a gray or black
T-shirt and jeans. (Id. at 3:40.)
Ms. Borntreger described Defendant as wearing a red T-shirt
with the sleeves cut off and pants that were either
camouflage or had another pattern. (Id. at 3:50.)
She stated Defendant had dark hair in dreadlocks pulled into
a ponytail. (Id. at 4:00.)
Officer Bovy's affidavit in support of the search warrant
contains the same misstatement regarding Ms. Borntreger's
interview as the misstatement regarding Ms. Cole's
interview. Officer Bovy wrote “I spoke with” Ms.
Borntreger, but Officer Thomas actually spoke with her. (Gov.
Ex. 1 at 4; Bovy Hr'g Test.) The explanations for ...