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United States v. Miller

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

December 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LEVI FARREN MILLER, Defendant.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

          Leonard T. Strand, Chief Judge

         This 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.

         I. BACKGROUND

         A. Procedural History

         On May 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. § 5861(d).

         On 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 Franks hearing.

         Judge 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.

         Judge 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. No. 61.

         B. Relevant Facts

         Judge 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 Johnson
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 4.)
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 Test.)
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 Hr'g Test.)
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 3:40.)
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. at 8:44.)
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 ponytail. (Id.)
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. Borntreger
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 apartment. (Id.)
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 ...

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