United States v. Buescher

691 F.Supp.3d 924

UNITED STATES of America, Plaintiff, v. Terrance Wayne BUESCHER, Defendant.

No. CR23-4014-LTS

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

Signed September 12, 2023

Shawn Stephen Wehde, Kevin C. Fletcher, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

Timothy Herschberger, Public Defender, Federal Public Defender's Office, Sioux City, IA, for Defendant.

ORDER REVERSING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION REGARDING MOTION TO SUPPRESS

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This case is before me on a Report and Recommendation (R&R) (Doc. 43) in which Chief United States Magistrate Judge Kelly K.E. Mahoney recommends that I deny defendant Terrance Buescher's motion (Doc. 31) to suppress. Buescher filed timely objections (Doc. 46) and the Government replied (Doc. 49).

II. BACKGROUND

A. Procedural History

On February 16, 2023, the Grand Jury returned an indictment (Doc. 3) charging Buescher with conspiracy to distribute methamphetamine, possession with intent to distribute methamphetamine and possession of a firearm in furtherance of a drug trafficking crime. Buescher filed his motion (Doc. 31) to suppress on April 12, 2023, and the Government filed its resistance (Doc. 36) on April 28, 2023. Judge Mahoney held a suppression hearing on May 15, 2023.¹ Doc. 40. The Government presented testimony from Rock Valley Police Officer Jordan Kerr and Drug Enforcement Administration Task Force Officer Ben Gill. Id. Judge Mahoney also admitted defense exhibits A through E and Government exhibits 1 and 2 into evidence. Id. Judge Mahoney filed the R&R on June 29, 2023.

B. Relevant Facts

Buescher seeks to suppress evidence resulting from a January 23, 2023, traffic stop.² On that day, Rock Valley Police Officer Derek Dreise stopped Buescher (whom he knew from previous traffic stops) while Buescher was driving a 2004 Ford Explorer with dark window tint. During the stop, Dreise confirmed the window tint exceeded the legal limit. Buescher told Dreise he was coming from Sioux Falls, South Dakota, but Dreise had information suggesting Buescher had been at a casino in Larchwood, Iowa. Dreise also noted signs Buescher was impaired, including "body tremors, eyelid tremors, involuntary muscle movements, bruxism, thick and rapid speech pattern, tooth decay, and short and rapid breath pattern." Doc. 43 at 2 (citing Ex. A at 1). Dreise asked Buescher to accompany him to the patrol vehicle, and Buescher complied. Dreise reported that "[Buescher] exhibited lackadaisical mannerisms when he stepped out of his vehicle by shrugging his shoulders although he walked rapidly and in a rigid walking style." Doc. 43 at 2 (citing Ex. A. at 1).

While the two spoke in the patrol vehicle, Dreise requested assistance from Officer Kerr and his police canine, K-9 Gus. Dreise issued Buescher a citation for failing to provide proof of insurance and a warning for the window tint. Dreise also told Buescher he believed Buescher was impaired and Buescher agreed to participate in a field-sobriety test. While Dreise conducted these tests, Kerr and K-9 Gus arrived. Judge Mahoney described the subsequent sniff of the vehicle as follows:

Officer Kerr led K-9 Gus around Buescher's vehicle three times (he testified he normally does two or three passes when conducting a drug sniff). Officer Kerr and K-9 Gus followed their standard pattern by starting at the front passenger headlight and moving counter-clockwise around the vehicle. Kerr walked backward ahead of K-9 Gus, who was on a four-foot leash. Officer Kerr testified that on the first pass, K-9 Gus showed some interest at the driver's door (by smelling longer at that location) but did not provide a positive indication. Officer Kerr testified that he believed K-9 Gus was distracted by Officer Dreise, who helps with training K-9 Gus and also pets him when they are both at the police department. Officer Kerr testified he had to refocus K-9 Gus back to the drug sniff (saying "leave Derek alone" and "wrapping" or turning K-9 Gus around). This can be seen and heard on the videos. According to Officer Kerr, K-9 Gus did not alert or show interest in the Explorer on the second pass. On the third pass, K-9 Gus put his nose in the open driver's window and tried to jump inside twice. Officer Kerr testified this was an alert by K-9 Gus that he had found the odor of narcotics. Officer Kerr prompted K-9 Gus to "find drugs" and Gus gave a positive indication by sitting down and staring. Officer Kerr testified that during each pass of the Explorer, he pointed with his hand to various areas on the Explorer to direct K-9 Gus where to go, and that he never intended to put his hand inside the open driver's window.

Doc. 43 at 3.

During the search, the officers recovered a 9mm Smith & Wesson handgun, ammunition, a digital scale, drug paraphernalia, a cell phone, pills and three baggies of a substance that field tested positive for methamphetamine. Dreise arrested Buescher for possession of methamphetamine and transported him to the police department to investigate whether Buescher was driving while intoxicated. At the station, Buescher declined a Drug Influence Evaluation but provided a urine sample. The sample tested presumptively positive for methamphetamine and amphetamines. Officers then booked Buescher into the Sioux County, Iowa, jail on state charges.³

III. STANDARD OF REVIEW

A district judge must review a magistrate judge's R&R under the following standards:

Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. 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. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.

Any portions of an R&R to which no objections have been made must be reviewed under at least a "clearly erroneous" standard. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed "[the district court judge] would only have to review the findings of the magistrate judge for clear error"). As the Supreme Court has explained, "[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." Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). However, a district judge may elect to review an R&R under a more-exacting standard even if no objections are filed:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it 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, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

IV. DISCUSSION

Buescher objects to the following conclusions by Judge Mahoney: (1) K-9 Gus did not trespass into Buescher's vehicle, and therefore, the police did not conduct a warrantless search of the vehicle, and (2) Kerr acted reasonably while conducting the drug sniff with K-9 Gus. I will address these issues in turn.⁴

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The parties do not dispute that a drug dog may sniff the exterior of a vehicle without implicating the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). However, they dispute whether Kerr and K-9 Gus conducted a warrantless, unreasonable search when each of them broke the plane of the open driver's side window during the sniff.

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[Editor's Note: The preceding image contains the reference for footnote⁵].

Their arguments focus on three cases: United States v. Lyons, 486 F.3d 367 (8th Cir. 2007); United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012); and Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). In Lyons, a canine stuck his head through an open passenger-side window and then sat down beside that door, indicating he "had found the strongest source of the odor of narcotics." Lyons, 486 F.3d at 370. The Eighth Circuit noted that the officer had not created the opportunity to breach the interior of the vehicle because the defendant had left the window down when he exited the vehicle. Id. at 373. The canine's handler had not directed the dog to break the plane, and "[a]bsent police misconduct, the instinctive actions of a trained canine do not violate the Fourth Amendment." Id. The court also found that the dog would have indicated on the vehicle even if he had not put his head through the open window, and therefore, "[g]iven the certainty that the course of action the police were pursuing at the time of the [dog sniff] would have led to discovery of the same evidence forthwith by unquestionably legal means, there is no reason to penalize the police for this accident by excluding evidence." Lyons, 486 F.3d at 373-74 (internal quotation marks omitted).

In Jones, decided five years after Lyons, police officers attached a GPS tracker to the underside of the defendant's...