United States v. Simeon

115 F.Supp.3d 981

UNITED STATES of America, Plaintiff,

v.Teresa Ann SIMEON, Defendant.

No. CR14–4081–MWB.

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

Signed July 20, 2015.

John H. Lammers, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

Bradley Ryan Hansen, Federal Public Defender's Office, Sioux City, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION CONCERNING DEFENDANT'S MOTION TO SUPPRESS

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND...................................986
   A. Procedural Background......................................986
   B. Factual Background.........................................987
II. LEGAL ANALYSIS...............................................993
    A. Standard Of Review........................................993
    B. Objections To Report and Recommendation...................996
       1. Newly raised issues....................................996
       2. Probable cause to search car before dog sniff..........997
       3. Probable cause to search car after dog sniff...........999
            a. Rico's training and certification................1000
            b. The free air sniff...............................1001
            c. Rico's indication................................1002
4. Combination of free air sniff and other information establishing
probable cause........................................................1002
5. Subsequent searches..........................................1002
III. CONCLUSION.................................................1003

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

On October 8, 2014, a criminal complaint was filed against defendant Teresa Ann Simeon, charging her with possessing with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Subsequently, on October 23, 2014, an indictment was returned charging Simeon with conspiracy to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense (Count 1), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851, and possessing with the intent to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense (Count 2), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851.

Simeon subsequently filed a motion to suppress in which she seeks to suppress evidence seized from her car and all evidence derived from that search. Simeon contends that she was detained for an unreasonable amount of time before the dog sniff was conducted. Next, she argues that her car was outside the scope of her detention and arrest and that it should have been released to her husband. She also argues that the dog sniff did not establish probable cause to search her car because it was improperly conducted and the dog and handler had insufficient training to be reliable. Finally, Simeon contends that a search warrant issued subsequently was invalid because it was issued in reliance on evidence obtained during the illegal search of her car. The prosecution filed a timely resistance to Simeon's motion. Simeon's motion to suppress was referred to United States Magistrate Judge Leonard T. Strand, pursuant to 28 U.S.C. § 636(b). Judge Strand conducted an evidentiary hearing and then filed a Report and Recommendation in which he recommends that Simeon's motion to suppress be denied. In his Report and Recommendation, Judge Strand initially concluded that neither Simeon's investigatory detention nor its duration violated her constitutional rights. Judge Strand next found that probable cause existed to search Simeon's car before Deputy Sands and Rico, his drug detection dog, conducted a free air dog sniff. Alternatively, Judge Strand determined that the prosecution established that Rico was a properly trained, certified, and reliable drug detector dog at the time of the free air dog sniff at issue here, that Sands conducted the free air dog sniff properly, and that Rico alerted and then indicated at the driver's side of Simeon's car. Thus, Judge Strand concluded, alternatively, that the combination of the free air dog sniff results and other information known to Sands established probable cause to search Simeon's car. Finally, Judge Strand determined that, because the evidence the prosecution relied upon to obtain the search warrant for Simeon's cell phones was gathered lawfully, there was no legal basis to suppress the evidence gathered from the execution of that search warrant.

Simeon has filed objections to Judge Strand's Report and Recommendation. The prosecution filed a timely response to Simeon's objections. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Simeon's motion to suppress.

B. Factual Background

In his Report and Recommendation, Judge Strand made the following factual findings:

Events inside the Casino. On the morning of October 3, 2014, a housekeeper at the WinnaVegas Casino & Resort (Casino) found a small baggie containing a white crystalline substance on a pillow in hotel room 418. Believing the baggie contained drugs, she reported it to Tribal Police Officer Matthew Benson. Benson seized the baggie from the room, took it to the Casino's security office and performed a field test on the substance. The field test was positive for methamphetamine. Benson then contacted the front desk to determine who had rented room 418. Teresa Simeon was the registered renter of the room. Benson reviewed security footage from the hallway near the room and determined that no one other than Simeon, a male (who was later determined to be Simeon's husband) and the housekeeper had entered or exited room 418 during the relevant period of time.

Benson then searched the premises for Simeon and found her on the Casino floor. He asked her to accompany him to the security office for questioning. She complied. Once in the security office, Benson advised Simeon of her rights and presented her an advisement of Rights form, which she signed at 1:32 p.m. Benson then questioned Simeon about the methamphetamine found in her room. Simeon denied having any knowledge of it. Benson told Simeon that he had done his research. He explained that he knew she resided in Wayne, Nebraska, that he had contacted law enforcement there and that they were aware of her.

Because Simeon is not a tribal member, Benson advised her that she would be detained while he contacted the Woodbury County Sheriff's Office (WCSO). At that point, Simeon requested to speak with her husband and asked if she could call her lawyer. Benson stated that she could call her lawyer but indicated that she would need to use her personal cell phone because he would be using to [sic] the security office phone to call WCSO.

Mr. Simeon was brought into the security office at 1:42 p.m. He, too, was advised of his rights and signed an Advisement of Rights form. Benson then asked him about the methamphetamine. Mr. Simeon denied any knowledge of the narcotics or how they appeared in their hotel room. Meanwhile, Simeon placed a call on her iPhone. She asked the recipient of the call to pick up her vehicle at the Casino. After the call, Simeon asked Benson what would happen to her vehicle and if she could give the keys to someone. Benson told her it would be up to the WCSO but that he would normally let her have a friend retrieve the vehicle.

In response to Benson's call, WCSO dispatch contacted Deputy Nathan Sands. He advised dispatch that he was available to respond and, indeed, was only about eight to ten miles away from the Casino. Sands was dispatched to the Casino at 1:47 p.m. According to the WCSO's records, he arrived at the Casino security office at 1:54 p.m. Benson briefed Sands about the situation in a hallway outside the security office while Simeon and her husband remained in the office.

Sands entered the security office at 1:58 p.m. and questioned Simeon about the methamphetamine found in her hotel room. He testified that both Simeon and her husband appeared to be very nervous during the discussion. When asked about prior drug use, Simeon admitted she had used methamphetamine the day before but denied that the methamphetamine in the room belonged to her. She also denied having any guests in the room. Sands then asked Simeon if her vehicle was in the parking lot. She responded by stating that it probably had been picked up by a friend and was no longer at the Casino.

Sands believed this to be a lie because Simeon resides near Sioux City and any friend driving from the Sioux City area would not have had time to arrive at the Casino and retrieve the vehicle in such a short amount of time. He asked Simeon why she would have had someone pick up her vehicle. She answered: "Because I figured I was going to be arrested." Sands then asked about prior arrests. Simeon responded that she had been arrested for drugs while her husband stated that he had been arrested for a DUI and a few other minor offenses long ago.

Sands asked Simeon if his drug dog would detect drugs if he deployed the dog around her vehicle. Simeon answered "no." Sands followed up by asking when she last had methamphetamine in the vehicle. Simeon initially answered that she had never had drugs in her vehicle but, when pressed, changed her answer to "it's been a real long time ago." Sands then told Simeon that he did not believe she or her husband were being honest with him and that he knew they were very nervous about something.

Sands left the security office at 2:04 p.m. and called his supervisor for directions as to how he should proceed. He described the positive field test, the fact that Simeon was the registered renter of the hotel room and her nervous behavior and evasive answers. Based

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