U.S. v. O'Connell
| Decision Date | 07 December 2005 |
| Docket Number | No. CR 05 148 LRR.,CR 05 148 LRR. |
| Citation | 408 F.Supp.2d 712 |
| Parties | UNITED STATES of America, Plaintiff, v. Kevin Patrick O'CONNELL, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Jonathan B. Hammond, Klinger, Robinson & Ford, LLP, Cedar Rapids, IA, for defendant.
Robert L. Teig, U.S. Attorney's Office, Cedar Rapids, IA, for plaintiff.
TABLE OF CONTENTS
I. PROCEDURAL BACKGROUND ..............................................715
II. STANDARD OF REVIEW .................................................716
III. FACTUAL FINDINGS ...................................................716
IV. OBJECTIONS TO FACTUAL FINDINGS .....................................717
V. OBJECTIONS TO LEGAL CONCLUSIONS ....................................718
A. Legal Conclusions of the Report and Recommendation .............718
B. Objections .....................................................719
C. Analysis .......................................................719
1. Curtilage/Generalized Search ...............................719
2. Automobile Search Exception ................................721
3. Search Incident to Arrest Exception ........................723
4. Attenuation ................................................725
VI. CONCLUSION .........................................................728
Before the court are Defendant Kevin O'Connell's Objections (docket no. 24) and the government's Response (docket no. 25) to the Report and Recommendation (docket no. 21) denying Defendant's Motion to Suppress (docket no. 12).
On May 17, 2005, Defendant was indicted on one count of knowingly possessing a firearm and ammunition while subject to a no-contact order that restrained him from threatening, assaulting, stalking, molesting or otherwise abusing his wife, Kelly O'Connell ("Kelly"), in violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2). On September 22, 2005, Defendant filed the instant Motion to Suppress ("Motion"). Defendant alleged law enforcement seized a shotgun and ammunition in violation of the Fourth Amendment. On October 4, 2005, the government filed a Resistance.
On October 12, 2005, the magistrate judge held a hearing on Defendant's Motion. On October 17, 2005, the government filed a Supplemental Resistance to Defendant's Motion. On November 7, 2005, the magistrate judge issued a Report and Recommendation, in which he recommended this court deny the Motion. See generally United States v. O'Connell, 2005 WL 2978326 (N.D.Iowa Nov. 7, 2005). On November 21 and 22, 2005, Defendant and the government respectively filed timely objections to the Report and Recommendation.
A district court judge must make a de novo determination of those portions of a magistrate judge's report or recommendation to which a party objects. 28 U.S.C. § 636(b)(1); see, e.g., United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003). The judge may accept, reject or modify, in whole or in part, the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1). Because Defendant and the government have made timely and specific objections in this case, the following de novo review is required.
After conducting a de novo review of the record, the court makes the following factual findings:
At approximately 2:30 a.m. on October 9, 2002, Kelly, the Defendant's wife, called the Linn County Sheriff's Office. Kelly reported that Defendant was in her house, in violation of a no-contact order. The Sheriff's Office confirmed that a state court had issued a valid no-contact order on September 20, 2002, and dispatched Sergeant Greg McGiverin, Deputy David Omar and Deputy Gary Van Cura to Kelly's house. Iowa law requires that if a law enforcement officer has probable cause to believe that someone has violated such a no-contact order, the officer must arrest that person. Iowa Code § 236.11 (2005).
While the officers were on their way to Kelly's house, Kelly told the Sheriff's Office that Defendant had left her house in a blue 1986 Ford Escort and was likely headed to his parents' house at 1199 Sisley Grove Road.1 Sergeant McGiverin and Deputy Van Cura, who were driving separate vehicles, switched routes and went to 1199 Sisley Grove Road to arrest Defendant. Deputy Omar continued on to Kelly's house.
At approximately 2:45 a.m., Sergeant McGiverin and Deputy Van Cura arrived at 1199 Sisley Grove Road, which is a farm. Sergeant McGiverin was following Deputy Van Cura's vehicle. The two entered the property on a gravel lane.
Sergeant McGiverin and Deputy Van Cura traveled eastward on the gravel lane for approximately one-quarter mile, until they reached a gravel circular drive. There was a machine shed and a house on the gravel drive. The deputies continued eastward, driving past both buildings.
Sergeant McGiverin and Deputy Van Cura drove around the farm on various gravel and dirt pathways that connected the buildings on the property. Sergeant McGiverin and Deputy Van Cura were looking for the Escort. Sergeant McGiverin testified: "We basically drove through the lanes looking for the vehicle."
Deputy Van Cura found the Escort east of the house. The Escort was parked east of a number of outbuildings on the far (east) side of four cylindrical grain bins. A dirt path led between the far side of the grain bins and the Escort. The Escort was parked next to a field in some tall weeds. Deputy Van Cura made a "very rough estimate" that the Escort was approximately 100 yards away from the house.
The Escort was not visible from either a public road or from the circular drive next to the farmhouse. The Escort only became visible to Deputy Van Cura once he drove around the far side of the grain bins. The Escort was, however, visible from an open field east of the grain bins.
A 4.5 foot high barbed-wire fence surrounded the entire compound, i.e., the house, the outbuildings and the grain bins (but not the open field east of the grain bins). The Escort was parked inside the fence.
Upon discovering the Escort, Sergeant McGiverin got out of his vehicle and walked over to the Escort. Sergeant McGiverin used his flashlight to look inside the windows of the Escort. Defendant was not inside the Escort.
A gray conversion van was parked approximately five to six feet away from the Escort. The van was parked in one to two-feet tall weeds. The van's front tires were flat and the front of it was badly damaged. The van did not have license plates and was not registered. The van was not operational. A month and a half before the date in question, the van was in an accident, "totaled" and towed to the farm.
Sergeant McGiverin looked through the van's windows inside the front passenger compartment of the van, but did not find Defendant. The van was completely silent and dark. Sergeant McGiverin opened one of the van's doors. Upon opening the door, he saw a plugged-in cell phone cord. Sergeant McGiverin called out Defendant's name. Defendant answered. Sergeant McGiverin drew his weapon, ordered Defendant out of the van and handcuffed and arrested him. Defendant was dressed in boxer shorts, a t-shirt, and socks.
Sergeant McGiverin searched the van. He found a loaded Remington twenty-gauge shotgun. Sergeant McGiverin also found three cases of empty beer cans and a case of full beer cans. It was apparent to Sergeant McGiverin that someone had been living in the van or was at least sleeping in it. There were a lot of blankets in the van and the back seat was folded down to make a bed. At some unknown point in time, Defendant told Deputy Van Cura that he had gone to the van to sleep.
Defendant makes two objections to the factual findings in the Report and Recommendation. First, the Report and Recommendation states that Deputy Van Cura opened the van's door, initiated contact with Defendant and searched the vehicle. Defendant objects and points out that Sergeant McGiverin did these things. As the court's de novo factual findings make clear, Defendant is correct.2 Accordingly, Defendant's first objection to the factual findings in the Report and Recommendation is sustained.
Second, Defendant requests that the court modify the following factual finding in the Report and Recommendation:
According to [D]efendant, the front end of the conversion van had extensive damage and the two front tires were flat. Neither officer noticed anything unique about the conversion van, and it was not apparent to either officer that the conversion van was not readily mobile.
Defendant maintains Sergeant McGiverin and Deputy Van Cura testified they could not remember whether the conversion van had sustained damage or was immobile. Defendant further asks that the court find that the van had the damage described by Defendant, because there is no clear contradictory evidence in the record.
At the hearing, Sergeant McGiverin testified he could not recall the condition of the van. Deputy Van Cura could not remember whether the van had flat tires or had license plates. When asked whether he recalled any "front end damage," Deputy Van Cura equivocated. He testified "[n]othing that was noticeable to me, as far as being major or caved in or anything." He further testified that "I think I would have remembered it, but I don't." Defendant testified the van's front tires were flat, the front of the van was badly damaged, the van did not have license plates and the van was "totaled" in an accident a month and a half before his arrest.
As indicated in the court's de novo factual findings, the court finds the van's front tires were flat, the front of the van was badly damaged, the van did not have license plates and the van was not operational. Defendant had a better opportunity to know the condition of the van; Deputy Van Cura...
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