U.S.A v. Riesselman, CR09-4061-MWB.

• Decision Date: 28 April 2010
• Docket Number: No. CR09-4061-MWB.,CR09-4061-MWB.
• Parties: UNITED STATES of America, Plaintiff,v.Paul RIESSELMAN, Defendant.
• Court: U.S. District Court — Northern District of Iowa

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UNITED STATES of America, Plaintiff,
v.
Paul RIESSELMAN, Defendant.

No. CR09-4061-MWB.

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

April 28, 2010.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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

Jim K. McGough, Omaha, NE, for Defendant.ORDER CONCERNING MAGISTRATE'S AMENDED REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO SUPPRESSMARK W. BENNETT, District Judge.

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I. INTRODUCTION AND BACKGROUND A. Procedural Background

On January 28, 2010, a Superseding Indictment was returned against defendant Paul Benjamin Riesselman, charging him with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 960(a); distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(C), and 860(a); being an unlawful user of methamphetamine in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2); and unlawfully possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. On March 1, 2010, defendant Riesselman filed a Motion to Suppress. In his motion, defendant Riesselman seeks to suppress evidence obtained during a search of his residence and person, as well as a statement he made to law enforcement officers.

Defendant Riesselman's Motion to Suppress was referred to Chief United States Magistrate Judge Paul A. Zoss, pursuant to 28 U.S.C. § 636(b). After conducting an evidentiary hearing, on March 10, 2010, Judge Zoss filed a Report and Recommendation in which he recommended that defendant Riesselman's Motion to Suppress be granted in part and denied in part. On March 18, 2010, defendant Riesselman filed a motion to reopen the evidence, extend the deadline to file objections to the Report and Recommendation, and continue the trial of this case. Judge Zoss granted the motion, and a supplemental evidentiary hearing was held on March 24, 2010.

On March 31, 2010, 2010 WL 1737711, Judge Zoss filed an Amended Report and Recommendation in which he recommends that defendant Riesselman's Motion to Suppress be granted in part and denied in part. Judge Zoss concluded that defendant Riesselman's Motion to Suppress should be granted as to the drugs seized from his person because the prosecution conceded the pat-down search of Riesselman by Iowa State Troopers was neither authorized by the search warrant nor reasonable under the circumstances. Similarly, Judge Zoss found that a cellular telephone, that was also seized during the same search of Riesselman's person, should be suppressed. Judge Zoss next took up the issue of whether Riesselman had requested the assistance of counsel, concluding that Riesselman never expressly asked for a lawyer and a statement he made to law enforcement officers did not amount to a clear and unequivocal request for the assistance of counsel sufficient to invoke his Sixth Amendment right to counsel. Judge Zoss also rejected Riesselman's argument that all evidence seized pursuant to a search warrant for his residence should be suppressed because law

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enforcement officers executing the search warrant failed to provide him with a complete copy of the search warrant, finding that the officers had a complete copy of the search warrant with them, that there was no evidence that the officers' failure to give Riesselman a complete copy of the search warrant was deliberate and that Riesselman had failed to show he was prejudiced. Finally, Judge Zoss rejected Riesselman's contention that his statement to law enforcement officers should be suppressed because it was the product of the unlawful search of his person. In reaching this conclusion, Judge Zoss found that, except for statements Riesselman made concerning the illegally seized drugs and cellular telephone, Riesselman did not prove that he would not have talked to the officers if the drugs had not been discovered. With respect to Riesselman's statements concerning the drugs found on him and the cellular telephone, Judge Zoss found that the prosecution had met its burden of proving that the connection between the illegal search of Riesselman's person and his statement was so attenuated as to dissipate the taint of the illegal search. Accordingly, Judge Zoss found that Riesselman's statement was given freely, and was not coerced or procured though exploitation of the illegal seizure of the drugs or cellular telephone. Therefore, Judge Zoss recommended that defendant Riesselman's Motion to Suppress be granted in part and denied in part. Defendant Riesselman has filed objections to Judge Zoss's Amended Report and Recommendation. The prosecution has filed no objections.¹ The court, therefore, undertakes the necessary review of Judge Zoss's recommended disposition of defendant Riesselman's Motion to Suppress. B. Factual Background

In his Report and Recommendation, Judge Zoss made the following findings of fact:

In mid-March 2008, a confidential informant (“CI”) met with SA Jones and provided information indicating the CI had purchased methamphetamine from Riesselman over a period of time. The CI stated Riesselman conducted drug transactions in the basement of his residence, and he had surveillance cameras and weapons at the residence. Over the next three to four months, the CI met with Riesselman at Riesselman's residence on numerous occasions during which the CI and Riesselman discussed methamphetamine transactions and weapons. On one occasion, the CI purchased a small quantity of methamphetamine from Riesselman. The details of the encounters between the CI and Riesselman are set forth in the affidavit (Gov't Ex. 4). Among other things, the CI provided information that gang members had been seen at Riesselman's home, and Riesselman had acquired a .308 assault rifle.

Because SA Jones is not a federally-deputized officer, he asked TFO Heideman

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to assist him in obtaining a federal warrant to search Riesselman's residence. Heideman prepared an affidavit (Gov't Ex. 4) and application for search warrant (Gov't Ex. 3), and presented them to the undersigned on July 3, 2008. Based on the information contained in the affidavit, the undersigned found probable cause to issue the search warrant, and the warrant was issued. (Gov't Ex. 1) The search warrant form contains spaces for the court to designate whether a person, a designated premises, or both will be the subject of the search. The Government requested authority to search premises designated as Riesselman's residence, garage, “and any other outbuildings, garbage containers, and/or vehicles parked on the property [.]” (Gov't Ex. 1) The Government did not request, and the court did not authorize, the search of any persons. ( Id.) In the space on the search warrant form for the designation of the items for which officers were authorized to search, the form indicates, “See attachment 1.” ( Id.) The court routinely permits warrants and affidavits to refer to attachments, and deems the warrant itself to include both the Search Warrant form (Gov't Ex. 1) and the attachment (Gov't Ex. 2). Attachment 1 lists numerous documents, items of drug paraphernalia, weapons, and other items for which officers were authorized to search pursuant to the warrant.² ( See Gov't Ex. 2)

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On July 9, 2008, at about 9:00 a.m., Heideman met with Jones and a number of other officers in Crawford County, Iowa, for a briefing prior to execution of the search warrant. Heideman provided Jones with copies of the warrant, including Attachment 1, and Heideman's affidavit in support of the warrant application. Jones briefed the officers about the case, and a member of the Iowa State Patrol Tactical Unit gave the tactical side of the briefing. The Tactical Unit members were to conduct the entry into the residence while the non-tactical officers secured the perimeter and apprehended anyone who might attempt to flee from the premises. Jones assigned Heideman to interview Riesselman, but Jones also planned to question Riesselman himself. The officers intended to ask Riesselman about the activities detailed in the warrant affidavit, such as his drug usage, drug trafficking activities, association with gang members, and weapons. They also planned to see if Riesselman was interested in cooperating with law enforcement in a further investigation.

When the team arrived at Riesselman's residence, the Tactical Unit approached the house and set off two diversionary devices. They secured a female subject, Stephanie Adams, who was inside the residence. Some of the non-tactical officers encountered Riesselman and another individual, George Wayland, outside the rear of the residence. They secured and handcuffed Riesselman and Wayland. As Jones entered the area and walked toward Riesselman, one of the other officers approached Jones and told him a small personal-use quantity of methamphetamine had been found in Riesselman's pocket during a pat-down search. Jones took possession of the drugs and approached Riesselman, who was sitting on the ground with his hands cuffed behind his back. Jones and Heideman both testified that before they learned drugs had been found on Riesselman's person, they had planned to interview him to see if he would give a statement and to inquire if he was willing to cooperate in a further investigation.

Jones read Riesselman his Miranda rights, and Riesselman indicated he understood his rights and was willing to talk with the officers. Jones directed Riesselman to “sit tight” for a minute, and then Jones asked Heideman to take Riesselman inside the residence and interview him while Jones talked with Wayland and Adams. Heideman took Riesselman inside and the two sat at the kitchen table. Riesselman testified that as they were walking into the residence, he asked,

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