United States v. Iverson, 14-CR-197

• Decision Date: 25 February 2016
• Docket Number: 14-CR-197
• Parties: United States of America, v. Elijah Iverson, Defendant.
• Court: U.S. District Court — Western District of New York

166 F.Supp.3d 350

United States of America,

v.Elijah Iverson, Defendant.

14-CR-197

United States District Court, W.D. New York.

Signed February 25, 2016

Joel Clarence Moore, Joseph M. Tripi, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Leslie Ellen Scott, Frank Richard Passafiume, Federal Public Defender Office, Buffalo, NY, for Defendant.

DECISION AND ORDER

LAWRENCE J. VILARDO

, UNITED STATES DISTRICT JUDGE

The motion before this Court tells a story of a man and his dog, and it asks whether their actions violated the Fourth Amendment. The man is Town of Tonawanda Police Officer Brent Costello. The dog is Tank, a “dual purpose” service K-9 trained to track suspects and detect narcotics.

Procedural Background

A grand jury indictment charged defendant Elijah Iverson with, among other things, possessing cocaine and marijuana with intent to distribute them in violation of 21 U.S.C. § 841(a)(1)

. See Docket Item 10. Iverson moved to suppress physical evidence seized on October 22, 2014, after Tank alerted police officers to the presence of drugs in Iverson's apartment. Although Iverson does not dispute that the human police officers had permission to enter his apartment to follow up on a 911 call he made, he argues that this permission did not necessarily extend to their drug-detecting dog. Iverson also moved to suppress incriminating statements that he made during this encounter and to suppress physical evidence seized during the execution of a search warrant the following day.

The magistrate judge assigned to handle pretrial proceedings in this matter, Hon. Jeremiah J. McCarthy, conducted a suppression hearing on June 18, 2015, and July 20, 2015, during which three police officers testified. See Docket Items 41 & 43. Iverson did not testify but submitted an unsworn declaration in support of his motion to suppress. Judge McCarthy thereafter issued a Report and Recommendation recommending denial of the defendant's motion in its entirety. See Docket Item 59.

Iverson now has objected to the Report and Recommendation, requiring this Court to review this matter de novo. See 28 U.S.C. § 636(b)(1)

; Fed. R. Crim. P. 59(b). The Court may accept the magistrate judge's recommendations, reject them, or modify them, either in whole or in part. 28 U.S.C. § 636(b)(1) ; Fed. R. Crim. P. 59(b)(3)

. For the reasons set forth below, the Court (1) accepts Judge McCarthy's recommendation to deny the defendant's motion to suppress physical evidence seized on October 22 and 23, 2014, and (2) likewise accepts his recommendation to deny the defendant's motion to suppress statements.

Facts

On the evening of October 22, 2014, defendant Elijah Iverson called 911 to report that a suspicious, armed man attempted to enter his apartment building in the Town of Tonawanda. See Docket Item 47 at 9, 45. Town of Tonawanda Police Officers Frank Bartolotta and Mark Muscoreil were dispatched to the scene and were the first officers to arrive. See id. at 45-47. While Officer Muscoreil secured the perimeter of the building, Officer Bartolotta spoke to Iverson. See id. at 47-49.

Iverson said that he met a woman named Candy at a nearby liquor store earlier that night. See id. at 26, 51. Although his story is not entirely clear from the record, Iverson seemed to suggest that Candy set him up to be robbed. See id. Iverson said that he later observed Candy and the suspicious man in a hallway, or on a landing, outside his second-floor apartment. See id. at 12, 26, 51. He said that Candy and the suspicious man eventually left without directly threatening him or entering his apartment. See id. at 26, 51.

After hearing Iverson's story, Officers Bartolotta and Muscoreil left to check the video surveillance at the liquor store. See id. at 50-52. At about the same time, sometime between 10:30 and 10:45 p.m., Officer Jason Arlington arrived at Iverson's apartment. See id. at 9, 17-18. He kept the area secure until Officer Brent Costello and his dog, Tank, arrived at about 11:00 p.m. See id. at 20.

Earlier that evening, Officer Costello and Tank had unsuccessfully tried to track a suspect in a reported robbery that occurred about two miles from Iverson's apartment. See Docket Item 46 at 11-12; Docket Item 47 at 9-10, 46. Officers Bartolotta and Muscoreil believed—at least initially—that the suspect from the earlier robbery also may have been the subject of Iverson's 911 call “because the descriptions [of the suspects] were very similar.” See Docket Item 47 at 52-53. Officers Arlington and Costello were briefed on this at or before the time they arrived at the apartment. See Docket Item 46 at 12-13, 60, 66-67; Docket Item 47 at 17-18, 20-21, 26, 53-54.

Officer Costello and Tank proceeded to trace the perimeter of Iverson's apartment building and adjacent areas in an unsuccessful attempt to find a “workable odor” to track the suspect. See Docket Item 46 at 14-16, 63, 67, 75-77. Officer Arlington accompanied them. See Docket Item 47 at 20. Officer Costello also directed Tank to search for any discarded firearm, but Tank did not locate anything. See Docket Item 46 at 16-17.

In the meantime, Officers Bartolotta and Muscoreil finished viewing the surveillance video from the liquor store. See Docket Item 47 at 52. Because they did not observe a woman matching Iverson's description of “Candy” in the video, they started to question Iverson's story. See id. At 11:23 p.m., Officer Bartolotta began typing a report from his vehicle, which was parked in front of Iverson's apartment building. See id. at 54-55, 60. The report indicates that Officer Bartolotta had a hunch that Iverson had concocted a “vague” and “untrue” story about meeting a woman named Candy at the liquor store to hide the fact that Iverson was “selling drugs out of the apartment.” See id. ; Docket Item 45-11. Officer Bartolotta did not communicate this hunch to Officer Costello, however. See Docket Item 46 at 70.

When he and Tank finished trying to track the suspect outside Iverson's apartment, Officer Costello “told Officer Arlington [he] wanted to go upstairs and talk with the complainant” to see if he could provide “any further information on...where the suspect might have ran to or gone.” Docket Item 46 at 18. As Officer Costello testified, he wanted “to do one...last ditch effort to try to find the guy that had a gun” and “to exhaust the search as best [he] could for the suspect.” See id. at 18-19; see also Docket Item 47 at 11. Both he and Officer Arlington denied any ulterior motives in going to Iverson's apartment, such as searching for contraband. See Docket Item 46 at 20, 23, 108-09; Docket Item 47 at 16.

Officers Costello and Arlington, along with Ken Englert, another officer who had responded to the scene, then proceeded to Iverson's apartment with Tank in tow. See Docket Item 46 at 19. Officer Arlington called out for Iverson and knocked. See id. at 83; Docket Item 47 at 12, 28. Iverson responded, “come in, it's open.” Id. at 19-20, 83; see also Docket Item 47 at 12, 28-29. The officers did not announce that they had a dog with them. See Docket Item 46 at 22, 83-85. According to Officer Costello, Iverson then “came to the door...and everyone walked into the apartment.” Docket Item 46 at 83. Officers Arlington and Englert entered first, followed by Officer Costello with Tank tethered to his gun belt on a four-foot leash. See id. at 20, 27; Docket Item 47 at 28-29. Iverson had a clear line of sight to Tank and did not object to the dog's entry. See Docket Item 46 at 22, 83-85.

Officer Arlington asked Iverson about “another possible spot the suspect had run from or to.” Id. at 26. Along with Officer Englert, Iverson and Officer Arlington then moved to the living room while Officer Costello and Tank remained in the “hallway entrance area” of the apartment. See id. at 26-27, 44-45, 85, 99. From his location in the living room, Iverson still had a clear sight line to Tank. See id. at 26.

Officer Costello testified that he took Tank to Iverson's apartment for the purpose of officer safety and that he generally keeps Tank with him whenever he can. See id. at 20; Docket Item 47 at 27. Tank is a “dual purpose” canine, however: not only can he perform patrol work, including protecting officers and tracking suspects, but he also can detect drugs. See Docket Item 46 at 90-91.¹ With respect to the latter, Tank can be commanded to actively search for drugs. See id. at 23-24, 26. But Officer Costello never gave that command, and Tank remained tethered at his side while they were in Iverson's apartment. Id. at 27-28.

Nevertheless, Tank became excited and started to bark after being in the apartment for about five minutes. See id. at 27-28, 86-87. Officer Costello understood that to mean that Tank smelled the odor of narcotics, and he so informed Officer Arlington. See id. at 27-29, 44-45; Docket Item 47 at 31.

The officers then told Iverson that “there's something in here that shouldn't be in here” and asked what it was. Docket Item 46 at 29; see id. at 46, 91-92. Iverson eventually responded that he had an eighth of an ounce of marijuana in the apartment; when he was asked where, he motioned to the kitchen. See id. at 30, 46, 92-93; Docket Item 47 at 13. Officers Costello and Arlington then followed Iverson to the kitchen. See Docket Item 46 at 30; Docket Item 47 at 13, 31-32.

As Iverson opened a drawer and removed a bag of marijuana, Officer Costello observed a scale. See Docket Item 46 at 31-32; Docket Item 47 at 13. When Officer Costello asked “what else was in the drawer,” Iverson responded that it was “his personal stuff....[a]nd he was trying to basically keep that because he didn't want to give it up. That was the good stuff.” Docket Item 46 at 30-31. Officer Costello said “we're going to take that, too,” and a scale and two more bags of marijuana were removed from the drawer. See id. at 31-33.

Officer Costello then told Iverson that he believed that there were more narcotics in the apartment and that he was ...