United States v. Smith

• Decision Date: 03 November 2021
• Docket Number: 21-cr-2041-CJW
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JEREMY JAY SMITH, Defendant.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff, v. JEREMY JAY SMITH, Defendant.

No. 21-cr-2041-CJW

United States District Court, N.D. Iowa

November 3, 2021

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

Mark A. Roberts, United States Magistrate Judge.

TABLE OF CONTENTS

I. INTRODUCTION 3

II. FINDINGS OF FACT 4

A. Defendant's Snapchat Posts Made September 12, 2020 ..................... 5

B. Officer Ehlers's Further Investigation on September 12, 2020 ............ 7

C. The Search Warrant ............................................................... 8

III. DISCUSSION ................................................................................ 9

A. Whether the Search Warrant for Defendant's Home and Vehicles Contains Substantial Evidence Supporting Probable Cause ............... 10

1. Legal Standard ............................................................ 16

2. The Parties' Arguments .................................................. 17

3. Whether the Affidavit Supported the Assertion that Defendant was a Drug User ................................................................ 20

4. Whether the Affidavit Makes Allegations that Marijuana was Pictured in any of Defendant's Vehicles .............................. 24

5. Whether the Affidavit Indicates that the Photographs of the Marijuana in the Snapchat Posts Were Recent ...................... 29

6. Whether the Allegation Linking Defendant's Home to the Marijuana Pictured in the Marijuana Posts is Sufficiently Supported by Reference to Online Information about the Home ........................................................................ 31

7. Whether Defendant's Presence in his Home and His “Brief Visit” Contribute to Probable Cause ........................................... 34

8. Recommendations ......................................................... 35

i. Items Seized from Defendant's Vehicles ...................... 35

ii. Marijuana and Paraphernalia Seized from Defendant's Home ................................................................ 36

iii. Firearms Seized from Defendant's Home .................... 36

B. Whether Defendant has Established a Violation Under Franks v. Delaware, 438 U.S. 154 (1978) ................................................. 38

1. Legal Standard ............................................................. 39

2. Whether Defendant has Made a Sufficient Preliminary Showing to Entitle Him to a Franks Hearing ...................................... 40

3. Whether Defendant has Established a Violation Under Franks Based on Officer Ehlers's Statements in the Search Warrant Affidavit ..................................................................... 42

4. Whether Defendant has Established a Franks Violation Based on the Omission of Certain Snapchat Posts from the Affidavit ...... 46

5. Conclusion .................................................................. 49

C. The Leon Good Faith Exception ............................................... 49

IV. CONCLUSION ............................................................................. 53

I. INTRODUCTION

On June 15, 2021, the Grand Jury charged Defendant Jeremy Jay Smith with one count of Possession with Intent to Distribute Marijuana in violation of 21 U.S.C. Sections 841(a)(1) and 841(b)(1)(D), one count of Maintaining a House to Distribute a Controlled Substance in violation of 21 U.S.C. Section 856(a)(1), one count of Maintaining a House for Others to Use a Controlled Substance in violation of 21 U.S.C. Section 856(a)(2), and one count of Possession of a Firearm During and in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. Section 924(c)(1). (Doc. 2.)

The matter before the Court is Defendant's Motion to Suppress. (Doc. 18.) The Government timely filed a response (Doc. 21) and an amended response (Doc. 22). Defendant filed a reply. (Doc. 25.) The Honorable Charles J. Williams, United States District Court Judge, referred the motion to me for a Report and Recommendation. I held a hearing on Tuesday, September 21, 2021. (Doc. 26.)

At the hearing, the following Government exhibits were admitted without objection:

1. Photos of house (Gov. Ex. 1);

2. Video titled “handgun in truck” (Gov. Ex. 2);

3. Video titled “handgun and ammunition” (Gov. Ex. 3);

4. Photo of receipt (Gov. Ex. 4);

5. Video titled “marijuana distribution AK47 strain” (Gov. Ex. 5);

6. Video titled “selfie gun marijuana” (Gov. Ex. 6);

7. Photo of firearm (Gov. Ex. 7); 8. Photo of multiple firearms (Gov. Ex. 8); and

9. Photo of bag of marijuana (Gov. Ex. 9).

Defendant filed an Inventory of Items to be Suppressed. (Doc. 18-1.) Defendant's exhibits were admitted without objection:

1. Search warrant (Def. Ex. A);

2. Incident Report by Waterloo Police Department (Def. Ex. B);

3. Four photos: one of a receipt, two of firearms, and one of a bag of marijuana (Def. Ex. C);

4. Videos from social media (Def. Ex. D);

5. Videos from defendant's phone (Def. Ex. E); and

6. Body camera videos of Officers Jordan Ehlers and Michael Girsch (Def. Ex. F).

The Government called one witness: Officer Jordan Ehlers of the Waterloo Police Department. Defendant called no witnesses. For the following reasons, I respectfully recommend that the District Court deny Defendant's Motion to Suppress.

II.FINDINGS OF FACT

The following facts were established from the hearing testimony of Officer Ehlers, unless otherwise noted. I found the witness credible.

In September 2020, officers with the Violent Crime Apprehension Team (“VCAT”) of the Waterloo, Iowa Police Department began investigating Defendant Smith due to his association with the Street Soldiers, a motorcycle club in Waterloo. (Def. Ex. A at 5.) The Street Soldiers have been the subjects of multiple previous drugs-and weapons-related investigations by the Waterloo VCAT. As part of the investigation into Smith, Officer Ehlers, a detective with the Waterloo VCAT, requested that Smith “add” him on Snapchat. Smith accepted Officer Ehlers's request, allowing Officer Ehlers to view photos and videos Smith posted to his Snapchat account and to the account's “private story.”

A. Defendant's Snapchat Posts Made September 12, 2020

On September 12, 2020, Officer Ehlers viewed posts made to Defendant's Snapchat account. Officer Ehlers captured the photos and videos made to Defendant's account on September 12, 2020 in real time as they were posted. The first post Officer Ehlers viewed was a video of Defendant inside an unidentified vehicle. (Def. Ex. A at 5; Gov. Ex. 2.) This video shows Defendant recording himself and saying he is “geeked” to discover that a gun he wanted was available for purchase. In this video, Defendant also displays a black, semi-automatic handgun in a holster, a gun he refers to as his “everyday carry.” (Gov. Ex. 2 at 00:12-00:13.) Defendant is wearing a red and black “Air Jordan” shirt in this video. The video is tagged with the location “Scheels All Sport” in Cedar Falls, Iowa.

The second Snapchat post Officer Ehlers viewed on Defendant's account on September 12 was a video of a black, semi-automatic handgun inside a case. (Def. Ex. A at 5; Gov. Ex. 3.) This video pans to show paperwork for a Ruger-57 Pistol, and then pans again to show a hand opening a box of ammunition next to the case containing the gun. (Gov. Ex. 3 at 00:03-00:16.) This video is captioned with two shouting emojis and two “100” emojis. The third Snapchat post Officer Ehlers viewed on Defendant's account was a photo of a Scheels receipt being held by a hand against a leg clad in blue jeans. (Gov. Ex. 4.) The receipt in the photo shows a purchase price of $781.08, and the photo is captioned “Not too bad..I'm geeked!!!!!!” (Id.)

Officer Ehlers then observed a fourth post made to Defendant's Snapchat account. This post was a video that showed a hand reaching into a bag of marijuana. (Def. Ex. A at 5; Gov. Ex. 5.) This video depicts a person touching the marijuana and lifting some of the marijuana out of the bag, and appears to show that the bag contains a large quantity of marijuana. (Gov. Ex. 5.) The video is captioned “Ak47!!” (Id.) AK47 is a strain of marijuana.

A fifth post made to Defendant's Snapchat account is a video of Defendant wearing a red and black “Air Jordan” shirt and speaking to the camera about his plans for the day. (Gov. Ex. 6.) In this video, a light fixture mounted to the ceiling can be seen behind Defendant's head, and shadows in the video indicate a ceiling fan is running in the room. (Id.) The video also shows the corner of a white wall above Defendant's left shoulder and is captioned “Saturday Vibes.” (Id. at 00:00-00:06.) Although the issue was not discussed in the briefs or at the hearing, I have determined that September 12, 2020 was a Saturday.

The next post Officer Ehlers observed, and the sixth post made to Defendant's account on September 12, 2020, is a photo of a vacuum-sealed bag of marijuana being held against a person's leg. (Def. Ex. A at 5, Gov. Ex. 9.) The person in the photo is wearing blue jeans and black and purple “Air Jordans” shoes. The photo also shows a light-colored wood floor and is captioned “Wish You Were Here” with a postage stamp icon. (Gov. Ex. 9.) Officer Ehlers then observed a seventh post on Defendant's account. (Def. Ex. A at 5.) This post was a photo that showed a handgun resting on a person's leg. (Gov. Ex. 7.) The person in this photo is wearing blue jeans and the handgun appears to be the same Ruger-57 shown in Government's Exhibit 3. The photo also shows the person holding ammunition in their...