United States v. Washington

• Decision Date: 09 September 2021
• Docket Number: 3:18-cr-64
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. CLARENCE WASHINGTON, Defendant.
• Court: U.S. District Court — Southern District of Iowa

UNITED STATES OF AMERICA, Plaintiff,
v.
CLARENCE WASHINGTON, Defendant.

No. 3:18-cr-64

United States District Court, S.D. Iowa

September 9, 2021

REPORT AND RECOMMNEDATION ON DEFENDANT'S MOTION TO SUPPRESS

STEPHEN B. JACKSON, JR. UNITED STATES MAGISTRATE JUDGE

TABLE OF CONTENTS

I. INTRODUCTION……………………………………………………………………..…...2

II. FINDINGS OF FACT……………………….………………………………….….………3

A. GPS TRACKING WARRANT …………………………………..……………………4

B. TESTIMONY OF OFFICER MARK DINNEWITH…...…………………….…….….5

C. TESTIMONY OF OFFICER ROBERT WELCH……………..……………………….8

III. ANALYSIS OF MOTION TO SUPPRESS..……………………………………………...11

A. THE GPS LOCATION DATA……………………………………..……………….…..12

B. THE VEHICLE STOPS…………………………………………….…………………..18

1. NOVEMBER 20, 2020………………………………………………………….18

2. FEBRUARY 18, 2021………………………………………………………..…19

IV. RECOMMENDATION AND ORDER…………………………………………….…22

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I. INTRODUCTION

This matter comes before the Court pursuant to Defendant's Motion to Suppress Evidence and Request for Evidentiary Hearing (Dkt. 97) and Brief in Support (Dkt. 97-1), both filed May 21, 2021 by Clarence Washington (“Defendant”). Defendant seeks to prohibit using evidence from a GPS tracking device placed on a vehicle associated with Defendant. Dkt. 97. In addition, Defendant seeks to prohibit the government from using as evidence the physical items found and seized during two searches of vehicles on November 2, 2020 and February 18, 2021, the testimony of the officers concerning their observation of the physical items allegedly found during the search and detention, and any testimony concerning alleged statements or admissions by Defendant. Id. The government resisted the motion on August 2, 2021. Dkt. 116. Defendant filed his reply on August 13, 2021. Dkt. 119. The matter was referred to this Magistrate Judge for report and recommendation by Chief Judge John A. Jarvey. Dkt. 98. Trial is set for September 27, 2021. Dkt. 104.

An evidentiary hearing was held on August 20, 2021. Dkt. 120. The government appeared by Assistant U.S. Attorney Andrea Leigh Glasgow. Defendant appeared personally and with his attorney, Terence L. McAtee. Testimony was received from Officer Mark Dinneweth of the Davenport, Iowa Police Department and Officer Robert Welch of the Davenport, Iowa Police Department. The Court received three exhibits offered by the government without objection: Exhibit 1 - the GPS search warrant for this case, Exhibit 2 - an email sent by Officer Dinneweth on February 18, 2021, and Exhibit 3 - a map showing the overhead view of the location of the February 18, 2021 traffic stop. The Court received two exhibits offered by Defendant over relevance objections by the government: Exhibit A - a photograph of Defendant on February 20,

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2021 and Exhibit B - a photograph of Defendant on February 18, 2021. No. further briefings were submitted by the parties.

The Court considers the matter to be fully submitted. This Magistrate Judge has carefully considered the record evidence, including the exhibits admitted, the briefs filed by both parties, the arguments and statements of counsel and submits the following report. As set forth below, based on the facts presented and applicable law, it is recommended the motion be granted in part and denied in part.

II. FINDINGS OF FACT

A three-count criminal indictment was filed on June 20, 2018 against Defendant alleging Count 1 - possession of cocaine base with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), Count 2 - possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), and Count 3 - felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Dkt. 2.

On July 5, 2018, after a detention hearing, Defendant was ordered released pending trial. Dkt. 20. Defendant filed a motion to suppress evidence and statements regarding Counts One and Two of the indictment. Dkts. 35, 36. Such motions were denied. Dkt. 42. Trial was set for February 25, 2019. Dkt. 51. On February 13, 2021 a change of plea hearing was scheduled for February 14, 2021. Dkt. 62. Prior to the hearing, the United States Probation Office filed an emergency motion for a warrant for Defendant's arrest, as it was reported Defendant had cut off his GPS ankle bracelet. Dkt. 63. Pursuant to such request, a warrant was issued for his arrest. Dkt. 64.

On November 2, 2020, Defendant was arrested by the Scott County Sheriff after a traffic stop. Dkt. 68. Despite the outstanding federal warrant, Defendant was released from custody. Dkt. 69. On February 18, 2021, the Davenport Police Department arrested Defendant after a traffic stop.

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Id. Defendant subsequently appeared before this Magistrate Judge on February 24, 2021, and these proceedings resumed. Dkt. 71.

A superseding indictment was filed March 10, 2021 against Defendant alleging the following counts: Count 1 - possession of cocaine base with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), Count 2 - possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), Count 3 - failure to appear in violation of 18 U.S.C. § 3146(a)(1), Count 4 - conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846, Count 5 - possession with intent to distribute a controlled substance in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C), Count 6 - use and carry of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and Count 7 -drug user in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Dkt. 84.

A. GPS Tracking Warrant

A search warrant authorizing the installation of a GPS tracking device was issued on August 14, 2020 by a judicial officer in Scott County, Iowa concerning a black Infiniti G35X vehicle (“Target Vehicle”) associated with Defendant. Gov't Ex. 1. Detective C. Carter of the Scott County Sheriffs Office requested the authorization for a GPS tracking device to be concealed on the Target Vehicle to conduct surveillance. Id. at ¶ 3. In support of the request, the search warrant included information from two confidential sources, both of whom were found to be reliable and credible, indicating Defendant was involved in drug dealing from March of 2020 through August of 2020. Id. at ¶¶ 7-15 and pp.7-8. The search warrant also contains information about a controlled purchase of illegal controlled substances conducted by a confidential source with Defendant in the Target Vehicle within ten days of the request for the search warrant. Id. at ¶¶ 13, 14.

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B. Testimony of Officer Mark Dinnewith

Officer Mark Dinnewith has been a police officer with the Davenport Police Department for twenty-one years. He has been and currently is a patrol officer. He has also been a member of the Criminal Investigation Division. On February 18, 2021, he was working patrol in the five beat or middle of the city. At approximately 9:56 a.m., he was dispatched to a call for service and met with Stevie Graves.

Ms. Graves told him about events from that morning involving Defendant. She was having breakfast at Anchor Grill in Davenport, Iowa and Defendant approached her at the restaurant. After a brief conversation, she left the restaurant and noticed Defendant following her. Next, she received threatening texts from Defendant, and she proceeded to her home. Defendant continued to follow her. Ms. Graves told Officer Dinnewith Defendant yelled something like “I should have killed you or I should have did something before or I want to hurt you so bad” while lifting his shirt to display a gun. She confirmed she had a previous relationship with Defendant and knew the gun she saw was one Defendant carried on a regular basis. Outside of her home, she tried to get away from Defendant, but there was ice on the ground, and Defendant was able to catch her prior to her reaching the door to her home. Ms. Graves said Defendant punched her, knocked her down, and took her keys to her home and car.

Officer Dinnewith testified there was snow on the ground, but he did not notice any footprints or areas where the snow had been disturbed to corroborate what Ms. Graves told him. He noted the snow and ice were hard packed, eight to twelve inches deep. He testified he was not concerned about not seeing evidence of a struggle from the snow. He had no further information as to whether her keys were ever recovered.

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Officer Dinnewith was candid during the hearing regarding his knowledge of Ms. Graves. He has known her for approximately twenty years through his work as a police officer. He dealt with Ms. Graves when she was a juvenile, when she has been a victim, when she has been accused of crimes, and when she had trouble with her own children. Although he has known Ms. Graves for many years, he admitted he was not aware of a specific felony conviction for her. However, when Ms. Graves indicated she could not protect herself because she is a felon, this information made sense to him.

During the hearing, he was frank, admitting Ms. Graves is not always reliable, but he believed she was on February 18, 2021. He mentioned multiple times his observations as to her level of fear, stating he had never seen Ms. Graves as scared as she was on February 18, 2021.^[1]He discussed his history with Ms. Graves and his observations of her when he interviewed her. His described an injury to her face, specifically a red, swollen bruise consistent with what she described, in addition to a general disheveled appearance. In his report, he included information about the injury but not about Ms. Graves being scared or disheveled.

Ms. Graves told Officer Dinnewith she knew Defendant was “wanted” and had been hiding for some time. She noted he had changed his appearance by shaving his head. Ms. Graves...