United States v. Yorgensen

• Decision Date: 07 December 2015
• Docket Number: No. CR15-4043-MWB,CR15-4043-MWB
• Citation: 148 F.Supp.3d 815
• Parties: United States of America, Plaintiff, v. Dennis Neil Yorgensen, Defendant.
• Court: U.S. District Court — Northern District of Iowa

148 F.Supp.3d 815

United States of America, Plaintiff,

v.Dennis Neil Yorgensen, Defendant.

No. CR15-4043-MWB

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

Signed December 7, 2015

Shawn Stephen Wehde, US Attorney's Office, Sioux City, IA, for Plaintiff.

Bradley Ryan Hansen, Federal Public Defender's Office, Sioux City, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR FRANKS HEARING AND MOTION TO SUPPRESS

MARK W. BENNETT, UNITED STATES DISTRICT COURT JUDGE, NORTHERN DISTRICT OF IOWA

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND...817

A. Procedural Background...817

B. Factual Background...819

II. LEGAL ANALYSIS...822

A. Standards Of Review...822

B. The Prosecution's Objection...825

1. Miranda warnings...826

2. Temporal proximity...826

3. Presence of intervening circumstances...827

4. Purpose and flagrancy of official misconduct...828

C. Yorgensen's Objection...829

III. CONCLUSION...831

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

This case is before me on United States Magistrate Judge Leonard T. Strand's Report And Recommendation on defendant Dennis Neil Yorgensen's Motion for Franks Hearing and Motion to Suppress (docket no. 48). In his Report And Recommendation, Judge Strand recommends granting Yorgensen's motion and suppressing all evidence seized during the execution of a search warrant as well as statements Yorgensen made to a law enforcement officer. Both parties have filed timely objections to Judge Strand's Report and Recommendation. I, therefore, undertake the necessary review of Judge Strand's Report and Recommendation.

On July 23, 2015, an indictment was returned charging Yorgensen with conspiracy to distribute 50 grams or more of a methamphetamine mixture which contained 5 grams or more of pure methamphetamine (Count 1), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and possessing with the intent to distribute a methamphetamine mixture which contained 5 grams or more of pure methamphetamine (Count 2), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).

Yorgensen subsequently filed a Motion for Franks Hearing and Motion to Suppress (docket no. 23) in which seeks to suppress all evidence obtained as a result of the search of his apartment and a post-arrest interview. Yorgensen contends that a search warrant issued for his home was invalid because Sac County Deputy Sheriff Jonathan Meyer's affidavit in support of the warrant included a false statement and omissions that were made either knowingly and intentionally, or with reckless disregard for the truth. Yorgensen also argues that his post-arrest statements must be suppressed on grounds that they were the fruit of the poisonous tree. Yorgensen also argues, in the alternative, that his interview was conducted in violation of his right to counsel and all questioning should have ceased because he requested an attorney.

The prosecution filed a timely resistance to Yorgensen's motion. Yorgensen's motion was referred to United States Magistrate Judge Leonard T. Strand, pursuant to 28 U.S.C. § 636(b). Judge Strand conducted an evidentiary hearing and then filed a Report and Recommendation in which he recommends that Yorgensen's motion be granted and I suppress all evidence obtained as a result of the search of Yorgensen's apartment and a post-arrest interview. In his Report and Recommendation, Judge Strand initially concluded that Yorgensen made the substantial preliminary showing necessary to require an evidentiary hearing. Next, Judge Strand determined that Yorgensen met his burden of establishing a Franks violation by a preponderance of the evidence. Judge Strand based this conclusion on his finding that Meyer's “affidavit included a combination of incorrect statements and material omissions, made recklessly, so as to render it misleading.” Report and Recommendation at 14. Specifically, Judge Strand found that Meyer's statement that he “ ‘could smell a strong odor of marijuana come from inside the residence and off [Yorgensen]’ ” was not supported by the evidence and was “at least, misleading.” Report and Recommendation at 14. Judge Strand based this conclusion, in part, on the fact that Sac County Deputy Sheriff Kristan Erskine did not smell anything “despite being directly adjacent to Meyer.” Report and Recommendation at 15. Judge Strand further noted that Meyer's affidavit contained two “important omissions” that caused it to be “terribly misleading.” Report and Recommendation at 15. First, Meyer omitted the fact that Erskine did not detect the smell of marijuana while she was at the scene with Meyer. Second, Meyer's affidavit did not disclose that Meyer was at least 20 feet away from the door to Yorgensen's apartment when he allegedly smelled a “strong odor” of marijuana coming from the apartment. Judge Strand further concluded that Meyer “acted with reckless disregard for the truth” which caused his affidavit to be “materially misleading.” Report and Recommendation at 17-18. As a result, Judge Strand recommended that “the search warrant be declared invalid and that all evidence seized during the execution of the warrant be suppressed.” Report and Recommendation at 18. Finally, Judge Strand found that the taint of the illegal search and arrest had not dissipated by the time Yorgensen was interviewed by Iowa Division of Narcotics Enforcement Agent Robert Jones and, therefore, Yorgensen's statements to Jones were required to be suppressed as the fruits of an unlawful search and seizure.

Alternatively, Judge Strand addressed Yorgensen's claim that his post-arrest statements must be suppressed because they occurred after he invoked his right to counsel. Judge Strand rejected this claim because Yorgensen failed to make a clear and unequivocal request for counsel.

Both the prosecution and Yorgensen have filed objections to Judge Strand's Report and Recommendation. Both parties, in turn, filed timely responses to the other's objections. The prosecution also filed a Motion for Reconsideration of Report and Recommendation (docket no. 54). Judge Strand denied the prosecution's motion to reconsider. The prosecution has also filed objections to that order. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Yorgensen's Motion for Franks Hearing and Motion to Suppress.

B. Factual Background

In his Report and Recommendation, Judge Strand made the following factual findings:

A. The Cast

Defendant Dennis Yorgensen resides with his wife in Odebolt, Iowa. The record reflects that he had a felony drug conviction in 2003 but no drug convictions since that time. Def. Ex. I.

Jonathan Meyer has been a law enforcement officer since 2008. He served as a police officer for the City of Ackley, Iowa, from 2008 to 2009. He then served as a police officer for the City of Missouri Valley, Iowa, from 2009 to 2012, and for the City of Denison, Iowa, from 2012 until February 2015. He became a Sac County Deputy Sheriff in February 2015, approximately one month before the night at issue in this case. Prior to that night, it had been approximately five years since Meyer drafted a search warrant application.

The record includes evidence critical of Meyer's performance in his previous positions. Def. Exs. H-1, H-2 and H-3. Of most potential concern is a “Personal Action Report” issued by the Denison Police Department on May 11, 2014. Def. Ex. H-1. That report indicates that Meyer made two arrests on May 4, 2014, but did not complete complaints and affidavits concerning the charged offenses, as required. Id . at 1. The report suggests some lack of candor by Meyer, as it states that he claimed he had never previously completed a complaint and affidavit for a domestic abuse charge but also states that the Assistant Chief reviewed past domestic abuse cases in which Meyer made an arrest and completed a complaint and affidavit. Id . The report concludes with instructions that Meyer “pay attention to detail and not allow mistakes like these to happen again.” Id . at 2. Meyer signed the report. Id . During the hearing in this case, Meyer testified that the issues described in the report related to a simple misunderstanding concerning returns of service and stated that the Denison Police Department handles those returns in a unique manner. He acknowledged, however, that the events described in the report occurred after he had been with the Denison Police Department for about two years. He also agreed that his own testimony about the situation differs from the description of events contained in the report.

Kristan Erskine has been a law enforcement officer for approximately five years. She spent two years as a Sac County Sheriff's Deputy before leaving to become a motor vehicle enforcement officer with the Iowa Department of Transportation. She held that position for about 8 months before returning to her prior position as a Sac County Sheriff's Deputy. That occurred more than two years ago. Before the events at issue here, she had written only one search warrant application.

B. The Encounter

On the evening of March 21, 2015, Meyer was on routine patrol when he was dispatched to respond to a noise complaint at an apartment building on West 2nd Street in Odebolt, Iowa. He arrived at the building at approximately 10:46 p.m. and parked in an alleyway on the building's west side. As depicted in various photographs, the building has three units on its lower level and at least one unit on a second level. See, e.g., Def. Ex. B-1. When facing the building, the alley in which Meyer parked is to the right of the building.

Meyer exited his vehicle and walked east on a public sidewalk that runs parallel to the street and passes in front of the building. He walked toward the unit on the east end of the building, which was unit four, because that unit had been the alleged source of loud music. Although Meyer heard no loud music, he decided to interact with the occupants of unit four

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