MARK W. BENNETT, U.S. DISTRICT COURT JUDGE, NORTHERN DISTRICT OF IOWA.
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
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
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.
In his Report and Recommendation, Judge Strand made the following factual findings:
Report and Recommendation at 2-7. Upon review of the record, I adopt all of Judge Strand's factual findings.
I review the magistrate judge's report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1):
28 U.S.C. § 636(b)(1); see FED. R. CIV. P. 72(b) (stating identical requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge's report and recommendation). While examining these statutory standards, the United States Supreme Court explained:
Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Thus, a district court may review de novo any issue in a magistrate judge's report and recommendation at any time. Id. If a party files an objection to the magistrate judge's report and recommendation, however, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). In the absence of an objection, the district court is not required "to give any more consideration to the magistrate's report than the court considers
De novo review, of course, is nondeferential and generally allows a reviewing court to make an "independent review" of the entire matter. Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (noting also that "[w]hen de novo review is compelled, no form of appellate deference is acceptable"); see Doe v. Chao, 540 U.S. 614, 620-19, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004) (noting de novo review is "distinct from any form of deferential review"). The de novo review of a magistrate judge's report and recommendation, however, only means a district court "`give[s] fresh consideration to those issues to which specific objection has been made.'" United States v. Raddatz, 447 U.S. 667, 675, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (quoting H.R. Rep. No. 94-1609, at 3, reprinted in 1976 U.S.C.C.A.N. 6162, 6163 (discussing how certain amendments affect 28 U.S.C. § 636(b))). Thus, while de novo review generally entails review of an entire matter, in the context of § 636 a district court's required de novo review is limited to "de novo determination[s]" of only "those portions" or "specified proposed findings" to which objections have been made. 28 U.S.C. § 636(b)(1); see Thomas, 474 U.S. at 154, 106 S.Ct. 466 ("Any party that desires plenary consideration by the Article III judge of any issue need only ask." (emphasis added)). Consequently, the Eighth Circuit Court of Appeals has indicated de novo review would only be required if objections were "specific enough to trigger de novo review." Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir.1989). Despite this "specificity" requirement to trigger de novo review, the Eighth Circuit Court of Appeals has "emphasized the necessity... of retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate." Belk v. Purkett, 15 F.3d 803, 815 (8th Cir.1994). As a result, the Eighth Circuit Court of Appeals has been willing to "liberally construe[]" otherwise general pro se objections to require a de novo review of all "alleged errors," see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and to conclude that general objections require "full de novo review" if the record is concise, Belk, 15 F.3d at 815 ("Therefore, even had petitioner's objections lacked specificity, a de novo review would still have been appropriate given such a concise record."). Even if the reviewing court must construe objections liberally to require de novo review, it is clear to me that there is a distinction between making an objection and making no objection at all. See Coop. Fin. Assoc., Inc. v. Garst, 917 F.Supp. 1356, 1373 (N.D.Iowa 1996) ("The court finds that the distinction between a flawed effort to bring objections to the district court's attention and no effort to make such objections is appropriate."). Therefore, I will strive to provide de novo review of all issues that might be addressed by any objection, whether general or specific, but will not feel compelled to give de novo review to matters to which no objection at all has been made.
In the absence of any objection, the Eighth Circuit Court of Appeals has indicated a district court should review a magistrate judge's report and recommendation under a clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.1996) (noting when no objections are filed and the time for filing objections has expired, "[the district court judge] would only have to review the findings of the magistrate judge for clear error"); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir.1990) (noting the advisory committee's note to Fed. R. Civ. P. 72(b) indicates "when no timely objection is filed the court need only satisfy itself that there is no clear error on the face of the record"); Branch, 886 F.2d at 1046 (contrasting de novo review with "clearly erroneous standard"
Even though some "lesser review" than de novo is not "positively require[d]" by statute, Thomas, 474 U.S. at 150, 106 S.Ct. 466, Eighth Circuit precedent leads me to believe that a clearly erroneous standard of review should generally be used as the baseline standard to review all findings in a magistrate judge's report and recommendation that are not objected to or when the parties fail to file any timely objections, see Grinder, 73 F.3d at 795; Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also FED. R. CIV. P. 72(b) advisory committee's note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."). In the context of the review of a magistrate judge's report and recommendation, I believe one further caveat is necessary: a district court always remains free to render its own decision under de novo review, regardless of whether it feels a mistake has been committed. See Thomas, 474 U.S. at 153-54, 106 S.Ct. 466. Thus, while a clearly erroneous standard of review is deferential and the minimum standard appropriate in this context, it is not mandatory, and I may choose to apply a less deferential standard.
The prosecution does not object to Judge Strand's recommendation to suppress the evidence obtained from the search of Yorgensen's apartment. The prosecution, however, does object to Judge Strand's recommendation to suppress Yorgensen's post-arrest statements as the fruit of the prior illegal arrest. The prosecution argues that Yorgensen's statements were voluntary and sufficiently attenuated from the search that suppression of those statements is not appropriate.
Because Judge Strand concluded that the search warrant was unlawful, Yorgensen's arrest was likewise unlawful since it is undisputed that it was based on evidence gathered during the search. Evidence that is the "fruit" of an illegal search or seizure is not admissible, and "[t]he exclusionary prohibition extends as well to the indirect as the direct products of such invasions." Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). "Verbal statements obtained as a result of a Fourth Amendment violation are as much subject to the exclusionary rule as are items of physical evidence discovered during an illegal search." United States v. Yousif, 308 F.3d 820, 827 (8th Cir.2002) (citing Wong Sun, 371 U.S. at 485, 83 S.Ct. 407 ("the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of `papers and effects'")). Therefore, "[s]tatements that result from an illegal detention are not admissible." United States v. Hernandez-Hernandez, 384 F.3d 562, 565 (8th Cir. 2004); United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.1994)). To break the causal chain between an illegal arrest and a statement given later, the statement must be "`sufficiently an act of free will to purge the primary taint.'" Ramos, 42 F.3d at 1164 (quoting Wong Sun, 371 U.S. at 486, 83 S.Ct. 407). In determining whether Yorgensen's post-arrest statement retains the taint of an illegal arrest, I must consider four factors: (1) the giving of Miranda warnings; (2) the temporal proximity of the illegality and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. See United States v. Riesselman, 646 F.3d 1072, 1080 (8th Cir.2011); see also United States v. Lakoskey, 462 F.3d 965, 975 (8th Cir.2006); United States v. Hernandez-Hernandez, 384 F.3d 562, 565 (8th Cir.2004); United States v. Moreno, 280 F.3d 898, 900 (8th Cir.2002); United States v. Tovar, 687 F.2d 1210, 1215
The prosecution argues that the giving of Miranda warnings to Yorgensen weighs in favor of a finding of attenuation and that Judge Strand erred in giving this factor no weight in its favor. Judge Strand never stated that he was giving this factor no weight and did consider this factor in his analysis. Judge Strand correctly noted that the mere fact that Yorgensen was given Miranda warnings "did not purge the taint of the illegal search." Report and Recommendation at 21. The United States Supreme Court has never "allowed Miranda warnings alone to serve talismanically to purge the taint of prior illegalities." Oregon v. Elstad, 470 U.S. 298, 337, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); see Hernandez-Hernandez, 384 F.3d at 565 ("`The giving of Miranda warnings, followed by the making of a voluntary statement, does not, in and of itself, mandate a statement's admissibility.'") (quoting United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.1994)); see United States v. Santa, 236 F.3d 662, 678 (11th Cir.2000) ("Miranda warnings do not, without more, dissipate the taint of an illegal seizure.") (emphasis in original). As Justice Marshall pointed out over a quarter of a century ago:
Taylor v. Austin, 457 U.S. 687, 690, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982). Accordingly, the fact that a Miranda warning was given to Yorgensen weighs in favor of admission of Yorgensen's statements but it, standing alone, did not purge the taint of the unlawful conduct. See Santa, 236 F.3d at 678. I turn to the remaining three factors. See Brown, 422 U.S. at 603-04, 95 S.Ct. 2254.
Judge Strand found that that the passage of two days, during which Yorgensen was continuously detained due to an unlawful search, did not dissipate the taint of the Fourth Amendment violation. The prosecution contends that Judge Strand erred in his conclusion and that I should find that the passage of two days dissipated the taint of the illegal search. In particular, the prosecution objects to Judge Strand's statement that: "The fact that Yorgensen spent two days in custody is
Judge Strand explained, in his order denying the prosecution's Motion to Reconsider, that while the quoted sentence was "poorly phrased":
Order on Motion to Reconsider at 4 n.3. The point that Judge Strand makes is a valid one. Although I recognize the fact Yorgensen's statement was given two days after his illegal arrest gave Yorgensen time to contemplate his situation, this two-day period of incarceration cuts against Yorgensen's statement being of free will and constitutes a more serious violation than the initial illegal arrest. See Dunaway v. New York, 442 U.S. 200, 220, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (Stevens, J., concurring) ("If there are no relevant intervening circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one."). As Judge Bye observed in a concurring opinion, "`where no intervening circumstances are present, a long and illegal detention may in itself impel the defendant to confess.'" United States v. Vega-Rico, 417 F.3d 976, 980 (8th Cir.2005) (Bye, J., concurring) (quoting People v. White, 117 Ill.2d 194, 111 Ill.Dec. 288, 512 N.E.2d 677, 688 (1987)). Accordingly, I agree with Judge Strand that that the passage of two days, during which Yorgensen was continuously detained due to an unlawful search, did not dissipate the taint of his illegal arrest.
The prosecution also object to Judge Strand's conclusion that there were no intervening circumstances weighing in favor of attenuation. Specifically, the prosecution argues that Yorgensen initiated the conversation at issue here. The flaw in the prosecution's argument is that it failed to establish this fact at the evidentiary hearing.
Judge Strand found that "Erritt called DNE Agent Robert Jones and told him Yorgensen wanted to talk to him." Report and Recommendation at 7. Jones testified about two calls he received from Erritt. Following Yorgensen's arrest, Erritt called Jones and asked if he wanted to interview Yorgensen. After Jones declined, Erritt stated that he would interview Yorgensen himself. Jones then received a second call from Erritt during which Erritt stated that Yorgensen had asked to speak to Jones by name. Jones, however, also testified that he never previously met Yorgensen. Erritt did not testify. Based on this record, Judge Strand could not find that Jones's interview of Yorgensen was at Yorgensen's request. As Judge Strand explained, in his order denying the prosecution's Motion to Reconsider, that on this record,
Order on Motion to Reconsider at 4 n.3 (footnote omitted).
The prosecution contends that Yorgensen did not say, "Um, now, uh, I mean, I heard that, uh, you needed to talk to me" but rather "you need to talk to me." Prosecution's Obj. at 15. The prosecution argues that Yorgensen's statement reflected his desire to know about the federal charges he was facing rather than his understanding that Jones had asked to talk to him. From my review of the recording, I agree with Judge Strand that Yorgensen states: "I heard that, uh, you needed to talk to me." Because the prosecution did not call Erritt to testify, it has failed to prove that Yorgensen made an unsolicited request to speak with Jones. There is no evidence in the record suggesting that Yorgensen would have spoken with Jones but for the fact that he was jailed after an illegal arrest.
The situation here is distinguishable, and more aggravating, than that in Vega-Rico, a prosecution cited authority. In Vega-Rico, "[t]he interview was conducted for purposes unrelated to the circumstances surrounding the Fourth Amendment violation," and "[t]he interview was conducted in a different city by an agent from a separate law enforcement agency, and neither agent nor agency had any involvement in the initial Fourth Amendment violation." Vega-Rico, 417 F.3d at 980. Here, in contrast, Yorgensen was in custody as a result of an illegal arrest during the entire two-day period and was then interviewed about the same subject as his arrest, drug trafficking. Moreover, unlike the defendant in Vega-Rico, Yorgensen was not transferred to the custody of another agency before the interview occurred. Accordingly, I concur with Judge Strand's finding of no intervening circumstances.
Finally, the prosecution objects to Judge Strand's finding that the final factor, purpose and flagrancy of the official misconduct, does not weigh in favor of attenuation. The prosecution contends that neither Meyer nor Jones acted in a way to constitute "purposeful or flagrant misconduct." This factor is the "most important factor because it is directly tied to the purpose of the exclusionary rule-deterring police misconduct." United States v. Simpson, 439 F.3d 490, 496 (8th Cir.2006); see United States v. Faulkner, 636 F.3d 1009, 1016 (8th Cir.2011) (same). As the Eighth Circuit has noted, courts will find "purposeful or flagrant conduct where: (1) the impropriety of the official's misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed "in the hope that something might turn up." Simpson, 439 F.3d at 496 (citations omitted). In his Report and Recommendation, Judge Strand found that Meyer acted with reckless disregard for the truth by applying for a search warrant with an affidavit that contained an untrue statement and several material omissions. The Supreme Court has instructed:
Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (emphasis added).
Meyer's violation of Yorgensen's rights was not accidental. The prosecution does not object to Judge Strand's finding that Meyer acted with reckless disregard for the truth. As a result, the exclusion of Yorgensen's statements may deter reckless police conduct in the future. See Herring, 555 U.S. at 144, 129 S.Ct. 695. On the other hand, permitting the prosecution to use Yorgensen's statements, while not having any deterrent effect on reckless police practices, might encourage similar reckless police activities in the future. Accordingly, I agree with Judge Strand's finding that this factor also does not weigh in favor of attenuation and that the illegality was not sufficiently attenuated to purge its taint. The prosecution's objection is overruled.
Yorgensen objects to Judge Strand's alternative ruling that Yorgensen's statements were not obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Yorgensen contends that he unequivocally invoked his right to counsel and, thus, his incriminating statements must be suppressed.
Under Miranda, a person in police custody must be advised as follows:
Miranda, 384 U.S. at 479, 86 S.Ct. 1602. If a person requests an attorney, then questioning must cease until a lawyer has been made available or that person initiates the conversation. Dormire v. Wilkinson, 249 F.3d 801, 804 (8th Cir.2001) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). However, "[o]fficers are only required to cease questioning if a suspect's request for an attorney is clear and unambiguous." United States v. Mohr, 772 F.3d 1143, 1145 (8th Cir.2014); United States v. Cloud, 594 F.3d 1042, 1046 (8th Cir.2010); United States v. Kelly, 329 F.3d 624, 630 (8th Cir.2003). Police are permitted to ask clarifying questions if there is an ambiguous request for an attorney. Davis v. United States, 512 U.S. 452, 459-61, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).
Judge Strand found that the following pre-Miranda warning conversation between Yorgensen and Jones occurred:
Report and Recommendation at 23-24. Yorgensen does not object to this factual finding. After this conversation occurred, Jones read Yorgensen his Miranda rights and Yorgensen confirmed that he understood them. Yorgensen also signed a written waiver of those rights. Jones then conducted an interview of Yorgensen.
Yorgensen contends that his two comments about a lawyer, "I think ... I do need a lawyer" and "I'm thinking I really need a lawyer", both constituted unequivocal requests for counsel. Judge Strand, however, found that "Yorgensen failed to express a clear and unequivocal request for counsel." Report and Recommendation at 24. I likewise conclude that Yorgensen did not make a clear and unequivocal request for counsel. Instead of stating in clear and certain terms that he wanted a lawyer, Yorgensen told Jones that he was "thinking" he needed a lawyer.
In Davis, the Supreme Court found that the phrase "[m]aybe I should talk to a lawyer" was ambiguous, and, therefore, the police were not required to cease questioning. Davis, 512 U.S. at 462, 114 S.Ct. 2350. In this case, Yorgensen's statements differ only in the qualifying clauses — "I think" and I'm thinking" instead of "maybe I should." Both phrases are equivocal to some degree.
Federal courts of appeals that have considered a suspect's statement containing the words "I think" have reached different conclusions. In a pre-Davis decision cited and relied upon by Yorgensen, the Eleventh Circuit Court of Appeals assumed without analysis that the statement "I think I should call my lawyer" was an unequivocal request for counsel. Cannady v. Dugger, 931 F.2d 752, 754 (11th Cir. 1991). Similarly, in a pre-Davis decision, the Fifth Circuit Court of Appeals found that the phrase "I think I want to talk to a lawyer" was an unequivocal request for counsel. United States v. Perkins, 608 F.2d 1064, 1066 (5th Cir.1979).
On the other hand, three circuits that have considered similar language post-Davis found that there was no unequivocal request for counsel. The Second Circuit Court of Appeals found a suspect's statement "[d]o you think I need a lawyer" was ambiguous within the meaning of Davis. Diaz v. Senkowski, 76 F.3d 61, 63 (2d Cir.1996). The statement in this case is more emphatic than the one considered in Diaz, in that it is not in the form of a question. In Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.2000), the Fourth Circuit Court of Appeal considered the statement "I think I need a lawyer." The court held that "[t]his statement does not constitute an unequivocal request for counsel. In fact, Burket's statement is quite similar to the defendant's statement in Davis (`Maybe I should talk to a lawyer'), which the Supreme Court found ambiguous." Id. at 198. Yorgensen's statements, here, are nearly identical to the one at issue in Burket. More recently, the Sixth Circuit Court of Appeals determined that the Ohio Supreme Court's conclusion that an arrestee did not unambiguously invoke his right to counsel by stating to police officers, "I
Therefore, for the reasons discussed above, I, upon a de novo review of the record, accept Judge Strand's Report and Recommendation and grant defendant Yorgensen's Motion to Suppress. Accordingly, all evidence gathered during the execution of the search warrant at issue and Yorgensen's post-arrest statements are suppressed.