Opinion
4:02CR3016
August 28, 2002
MEMORANDUM AND ORDER ON THE DEFENDANT'S OBJECTION TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The defendant, David Bockman, moved to suppress the evidence that was obtained as a result of a warrantless search of his motel room on September 5, 2001. (See Mot. to Suppress, Request for Evidentiary Hr'g and Oral Argument, filing 11.) A hearing concerning the motion was held on June 13 and 18, 2002, before United States Magistrate Judge David L. Piester (see filing 23), and the magistrate judge has recommended that I deny the defendant's motion to suppress (see filing 24). Now before me is the defendant's objection to the magistrate judge's report and recommendation, filing 27. In the course of my de novo review of those portions of the magistrate judge's report that the defendant challenges,see Jones v. Pillow, 47 F.3d 251, 252 (8th Cir. 1995); 28 U.S.C. § 636(b)(1)(C), I have studied the magistrate judge's entire report and recommendation (filing 24), the transcript of the hearing before the magistrate judge regarding the defendant's motion to suppress (filing 23), the videotape admitted into evidence at that hearing (see List of Exhibits, filing 21, Pl.'s Ex. 1 (hereinafter "Pl.'s Ex. 1")), and the briefs submitted by the parties in connection with the defendant's objection to the report and recommendation. The magistrate judge's report is well-reasoned and thorough, and I find that it should be adopted in its entirety. The defendants' motion to suppress will be denied.
I. BACKGROUND
With the exception of the issues that I will analyze in depth below, the parties seem to be in agreement that the magistrate judge has accurately stated the relevant facts. Therefore, a lengthy summary of the factual background need not be repeated here. This case arises out of an investigation conducted by officers of the Grand Island Police Department (GIPD) on September 5, 2001. On that date, Investigators Tony Keiper and Kevin Bergstrom decided to investigate a report that firearms were located in Room 116 of the Conoco Motel. The investigators, who were in plain clothes, met with two uniformed GIPD officers a short distance away from the motel before proceeding towards Room 116. Investigator Keiper approached the room in the lead, followed closely by Investigator Bergstrom. The uniformed officers stood back some fifteen to twenty feet south of the room door, waiting to be called upon if needed. A video camera operator stood near the uniformed officers and recorded some of the evening's events. The magistrate judge found that Investigator Keiper knocked on the door, and that the defendant, who occupied Room 116, invited the officers to enter. Keiper entered the room, identified himself, and asked the defendant for permission to conduct a search. The defendant responded affirmatively, and as Keiper began his search, Bergman moved further into the room to converse with the defendant. Upon entering the rear bedroom in the defendant's motel room, Keiper spotted a firearm extending from under the bed. He returned to the front room where the defendant and Bergstrom were waiting and asked the defendant whether he had "been in trouble with the police before." (See Tr., filing 23, at 11:5-10.) The defendant responded affirmatively. After Keiper verified that the defendant had a prior felony conviction, he placed the defendant under arrest.
II. ANALYSIS
The defendant's objection to the magistrate judge's report and recommendation is based upon his argument that the officers' initial entry into the motel room was unlawful. Although he has no objection to the magistrate judge's statement of the relevant law, the defendant claims that the magistrate judge erred by crediting the officers' account of the events of September 5, 2001, while discrediting the defendant's own testimony. The defendant requests that, "[b]ased upon the substantial inconsistencies and lack of credibility of Investigator Keiper's and Officer Bergstrom's testimony," I reject the magistrate judge's report and recommendation denying the motion to suppress. (Br. in Supp. of Def.'s Objection to Magistrate's Report and Recommendation (hereinafter "Def.'s Br.") at 4-5.)
First, the defendant asserts that the investigators' testimony regarding the circumstances of their initial entry into Room 116 should be discounted because it contains a number of discrepancies. The first discrepancy cited by the defendant concerns the defendant's location in the motel room when the investigators entered. Bergstrom testified that after the investigators knocked, the defendant rose from a chair and met them at the door. (See Tr., filing 23, at 50:4-12.) However, Keiper testified that the defendant remained seated when the investigators entered the room. (See id. at 30:9-31:6.)
Second, the defendant claims that, although both investigators testified that they identified themselves as police officers, (see id. at 30:11-13, 50:10-12, 102:14-20), "no such identification language is on the video tape," (see Def.'s Br. at 1). Third, the defendant points out that Bergstom and Keiper do not agree whether an initial protective sweep was performed upon the investigators' entry into the motel room. Bergstrom testified that Keiper performed a protective sweep (see Tr., filing 23, at 66:20-67:18), while Keiper stated that he did not perform such a sweep (see id. at 119:11-20). Fourth, there was a discrepancy between Keiper's and Bergstrom's testimony concerning their "runaway juvenile" stratagem. Keiper testified that instead of asking the defendant for his consent to search the room for firearms, which was the investigators' true intent, they told the defendant that they were searching for a runaway who had been seen in the room. (See id. at 33:4-34:11.) In contrast, Bergstrom originally testified that the defendant was asked for consent to search the room for weapons and contraband (see id. at 51:5-13), and there was no mention of a runaway juvenile (see id. at 62:12-17).
Later, however, Bergstrom altered his testimony, claiming that he remembered that the "runaway juvenile" story was in fact told to the defendant. (See id. at 102:21-103:8, 106:12-107:24. See also Report and Recommendation, filing 24, at 3 n. 3 (discussing Bergstrom's testimony regarding the runaway juvenile).)
Finally, the defendant argues that the videotape contradicts Keiper's testimony that he knocked twice on the motel room door, that he immediately introduced himself upon entering the room, and that he asked the defendant if the officers could step in and talk to him. (Compare Pl.'s Ex. 1 with Tr., filing 23, at 9:5-6, 9:8-9.) In addition to the discrepancies identified by the defendant in his brief, it appears that Keiper had no recollection of a loud radio playing in the room (see Tr., filing 23, at 29:19-24, 31:13-14), and although Bergstrom initially did not remember the radio (see id. at 61:20-62:1), he later testified that he did recall a radio playing in the motel room (see id. at 104:2-20, 107:25-110:18).
The defendant is correct that there are discrepancies in Keiper's and Bergstrom's testimony regarding whether the defendant rose to meet them at the door of the motel room and whether a protective sweep was performed. There is also a discrepancy concerning the radio that may or may not have been playing in the room. However, the discrepancy concerning the "runaway juvenile" tactic was adequately explained during the hearing before the magistrate judge. On the whole, I find that the discrepancies between the investigators' versions of their encounter with the defendant are not sufficient to undermine their overall credibility, because the discrepancies are few in number and, in the context of this case, concern relatively inconsequential events. Each investigator's testimony generally corroborated the other's recollection of the events of September 5, 2001.
As I noted above, the defendant has also argued that the video contradicts certain elements of the investigators' testimony. First, it seems to me that the video cannot confirm whether or not the investigators identified themselves upon stepping into the motel room, although it does seem that the first words spoken by Investigator Keiper were not words of identification, but rather words of greeting: Keiper can be heard saying, "How are you doing?" or words to that effect when opening the motel room door. In addition, I cannot determine from the video whether or not the investigators asked for the defendant's permission to enter the room. Frankly, little is audible on the videotape other than a few stray comments, a single set of knocks at the motel room door, and a good deal of background traffic noise. Once the investigators stepped into the room, their words could not be discerned on the tape. However, I find that the videotape corroborates Keiper's testimony that he knocked and stepped just inside the door before asking for permission to "step in and talk to" the defendant and before identifying himself and Bergstrom as police officers. (Compare Pl.'s Ex. 1 with Tr., filing 23, at 9:5-11.) It seems to me too that the video does not definitively show that the investigators only knocked once, rather than twice, at the door. Although only one set of knocks is audible on the tape, it does seem that the investigators were in position outside of the motel room door for a length of time that would have allowed them to knock more than once. The camera's view of the investigators was obstructed, and I cannot say definitively that they could not have knocked prior to the knocking that is audible on the tape.
In sum, I find that the discrepancies between the officers' testimony are inconsequential, and that there are no significant discrepancies between the officers' testimony and the videotape. Therefore, I conclude that the officers' testimony concerning the circumstances of their initial entry into the defendant's motel room is credible.
Next, the defendant argues that the magistrate judge should not have concluded that the defendant's own testimony was not credible. In particular, the defendant claims that his testimony "is substantially upheld by what is heard and seen on the video tape." (Def.'s Br. at 3.) I disagree. The defendant first testified that he did not invite investigator Keiper into the room nor give him permission to enter. (See Tr., filing 23, at 158:4-14.) This testimony is neither supported nor refuted by the video, since the defendant's voice cannot be discerned at any time during the recording. (Compare id. with Pl.'s Ex. 1.)
The defendant also testified that he did not remember a knock on his door. (See Tr., filing 23, at 158:19-21.) I find that this testimony is directly contradicted by the video, as a knock can be heard prior to the investigators' entry into the motel room. (Compare id. with Pl.'s Ex. 1.) Next, the defendant testified that he saw a "camera guy" and two uniformed officers standing outside his room, but he did not see Investigator Keiper until Keiper came though the door to the room. (Tr., filing 23, at 158:24-159:8.) It seems to me that the defendant's claim that he saw these men from his room is not credible, given the positioning of the room, the officers, and the camera operator. (See Pl.'s Ex. 1.)
Moreover, even if the defendant could have somehow managed to bring the uniformed officers and the camera operator within his line of sight, he could not have failed to see Investigators Keiper and Bergstrom, who were positioned between the room and the uniformed officers and the camera operator. (See id.) In other words, if the defendant's testimony that he did see the camera operator and uniformed officers is to be credited, then his testimony that he did not see Investigator Keiper until Keiper entered the room must be discredited.
Finally, I note that the defendant testified that when investigator Keiper came through the motel room door, Keiper told the defendant that he was a police officer. (See id. at 159:9-12.) This testimony belies the defendant's suggestion that the investigators did not identify themselves upon entering his motel room. (See Def.'s Br. at 1 (arguing that the officers' testimony was not credible because their "identification language" did not appear on the video).)
A good deal of the defendant's substantive testimony is contradicted by the video, and certainly it is also contradicted by the testimony of the government's witnesses. Unlike the discrepancies in the investigators' testimony, which concerned relatively inconsequential details, the contradictions in the defendant's testimony directly relate to the chief issue raised by the defendant's motion to suppress; that is, whether the investigators' initial entry into the motel room was lawful. In particular, the defendant's suggestion that Investigator Keiper walked into the motel room without knocking simply cannot be believed. Nor does it seem likely that the defendant could have viewed the camera operator and uniformed officers prior to his contact with Investigators Keiper and Bergstrom, which seems to belie any suggestion that the defendant was overwhelmed by a show of authority when he invited the officers to enter his room. I have no difficulty concluding that on the whole, the defendant's testimony was not credible.
The defendant's objections to the magistrate judge's credibility determinations are overruled. My review of the materials now before me indicates that the testimony of the government's witnesses is credible and that the defendant's testimony is not credible. I find that the defendant voluntarily consented to the officers' initial entry into his hotel room, and that the defendant's motion to suppress must therefore be denied. IT IS ORDERED that:
Since the defendant has not objected to the magistrate judge's discussion of the relevant law, I need not perform a de novo review of that portion of the magistrate judge's report. I have reviewed the report thoroughly, and I find that it contains no "plain error." See, e.g.,Farmer v. Iowa, 153 F. Supp.2d 1034, 1037 (N.D.Iowa 2001) ("[P]ortions of the proposed findings or recommendations to which no objections are filed are reviewed only for `plain error.'").
The defendant's objection to the magistrate judge's report and recommendation, filing 27, is overruled;
The magistrate judge's report and recommendation, filing 24, is adopted in full; and
The petitioner's motion to suppress, filing 11, is denied.