Submitted: April 13, 2016
Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids
Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
A Cedar Rapids police officer ordered his narcotics dog to sniff along the exterior walls of the building in which Donnell Hopkins rented a townhome. The dog alerted after sniffing within 6 to 8 inches of Hopkins' front door. Police applied for a search warrant which an Iowa magistrate issued. When the police executed the search warrant they found a gun and drugs on Hopkins' person and additional drugs inside the townhome.
The district court denied Hopkins' motion to suppress the evidence after concluding that although the dog sniff was unconstitutional under Florida v. Jardines, 133 S.Ct. 1409 (2013), the officer had relied in good faith on the magistrate's probable cause determination and issuance of the warrant, see United States v. Leon, 468 U.S. 897 (1984). Hopkins appeals the denial of his motion to suppress as well as his argument to strike a portion of the presentence report. We affirm.
Cedar Rapids police officer Al Fear received information from another officer that "a black male who went by the street name of Smoke was dealing narcotics" from one of the buildings in the Cambridge Townhomes. At around 10:00 pm on Tuesday, October 22, 2013, Officer Fear took his K-9 Marco to the location to investigate.
The Cambridge Townhomes consists of several rectangular buildings separated by a grid of streets and sidewalks. The building relevant to this case has 6 two story apartments on each side. The doors are arranged in pairs, and walkways lead from a sidewalk in the central courtyard to a concrete slab in front of each pair of doors. Each pair is separated by a wall approximately one foot wide. The remainder of the central courtyard area is covered with grass. Each unit has one first story window facing the courtyard.
Officer Fear unhooked Marco from his leash and directed him to check the building for odors. Marco ran along the sides of the building so that "he was able to sniff the door bottoms on every apartment." Marco detected nothing on the east side of the building. On the west side, however, Marco turned his head and began to sniff the bottom of the door of unit number 6, the second door on the center walkway. Then Marco sat and stared at the front door of unit 6, indicating to Fear that an odor of narcotics was coming from inside.
Officer Fear applied for a search warrant the next day. In his affidavit Fear stated that Marco had "sniffed the door bottoms of all the apartments from the outside common area, " and that the area which attracted his special attention was "an exterior door to apartment #6 which [led] to the ouside common area of the complex." An Iowa magistrate judge signed the warrant, and Fear continued his surveillance of the apartment that week. On both Wednesday and Sunday nights he watched through binoculars as a black man, later identified as appellant Donnell Hopkins, came and went from unit 6. Subsequently Fear testified that he had seen a number of people coming and going from the apartment, engaging in what he believed to be narcotics transactions with Hopkins.
At 10:00 pm on Monday, October 28, Officer Fear and five of his colleagues arrived at the Cambridge Townhomes to execute the search warrant for unit 6. As the officers rounded the corner of the building, Fear spotted Hopkins and his brother Robert standing in front of the unit. The officers drew their weapons and shouted "police, " and the two men by the unit were ordered to the ground. Hopkins complied, but Robert fled and was captured after a foot chase. A search of Hopkins revealed a loaded handgun, 45 small bags of crack cocaine, and 7 small bags of marijuana. Inside unit 6 officers found a shoebox containing heroin, cocaine, and marijuana in one of the upstairs bedrooms.
After Hopkins was indicted for possession with intent to distribute controlled substances, 21 U.S.C. § 841(a)(1), he moved to suppress the evidence found on him and in the townhome. The magistrate judge concluded that the area in front of Hopkins' townhome was effectively his "front porch, " and while Officer Fear did not have authority to conduct a dog sniff search in that area the Leon good faith exception applied and made the evidence admissible. The magistrate judge further concluded that the officers had a reasonable, articulable suspicion justifying the Terry stop of Hopkins and that they had not used excessive force in drawing their weapons. Hopkins' motion to suppress was denied, as were his objections to the magistrate judge's report and recommendation.
Hopkins entered a conditional guilty plea to the possession charge while reserving his right to appeal the searches. At sentencing, he objected to a paragraph in the presentence report stating that a 2002 Chicago police department report reflected "that [Hopkins] is affiliated with the Vice Lords street gang" and that a 2003 report referenced "Black P Stone Gang." Hopkins argued that these statements should be stricken for lack of evidentiary support. Although the district court denied this request, ...