United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
J. Lodge, United States District Judge
before the Court in the above-entitled matter is Defendant
Joshua Kenneth Durr's Motion to Suppress. (Dkt. 39.) The
parties fully briefed the matter and the Court held an
evidentiary hearing on August 2, 2018. (Dkt. 57). On August
13, 2018, the Official Transcript was lodged (Dkt. 58) and
the parties filed their closing arguments on August 24, 2018.
(Dkts. 64, 65.) The Motion is now ripe for decision. As
described more fully below, the Court denies Mr. Durr's
Durr submitted the following exhibits in support of his
Motion: (1) Exhibit A: Idaho State Police Felony Drug Case
Report of January 20, 2018 Traffic Stop; (2) Exhibit B: Video
of January 20, 2018 Traffic Stop; (3) Exhibit C: March 14,
2018 Application for Search Warrant with Affidavit;
(4) Exhibit D: March 14, 2018 Search and Seizure Warrant; (5)
Exhibit E: Ada County Sherriff's Report Re Execution of
March 14, 2018 Search Warrant; and (6) Exhibit F: Idaho
Department of Correction Agreement of Supervision. These
exhibits were admitted into evidence at the August 2, 2018
hearing. (Dkt. 57.) The Government also called two witnesses
who testified at the hearing: (1) Idaho State Police Officer,
Corporal Steve Otto, and (2) Drug Enforcement Administration
(“DEA”) Task Force Officer, Sergeant Kevin
The Investigation into Mr. Durr in Boise before January 20,
Louwsma testified at the hearing largely consistent with the
Affidavit he submitted in support of the March 14, 2018
Application for Search Warrant (Dkt. 41, Ex. C). (Dkt. 58,
49:18- 94:9.) Beginning in August of 2017, the DEA, Ada
County Sheriff's Office, and Meridian Police Department
began investigating an organization distributing
methamphetamine and heroin from Mexico to the Las Vegas area
and California for eventual distribution in the Boise and
Nampa, Idaho areas. (Dkt. 41, Ex. C, ¶¶ 5, 6.)
Through this investigation, law enforcement learned that this
organization included Johnny Moreno, Candelaria Sanchez, and
Uilese Tolai in Las Vegas, Nevada as well as Mr. Durr and
Fausto Mascarro in Boise and Nampa, Idaho. (Id. at
enforcement had an undercover officer talking to Moreno, the
source of supply. (Dkt. 58, 50:24-51:5.) As part of this
investigation, in October 2017, law enforcement began looking
at Johnny Moreno's phone records, which showed that
Johnny Moreno was communicating with a phone number
associated with Mr. Durr. (Id. at 51:6-52:15; Dkt.
41, Ex. C, ¶ 9.)
enforcement identified Mr. Durr by entering his phone number
in the social networking site Facebook in October 2017.
(Id.) Law enforcement then confirmed with a
cooperating witness that Mr. Durr was involved with the
Johnny Moreno organization. (Dkt. 58, 54:16-25.) At that
point, law enforcement located an address for Mr. Durr, 4516
Alamosa St. in Boise, Idaho and also identified his vehicle.
(Id. at ¶ 9.)
November 7, 2018, law enforcement entered Mr. Durr's name
and address into the Rocky Mountain Information Network, a
conflicts database. (Dkt. 58, 55:7-56:12.) In addition, law
enforcement conducted surveillance on Mr. Durr's house
throughout November and December 2017. (Id.;
56:13-23; Dkt. 41, Ex. C, ¶ 9.)
part of this on-going investigation, an undercover officer
negotiated a one-pound methamphetamine purchase from Johnny
Moreno that was completed on January 10, 2018 when Moreno
traveled to Boise to deliver the drugs. (Dkt. 58, 57:2-16.)
Law enforcement believed that Mr. Moreno was delivering to
more than one location at that time. (Id. at
58:3-6.) During the January 10, 2018 arranged purchase, law
enforcement attempted to follow Mr. Moreno in Boise, lost
him, and drove by Mr. Durr's house in an effort to locate
him. (Id. at 84:5-15.) Moreno was not there.
The January 20, 2018 Traffic Stop in Twin Falls
Otto testified at the hearing largely consistent with his
police report (Dkt. 41, Ex. A) and what can be seen in the
video of the traffic stop (Dkt. 41, Ex. B). (Dkt. 58,
4:1-49:16.) He testified that at 1:15 a.m. on January 20,
2018, he was traveling north on U.S. 93 when he observed a
black passenger car, a 2010 Jaguar, traveling southbound.
(Id. at 5:15-18.) Corporal Otto activated his radar
and determined the car was traveling 54 miles an hour in an
area with a posted speed limit of 45 miles an hour.
(Id. at 5:18-21.)
Otto stopped the car on Highway 93 near mile post 48 in Twin
Falls, Idaho. (Dkt. 41, Ex. A, pp. 3, 9.) It is undisputed
that: (1) the driver, Kelly Dean, was speeding; (2) Mr. Durr
was her passenger; and (3) the car was registered to Mr.
Otto asked the driver where she was headed and Ms. Dean told
him they were headed to Jackpot. (Id. at p. 9.)
Corporal Otto noted that the driver and passenger appeared
very nervous. (Id.)
Otto obtained Ms. Dean's driver's license, current
vehicle registration, and proof of insurance. Id. He
also obtained Mr. Durr's driver's license because the
car was registered to him. Id. Corporal Otto
returned to his car to run both drivers' licenses through
dispatch. (Id.). As a result, Corporal Otto
discovered that Ms. Dean was on felony drug probation.
Otto suspected that traveling across the state line would be
a violation of Ms. Dean's terms of supervision and, at
that point, shifted gears. Rather than investigating the
traffic stop, he began investigating Ms. Dean for other
potential criminal violations including suspected drug
activity and additional probation violations.
returning to Mr. Durr's vehicle, Corporal Otto called a
canine officer reflecting his investigation into suspected
drug activity. Corporal Otto relied upon six facts to support
his suspicion of drug activity. First, U.S. 93 is a known
drug corridor. Second, it was 1:15 a.m. Third, Ms. Dean and
Mr. Durr appeared very nervous. Ms. Dean spoke softly,
whispering and mumbling, and Mr. Durr was pressed back in his
seat, stiff and rigid. Neither would make eye contact with
him. Fourth, Corporal Otto found their travel plans
suspicious. Fifth, there was a knife in the center console of
the vehicle. Sixth, Ms. Dean was not forthcoming about her
probation status when initially detained.
returning to Mr. Durr's vehicle, Corporal Otto began
questioning Ms. Dean about her probation status reflecting
his investigation into Ms. Dean's possible probation
violations. Corporal Otto relied upon the following three
facts to support his investigation into Ms. Dean's
suspected probation violations. First, Ms. Dean failed to
identify that she was on felony supervision. Corporal Otto
believed individuals under IDOC supervision who are detained
must inform law enforcement of their felony supervision. This
potential violation had already occurred and Corporal Otto
also considered it a sign of deception. (Dkt. 58, 11:18-22.)
Second, Ms. Dean had a knife in the console of her vehicle.
Corporal Otto believed that individuals under IDOC
supervision are not allowed to have weapons. (Id. at
13:20-22.) Third, Ms. Dean was traveling through Twin Falls,
Idaho and had intended to travel to Jackpot, Nevada. Corporal
Otto believed individuals under IDOC custody are not
permitted to leave the state or their assigned district
without the consent of their probation officers.
(Id. at 12:13-13:19.)
questioned, Ms. Dean admitted that she was not permitted to
leave the state. She also provided Corporal Otto with her
probation officer's name, Scott Wasco out of District
Three, but did not have his phone number. (Dkt. 41, Ex. A,
¶ 6.) This contributed to Corporal Otto's suspicions
of both potential drug activity and probation violations,
because Corporal Otto believed that individuals on felony
drug supervision would be in frequent contact with their
probation officer's and, for that reason, should have
their probation officer's number available upon request.
Id. In addition, Twin Falls is not in District
Three; thus, this third potential violation was on-going.
However, there is nothing in the record to indicate that
Corporal Otto asked, or Ms. Dean answered, whether she was
permitted to be outside District Three.
Otto can be heard on the video telling Ms. Dean not to worry;
she had not violated her probation yet. (Id. at
16:18-20.) However, Corporal Otto testified that he said
this, not because it was true, but because he wanted to
deescalate the situation. Id.
returning to his vehicle, Corporal Otto tried to find the
probation officer's phone number through a Google search.
He also called dispatch for a criminal background check on
Mr. Durr. Corporal Otto is aware that probationers are
typically not allowed to associate with felons, and he wanted
to investigate this possible “add-on” violation.
(Dkt. 58, 19:18-22.) In addition, Corporal Otto apparently
intended to call Ms. Dean's probation officer to see if
the probation officer wanted her detained for the probation
violations. (Id. at 17:4-6.) He also wanted to
investigate the scope of the violations at issue.
canine officer arrived before dispatch returned with
information regarding Mr. Durr's criminal background
check. Once the canine officer arrived, he ran the drug
detection canine around the vehicle and it alerted to the
odor of narcotics. (Dkt. 41, Ex. C., ¶ 9.) A subsequent
search of the vehicle yielded: (1) over $25, 000 in American
currency; (2) four cellular phones; (3) suspected cocaine;
(4) suspected Oxycodone; (5) ...