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United States v. Durr

United States District Court, D. Idaho

September 13, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
JOSHUA KENNETH DURR, Defendant.

          MEMORANDUM DECISION AND ORDER

          Edward J. Lodge, United States District Judge

         INTRODUCTION

         Pending 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 Motion.

         FINDINGS OF FACT

         1. The Record

         Mr. 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 Louwsma. (Id.)

         2. Factual Findings

         A. The Investigation into Mr. Durr in Boise before January 20, 2018

         Sergeant 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 ¶6.)

         Law 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.)

         Law 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.)

         On 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.)

         Also as 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. Id.

         B. The January 20, 2018 Traffic Stop in Twin Falls

         Corporal 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.)

         Corporal 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. Durr.

         Corporal 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.)

         Corporal 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. (Id.)

         Corporal 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.

         Before 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.

         Upon 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.)

         When 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.

         Corporal 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.

         Upon 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.

         The 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) ...


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