USA v. Harbach et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff, Case No. 25-cr-2059-CJW
vs.
REPORT AND RECOMMENDATION
ON DEFENDANT’S MOTION TO
SUPPRESS
JESSE JON HARBACH,
Defendant.
____________________
TABLE OF CONTENTS
Page
I. INTRODUCTION........................................................................... 2
II. FINDINGS OF FACT ...................................................................... 4
A. The Search Warrant ............................................................... 5
B. The Sniff by the Police Service Dog ...........................................10
C. Special Agent Mulnix’s testimony ..............................................15
III. DISCUSSION...............................................................................17
A. The Parties’ Arguments ..........................................................17
B. Whether the traffic stop based on Defendant’s suspended license was
unconstitutional ....................................................................20
1. Relevant law ................................................................20
2. Analysis .....................................................................21
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C. Whether the drug investigation created a basis to stop and/or search the
4Runner .............................................................................29
1. Relevant law ................................................................30
2. Analysis .....................................................................32
D. Whether Police Service Dog’s sniff resulted in probable cause ...........41
1. Relevant law ................................................................41
2. Analysis .....................................................................42
E. Whether the search warrant contains probable cause if the Police
Service Dog’s sniff is excised....................................................43
1. Relevant law ................................................................43
2. Analysis .....................................................................47
F. Whether the Leon good faith exception applies..............................48
1. Relevant law ................................................................48
2. Analysis .....................................................................50
IV. CONCLUSION .............................................................................52
I. INTRODUCTION
On October 7, 2025, the Grand Jury returned an Indictment charging Defendant
with one count of Conspiracy to Distribute a Controlled Substance in violation of 21
U.S.C. Sections 841(a)(1), 841(b)(1)(A), and 846, and one count of Possession with
Intent to Distribute a Controlled Substance in violation of 21 U.S.C. Sections 841(a)(1)
and 841(b)(1)(A). (Doc. 4.)
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The matter before me is Defendant’s motion to suppress. (Doc. 43.) Defendant’s
Inventory is referenced in his motion. (Doc. 43.) Defendant seeks to suppress all
evidence seized from search on March 10, 2025 (see Search Warrant Inventory Report
at Ex. H, p. 37). (Id.) The Government filed a timely Response. (Doc. 48.) The
Honorable C.J. Williams, Chief United States District Court Judge, referred the motion
to me for a Report and Recommendation. I held a hearing on Defendant’s motion to
suppress on January 8, 2026. (Doc. 49.)
At the hearing, the following Government Exhibits 1 through 5 were admitted
without objection:
1. Detention hearing transcript;
2. Search warrant for a 2008 Toyota 4Runner;
3. Trooper Lippmann’s body camera video;
4. PSD1 Maverick 2024 certifications; and
5. Trooper Lippmann and PSD Maverick training records.
The Government called Iowa State Patrol Trooper John Lippmann as a witness. I
found the witness credible.
At the hearing, the following Defendant’s Exhibits were admitted without
objection:
A. United States Postal Inspection Service (“USPIS”) Report of Activity for
March 14, 2024;
B. USPIS Report of Activity for November 4, 2024;
C. Iowa State Patrol aerial surveillance video for March 10, 2025;
D. Trooper Lippmann body camera video;
E. Iowa State Patrol K-9 Deployment Detail Report for March 10, 2025;
1 The Iowa State Patrol refers to their trained dogs as “Police Service Dogs” or “PSDs.”
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F. Iowa Deptartment of Public Safety Iowa State Patrol Police Service Dog
Programs and Policy Statement;
G. Police Service Dog training records; and
H. March 10, 2025 search warrant for Toyota 4Runner.
For the following reasons, I respectfully recommend that the District Court deny
Defendant’s Motion to Suppress.
II. FINDINGS OF FACT
As described in more detail below, law enforcement became suspicious that
packages delivered to a rural Delhi, Iowa address by the United States Post Office
between May 2023 and March 2025 contained controlled substances. None of these
packages had been searched by law enforcement until after the March 10, 2025 delivery
at issue in this case.
The delivery of the package on March 10, 2025 was the subject of law
enforcement air surveillance. (Def. Ex. C.) At 9:56 a.m., C.G. appears to have made
the first of two attempts to collect a package from the rural Delhi address in a Toyota
4Runner registered to Defendant’s mother. Defendant, whose license had been
suspended, was first seen driving the 4Runner that day at 10:20 a.m. when he drove to
the rural Delhi residence. The air surveillance footage shows Defendant and C.G. pull
up in the 4Runner and Defendant exit the vehicle at 11:25:02 a.m. After C.G. collected
the package, Defendant entered the passenger door of the 4Runner and C.G. drove away.
Law enforcement then stopped the vehicle at 11:27:17 a.m., i.e., approximately
2 minutes later. Trooper Lippmann arrived soon thereafter and used his Police Service
Dog (“PSD” or “Maverick”) to conduct a free-air sniff that disclosed the presence of a
controlled substance in the 4Runner. The 4Runner was then towed and law enforcement
obtained a warrant to search the 4Runner and the package. Ultimately, four pounds of
methamphetamine were discovered in the package.
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A. The Search Warrant
Because one of the issues before the Court is whether the warrant established
probable cause, perhaps it is best to start with the statement of facts contained in the
supporting affidavit before turning to other evidence in the record. Government Exhibit
2 is the March 10, 2025 search warrant for the 4Runner and the package. It provides:
I, Joshua Mulnix, Special Agent of the Division of Narcotics Enforcement,
after being duly sworn on oath, do depose and state as follows:
Background
1) I am a Special Agent with the Iowa Department of Public Safety,
Division of Narcotics Enforcement (hereinafter, “DNE”) and a sworn
peace officer in the state of Iowa. I am also a Task Force Officer with the
United States Postal Inspection Service.
2) I completed the Iowa Department of Public Safety’s (hereinafter, “DPS”)
29th Basic Academy, graduating on May 20, 2005. . . . [Special Agent
Mulnix’s additional qualifications and experience are set out in paragraphs
2-3 of Government Exhibit 2.2]
. . .
Probable Cause
5) This affidavit is made in support of an application for a search warrant
for a dark gray 2008 Toyota 4Runner, with VIN number
JTEBT14R58K005186, bearing Iowa registration plate LTL 397,
hereinafter the “Subject Vehicle.” The Subject Vehicle is registered to
[R.J.S], of XXX Gay Street, Delhi, Iowa 52223. The Subject vehicle is
currently located at the Delaware County Sheriff’s Office, located at 1225
W Howard Street, Manchester, Iowa, and is under the control of the DNE
and the Delaware County Sheriff’s Office. The Subject Vehicle is believed
to contain controlled substance(s) as well as additional evidence pertaining
to the receiving, distribution, and possible use of controlled substances,
2 Agent Mulnix described his qualifications at the October 28, 2025 detention hearing. (Gov.
Ex. 1.) He has been with the Postal Inspection Service since January 2024 and with the
Department of Narcotics Enforcement for 14 years. (Id. at 3-4.)
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which evidence includes cellular telephones, United States currency,
packaging/parcels utilized to send/receive controlled substance(s) through
parcel delivery services, documents/records pertaining to payment for
controlled substances received, and/or documents relating to the
distribution of controlled substances through the United States mail or other
parcel delivery services.
[Investigation of Packages]
6) During the course of this investigation, I have conducted reviews of
United States Postal Service (hereinafter “USPS”) business records and
other information pertaining to the investigation of suspected drug parcels
being sent through the USPS to [XXXX] Pioneer Road, Delhi, Iowa
52223.3 USPS business records document that between approximately May
of 2023 and November of 2024, a total of eighteen (18) parcels addressed
to [XXXX] Pioneer Road, Delhi, IA 52223 have been submitted to USPS
in Arizona. All of those parcels have been paid for in cash.
7) I was not able to find USPS business records identifying the recipient
name or return addresses pertaining to every one of the parcels mailed from
Arizona to [XXXX] Pioneer Road, however, I was able to review images
of some of those parcels generated by USPS sorting equipment. Of the
images of six (6) parcels I was able to review, all of them showed the
respective parcels bore the hand-written recipient name, “All Hands
Complete Floor Care LLC,” (or a close variant, for example, excluding
LLC). Five of the parcels bore the hand-written return address “Arizona
Wholesale Floors, 124 S. Ironwood Dr. # 2, Apache Junction, AZ 85120.”
One of the parcels bore the hand-written return address “Country Club
Flooring, 1740 S Country Club Dr., Mesa, AZ 85210.”
8) I checked Google Maps and observed Google Maps listed [XXXX]
Pioneer Road, Delhi, Iowa as the address for All Hands Complete Floor
Care LLC. I viewed a Facebook Page for All Hands Complete Floor Care
LLC and observed a posting on that page which displayed a picture of a
carpet cleaning certificate issued to [J.A.] I reviewed Iowa driver’s license
and vehicle registration information for [J.A.] which showed he listed his
3 This is the “rural Delhi” address referred to throughout my Report and Recommendation.
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residence as [XXXX] Pioneer Road, Delhi, IA 52223. During the course
of this investigation officers have observed a male subject, consistent in
appearance with [J.A.] on the property at [XXXX] Pioneer Road.
9) I conducted an open source internet search for Arizona Wholesale Floors,
124 S. Ironwood Dr. # 2, Apache Junction, AZ 85120, and observed the
website https://www.arizonawholesalefloors.com. The aforementioned
website purported to be the website for Arizona Wholesale Floors and listed
the business address as 124 S. Ironwood Dr. # 2, Apache Junction, AZ
85120. Google listed additional websites that also showed the
aforementioned address as the location for Arizona Wholesale Floors.
10) I conducted an open source internet search for “Country Club Flooring,
1740 S Country Club Dr., Mesa, AZ”, and observed search result which
showed multiple websites listed that address as a location for The Home
Depot. I observed a page of the www.homedepot.com website which listed
1740 S Country Club Dr., Mesa, AZ 85210 as the location for Home Depot
store “Mesa #469.”
11) Based on my training and experience, as well as the information
identified, reviewed, and documented in this investigation, I believe All
Hands Complete Floor Care LLC, Arizona Wholesale Floors, and Country
Club Flooring are/were being utilized as names and addresses on suspected
drug parcels sent to [J.A.’s] residence in order to make the parcels appear
to be legitimate business mail. I recognized various characteristics of the
above-detailed parcels were not consistent with typical business mail, such
as the parcels being hand-labeled, paid for in cash, and the various parcels
being submitted to USPS from multiple cities which sometimes differed
from the city listed in the return address.
12) The parcel bearing the return address of 1740 Country Club Dr.,
assigned USPS tracking number 420522239505512374785065628644
(hereafter referred to as the “Subject Parcel”), showed Mesa, AZ as the
city in the return address, however, USPS records documented the Subject
Parcel was submitted to the mail stream in neighboring Gilbert, AZ.
13) Further indications that the above-detailed USPS parcels contained
controlled substance were observed during surveillance operations
conducted by law enforcement on November 04, 2024 and March 13,
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2024.4 Law enforcement officers conducted surveillance of the regular
USPS delivery of two (2) parcels (one parcel on each of the aforementioned
dates) addressed to “All Hands Complete Floor Care LLC, [XXXX]
Pioneer Rd., Delhi, IA 52223,” with the return address “Arizona
Wholesale Floors, 124 S. Ironwood Dr. # 2, Apache Junction, AZ 85120.”
On both occasions, shortly after the delivery the respective parcel to
[XXXX] Pioneer Rd., a subject whom officers video-recorded and visually
identified as consistent in appearance with JESSE HARBACH, appeared to
leave the residence with the parcels and transport them to a different
location(s), within minutes of the parcels’ respective deliveries by USPS.
HARBACH immediately taking and moving the respective parcels indicated
to officers that [J.A.] was not intended to be the final recipient of the
parcels, despite the parcels being regularly sent to [J.A.’s] residence.
14) On multiple occasions throughout this investigation I have checked Iowa
Driver’s License information pertaining to JESSE HARBACH. Information
for his Driver’s License with an issue date of March 05, 2015, as well as
with the update issue date of February 07, 2025 both list HARBACH’S
residential address as [XXX] Gay Street, Delhi, Iowa and his mailing
address as P.O. Box 303 Delhi, Iowa 52223. This indicates to me that
HARBACH has formally listed addresses for receiving legitimate legal mail
addressed to him. HARBACH obtaining mail items from an address that
does not appear to be directly associated with him is consistent with
someone receiving illegal substances through the mail.
15) I reviewed driver’s license and criminal history pertaining to JESSE
HARBACH. I observed HARBACH had criminal convictions in Iowa and
Arizona, as well as driver’s license information from Iowa and Arizona. I
observed expired Arizona driver’s license information for HARBACH
which listed his address (historical) as1233 E Sea Breeze Dr., Gilbert, AZ
85234. While I could not definitively know that [J.A.] had no connection
to Arizona, based on the driver’s license, criminal history and open source
records I reviewed pertaining to [J.A.], I did not see any information
indicating [J.A.] had traveled to or lived in Arizona. Based on my training
and experience I know Arizona is a major source state for controlled
substances shipped to other states.
4 Based on Agent Mulnix’s testimony (Gov. Ex. 1 at 6) and his report (Def. Ex. A), it seems the
correct date is March 14, 2024.
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[March 10, 2025 Surveillance and Stop]
16) On the morning of March 10, 2025 law enforcement officers conducted
surveillance on the regular USPS delivery of the Subject Parcel to the
residence at [XXXX] Pioneer Road, Delhi, Iowa. At approximately 9:56
a.m. officers observed the Subject Vehicle, operated by a female who was
later confirmed to be [C.G.], stop at the residence. [C.G.] exited the
Subject Vehicle, approached the residence, then departed shortly thereafter.
Officers observed the Subject Vehicle drive to [XXX] Gay Street, Delhi,
where a male subject, subsequently confirmed to be HARBACH, entered
the vehicle. Officers observed the Subject Vehicle returned to [XXXX]
Pioneer Road at approximately 10:12 a.m., at which time HARBACH and
[C.G.] entered the residence. At approximately 10:20 a.m. officers
observed HARBACH and [C.G.] depart from [XXXX] Pioneer Road in the
Subject Vehicle, with HARBACH driving.
17) At approximately 11:18 a.m. officers observed a USPS mail carrier
deliver a parcel to the front of porch of the residence at [XXXX] Pioneer
Road. USPS business records confirmed the Subject Parcel was delivered
to the residence at that time. At approximately 11:24 a.m. officer observed
the Subject Vehicle arrive at [XXXX] Pioneer Road and park near the
house. Officers observed HARBACH exit the driver’s side of the Subject
Vehicle and enter the front passenger door. Officers observed [C.G.]
retrieve the Subject Parcel form the residence at [XXXX] Pioneer Road and
enter the Subject Vehicle with it. At approximately 11:26 a.m. officers
observed the Subject Vehicle leave [XXXX] Pioneer Rd driving North.
18) At approximately 11:27 a.m. officers initiated a traffic stop on the
Subject Vehicle. Officers conducting surveillance were aware that
HARBACH’S Iowa Driver’s license was suspended with 3 withdrawals in
effect. HARBACH was arrested and charged for driving while suspended,
based on officers’ observations leading up to that time. HARBACH had a
cellular phone and a stack of United States currency on his person when he
was taken into custody. HARBACH’S cell phone and currency were held
by law enforcement pending further investigation and this search warrant
application.
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19) At approximately 11:35 a.m., Trooper John Lippmann, of the ISP,
deployed his Police Service Dog (PSD), Maverick, to conduct a free air
sniff around the Subject Vehicle. PSD Maverick is a certified narcotics
detection dog through Nebraska State Standard. Trooper Lippmann has
been working with Maverick since September 2021. Maverick is certified
in the detection of the odors of marijuana, methamphetamine, cocaine, and
heroin. Maverick was most recently recertified in November 2024.
20) Trooper Lippmann advised that Maverick had indicated to the presence
of the odor associated with illegal narcotics during the sniff around the
Subject Vehicle at approximately 11:36 a.m.
21) During the course of the traffic stop on the Subject Vehicle, officers
observed, in plain sight, through the window, a parcel that appeared to be
the Subject Parcel situated on the passenger floorboard. The Subject
Vehicle was towed to the Delaware County Sheriff’s Office under the
supervision of law enforcement. The Subject Vehicle is currently under the
control of DNE and the Delaware County Sheriff’s Office at that location,
in order to keep it secured during the process of this search warrant
application.
22) [C.G.] was released from the scene of the traffic stop and transported
to a residence of her request in Delhi by officers. [C.G.] stated a cell phone
belonging to her was inside the Subject Vehicle. [C.G.] was not allowed to
remove anything from the vehicle and this warrant seeks authority to seize
cellular phones and cash belonging to [C.G.] and HARBACH, including
the phone and cash seized from HARBACH’S person and any cellular
phones and/or cash inside the Subject Vehicle.
(Gov. Ex. 2.) The affidavit further described in detail Agent Mulnix’s professional
understanding of aspects of the drug trade and drug traffickers. These details will be
discussed, as necessary, below.
B. The Sniff by the Police Service Dog
Trooper John Lippmann has been with the Iowa State Patrol since 2019. Prior to
that he had been with the Iowa Falls Police Department and the Hardin County Sheriff’s
Office. He is graduate of the Department of Public Safety Academy and has been a
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police dog handler since 2020. He completed a 6-to-8-week narcotics camp and an 8-to
11-week patrol camp with PSD Maverick. Maverick is a 6½-year-old, 75-pound German
Shepard who has been assigned to Trooper Lippman since 2021. Maverick is a dual-
purpose dog, meaning he detects narcotics and also does other tasks such as tracking,
evidence recovery, and apprehension. Maverick had no prior training when he was
acquired from Southern Coast Kennels, a Florida kennel.
The Iowa State Patrol requires that police service dogs be certified. Maverick was
originally certified for narcotics in 2021. Sgt. Ryan Zenor, a certified evaluator for the
Iowa State Patrol, was himself certified by the Nebraska State Patrol. Trooper Lippmann
was not able to testify specifically about Sgt. Zenor’s qualifications. Sgt. Zenor certifies
the Iowa State Patrol police service dogs. The Iowa State Patrol utilizes the State of
Nebraska’s standard for police service dogs because the State of Iowa does not have its
own standard. Trooper Lippmann is not aware of any national standard for drug detection
dogs. (Lippmann Hr’g Test. at 34-35.)
Trooper Lippmann described the certification process for PSD narcotics detection,
such as the 14 different narcotics finds in multiple varied environments from kitchens to
barn stalls. Maverick is trained to detect the odors of cocaine, heroin, methamphetamine,
and marijuana. Maverick is required to recertify annually, and he has done so on all
these odors since his first certification in 2021. He was certified at the time of the
hearing. Maverick was certified in March of 2024, i.e., the time of the search in question.
(Gov. Ex. 4 at 1, Lippmann H’rg Test. at 14-15.)
Trooper Lippmann and Maverick are required to participate in on-going training
of 16 total hours per month combined for all disciplines, that is, narcotics detection, basic
patrol, evidence recovery, and tracking. (Lippmann H’rg Test. at 16-17.) Exhibit 5 is
comprised of Maverick’s “K-9 Training Detail Reports” from March 12, 2024 through
March 3, 2025. Occasionally, Iowa State Patrol handlers and dogs train with the
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Nebraska State Patrol. (Id. at 36.) When Trooper Lippmann and Maverick are in
training, Maverick is not actively being handled or sniffing the entire time. (Id. at 38.)
For example, Defense Exhibit G, a training detail report from February 3, 2025, relates
to narcotics detection training from 8:00 a.m. to 2:30 p.m. The report shows Maverick
sniffed around a truck that contained methamphetamine and ultimately gave alerts and an
indication. Trooper Lippmann testified that it did not take Maverick 6½ hours to indicate
on this truck. Trooper Lippmann estimated it normally takes Maverick only 5 to 10
minutes to alert and indicate. (Id. at 41.)
For vehicle searches, Trooper Lippmann takes Maverick counterclockwise around
the vehicle. Trooper Lippman typically starts Maverick searching into the wind to better
detect odor coming from the vehicle.
Trooper Lippmann distinguishes between an “alert” and an “indication.” An alert
is a “natural behavioral response to spontaneously detecting a trained narcotic odor.”
(Id. at 20.) Maverick’s alerts include “large head snaps back towards the odor of
narcotics that he’s been trained on, or he’ll have quick little head snaps back and forth,
all accompanied by deep rapid nasal breaths.” (Id.) An “indication,” the dog’s trained
response to the presence of the trained odors. Maverick makes a passive indication for
the presence of narcotics, i.e., he sits, stands, lays down, or stares. (Id. at 21.) The
indication signifies Maverick has “has pinpointed the strongest source that he can find.”
(Id.) Trooper Lippmann is trained that he must observe both an alert and an indication
before determining the existence of probable cause based on Maverick’s sniff. (Id. at
22.) Trooper Lippmann opined that Maverick accurately detects the odor of the trained
narcotics. (Id. at 24.) Trooper Lippmann cannot identify whether, in the field, Maverick
has failed to indicate when drugs were present. (Id. at 41.) This is because if he did not
alert and indicate, no search was performed. Maverick has also alerted and indicated on
occasions that no drugs were found. (Id. at 42.) Trooper Lippmann explained that in
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these instances where there was an absence of contraband, “it was substantiated by the
driver or whoever was in the vehicle that odor was present.” (Id. at 62-63.)
On March 10, 2025, Trooper Lippmann attended a briefing regarding the planned
vehicle “take down” and the anticipated free-air sniff. (Id. at 24.) He had not been
involved in the prior investigation. (Id. at 57.) During the surveillance, Trooper
Lippmann could hear the discussion among law enforcement officers about picking up
the parcel, but he did not know where in the vehicle it was located. (Id. at 57-58.)
Trooper Lippmann and Maverick arrived at the scene “within seconds” of the stop. (Id.
at 24-25.) Before removing Maverick from his patrol vehicle, Trooper Lippmann did “a
safety check of the vehicle to make sure there’s no distractions or diversions in plain
sight” and closed two doors on the driver’s side of the 4Runner. (Id. at 25.) These doors
appear to have been left open by the officers who stopped the vehicle. Maverick was
placed on a leash with a flat collar.
Because there were multiple vehicles present, Trooper Lippmann had to direct
Maverick to sniff the 4Runner. (Id. at 46.) Trooper Lippman gave Maverick a command
to commence the free-air narcotics search and proceeded counterclockwise around the
4Runner. Trooper Lippmann’s body-worn camera shows Maverick on a leash making
two counterclockwise circles around the outside of the 4Runner. At points, Maverick
would “rear up” and put his paws on the vehicle. This was not trained behavior, but a
natural response. (Id. at 45.)
At 1:19 in Trooper Lippman’s body camera video (i.e., 11:36:15), Maverick had
completed his second lap around the 4Runner. (Gov. Ex. 3.) When asked, “So Maverick
again goes down the passenger’s side and didn’t breathe heavy at the door seam or give
any kind of alert at the passenger’s door seam, correct?” Trooper Lippmann answered,
“Correct.” (Lippmann H’rg Test. at 48, Gov. Ex. 3. at 11:36:19.) Maverick was at the
front of the vehicle when Trooper Lippman appeared to direct Maverick to reverse
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directions and return to sniff the passenger side of the vehicle from front to back.5
Trooper Lippmann testified he reversed directions to go into the wind to help detect odor.
(Lippmann H’rg Test. at 48.)
Trooper Lippmann testified that Government Exhibit 3 at 11:36:27 shows a “head
snap back and then went into the front passenger rear door seam, and then gave two small
back and forth head snaps.” (Id. at 26-27.) Trooper Lippmann identified these as alerts.
It appears that Maverick focused on the seam between the two passenger-side
doors. (Gov. Ex. 3 at 11:36:26.) Trooper Lippmann verbalized, “an alert there” at
11:36:30. When Maverick reached the rear of the 4Runner, Trooper Lippmann again
redirected Maverick along the passenger side of the 4Runner, this time from back to
front. At 11:36:44 Maverick appeared to focus on and stop at the seam between the
passenger side doors. This appears to have been an “indication” because Trooper
Lippmann said, “Yes. Come on,” and then praised Maverick. (Id. at 11:36:47.)6
Trooper Lippmann narrated his observations at 11:37:20-11:38:02 which include the
statement that Maverick made a “stand and stare indication.” He testified that at that
point Maverick had located the strongest source of the odor. (Lippmann Hr’g Test at
28.) Trooper Lippman testified that as a result of the search, four pounds of
methamphetamine were located on the front passenger floorboard and user quantities
were located in the middle row seats with a pipe. (Id. at 31.)
5 Trooper Lippmann referred to this as “metering,” that is, “Metering is when I – it’s typically
after I see an alert, and I will bring him -- swing him back around instead of -- like for, say, on
the video, instead of continuing that pass all the way around the vehicle, I saw him alert several
times on that passenger’s side. I got to the back of the vehicle, and so I just rerouted him to
come right back to where I saw that alert.” (Lippmann H’rg Test. at 32-33.)
6 Both parties questioned Trooper Lippmann about how Maverick was rewarded. Trooper
Lippmann testified that he varies rewards to keep Maverick “accountable.” While defense
questioning touched on rewarding Maverick, distractions by other odors, and possible cueing,
ultimately the record is too insubstantial on these issues to affect the credibility of Trooper
Lippmann’s testimony or the reliability of the sniff.
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C. Special Agent Mulnix’s testimony
Agent Mulnix was called to testify about the investigation at Defendant’s detention
hearing on October 25, 2025. (Gov. Ex. 1.) He testified consistently with the foregoing
information from the warrant. I have reviewed the transcript for additional details that
bear on the issues at bar. While additional relevant details are described below, facts not
included in his affidavit will not be considered in determining if his affidavit established
probable cause for the search.
Agent Mulnix is the Government’s case agent. (Id. at 4.) The packages in
question here came to his attention through his routine review of information about
packages. (Id. at 22.) Of all the packages he was concerned with, only one was
intercepted. (Id. at 23.) The intercepted package was the package discovered in the
4Runner following the March 10, 2025 traffic stop and K-9 sniff. (Id. at 23.) Agent
Mulnix could not say with certainty what was in any of packages that were not
intercepted. (Id.)
At some point, Agent Mulnix contacted Arizona Wholesale Flooring and spoke
with the owner. (Id. at 5-6.) Agent Mulnix learned that Arizona Wholesale Flooring
does not ship flooring supplies and did not ship packages to Iowa. (Id. at 6.) Agent
Mulnix did not testify when this conversation took place, so it is difficult to determine
how it may have informed the decision to stop the 4Runner. 7
Agent Mulnix was personally involved in surveillance of the rural Delhi address.
(Id. at 6, 25.) Agent Mulnix interviewed J.A. and determined that J.A. was unaware of
Defendant receiving packages at his house and that J.A. does not run a flooring company,
7 The testimony at the detention hearing appropriately focused on the weight of the evidence
against Defendant and other factors pertinent to detention, but the transcript is in many instances
ambiguous for the purpose of ascertaining what investigators knew at the time the challenged
evidence was seized and/or searched. Hence my efforts to be particular about what evidence
was clearly known to investigators at critical junctures.
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and that J.A. never ordered anything from Arizona Wholesale Floors. (Id. at 8-9.)
Again, this information is not Agent Mulnix’s affidavit for the search warrant. J.A. was
a friend of Defendant since they were in school. It is not clear that Agent Mulnix had
this information when the 4Runner was stopped. On the contrary, it seems somewhat
implausible investigators would have commenced questioning of J.A. before Defendant’s
arrest.
When packages were delivered to the rural Delhi address, they were picked up by
Defendant or C.G. within less than 10 minutes of when Agent Mulnix thought they were
expecting them. (Id. at 10.) Each of the packages was sent with a tracking number that
permitted it to be tracked online and some of the packages were tracked. (Id. at 27-30.)
An IP address associated with the account of Defendant’s mother at Defendant’s address
in Delhi, Iowa was used to track at least one package. (Id. at 30.) However, it is not
clear when Agent Mulnix learned this, and his search warrant affidavit does not mention
tracking of packages.
On March 10, 2025, Defendant and C.G. parked where they could watch the mail
delivery car pass by. (Id. at 11.) Law enforcement observed J.A. leaving the residence
prior to delivery of the package on March 10, 2025. (Id. at 26.)
The search of the vehicle, pursuant to the warrant, revealed the parcel on the
passenger floorboard where Defendant had been seated. Inside the parcel were Mason
jars containing approximately two kilograms of pure methamphetamine. (Id. at 12.) The
search of Defendant’s person disclosed $5400 in cash and a cell phone. This cash did
not include any pre-serialized money. (Id. at 24.)
The first date a delivery of a suspect package was subject to law enforcement
surveillance was in March 2024. (Id. at 24-25.) Defendant was identified with video of
the surveillance, consultation with local law enforcement officers familiar with
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Defendant, and the registration of the 4Runner to Defendant’s mother. (Id. at 25.)
Defendant was not observed opening any packages. (Id.)
Agent Mulnix also discussed evidence that Defendant was sending packages to his
suspected drug source and had conversations with that source about drug trafficking.
Here, however, this information came from a cell phone seized during the traffic stop
and there is no indication Agent Mulnix was aware of it prior to the stop. (Id. at 12-14.)
Agent Mulnix investigated the transfer of money to Defendant’s drug source; but here
again, it is not clear if this information was known to any investigators prior to the traffic
stop.
III. DISCUSSION
A. The Parties’ Arguments
Defendant argues that the warrantless stop of the 4Runner was unconstitutional.
Defendant argues that although he had been observed driving on a suspended license
minutes before the stop, because he was no longer driving the 4Runner when it was pulled
over, the “justification was stale and not supported by probable cause or reasonable
suspicion.” (Doc. 43-1 at 6-7.) After discussing authorities that he believes support his
position, Defendant points to three factors which he argues show the stop was
unreasonable:
First, Mr. Harbach was no longer driving the vehicle when it was stopped.
Second, officers first saw the traffic violation over one hour before
effectuating the stop. Third, it is apparent that officers were waiting to see
if the package would be retrieved before stopping the vehicle. Had the
package not been retrieved, it is likely no stop would have taken place.
(Id. at 9.)
Next, Defendant asserts that the alert of the police service dog did not result in
probable cause. Defendant asserts that Maverick’s performance during the sniff and the
training show any alleged alert was unreliable. Defendant’s criticism of Maverick’s
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compliance with the training requirement relates to the length of time Maverick was
actively engaged in training. In other words, Defendant contends, in essence, that if the
applicable training requirement is 16 hours per month, it should consist of active training
for that entire time. Defendant’s challenge to the sniff itself is somewhat vague. His
brief suggests some criticism of the fact Maverick did not alert on the first or second pass
around of the 4Runner, but it is not entirely clear what he believes is objectionable about
this procedure.
Defendant then contends that if the testimony regarding the police service dog alert
is excised from the warrant application, it fails to establish probable cause. In support
of this position, Defendant first argues that there is nothing inherently suspicious about a
hand-addressed package label. Second, Defendant points out that is not known what was
in the other packages sent from Arizona to the rural Delhi address. Third, information
regarding the prior packages that were surveilled is “stale.” Fourth, Defendant and C.G.
had no prior drug-related arrests or convictions.
Defendant argues that the exclusionary rule should not apply because “the issuing
magistrate wholly abandoned his judicial role,” the affidavit in support of the warrant
was “so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable,” or the warrant was “so facially deficient—i.e., in failing to
particularize the place to be searched or the things to be seized—that the executing officers
cannot reasonably presume it to be valid.” (Doc. 43-1 at 15, quoting United States v.
Leon, 468 U.S. 897, 923 (1984).)
Defendant argues, “Without the stale information (which should be excised) and
the alleged PSD alert information (which should also be excised), the application only
supports the conclusion that a package sent through the USPS would be found in the
4Runner.” (Id.) Defendant does not explain why Leon requires excision of this
information.
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In response, the Government asserts that the traffic stop of Defendant for driving
while his license was suspended was proper even though he was no longer driving. The
Government cites a variety of Iowa and federal cases in support of its position that law
enforcement need not have stopped Defendant in flagrante delicto. In the alternative, the
Government contends that law enforcement’s stop of the 4Runner was supported by
probable cause from the drug trafficking investigation into the 18 packages sent from an
Arizona flooring business to the rural Delhi address. (Doc. 48-1 at 12.)
Next, the Government contends Maverick’s alert and indication supported
probable cause to believe the 4Runner contained contraband or evidence of a crime. The
Government asserts that it provided sufficient information regarding Maverick’s training,
certification, and alert on the 4Runner to support issuance of the search warrant.
The Government points to Maverick’s certification and training records to counter
Defendant’s post-search challenge under Florida v. Harris, 568 U.S. 246-47 (2013). The
Government contends these records show that Maverick was certified, reliable, and his
training conformed with the standards adopted by the Iowa State Patrol. The Government
argues that the search warrant application, having sufficiently described Maverick’s
certification and the sniff, should not have this information excised.
The Government argues that even if Maverick’s search is unreliable and excised
from the warrant application, the warrant still contains probable cause. Even if
Maverick’s sniff is unreliable, the Government contends the Leon exception applies8
8 The Government addresses these last two arguments in the opposite order. (See Doc. 48-1 at
16, 20.)
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B. Whether the traffic stop based on Defendant’s suspended license was
unconstitutional
1. Relevant law
The Fourth Amendment protects persons against unreasonable searches and
seizures. U.S. Const. amend. IV. Warrantless searches are per se unreasonable, with a
few well-established exceptions. United States v. Kennedy, 427 F.3d 1136, 1140 (8th
Cir. 2005). “A law enforcement officer may conduct an investigative stop of a vehicle
when he [or she] has ‘a particularized and objective basis for suspecting the particular
person stopped of criminal activity.’” United States v. Pounds, 70 F.4th 1106, 1108 (8th
Cir. 2023) (quoting United Sates v. Cortez, 449 U.S. 411, 417-18 (1981)); see also
United States v. Fields, 832 F.3d 831, 834 (8th Cir. 2016) (“A police officer ‘may,
consistent with the Fourth Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal activity is afoot.’”) (Quoting
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). Courts consider the “totality of the
circumstances to determine whether an officer has a particularized and objective basis to
suspect wrongdoing.” Pounds, 70 F.4th at 1108 (citing United States v. Arvizu, 534
U.S. 266, 273 (2002)). “When a team of law enforcement officers is involved in an
investigation, the issue is whether all the information known to the team provided
‘specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant’ the investigative stop.” United States v. Collins, 883 F.3d
1029, 1032 (8th Cir. 2018) (per curiam) (quoting United States v. Winters, 491 F.3d 918,
921 (8th Cir. 2007), in turn quoting United States v. Robinson, 119 F.3d 663, 666 (8th
Cir. 1997)).
Police are permitted to make an investigative stop of a vehicle if they have
reasonable suspicion that an individual in that vehicle recently committed a crime in a
general area. See United States v. Roberts, 787 F.3d 1204, 1209–10 (8th Cir. 2015)
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(applying reasonable suspicion standard to stop of a vehicle several blocks from crime
scene); United States v. Juvenile TK, 134 F.3d 899, 900–04 (8th Cir. 1998) (applying
reasonable suspicion standard for traffic stop where officers received two dispatch
messages within forty-five minutes informing them that a vehicle had been involved in
criminal activity in the area).
2. Analysis
Here, Defendant does not claim that law enforcement never witnessed him driving
without a license. The 4Runner can be seen on the video arriving at the rural Delhi
house. Defendant does not deny that he and C.G. changed places in the 4Runner. Nor
does he claim that law enforcement had no reason to believe his license was suspended.
Instead, he asserts that the justification was stale after C.G. took the wheel and the vehicle
in which he was a passenger was stopped a few minutes later. The legal justification
Defendant relies upon is very thin. In United States v. Copeland the government
introduced evidence recovered from the a vehicle following a traffic stop for illegal
parking. 321 F.3d 582, 589 (6th Cir. 2003). In Copeland officers intended to issue a
citation for parking on the wrong side of the road at a 45-degree angle, but the car drove
away, and officers followed for about a mile before the stop was effected. The Sixth
Circuit Court of Appeals held:
The district court found that a parking violation, by itself, does not
constitute adequate grounds to stop a vehicle because it is not a traffic
violation. See Hartwell, 67 F.Supp.2d at 790. We disagree. The
placement of the defendants’ vehicle at a 45–degree angle to the curb, facing
the wrong direction, clearly violates Michigan’s parking regulations. See
Mich. Comp. L. § 257.675(1) (“[A] vehicle stopped or parked upon a
highway or street shall be stopped or parked with the wheels of the vehicle
parallel to the roadway and within 12 inches of any curb existing at the right
of the vehicle.”). This parking regulation is set forth under the general
traffic laws of the Michigan Vehicle Code. See Mich. Comp. L. § 257, Ch.
IV, Obedience To And Effect Of Traffic Laws. Moreover, the Michigan
Vehicle Code provides that officers may enforce any of the regulations
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subsumed in this section by virtue of a stop. See Mich. Comp. L. §
257.742(1) (“A police officer who witnesses a person violating this act or
a local ordinance substantially corresponding to this act . . . may stop the
person, detain the person temporarily for purposes of making a record of
vehicle check. . . .”). It is clear, then, that an officer can effect a stop
based upon a driver’s failure to comply with Michigan’s parking
regulations, even if the vehicle is no longer parked. Thus, an antecedent
parking violation can conceivably form the basis for probable cause to stop
a vehicle.
However, our inquiry does not end here. Although an officer may effect a
stop of a vehicle for parking illegally, that stop is nonetheless subject to the
general reasonableness requirements of Whren. In particular, where an
officer is in possession of information that creates the basis for probable
cause, he is required to act upon this information within a reasonable period
of time—otherwise the existence of probable cause is said to have become
stale. See United States v. Henson, 848 F.2d 1374, 1382 (6th Cir.1988).
Whether the facts creating the basis for probable cause have become stale
is directly related to the nature of those facts. Id. (“In general, the basic
criterion as to the duration of probable cause is the inherent nature of the
crime[.]”) (quoting United States v. Haimowitz, 706 F.2d 1549, 1554–55
(11th Cir.1983)); see also United States v. Akram, 165 F.3d 452, 456 (6th
Cir.1999) (“To determine whether evidence establishing probable cause is
‘stale,’ we consider the inherent nature of the suspected crime. . . .”).
Logically, where an observed parking violation is not ongoing, an officer
is required to effect a stop based upon this conduct within a reasonable
period of time. Because a parking violation necessarily takes place only
when a vehicle is stopped or standing, the time in which a moving vehicle
can reasonably be stopped for a parking violation is relatively limited.
Under this framework, we conclude that the stop of the defendants one mile
from their parked location was reasonable. Upon observing the defendants
illegally parked, both officers testified that they immediately circled the
block to further investigate. Furthermore, even though the officers did not
immediately stop the defendants as they began their pursuit, the officers
explained that a third car had entered the road between the defendants’
vehicle and the patrol car. Once this third vehicle turned off the road, the
officers testified that they activated their patrol lights and stopped the
defendants. Given the circumstances surrounding this stop, including the
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presence of a third vehicle and the relatively short distance in which the
officers followed the defendants prior to conducting the stop, we find that
the stop of the vehicle was reasonable. Therefore, the evidence recovered
by the officers in the course of this stop was properly admitted into
evidence.
Copeland, 321 F.3d at 594–95. Thus, the facts of Copeland suggest that law
enforcement’s stop of Defendant herein was reasonable. In other words, as in Copeland,
law enforcement observed the infraction and, although the illegal conduct had ceased
when Defendant stopped the car and allowed C.G. to drive, law enforcement stopped
him within only a few minutes.
Focusing on the concept of staleness, Defendant relies on United States v. Zuniga,
860 F.3d 276 (5th Cir. 2017). In Zuniga the defendant’s vehicle was stopped some 15
minutes after officers observed a turn-signal violation and possibly a parking infraction.
In Zuniga, the Fifth Circuit Court of Appeals reasoned:
The record indicates that the turn-signal offense occurred and was
immediately relayed; yet, the call went unanswered by fellow officers. In
fact, Zuniga was not stopped for this violation until approximately fifteen
minutes after it was observed. But other factors provide support for the
Government’s argument that the stop was reasonable. Notably, Zuniga
does not dispute that Detective Chavarria and other agents observed his
vehicle fail to signal continuously for at least 100 feet before turning. Nor
does Zuniga dispute that Detective Chavarria radioed information about the
turn-signal violation to his colleagues as soon as he saw it occur, although
none of the other officers were in position to stop the vehicle at the time.
Thus, in following the Copeland court’s lead in considering the
“circumstances surrounding the stop,” 321 F.3d at 595, we hold that the
totality of the circumstances do not dictate a finding that the turn-signal
violation was too stale to justify stopping the vehicle. That is to say, the
delay here is not enough to negate the violation as grounds for the later
stop.
We make no attempt to articulate a specific time limitation to which officers
must adhere in effecting a stop following a traffic violation. Rather, we
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stress that, consistent with our holdings in similar contexts, stops following
transportation violations must be reasonable in light of the circumstances.
See, e.g., United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014)
(emphasizing that “[s]tale information cannot be used to establish probable
cause”). To reiterate, we hold only that the elapsed time between an
observed violation and any subsequent stop must be reasonable upon
consideration of the totality of the circumstances.
Zuniga, 860 F.3d at 282.
In the case at bar, the Government relies on State v. Christopher, 757 N.W.2d
(Iowa 2008). In Christopher, an off-duty police officer observed a car in front of him
strike a curb. The off-duty officer pulled alongside the vehicle and recognized the driver.
The off-duty officer yelled at the defendant through the passenger window and asked
whether he should be driving. The defendant responded that he had a driver’s license
and drove off. 757 N.W.2d at 248. The next day, the off-duty officer checked the
defendant’s driving status and learned that the defendant was barred from driving. Id.
“Instead of filing a police report or obtaining an arrest warrant, Butler decided he would
simply arrest Christopher the next time he saw him.” Id. Five weeks later the officer
was on duty and saw the defendant sitting steps in front of a house. The officer arrested
the defendant for driving while barred and searched the defendant, finding marijuana and
crack cocaine in the defendant’s pants pockets. Id. The defendant was charged with
drug possession and driving while barred offenses. The defendant moved to suppress the
drug evidence, which the district court denied. Id. at 249.
Among other things, the defendant argued that “a warrantless arrest is lawful only
if the officer arrests the individual within a reasonable amount of time after the officer
observes the individual committing the offense” and because the officer “had time to
obtain an arrest warrant, [the defendant] claims his warrantless arrest was unlawful.” Id.
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at 249-50. The Iowa Supreme Court was unpersuaded by the defendant’s argument and
explained that:
[W]hether the police officer had time to obtain an arrest warrant is
irrelevant under the Fourth Amendment. United States v. Watson, 423 U.S.
411, 423–24, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, 609 (1976). The proper
inquiry is whether the officer had probable cause to arrest: “[a] warrantless
arrest of an individual in a public place for a felony, or a misdemeanor
committed in the officer’s presence, is consistent with the Fourth
Amendment if the arrest is supported by probable cause.” Maryland v.
Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 799, 157 L.Ed.2d 769, 774
(2003). . . . A reasonable time requirement between the time the officer
observed the offense and the warrantless arrest would require a case-by-
case determination. See Watson, 423 U.S. at 423–24, 96 S.Ct. at 828, 46
L.Ed.2d at 609. We do not find such a determination necessary to protect
the rights of the accused. The primary purpose of an arrest “is to bring a
suspect before a magistrate to answer a charge.” United States v. Moore,
215 F.3d 681, 685 (7th Cir.2000). [The defendant’s] constitutional rights
are adequately protected by the requirement that he be taken “without
unnecessary delay” to the “nearest or most accessible magistrate.” Iowa
Code § 804.22. . . .
[The defendant] does not deny the existence of probable cause to arrest him
for driving while barred. See Freeman, 705 N.W.2d at 298 (stating
probable cause exists “‘if the totality of the circumstances as viewed by a
reasonable and prudent person would lead that person to believe that a crime
has been or is being committed and that the arrestee committed or is
committing it’” (quoting State v. Bumpus, 459 N.W.2d 619, 624 (Iowa
1990))). Instead, he focuses on several state court decisions interpreting
warrantless arrest statutes to preclude any delay between witnessing the
offense and the arrest. See, e.g., Smith v. State, 228 Miss. 476, 87 So.2d
917 (1956); Oleson v. Pincock, 68 Utah 507, 251 P. 23 (1926). However,
none of these cases are based on constitutional grounds. Moreover, our
own statute does not require a warrantless arrest be made with reasonable
promptness after the offense has been committed in the officer’s presence.
See Iowa Code § 804.7(1) (allowing an officer to make an arrest with or
without a warrant “[f]or a public offense committed or attempted in the
peace officer’s presence”). Under our rules of statutory construction, we
are obligated to apply the law as written. In re Name Change of Reindl,
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671 N.W.2d 466, 469 (Iowa 2003). “We may not, under the guise of
judicial construction, add modifying words to a statute or change its terms
absent ‘inadvertent clerical errors or omissions which frustrate the obvious
legislative intent.’” City of Asbury v. Iowa City Dev. Bd., 723 N.W.2d
188, 197 (Iowa 2006) (quoting Schultze v. Landmark Hotel Corp., 463
N.W.2d 47, 49 (Iowa 1990)). There is nothing to suggest the legislature
intended to restrict the authority of an officer making a warrantless arrest
to a limited time frame.
Id. at 250.
First, as State v. Christopher makes clear, the fact that Defendant was no longer
driving is of little consequence. Defendant cites no authority for the proposition that he
must be apprehended in the act. Next, Defendant claims the stop was stale because he
had been first seen driving when he was known to have a suspended license more than
an hour before the stop. Defendant cites no authority for the proposition that staleness
should be measured from the first observation of the illegality rather than the most recent.
As it pertains to staleness, I reject this proposition as nonsensical. Indeed, in United
States v. Sandridge, 385 F.3d 1032 (6th Cir. 2004), a police officer observed the
defendant driving a yellow Cadillac and ran license check and learned that the defendant
did not have a valid driver’s license. Id. at 1033-34. Three weeks later, the officer
observed the defendant driving the same vehicle and conducted a traffic stop. Id. at 1033-
35. The defendant argued that “the March 5 license check was too ‘stale’ to be relied on
by [the officer] three weeks later, on March 27, 2002, when he pulled [the defendant]
over on the traffic stop.” Id. at 1035. The Sixth Circuit was unpersuaded by the
defendant’s argument, reasoning that:
When a police officer conducts a brief investigatory stop of a person in a
vehicle, “the Fourth Amendment is satisfied if the officer’s action is
supported by reasonable suspicion to believe that criminal activity may be
afoot.” [United States v. Ridge, 329 F.3d 535, 540 (6th Cir. 2003)]
(quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151
L.Ed.2d 740 (2002)). When [the officer] observed [the defendant] driving
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on March 27, 2002, he reasonably suspected that he was driving without a
valid license because, just three weeks earlier, on March 5, 2002, [the
officer] ran a license check on [the defendant’s] car and learned that he did
not have a valid license. . . .
[The defendant] also argues that . . . any reasonable suspicion stemming
from the March 5 license check was “stale” by the next time [the officer]
saw [the defendant] driving again, on March 27, 2002. We reject that
argument. In situations where the criminal activity is of an ongoing nature,
it will take longer for the information to become stale. See United States
v. Greene, 250 F.3d 471, 480 (6th Cir.2001) (“Evidence of ongoing
criminal activity will generally defeat a claim of staleness.”). Driving
without a valid license is a continuing offense—in contrast, say, to a
speeding or parking violation—and there are no facts in the record
suggesting that [the officer] should have assumed that [the defendant’s]
ongoing offense had ceased between March 5 and March 27, 2002.
Accordingly, [the officer] had a reasonable basis for suspecting that [the
defendant] still lacked a valid license on March 27 and, therefore, [the
officer] was permitted to stop [the defendant] briefly to determine whether
the crime was still being committed. See United States v. Mans, 999 F.2d
966, 968 (6th Cir.1993) (holding that an officer’s stop of a defendant was
reasonable, and not pretextual, where the officer recognized the defendant
from prior arrests and knew that his driver’s license had been revoked).
Id. at 1036. Had Defendant been arguing law enforcement waived the right to stop him
or that he relied on law enforcement forbearance (note: he is not arguing either and
there’s no reason to), it might make sense to measure the length of time that law
enforcement witnessed the conduct before stopping him. Here, however, he was last
seen driving the vehicle about two minutes before the stop.
In United States v. Kinney, No. 4:21 CR 600 RLW (SRW), 2023 WL 3903674
(E.D. Mo. May 22, 2023), officers observed a vehicle speeding and using the center lane
to pass cars on either side of the vehicle. Id. at *2. The vehicle turned onto a different
road and slowed down to a normal rate of speed. Id. Officers deployed a spike strip to
stop the vehicle. Id. The district court determined that the officers had probable cause
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to stop the vehicle based on the traffic violations—speeding and using the center turn lane
to pass other vehicles. Id. at *3. The district court stated, “[t]he fact that at the time of
the stop, Defendant was no longer driving over the speed limit or using the center turn
lane as a passing lane does not negate the officers’ probable cause. A short delay between
the alleged traffic violation and the traffic stop is permissible.” Id. at *4 (citing United
States v. Zuniga, 860 F.3d 276, 282 (5th Cir. 2017) (determining that a traffic stop 15
minutes after the traffic violation was permissible), United States v. Anderson, 458 Fed.
App’x 440, 442-43 (6th Cir. 2012) (determining that short delay between an officer
noticing the violation and initiating the stop is permissible)). Nothing about this
circumstance makes the stop stale.
Third, it is of no consequence “that officers were waiting to see if the package
would be retrieved before stopping the vehicle. Had the package not been retrieved, it
is likely no stop would have taken place.” (Doc. 43-1 at 9.) See United States v.
Rederick, 65 F.4th 961, 965 (8th Cir. 2023) (providing that a law enforcement officer’s
“motivation for the stop is irrelevant”), citing Whren v. United States, 517 U.S. 806,
813 (1996) (“We think these cases foreclose any argument that the constitutional
reasonableness of traffic stops depends on the actual motivations of the individual officers
involved”), in turn citing United States v. Robinson, 414 U.S. 218, 221 n. 1 (1973)
(determining that a traffic violation arrest was not rendered invalid by the fact it was
“mere pretext for a narcotics search”)); see also United States v. Fuehrer, 844 F.3d 767,
772 (8th Cir. 2016) (providing that an officer’s “observation of the traffic violation . . .
gave him probable cause to stop the vehicle, and his subjective intent to detain the vehicle
for a dog-sniff search is irrelevant”). Defendant’s speculation that he would not have
been stopped but for having collected the parcel from the rural Delhi is likely accurate,
but immaterial. I agree it would seem unusual for drug enforcement agents to make a
traffic stop of a suspected drug trafficker merely to cite him for driving with a suspended
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license. However, the underlying reason for the stop (i.e., to investigate drug trafficking)
simply does not matter if law enforcement also had a legitimate basis to stop him for a
traffic offense.
Defendant also points out that Defendant had neither any drug-related arrests nor
criminal history. (Doc. 43-1 at 14.) While this fact weighs somewhat against a finding
probable cause, by itself it does not overcome the other evidence in the record supporting
the existence of probable cause for the stop and search.
For these reasons, I recommend the Court deny Defendant’s motion to the extent
it relies on an unconstitutional traffic stop. If the Court disagrees with me, its analysis
of should continue by examining the basis for the stop based on the suspected drug
trafficking.
C. Whether the drug investigation created a basis to stop and/or search the
4Runner
The parties approach this issue somewhat differently, but ultimately they both
address whether the drug trafficking investigation by itself gave law enforcement grounds
to stop and/or search the vehicle. Defendant does not directly assert that the drug
investigation was insufficient to establish probable cause for the stop. Rather, Defendant
asserts that if the dog sniff is unreliable, then the remainder of the affidavit (in essence
the drug trafficking investigation) does not support probable cause for the search of the
vehicle. (Doc. 43-1 at 12-16.) In contrast, the Government argues that the alternative
basis for stopping the 4Runner was law enforcement’s reasonable suspicion that
Defendant was involved in drug trafficking. (Doc. 48-1 at 12). The Government also
contends that the warrant is supported by probable cause, even in the police service dog’s
alert/indication are excised. (Doc. 48-1 at 20.)
As I acknowledge below, it is not the Court’s role to second guess the issuing
judge’s determination of probable cause, if it is based on substantial evidence. Here,
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however, the Court is looking at the evidence in the record (which, in this case, is
principally the facts in the warrant affidavit) to determine what law enforcement knew at
the time of the stop. Thus, I am not attempting to second guess the issuing judge when
I look to the affidavit to determine what law enforcement knew at the relevant time.
1. Relevant law
As discussed above, “[a] law enforcement officer may conduct an investigative
stop of a vehicle when he [or she] has ‘a particularized and objective basis for suspecting
the particular person stopped of criminal activity.’” United States v. Pounds, 70 F.4th
1106, 1108 (8th Cir. 2023) (quoting United Sates v. Cortez, 449 U.S. 411, 417-18
(1981)); see also United States v. Fields, 832 F.3d 831, 834 (8th Cir. 2016) (“A police
officer ‘may, consistent with the Fourth Amendment, conduct a brief, investigatory stop
when the officer has a reasonable, articulable suspicion that criminal activity is afoot.’”)
(Quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). Courts consider the “totality
of the circumstances to determine whether an officer has a particularized and objective
basis to suspect wrongdoing.” Pounds, 70 F.4th at 1108 (citing United States v. Arvizu,
534 U.S. 266, 273 (2002)).
“Police are permitted to make investigative stops of a vehicle if they have
reasonable suspicion that an individual in that vehicle recently committed a crime in a
general area.” United States v. Martin, 15 F.4th 878, 880 (8th Cir. 2021). “A reasonable
suspicion is a ‘particularized and objective’ basis for suspecting the person who is
stopped.” United States v. Bustos-Torres, 396 F.3d 935, 942 (8th Cir. 2005). “Under
Terry [v. Ohio, 392 U.S. 1 (1968)], ‘the police can stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by articulable
facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”
United States v. Winters, 491 F.3d 918, 921 (8th Cir. 2007) (quoting United States v.
Sokolow, 490 U.S. 1 (1989)).
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“When a team of law enforcement officers is involved in an investigation, the
issue is whether all the information known to the team provided ‘specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant’
the investigative stop.” United States v. Collins, 883 F.3d 1029, 1032 (8th Cir. 2018)
(per curiam) (quoting United States v. Winters, 491 F.3d 918, 921 (8th Cir. 2007), in
turn quoting United States v. Robinson, 119 F.3d 663, 666 (8th Cir. 1997)).
Warrantless searches are per se unreasonable, with a few well-established
exceptions. United States v. Kennedy, 427 F.3d 1136, 1140 (8th Cir. 2005). However,
courts have long recognized the “automobile exception” to the Fourth Amendment.
United States v. Wells, 347 F.3d 280, 287 (8th Cir. 2003); see generally Carroll v. United
States, 267 U.S. 132, 158-59 (1925). “The so-called ‘automobile exception’ permits
police to conduct a warrantless search of an automobile if, at the time of the search, they
have probable cause to believe that the vehicle contains contraband or other evidence of
a crime.” Kennedy, 427 F.3d at 1140-41 (citations omitted); see also United States v.
Soderman, 983 F.3d 369, 375 (8th Cir. 2020) (“Although a warrantless search usually
constitutes a per se Fourth Amendment violation, the automobile exception to the Fourth
Amendment’s warrant requirement permits the warrantless search or seizure of a vehicle
by officers possessing probable cause to do so”); United States v. Schackleford, 830 F.3d
751, 753 (8th Cir. 2016) (“Probable cause to believe that an automobile contains
contraband or evidence of criminal activity as long been held to justify a warrantless
search of the automobile and seizure of the contraband.”). The burden is on the
Government to justify warrantless searches. Carter v. United States, 729 F.2d 935, 940
(8th Cir. 1984).
In Wells, the Eighth Circuit Court of Appeals articulated probable cause for
searching a vehicle during a lawful traffic stop:
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“Probable cause exists when, given the totality of the circumstances, a
reasonable person could believe there is a fair probability that contraband
or evidence of a crime would be found in a particular place.” United States
v. Fladten, 230 F.3d 1083, 1085 (8th Cir.2000). . . . “If probable cause
justifies the search of a lawfully stopped vehicle, it justifies the search of
every part of the vehicle and its contents that may conceal the object of the
search.” United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72
L.Ed.2d 572 (1982). “[W]hen police officers have probable cause to
believe there is contraband inside an automobile that has been stopped on
the road, the officers may conduct a warrantless search of the vehicle, even
after it has been impounded and is in police custody.” Michigan v.
Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982) (per
curiam).
347 F.3d at 287-88.
“Probable cause for the stop and search of this vehicle may be based on the
collective knowledge of all law enforcement officers involved in the investigation and
need not be based solely upon information within knowledge of the officer(s) on the scene
if there is some degree of communication.” United States v. Rowe, 878 F.3d 623, 628
(8th Cir. 2017) (citing United States v. Shackleford, 830 F.3d 751, 753-54 (8th Cir.
2016)). Further, “[t]he collective knowledge of law enforcement officers conducting an
investigation is sufficient to provide reasonable suspicion, and the collective knowledge
can be imputed to the individual officer who initiated the traffic stop when there is some
communication between the officers.” United States v. Rederick, 65 F.4th 961, 966 (8th
Cir. 2023) (quoting United States v. Thompson, 533 F.3d 964, 969 (8th Cir. 2008)); see
also United States v. Jacobsen, 391 F.3d 904, 907 (8th Cir. 2004) (“The patrol officer
himself need not know the specific facts that caused the stop . . . [r]ather, the officer
need only rely upon an order that is founded on reasonable suspicion.”).
2. Analysis
To be clear, at this stage the Court is not called upon to determine whether the
warrant contains probable cause, but rather to determine if there was probable cause or
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reasonable suspicion to stop the 4Runner before the warrant was obtained. However,
because it is unclear when Agent Mulnix learned certain facts about the investigation, his
affidavit in support of the warrant may be the best place to ascertain what facts were
known to law enforcement about the alleged drug trafficking before the stop. The
4Runner was stopped at approximately 11:30 a.m. on March 10, 2025. (Def. Ex. C.)
The warrant application was submitted at 1:43 p.m. the same day. (Gov. Ex. 2 at 1.) It
is reasonable to conclude that the following was known to law enforcement at the time
the 4Runner was stopped. I have stricken portions of the affidavit that seem derived from
post-stop investigation or about which I am uncertain:
Background
1) I [Joshua Mulnix] am a Special Agent with the Iowa Department of
Public Safety, Division of Narcotics Enforcement (hereinafter, “DNE”)
and a sworn peace officer in the state of Iowa. I am also a Task Force
Officer with the United States Postal Inspection Service.
2) I completed the Iowa Department of Public Safety’s (hereinafter, “DPS”)
29th Basic Academy, graduating on May 20, 2005. . . .
. . .
Probable Cause
5) This affidavit is made in support of an application for a search warrant
for a dark gray 2008 Toyota 4Runner, with VIN number
JTEBT14R58K005186, bearing Iowa registration plate LTL 397,
hereinafter the “Subject Vehicle.” The Subject Vehicle is registered to
[R.J.S], of XXX Gay Street, Delhi, Iowa 52223. The Subject vehicle is
currently located at the Delaware County Sheriff’s Office, located at 1225
W Howard Street, Manchester, Iowa, and is under the control of the DNE
and the Delaware County Sheriff’s Office. The Subject Vehicle is believed
to contain controlled substance(s) as well as additional evidence pertaining
to the receiving, distribution, and possible use of controlled substances,
which evidence includes cellular telephones, United States currency,
packaging/parcels utilized to send/receive controlled substance(s) through
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parcel delivery services, documents/records pertaining to payment for
controlled substances received, and/or documents relating to the
distribution of controlled substances through the United States mail or other
parcel delivery services.
[Investigation of Packages]
6) During the course of this investigation, I have conducted reviews of
United States Postal Service (hereinafter “USPS”) business records and
other information pertaining to the investigation of suspected drug parcels
being sent through the USPS to [XXXX] Pioneer Road, Delhi, Iowa 52223.
USPS business records document that between approximately May of 2023
and November of 2024, a total of eighteen (18) parcels addressed to
[XXXX] Pioneer Road, Delhi, IA 52223 have been submitted to USPS in
Arizona. All of those parcels have been paid for in cash.
7) I was not able to find USPS business records identifying the recipient
name or return addresses pertaining to every one of the parcels mailed from
Arizona to [XXXX] Pioneer Road, however, I was able to review images
of some of those parcels generated by USPS sorting equipment. Of the
images of six (6) parcels I was able to review, all of them showed the
respective parcels bore the hand-written recipient name, “All Hands
Complete Floor Care LLC,” (or a close variant, for example, excluding
LLC). Five of the parcels bore the hand-written return address “Arizona
Wholesale Floors, 124 S. Ironwood Dr. # 2, Apache Junction, AZ 85120.”
One of the parcels bore the hand-written return address “Country Club
Flooring, 1740 S Country Club Dr., Mesa, AZ 85210.”
8) I checked Google Maps and observed Google Maps listed [XXXX]
Pioneer Road, Delhi, Iowa as the address for All Hands Complete Floor
Care LLC. I viewed a Facebook Page for All Hands Complete Floor Care
LLC and observed a posting on that page which displayed a picture of a
carpet cleaning certificate issued to [J.A.] I reviewed Iowa driver’s license
and vehicle registration information for [J.A.] which showed he listed his
residence as [XXXX] Pioneer Road, Delhi, IA 52223. During the course
of this investigation officers have observed a male subject, consistent in
appearance with [J.A.] on the property at [XXXX] Pioneer Road.
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9) I conducted an open source internet search for Arizona Wholesale Floors,
124 S. Ironwood Dr. # 2, Apache Junction, AZ 85120, and observed the
website https://www.arizonawholesalefloors.com. The aforementioned
website purported to be the website for Arizona Wholesale Floors and listed
the business address as 124 S. Ironwood Dr. # 2, Apache Junction, AZ
85120. Google listed additional websites that also showed the
aforementioned address as the location for Arizona Wholesale Floors.
10) I conducted an open source internet search for “Country Club Flooring,
1740 S Country Club Dr., Mesa, AZ”, and observed search result which
showed multiple websites listed that address as a location for The Home
Depot. I observed a page of the www.homedepot.com website which listed
1740 S Country Club Dr., Mesa, AZ 85210 as the location for Home Depot
store “Mesa #469.”
11) Based on my training and experience, as well as the information
identified, reviewed, and documented in this investigation, I believe All
Hands Complete Floor Care LLC, Arizona Wholesale Floors, and Country
Club Flooring are/were being utilized as names and addresses on suspected
drug parcels sent to [J.A.’s] residence in order to make the parcels appear
to be legitimate business mail. I recognized various characteristics of the
above-detailed parcels were not consistent with typical business mail, such
as the parcels being hand-labeled, paid for in cash, and the various parcels
being submitted to USPS from multiple cities which sometimes differed
from the city listed in the return address.
12) The parcel bearing the return address of 1740 Country Club Dr.,
assigned USPS tracking number 420522239505512374785065628644
(hereafter referred to as the “Subject Parcel”), showed Mesa, AZ as the
city in the return address, however, USPS records documented the Subject
Parcel was submitted to the mail stream in neighboring Gilbert, AZ.
13) Further indications that the above-detailed USPS parcels contained
controlled substance were observed during surveillance operations
conducted by law enforcement on November 04, 2024 and March 13,
2024.9 Law enforcement officers conducted surveillance of the regular
9 Based on Agent Mulnix’s testimony (Gov. Ex. 1 at 6) and his report (Def. Ex. A), it seems the
correct date is March 14, 2024.
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USPS delivery of two (2) parcels (one parcel on each of the aforementioned
dates) addressed to “All Hands Complete Floor Care LLC, [XXXX]
Pioneer Rd., Delhi, IA 52223,” with the return address “Arizona
Wholesale Floors,124 S. Ironwood Dr. # 2, Apache Junction, AZ 85120.”
On both occasions, shortly after the delivery the respective parcel to
[XXXX] Pioneer Rd., a subject whom officers video-recorded and visually
identified as consistent in appearance with JESSE HARBACH, appeared to
leave the residence with the parcels and transport them to a different
location(s), within minutes of the parcels’ respective deliveries by USPS.
HARBACH immediately taking and moving the respective parcels indicated
to officers that [J.A.] was not intended to be the final recipient of the
parcels, despite the parcels being regularly sent to [J.A.’s] residence.
14) On multiple occasions throughout this investigation I have checked Iowa
Driver’s License information pertaining to JESSE HARBACH. Information
for his Driver’s License with an issue date of March 05, 2015, as well as
with the update issue date of February 07, 2025 both list HARBACH’S
residential address as [XXX] Gay Street, Delhi, Iowa and his mailing
address as P.O. Box 303 Delhi, Iowa 52223. This indicates to me that
HARBACH has formally listed addresses for receiving legitimate legal mail
addressed to him. HARBACH obtaining mail items from an address that
does not appear to be directly associated with him is consistent with
someone receiving illegal substances through the mail.
15) I reviewed driver’s license and criminal history pertaining to JESSE
HARBACH. I observed HARBACH had criminal convictions in Iowa and
Arizona, as well as driver’s license information from Iowa and Arizona. I
observed expired Arizona driver’s license information for HARBACH
which listed his address (historical) as1233 E Sea Breeze Dr., Gilbert, AZ
85234. While I could not definitively know that [J.A.] had no connection
to Arizona, based on the driver’s license, criminal history and open source
records I reviewed pertaining to [J.A.], I did not see any information
indicating [J.A.] had traveled to or lived in Arizona. Based on my training
and experience I know Arizona is a major source state for controlled
substances shipped to other states.
[March 10, 2025 Surveillance and Stop]
16) On the morning of March 10, 2025 law enforcement officers conducted
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surveillance on the regular USPS delivery of the Subject Parcel to the
residence at [XXXX] Pioneer Road, Delhi, Iowa. At approximately 9:56
a.m. officers observed the Subject Vehicle, operated by a female who was
later confirmed to be [C.G.], stop at the residence. [C.G.] exited the
Subject Vehicle, approached the residence, then departed shortly thereafter.
Officers observed the Subject Vehicle drive to [XXX] Gay Street, Delhi,
where a male subject, subsequently confirmed to be HARBACH, entered
the vehicle. Officers observed the Subject Vehicle returned to [XXXX]
Pioneer Road at approximately 10:12 a.m., at which time HARBACH and
[C.G.] entered the residence. At approximately 10:20 a.m. officers
observed HARBACH and [C.G.] depart from [XXXX] Pioneer Road in the
Subject Vehicle, with HARBACH driving.
17) At approximately 11:18 a.m. officers observed a USPS mail carrier
deliver a parcel to the front of porch of the residence at [XXXX] Pioneer
Road. USPS business records confirmed the Subject Parcel was delivered
to the residence at that time. At approximately 11:24 a.m. officer observed
the Subject Vehicle arrive at [XXXX] Pioneer Road and park near the
house. Officers observed HARBACH exit the driver’s side of the Subject
Vehicle and enter the front passenger door. Officers observed [C.G.]
retrieve the Subject Parcel form the residence at [XXXX] Pioneer Road and
enter the Subject Vehicle with it. At approximately 11:26 a.m. officers
observed the Subject Vehicle leave [XXXX] Pioneer Rd driving North.
18) At approximately 11:27 a.m. officers initiated a traffic stop on the
Subject Vehicle. Officers conducting surveillance were aware that
HARBACH’S Iowa Driver’s license was suspended with 3 withdrawls in
effect. HARBACH was arrested and charged for driving while suspended,
based on officers’ observations leading up to that time. HARBACH had a
cellular phone and a stack of United States currency on his person when he
was taken into custody. HARBACH’S cell phone and currency were held
by law enforcement pending further investigation and this search warrant
application.
19) At approximately 11:35 a.m., Trooper John Lippmann, of the ISP,
deployed his Police Service Dog (PSD), Maverick, to conduct a free air
sniff around the Subject Vehicle. PSD Maverick is a certified narcotics
detection dog through Nebraska State Standard. Trooper Lippmann has
been working with Maverick since September 2021. Maverick is certified
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in the detection of the odors of marijuana, methamphetamine, cocaine, and
heroin. Maverick was most recently recertified in November 2024.
20) Trooper Lippmann advised that Maverick had indicated to the presence
of the odor associated with illegal narcotics during the sniff around the
Subject Vehicle at approximately 11:36 a.m.
21) During the course of the traffic stop on the Subject Vehicle, officers
observed, in plain sight, through the window, a parcel that appeared to be
the Subject Parcel situated on the passenger floorboard. The Subject Vehicle
was towed to the Delaware County Sheriff’s Office under the supervision
of law enforcement. The Subject Vehicle is currently under the control of
DNE and the Delaware County Sheriff’s Office at that location, in order to
keep it secured during the process of this search warrant application.
22) [C.G.] was released from the scene of the traffic stop and transported
to a residence of her request in Delhi by officers. [C.G.] stated a cell phone
belonging to her was inside the Subject Vehicle. [C.G.] was not allowed to
remove anything from the vehicle and this warrant seeks authority to seize
cellular phones and cash belonging to [C.G.] and HARBACH, including
the phone and cash seized from HARBACH’S person and any cellular
phones and/or cash inside the Subject Vehicle.
(Gov. Ex. 2.)
In addition to the foregoing, the affidavit included statements regarding Special
Agent Mulnix’s training and experience that are relevant to the basis for the stop:
23) Based on my training and experience, I know people involved with the
distribution of controlled substances commonly utilize vehicles to transport
themselves to conduct both legal and illegal activities. Those illegal
activities often include concealing, transporting and distributing controlled
substances. I also know that people involved with the distribution of
controlled substances commonly transport other evidence of distribution,
including U.S. Currency which are proceeds from distribution of controlled
substances, receipts pertaining to transfer(s) of money as payment for
controlled substances, receipts which are evidence of travel pertaining to
their distribution activities, and cellular phones which contain evidence
pertaining to arrangements and confirmation of illegal transactions.
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. . .
That drug traffickers commonly store firearms, drugs, money, drug
paraphernalia at places other than homes such as storage facilities, cars,
and “stash” houses where large amounts of drugs and or cash may be
possessed and easily accessible.
Here, I conclude there was reasonable suspicion to stop and probable cause to
search the 4Runner based on the foregoing information regarding suspected drug
trafficking. Law enforcement had discovered 18 suspicious packages being delivered to
the rural Delhi address. Multiple circumstances made the deliveries suspicious. First,
details about the packages themselves: 1) a business paying for shipping in cash; 2)
business-to-business shipping utilizing hand-written recipient and return addresses; 3) an
apparently fictious sender (Country Club Flooring) with a return address that was actually
a Home Depot; 4) the submission of parcels from multiple cities inconsistent with the
purported return address; and 5) the shipping of parcels over an extended time period,
i.e. May 2023 to November 2024.
Second, Defendant’s interaction with the packages was also suspicious. On three
occasions (including the March 10 delivery) Defendant was observed collecting the
parcels shortly after their delivery to the rural Delhi address where he did not reside. In
other words, rather than have the parcels delivered to his own residence in Delhi itself,
Defendant drove out to obtain the parcels addressed to a floor care company. This
collection occurred within minutes of their delivery. This made law enforcement believe
J.A. was not the intended recipient of the parcels. Defendant displayed eagerness to
collect the parcel on March 10, 2024 prior to the traffic stop. On this occasion, C.G.
had driven to the rural Delhi residence once and Defendant went with her again prior to
the ultimate delivery of the package. (Gov. Ex. 2 at Paragraph 16.) Defendant ultimately
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collected the package on the third try that morning at 11:24 a.m., that is, 6 minutes after
it was delivered by USPS.
Defendant attempts to minimize the nature and scope of the investigation when he
states, “While it may be somewhat unusual for a package purportedly sent by a business
to have a handwritten address label, this does not automatically make the package
incriminating in nature. This is especially true in today’s age when there are countless
small businesses sending packages through the mail via orders on sites like Etsy.” (Doc.
43-1 at 14.) The foregoing investigation shows multiple packages over more than a year
being addressed and received under suspicious circumstances consistent with the drug
trade. Therefore, I conclude law enforcement had reasonable suspicion and probable
cause to stop and search the 4Runner. See Kennedy, 427 F.3d at 1140-41 (“The so-called
‘automobile exception’ permits police to conduct a warrantless search of an automobile
if, at the time of the search, they have probable cause to believe that the vehicle contains
contraband or other evidence of a crime”) (citations omitted); Schackleford, 830 F.3d at
753 (“Probable cause to believe that an automobile contains contraband or evidence of
criminal activity as long been held to justify a warrantless search of the automobile and
seizure of the contraband.”).
For these reasons, I recommend the Court deny Defendant’s motion to the extent
it relies on an allegedly unconstitutional stop in furtherance of the drug trafficking
investigation. If the Court concludes the stop and search was justified by the drug
trafficking investigation, it may conclude its analysis by finding the search was justified
by the automobile exception. See Kennedy, 427 F.3d at 1140-41. On the other hand,
the Court may choose whether the search was justified, as discussed below, by the open-
air sniff, the warrant, and/or the Leon exception.
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D. Whether Police Service Dog’s sniff resulted in probable cause
1. Relevant law
A dog sniff of the exterior of a vehicle during a stop does not violate the Fourth
Amendment. United States v. Rivera, 570 F.3d 1009, 1012 (8th Cir. 2009) (citing Illinois
v. Caballes, 543 U.S. 405, 409-10 (2005)). “[A]n alert or indication by a properly
trained and reliable drug dog provides probable cause for the arrest and search of a person
or for the search of a vehicle.” United States v. Winters, 600 F.3d 963, 967 (8th Cir.
2010); see also United States v. Holleman, 743 F.3d 1152, 1157 (8th Cir. 2014)
(providing that “the handling officer testified [his dog] gave two definitive ‘alerts’ to the
side of [the defendant’s] truck” and “[a]s a result, we are not concerned about [the dog’s]
failure to give a full indication”); United States v. Sundby, 186 F.3d 873, 876 (8th Cir.
1999) (holding that the positive indication of a reliable drug dog, alone, is enough to
establish probable cause). A drug dog is considered reliable when it has been “trained
and certified to detect drugs and a detailed account of the dog’s track record or education
is unnecessary.” United States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007)
(citation omitted). In explaining what is necessary to prove a dog’s reliability the
Supreme Court stated:
[E]vidence of a dog’s satisfactory performance in a certification or training
program can itself provide sufficient reason to trust his alert. If a bona fide
organization has certified a dog after testing his reliability in a controlled
setting, a court can presume (subject to any conflicting evidence offered)
that the dog’s alert provides probable cause to search. The same is true,
even in the absence of formal certification, if the dog has recently and
successfully completed a training program that evaluated his proficiency in
locating drugs.
Florida v. Harris, 568 U.S. 237, 246-47 (2013). The standard to establish probable
cause “is no more demanding where police search an automobile based on probable cause
without a warrant.” Olivera-Mendez, 484 F.3d at 512. However, the court must also
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consider evidence that may detract from the dog’s reliability. See Winters, 600 F.3d at
967 (“Contrary evidence ‘that may detract from the reliability of the dog’s performance
properly goes to the credibility of the dog.’”) (Quoting United States v. Diaz, 25 F.3d
392, 394 (6th Cir. 1994)). The relevant question is “whether all the facts surrounding a
dog’s alert [or indication], viewed through the lens of common sense, would make a
reasonably prudent person think that a search would reveal contraband or evidence of a
crime.” Harris, 568 U.S. at 248.
2. Analysis
Here, Trooper Lippmann’s determination there had been an alert and indication
by his police service dog supports probable cause for the search. Defendant’s efforts to
undermine the credibility of the Maverick’s alert/indication are principally focused on
the amount of time he was actively involved in training. I also questioned Trooper
Lippmann about the fact that dogs are not engaged in active sniffing the entire 16 hours
of training. Trooper Lippmann testified that no one has ever suggested that the training
is supposed to consist of 16 hours of active sniffing. While I understand the criticism by
the defense, I do not find any of the suggested bases to challenge the sniff to be
particularly persuasive. How much “active” training per month is necessary or desirable
to attain and maintain certification may be open to debate among those who set such
standards. According to Trooper Lippmann, multiple hours of straight training would be
“a heavy payload” for a dog. (Lippmann Hr’g Test. at 59-60.) Regardless, the defense’s
suggestion that the Court should consider Maverick inadequately trained or his
certification invalid based solely on his interpretation of the training requirements is a
stretch. The other criticisms hinted at by Defendant—ambient odors, cueing, “metering,”
and rewarding—ultimately do nothing to affect this determination.10 Therefore, I
10Defense counsel’s cross-examination of Trooper Lippmann also hinted at possible cueing,
distracting odors, and techniques for rewarding Maverick. Trooper Lippmann testified that he
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recommend the Court conclude Maverick’s alert/indication established probable cause
for the search of the vehicle.
Thus, the Court is presented with two bases for the stop: the suspended license
and the drug investigation. The Court is also presented with two bases for a probable
cause search, the dog sniff and the drug investigation. If the Court agrees with me that
there was probable cause or reasonable suspicion to stop the 4Runner and that there was
probable cause for the search, it could end its analysis here because of the automobile
exception. See Kennedy, 427 F.3d at 1140-41. Because the law enforcement also
obtained a warrant to search the vehicle after towing it, I will also address issues raised
about the warrant.
E. Whether the search warrant contains probable cause if the Police Service
Dog’s sniff is excised
1. Relevant law
“The Warrant Clause of the Fourth Amendment requires that warrants (1) be
issued by a neutral and detached magistrate, (2) contain a ‘particular[ ] descri[ption of]
the place to be searched, and the persons or things to be seized,’ and (3) be based ‘upon
probable cause, supported by Oath or affirmation.’” United States v. Skarda, 845 F.3d
370, 375 (8th Cir. 2016) (quoting United States v. Clyburn, 24 F.3d 613, 617 (4th Cir.
1994), in turn quoting U.S. Const. amend. IV). “A magistrate judge may issue a search
warrant ‘upon a showing of probable cause to believe that the legitimate object of a search
is located in a particular place.’” Skarda, 845 F.3d at 376 (quoting Steagald v. United
States, 451 U.S. 204, 213, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)). “Probable cause
exists when, viewing the totality of the circumstances, ‘there is a fair probability that
varies rewards to keep Maverick “accountable.” The result of this inquiry is ultimately too
insubstantial to affect the credibility Trooper Lippmann’s testimony or the reliability of the sniff
or amount to more than speculation.
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contraband or evidence of a crime will be found in a particular place.’” United States v.
Reed, 921 F.3d 751, 757 (8th Cir. 2019) (quoting Illinois v. Gates, 462 U.S. 213, 230,
238 (1983)); see also United States v. Evans, 4 F.4th 633, 636 (8th Cir. 2021) (“Probable
cause is a fair probability that . . . evidence of a crime will be found in the location to be
searched”) (quoting United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996))). “In
assessing whether a warrant is sufficiently particular, [courts] consider the purpose for
which the warrant was issued, the nature of the items to which it is directed, and the total
circumstances surrounding the case.” United States v. Ivey, 91 F.4th 915, 918 (8th Cir.
2024) (citation omitted). The particularity requirement “is one of ‘practical accuracy
rather than a hypertechnical one.’” Id. (quoting United States v. Schave, 55 F.4th 671,
675 (8th Cir. 2022)). “Common sense” drives the inquiry into whether probable cause
exists, and the ultimate determination cannot be “readily, or even usefully, reduced to a
neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 231-32 (1983). “‘[T]his practical
and common-sensical standard’ is based on ‘the totality of the circumstances.’” United
States v. Zamora-Garcia, 831 F.3d 979, 983 (8th Cir. 2016) (alteration in original)
(quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).
As mentioned above, it is not this Court’s place to determine whether affidavits
supporting search warrants are supported by probable cause. “[A]fter-the-fact scrutiny
by courts of the sufficiency of an affidavit should not take the form of de novo review.
A magistrate’s determination of probable cause should be paid great deference by
reviewing courts.” Gates, 462 U.S. at 236 (citation and internal quotation marks
omitted); see also United States v. Hallam, 407 F.3d 942, 948 (8th Cir. 2005) (“In
reviewing the issuance of a warrant, a district court need not make a de novo inquiry into
the existence of probable cause.”). “The Fourth Amendment requires that the issuing
‘magistrate had a substantial basis for concluding that a search would uncover evidence
of wrongdoing.’” United States v. Maccani, 49 F.4th 1126, 1130 (8th Cir. 2022)
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(quoting Gates, 462 U.S. at 236); see also United States v. Johnson, 848 F.3d 872, 876
(8th Cir. 2017) (“The role of a reviewing court is to ensure the magistrate issuing the
warrant ‘had a “substantial basis for concluding that probable cause existed”‘”) (quoting
United States v. Colbert, 828 F.3d 718, 726 (8th Cir. 2016), in turn quoting United States
v. Garcia-Hernandez, 682 F.3d 767, 771 (8th Cir. 2012))). “When the issuing magistrate
relies solely on a supporting affidavit in determining probable cause, . . . ‘only that
information which is found within the four corners of the affidavit may be considered in
determining the existence of probable cause.’” United States v. Saddler, 19 F.4th 1035,
1039 (8th Cir. 2021) (quoting United States v. Roberts, 975 F.3d 709, 713 (8th Cir.
2020)). “The issuing court’s probable cause determination ‘should be paid great
deference by reviewing courts.’” Johnson, 848 F.3d at 876 (quoting United States v.
Brewer, 588 F.3d 1165, 1170 (8th Cir. 2009)).
The substantial basis standard requires that the issuing judge “make a practical and
common-sense” determination, based only on the circumstances set forth in the affidavit,
that the totality of the circumstances point to “a fair probability that contraband or
evidence of a crime will be found in a particular place.” United States v. Kail, 804 F.2d
441, 444 (8th Cir. 1986) (quoting Gates, 462 U.S. at 238). “Not only may an issuing
judge ‘draw reasonable inferences from the totality of the circumstances in determining
whether probable cause exists to issue a warrant, . . . law enforcement officers may make
reasonable inferences in preparing affidavits in support of a warrant.’” United States v.
Brackett, 846 F.3d 987, 992 (8th Cir. 2017) (quoting United States v. Thompson, 210
F.3d 855, 860 (8th Cir. 2000)). “[T]here is no requirement that an affiant have first-
hand knowledge of every allegation he includes in his affidavit.” United States v. Fiorito,
640 F.3d 338, 346 (8th Cir. 2011). Conclusory statements, however, “made by affiants
fail to give the issuing magistrate a substantial basis for determining probable cause
exists.” United States v. Summage, 481 F.3d 1075, 1077-78 (8th Cir. 2007). “In
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addition to probable cause that contraband or evidence of a crime will be found, ‘there
must [also] be evidence of a nexus between the contraband and the place to be searched.’”
United States v. Randle, 39 F.4th 533, 536 (8th Cir. 2022) (quoting United States v.
Tellez, 217 F.3d 547, 550 (8th Cir. 2000)). This requires “‘a “nexus” between the
evidence to be seized and the place to be searched, considering “the nature of the crime
and the reasonable, logical likelihood of finding useful evidence.”‘” Schave, 55 F.4th at
676 (quoting United States v. Smith, 21 F.4th 510, 515 (8th Cir. 2021), in turn quoting
United States v. Johnson, 848 F.3d 872, 878 (8th Cir. 2017)).
Defendant bears the burden of proving the warrant was issued without probable
cause. See Carter v. United States, 729 F.2d 935, 940 (8th Cir. 1984) (“As a general
rule, the burden of proof is on the defendant who seeks to suppress evidence”) (citing
United States v. Phillips, 540 F.2d 319 (8th Cir. 1976)); United States v. McGuire, No.
CR 13-40058, 2013 WL 5516192, at *3 (D.S.D. Oct. 1, 2013) (“A movant seeking to
suppress evidence under a regularly issued warrant has the burden to show that the
warrant was issued without probable cause”) (quoting United States v. Sierra–
Garcia, 760 F. Supp. 252, 262 (E.D.N.Y. 1991)), R. & R. adopted, 2013 WL 6449893
(D.S.D. Dec. 10, 2013). “In doubtful or marginal cases, the resolution of the Fourth
Amendment question should be determined to a large extent by the preference accorded
to searches based upon warrants.” United States v. Leichtling, 684 F.2d 553, 555 (8th
Cir. 1982) (quoting United States v. Christenson, 549 F.2d 53, 55 (8th Cir. 1977)); see
also United States v. Ventresca, 380 U.S. 102, 109 (1965) (“Although in a particular
case it may not be easy to determine when an affidavit demonstrates the existence of
probable cause, the resolution of doubtful or marginal cases in this area should be largely
determined by the preference to be accorded to warrants.”).
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2. Analysis
In Florida v. Harris, the United States Supreme Court held that “evidence of a
dog’s satisfactory performance in a certification or training program can itself provide
sufficient reason to trust his alert.” 568 U.S. 237, 246 (2013). The Supreme Court
explained that:
If a bona fide organization has certified a dog after testing his reliability in
a controlled setting, a court can presume (subject to any conflicting
evidence offered) that the dog’s alert provides probable cause to search.
The same is true, even in the absence of formal certification, if the dog has
recently and successfully completed a training program that evaluated his
proficiency in locating drugs. After all, law enforcement units have their
own strong incentive to use effective training and certification programs,
because only accurate drug-detection dogs enable officers to locate
contraband without incurring unnecessary risks or wasting limited time and
resources.
Id. at 246-47. The Supreme Court noted, however, that:
A defendant . . . must have an opportunity to challenge such evidence of a
dog’s reliability, whether by cross-examining the testifying officer or by
introducing his own fact or expert witnesses. The defendant, for example,
may contest the adequacy of a certification or training program, perhaps
asserting that its standards are too lax or its methods faulty. So too, the
defendant may examine how the dog (or handler) performed in the
assessments made in those settings. Indeed, evidence of the dog’s (or
handler’s) history in the field, although susceptible to the kind of
misinterpretation we have discussed, may sometimes be relevant[.] . . .
And even assuming a dog is generally reliable, circumstances surrounding
a particular alert may undermine the case for probable cause—if, say, the
officer cued the dog (consciously or not), or if the team was working under
unfamiliar conditions.
Id. at 247. I note that, unlike the case at bar, Harris did not mention a search warrant
and it appears the search of the vehicle in question occurred immediately after the dog
alerted, perhaps a warrantless search pursuant to the automobile exception. I see no
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reason, however, that if, “a defendant . . . must have an opportunity to challenge such
evidence of a dog’s reliability,” as required by Harris, that opportunity should be negated
by the issuance of a warrant, at least in the instant case. Here, even though law
enforcement obtained a warrant, that warrant relied, in part, on the presumed reliability
of certified dog’s alert/indication. However, because the warrant also relied on other
facts outside the dog’s alert/indication, the proper course of action, if the Court disagrees
with me on the reliability of the police service dog’s alert/indication, should be to excise
that information from the affidavit to determine if the warrant was supported by probable
cause.
I concluded in section III.C.2 above that law enforcement had probable cause to
stop and search the 4Runner based on the drug-trafficking investigation. As I noted, I
relied solely on the facts known to law enforcement before the stop as shown in the
warrant application. This was necessary because I could not determine from Special
Agent Mulnix’s detention hearing testimony what else law enforcement might have
known prior to the stop. Having determined there was probable cause for law
enforcement to stop and search the 4Runner based on the automobile exception, see
Kennedy, 427 F.3d at 1140-41, and before the dog sniff, it would be difficult for me to
conclude that there was not a substantial basis for the issuing judge to find probable cause
to approve the search warrant. In other words, for the reasons set forth in section III.C.2
above, the Court should conclude that, even without the open-air sniff of the 4Runner,
there was a substantial basis for the issuance of the warrant.
F. Whether the Leon good faith exception applies
1. Relevant law
Under the good faith exception articulated in United States v. Leon, even if a
reviewing court determines substantial evidence to issue a warrant is absent, the court
should not suppress evidence seized pursuant to the search warrant if the officers
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executing the search warrant acted in objectively reasonable reliance on the issuance of
the warrant by a neutral magistrate or judge. 468 U.S. 897, 922 (1984); United States
v. Houston, 665 F.3d 991, 994-95 (8th Cir. 2012). “In making this determination, we
ask ‘whether a reasonably well-trained officer would have known that the search was
illegal despite a judge’s issuance of the warrant.’” United States v. Lopez-Zuniga, 909
F.3d 906, 909 (8th Cir. 2018) (quoting United States v. Jackson, 784 F.3d 1227, 1231
(8th Cir. 2015)).
Under the “good-faith exception,” if a law enforcement officer’s reliance on a
warrant was objectively reasonable, the evidence seized pursuant to an invalid warrant
will not be suppressed. United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007).
Proell noted that Leon identified four scenarios where it is not objectively reasonable for
the executing officer to rely on a warrant issued by a magistrate:
(1) when the affidavit or testimony supporting the warrant contained a false
statement made knowingly and intentionally or with reckless disregard for
its truth, thus misleading the issuing judge; (2) when the issuing judge
“wholly abandoned his judicial role” in issuing the warrant; (3) when the
affidavit in support of the warrant is “so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable”; and (4)
when the warrant is “so facially deficient” that no police officer could
reasonably presume the warrant to be valid.
Id. at 431 (citing Leon, 468 U.S. at 923; United States v. Puckett, 466 F.3d 626, 630
(8th Cir. 2006)).
Leon explained that “[s]earches pursuant to a warrant will rarely require any deep
inquiry into reasonableness, for a warrant issued by a judge normally suffices to establish
that a law enforcement officer has acted in good faith in conducting the search.” 468
U.S. at 922 (quotations omitted). Nevertheless, “in some circumstances the officer will
have no reasonable grounds for believing that the warrant was properly issued.” Id. at
922-23 (footnote omitted). “For the Leon exception to apply when the warrant is based
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on evidence obtained through a Fourth Amendment violation, [law enforcement’s]
prewarrant conduct must have been ‘close enough to the line of validity to make the
officers’ belief in the validity of the warrant objectively reasonable.’” United States v.
Cannon, 703 F.3d 407, 413 (8th Cir. 2013) (quoting United States v. Conner, 127 F.3d
663, 667 (8th Cir. 1997)). If the prewarrant conduct is clearly illegal, however, the
exception does not apply. Cannon, 127 F.3d at 413.
2. Application
Defendant contends that the “stale” information about the March and November
2024 package deliveries and the PSD sniff should be excised. Defendant cites no
authority for excising stale information from the affidavit and I see no justification to do
so. Law enforcement did not misrepresent the dates of those deliveries or leave the
impression they had been more recent. This matter is not before the Court pursuant to
Franks where the Court might be called upon to excise information illegally obtained.
See Franks v. Delaware, 438 U.S. 154, 171-72 (1978) (providing for the excision of false
information contained in a search warrant affidavit). Certainly, the dates of the
deliveries, however old, should be considered in determining whether there was a
substantial basis to support probable cause, as discussed above. However, there is no
justification to excise the allegedly stale information, and the issuing judge was entitled
to consider it. Here, there was a pattern of sending multiple packages over an extended
period. Although only two previous deliveries had been surveilled, a pattern had emerged
that was confirmed by Defendant and C.G. collecting the package from the rural Delhi
address. Defendant’s assertions about the “staleness” of the prior surveillance might be
more persuasive but for this pattern.
Excision of the police service dog alert/indication is more complicated. Here, I
have concluded there is no reason to exclude consideration of the alert/indication based
on Maverick’s training and/or certification. The Court may disagree with me. How,
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then, should a police service dog’s alert/indication be treated under Leon where law
enforcement was truthful with the issuing judge about the dog’s training and certification
is only subsequently found to be defective? Neither the parties nor I have found case law
about how to treat truthful information regarding a police service dog’s training and
certification which is later determined to be defective when considering the good faith
exception under Leon. Nevertheless, I find that the evidence regarding the PSD
alert/indication should not be excised under the circumstances presented here. If there
was evidence that law enforcement misrepresented a dog’s training and certification to
an issuing judge, the evidence might be excised under Franks. See Franks, 438 U.S. 154
at 171-72. It might also be excised under Leon because it would serve the purpose of
deterring police misconduct in training and certifying drug detection dogs. I suppose
there could also be an extreme case where a dog is trained and certified under such
obviously inadequate standards that such representations, though technically true, are
worthless.11 In the instant case, however, the only allegation is Defendant’s general
dissatisfaction with the hours Maverick spent in training. I see no basis to excise the
PSD alert/indication, as suggested by Defendant, where the law enforcement provided
truthful information about Maverick’s training and certification—even if it is later
determined to be inadequate.
While Defendant claims the issuing judge abandoned his judicial role and/or the
warrant was so facially deficient, ultimately none of the four scenarios contemplated by
Leon apply here. There is no allegation or evidence that the affidavit in support of the
search warrant contained any false statements or that the issuing judge was misled in any
way. There is no allegation or evidence that the issuing judge “wholly abandoned” his
11 As an extreme example, it would be difficult to conclude law enforcement relied on a warrant
in good faith if the attesting officer knew the dog in question was barely housebroken and
certified to “indicate” whenever it was walked around a car.
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judicial role in issuing the search warrant. As discussed above, based on the affidavit in
support of the warrant application, the issuing judge had a substantial basis and made “a
practical and common-sense” determination, based on the totality of the circumstances,
that “a search would uncover evidence of wrongdoing”; and therefore, the affidavit was
not “so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.” See Kail, 804 F.2d at 444; Maccani, 49 F.4th at 1130; Proell,
485 F.3d at 431. Indeed, the warrant application suggests that law enforcement
surveillance had discovered Defendant in the 4Runner with a highly suspicious package
that was located by a trained and certified drug dog. Finally, there is no basis to exclude
any evidence that might render it “so facially deficient” that a police officer could not
reasonably presume that the warrant was valid.
Moreover, as discussed above, I find that the traffic stop was legal, and law
enforcement had probable cause to search the 4Runner. Nothing on this record shows
that any officer’s conduct related to the traffic stop was “clearly illegal.” Instead, the
record shows that the traffic stop never strayed from, let alone far from, the line of
validity. See Cannon, 127 F.3d at 413. Thus, I find that law enforcement’s conduct was
close enough to the line of validity to justify law enforcement’s belief that the search
warrant was objectively reasonable. See id. Accordingly, as an alternative, I recommend
that Defendant’s motion to suppress be denied under the Leon good faith exception.
IV. CONCLUSION
For the reasons set forth above, I respectfully recommend the District Court deny
Defendant’s Motion to Suppress. (Doc. 43.)
Objections to this Report and Recommendation in accordance with 28 U.S.C.
Section 636(b)(l) and Fed. R. Crim. P. 59(b) must be filed within fourteen (14) days of
the service of a copy of this Report and Recommendation. Objections must specify the
parts of the Report and Recommendation to which objections are made, as well as the
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parts of the record forming the basis for the objections. See Fed. R. Crim. P. 59. Failure
to object to the Report and Recommendation waives the right to de novo review by the
district court of any portion of the Report and Recommendation as well as the right to
appeal from the findings of fact contained therein. United States v. Wise, 588 F.3d 531,
537 n.5 (8th Cir. 2009).
DONE AND ENTERED at Cedar Rapids, Iowa, this 3rd day of February, 2026.
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