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United States v. Yorgensen

United States Court of Appeals, Eighth Circuit

January 12, 2017

United States of America Plaintiff- Appellant
v.
Dennis Neil Yorgensen Defendant-Appellee

          Submitted: September 23, 2016

         Appeal from United States District Court for the Northern District of Iowa - Sioux City

          Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

          LOKEN, Circuit Judge.

         Charged with conspiracy to distribute and possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, Dennis Yorgensen moved to suppress all evidence obtained as a result of a warrant search of his home, claiming there were false material statements and omissions in the warrant application and requesting a hearing under Franks v. Delaware, 438 U.S. 154 (1978). After an evidentiary hearing, the district court granted the motion, suppressing physical evidence seized during the search and post-arrest statements Yorgensen made two days later to an officer from a different law enforcement agency. In this interlocutory appeal, see 18 U.S.C. § 3731, the government argues that the district court erred in suppressing the post-arrest statements. We agree and therefore reverse this portion of the suppression ruling.

         I. Factual Background.

         At 10:46 p.m. on March 21, 2015, Sac County Deputy Sheriff Jonathan Meyer responded to a noise complaint at unit four of a small apartment complex in Odebolt, Iowa. Meyer parked in an alley on the far side of the complex and approached unit four on foot. He saw a man, later identified as Yorgensen, walk with his dog from in front of unit four to the door, open the door, and tell those inside not to come out as the police were there. Yorgensen quickly shut the door and walked toward Meyer. They met some twenty to twenty-seven feet away from the residence, and Meyer informed Yorgensen of the noise complaint. Yorgensen said his brother was in town, and they were playing music. As the two men talked, Deputy Kristan Erskine arrived as Meyer's backup and stood nearby. Yorgensen agreed to keep the noise down, and the cordial encounter ended in five or ten minutes.

         As the officers were leaving, Meyer told Erskine he had smelled the odor of marijuana. Erskine said she had not. The two deputies drove separately to the Odebolt Fire Department, where Erskine called their superior officer, Captain Brian Erritt. She explained that Meyer had smelled marijuana during the call but Erskine had not and asked if Erritt believed that was enough probable cause for a search warrant. Erritt instructed the officers to apply for a warrant to search unit four.

         Erskine and Meyer then drafted an application for a warrant to search unit four for "Drug Paraphernalia, Controlled Substances (marijuana/methamphetamine) and any large amounts of currency located therein." The application included a probable cause affidavit signed by Meyer. The affidavit recited that Meyer had been a full time police officer since September 2008 and knew what marijuana smells like from participating in drug investigations and seizures. Meyer then averred:

I arrived on scene at approximately 2246hrs. When pulling up to this apartment complex I observed a male subject standing outside with his dog. When I exited my squad car I observed the male subject enter the residence and re-exit the residence closing the front door. When making contact with the male subject who was identified as Dennis Yorgensen, I could smell a strong odor of marijuana come from inside the residence and off Mr. Yorgensen.
The Sac County Sheriff's Office has had several complaints of a lot of traffic coming and going from this apartment complex. The Sac County Sheriff's Office has also . . . had a father call in and advise that his daughter was smoking methamphetamine with Dennis that lives at [the complex]. There was an incident back in January w[h]ere Jordan Brunning did an home invasion on this residence for drug reasons.
Dennis Yorgensen . . . rents apartment #4.
Mr. Yorgensen has previous history of trafficking illegal drugs and possession of controlled substances.

         The italicized sentence was the primary focus of Yorgensen's motion to suppress evidence obtained ...


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