Submitted: September 23, 2016
from United States District Court for the Northern District
of Iowa - Sioux City
LOKEN, GRUENDER, and BENTON, Circuit Judges.
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.
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.
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
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
Dennis Yorgensen . . . rents apartment #4.
Mr. Yorgensen has previous history of trafficking illegal
drugs and possession of controlled substances.
italicized sentence was the primary focus of Yorgensen's
motion to suppress evidence obtained ...