Submitted: September 26, 2019
from United States District Court for the Northern District
of Iowa - Dubuque
LOKEN, COLLOTON, and KOBES, Circuit Judges.
COLLOTON, CIRCUIT JUDGE
Leick entered a conditional guilty plea to one count of
unlawful possession of a firearm as a drug user. See
18 U.S.C. §§ 922(g)(3), 924(a)(2). The district
court sentenced him to 37 months'
imprisonment. Leick appeals and challenges the district
court's denial of his motion to suppress evidence of a
urine sample that police took from him. Leick contends that a
search warrant authorizing the seizure of his urine, as
evidence of unlawful firearms possession, was not supported
by probable cause, because it was executed eight days after
he possessed the firearm. We conclude that probable cause
continued to exist when the search warrant was executed, and
we therefore affirm the judgment.
began to investigate Leick when his girlfriend reported on
August 22, 2017, that Leick assaulted her at their shared
apartment in Dubuque. The girlfriend also disclosed that
Leick was a regular user of marijuana and cocaine, and that
he kept firearms in their apartment. Based on that
information, officers obtained and executed a search warrant
for the apartment. They seized drug residue, drug
paraphernalia, an AR-15 firearm, and several rounds of
ammunition. Leick was not present at the apartment.
officers searched the apartment, they sought a warrant for a
urine sample from Leick "to determine the presence of
controlled substances in Leick's system, while he is
currently being a drug user in possession of a firearm and
ammunition." On August 22, an Iowa magistrate judge
issued a warrant for "[e]vidence of drug use within the
body of Kyle Daniel Leick . . . in the form of a urine
specimen." The warrant commanded officers "to make
immediate search" of the person described, but Iowa law
allowed ten days for execution of the warrant. See
Iowa Code § 808.8. On August 30, officers arrested Leick
and obtained a urine sample from him. The urine tested
positive for the presence of marijuana and cocaine.
moved to suppress the urine sample on the ground that
probable cause was lacking by the time officers executed the
warrant. Leick asserted that a urine sample collected eight
days after his alleged possession of a firearm was unlikely
to produce evidence that he possessed a firearm as an
unlawful user of a controlled substance. The district court
denied the motion. The court observed that the issuing
magistrate was informed that Leick used marijuana daily, and
found that urinalysis can reveal the consumption of marijuana
in a chronic user for up to two months. When reviewing the
denial of a motion to suppress, we review factual findings
for clear error and legal questions de novo. See
United States v. Tenerelli, 614 F.3d 764, 769 (8th Cir.
Fourth Amendment requires police to execute a search warrant
within a reasonable time after its issuance. Reasonableness
should be measured in terms of whether probable cause still
existed at the time the warrant was executed. See United
States v. Shegog, 787 F.2d 420, 422 (8th Cir. 1986).
Factors to consider in determining whether probable cause has
dissipated "include the lapse of time since the warrant
was issued, the nature of the criminal activity, and the kind
of property subject to the search." United States v.
Gibson, 123 F.3d 1121, 1124 (8th Cir. 1997).
record here shows that the warrant for a urine sample from
Leick was supported by probable cause when it was executed.
Leick concedes that the warrant was valid when issued, but
argues that probable cause dissipated by August 30 because
evidence of drug use on or before August 22 would not remain
in his system for eight days. The district court, however,
permissibly relied on testimony of a forensic criminalist
from the state crime laboratory that evidence of marijuana
use in a chronic user can remain in the user's system for
up to two months. Given that Leick's girlfriend informed
officers that he used marijuana daily, there was a fair
probability that a urine sample collected on August 30 would
reveal evidence of Leick's drug use on or before August
22. We therefore conclude that the warrant was supported by
probable cause when it was executed, and the district court
did not err in denying Leick's motion to suppress. We
need not address whether probable cause to search for
evidence of drug use occurring after August 22,
standing alone, would be sufficient to justify the search.
judgment of the district court is affirmed.
The Honorable Linda R. Reade, United
States District Judge for the Northern District ...