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United States v. Nowak

United States District Court, D. South Dakota, Southern Division

March 19, 2015



KAREN E. SCHREIER, District Judge.


Defendant, Cody Allen Nowak, is charged with possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). Nowak moves to suppress all physical evidence seized from a backpack that was located on the floorboard of a vehicle driven by third-party Harry Madsen. Nowak contends the backpack and its contents are the fruits of an illegal search, which violated the Fourth Amendment to the United States Constitution. Docket 22. The motion was referred to a United States magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

During the evidentiary hearing, testimony from one law enforcement officer was presented, and one exhibit was received into evidence. The magistrate judge issued a report and recommended denial of Nowak's motion to suppress. Docket 31. Nowak objects to the report and recommendation. Docket 40. For the following reasons, the report and recommendation is adopted as modified by this opinion.


This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Because motions to suppress evidence are considered dispositive matters, a magistrate judge's recommendation regarding such a motion is subject to de novo review. 28 U.S.C. § 636(b)(1)(A); see also United States v. Raddatz, 447 U.S. 667, 673 (1980). In conducting de novo review, this court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).


According to the testimony given and the exhibit introduced at the evidentiary hearing, the pertinent facts are as follows:

Officer Scott Vander Velde was on duty on August 7, 2014. Vander Velde was parked near a Sioux Falls residence when he noticed that a vehicle with expired tags had pulled up nearby. Vander Velde observed an individual enter the passenger side of the vehicle, although he could not identify who it was. Because the vehicle had expired tags, Vander Velde initiated a traffic stop. The vehicle pulled over in front of a casino at 11th Street and Prairie Avenue in Sioux Falls. Vander Velde pulled into the casino parking lot and parked behind the stopped car. The passenger emerged from the vehicle, and Vander Velde recognized him as Nowak from a previous encounter. Vander Velde instructed Nowak to get back in the vehicle, and Nowak complied. A short time later, however, Nowak exited the vehicle for a second time and fled the scene.[1]

Vander Velde did not pursue Nowak. Instead, he remained near the stopped vehicle and spoke with its driver. The driver identified himself as Harry Madsen. Madsen stated that Nowak had called him and asked for a ride, and that he "[didn't] know what was going on." Vander Velde observed a backpack in the passenger side of the car, and asked Madsen whether it belonged to Nowak. Madsen responded that it did, and that Nowak had the backpack with him when Madsen picked him up. Madsen stated that the backpack was not his, and he gave Vander Velde permission to search the vehicle.

At Vander Velde's direction, Madsen stepped out of the car. When Vander Velde asked how Madsen knew Nowak, Madsen replied that Nowak was an acquaintance of his wife's son. Madsen then stated that he would occasionally give Nowak a ride, and that he "[didn't] ask anything because he's a friend." Vander Velde asked if Madsen knew where Nowak wanted to be taken, and Madsen responded that he did not know. Madsen added that he "was amazed" by Nowak's sudden departure.

A few minutes later, Vander Velde conducted a brief visual inspection of the interior of Madsen's vehicle. A K-9 unit arrived on the scene, and Vander Velde told the K-9 officer what had transpired.[2] The officers discussed searching the backpack, and the K-9 officer opined that Nowak "doesn't have any expectation of privacy in abandoned property." Vander Velde concurred, also noting that Madsen had given them consent to search the vehicle.

Following this conversation, the K-9 officer had a drug dog enter Madsen's vehicle from the passenger side and conduct a sniff of the interior. The dog did not alert. Vander Velde then removed the backpack from the vehicle and placed it on the trunk of the car. Vander Velde testified that the compartments of the bag were shut, and that he could not see into it. Vander Velde opened the backpack in the presence of the other officers and, among several other items, discovered a firearm wrapped in a red bandana. Vander Velde retained the firearm, but returned the backpack with the rest of its contents to Madsen.

The firearm discovered in the backpack is the subject of this prosecution. Vander Velde did not specifically ask for permission to search the backpack, although Madsen gave his consent to search the vehicle. Approximately twenty minutes elapsed between the time Nowak fled the scene and the time Vander Velde searched through the contents of the backpack. Vander Velde testified that he was not aware of any warrants for Nowak's arrest at the time of the traffic ...

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