United States v. Kyle Leick ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2700
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Kyle Daniel Leick,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: September 26, 2019
Filed: December 17, 2019
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Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
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COLLOTON, Circuit Judge.
Kyle 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 court1 sentenced him to 37 months’ imprisonment. Leick appeals and
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The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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.
Police 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.
After 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.
Leick 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
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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. 2010).
The 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).
The 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.
The judgment of the district court is affirmed.
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