Opinion
23-cr-66 (JNE/LIB)
07-17-2024
UNITED STATES OF AMERICA, Plaintiff, v. Antonio Trevyll McGraw-Williams, Defendant.
ORDER AND REPORT AND RECOMMENDATION
HON. LEO I. BRISBOIS, U.S. MAGISTRATE JUDGE
Pursuant to a general assignment made in accordance with 28 U.S.C. § 636, this matter comes before the undersigned United States Magistrate Judge upon Defendant's various pretrial Motions. The Court held a Motions Hearing on February 22, 2024. (Minutes [Docket No. 91]).
At the Motions Hearing, the parties requested, and were granted, the opportunity to submit supplemental briefing. After several continuations of the deadlines by which the parties were to have submitted their supplemental briefs, both Defendant and the Government elected to waive the opportunity to submit supplemental briefs. (Def.'s Letter [Docket No. 102]; Gov't's Notice of No Supplemental Briefing [Docket No. 103]). The Court took Defendant's Motions to Suppress under advisement on June 21, 2024.
For the reasons discussed herein, Defendant's Motions for Funds, [Docket Nos. 65, 66, 67, 69], are DENIED without prejudice.
Further, for reasons discussed herein, the Court recommends that Defendant's Motions to Suppress, [Docket Nos. 80, 81, 92], be DENIED.
I. Background
Defendant is charged with one (1) count of possession with intent to distribute fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). (Indictment [Docket No. 1]). Defendant has entered a plea of not guilty as to the count in the Indictment. Defendant is proceeding pro se with standby counsel. (See Order [Docket No. 63]).
II. Defendant's Motions for Funds. [Docket Nos. 65, 66, 67, 69].
More than six months ago, Defendant filed a number of Motions “seeking funds with which to obtain an expert to help to help substantiate [his] defense,” as well as, funds to secure the services of an investigator and a stenographer. (Def.'s Mots. [Docket Nos. 65, 66, 67, 69]). Defendant does not assert the amount of requested funds or the specific purpose for which he needs the services of an investigator or a stenographer. (See Id.). Defendant asserts that he needs the audio expert to review the audio recording of a controlled purchase of narcotics, but he does not assert the purpose of that review. (See Id.). Defendant instead generally asserts that he needs these funds and services to prepare his defense. (See Id.). Since he filed these Motions, Defendant has not taken any action on these Motions or submitted an argument in support of these Motions.
Title 18 U.S.C. § 3006A(e) provides that a defendant “who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request” funds from the Court to secure such services through the submission of an ex parte application. Such services may be requested regardless of whether counsel is appointed pursuant to the Criminal Justice Act. MN USDCT CJA Plan § XII.A. In this District, the ex parte application for such services must be submitted through the District of Minnesota's eVoucher system. MN USDCT CJA Plan § XII.B. “Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court . . . shall authorize” the defense to obtain the services. 18 U.S.C. § 3006A(e)(1).
Defendant's Motions seeking investigative, expert, and stenographer services are denied for two primary reasons. As a threshold matter, these Motions are denied because they have each been pending for at least six-months without Defendant having submitted the proper ex parte application through the Court's eVoucher system. As noted above, any application for the procurement of services under 18 U.S.C. § 3006A(e), such as Defendant's present requests, must be submitted through the Court's eVoucher system. Additionally, even if Defendant were to submit his present requests through the Court's eVoucher system, Defendant's Motions for services pursuant to § 3006A(e) do not provide a basis upon which this Court can determine if the requested services are “necessary” as required by 18 U.S.C. § 3006A(e)(1). Defendant's request do not provide the Court with any specific information as to why he needs the requested services. For example, Defendant generically requests “investigative” services, but he fails to articulate any explanation as to why he needs these services or what he needs to investigate. Without this type of information for each of the requested services, the Court cannot determine if the requested services are “necessary.”
Therefore, Defendant's Motions for Funds, [Docket Nos. 65, 66, 67, 69], are DENIED without prejudice.
III. Defendant's Motion to Suppress Tracking Warrant. [Docket No. 92].
As part of their investigation of the charges underlying the present case, law enforcement officers obtained from the Minnesota State Courts a warrant authorizing the installation and use of an electronic tracking device, including the use of cellular tower locations and service information, on a telephone number ending in 1247 which law enforcement believed was being used by Defendant. On July 18, 2022, a District Court Judge for the State of Minnesota, Ninth Judicial District, County of Beltrami, determined that probable cause existed to support the issuance of the July 18, 2022, Tracking Warrant. (Gov't's Ex. 2). Thereafter, law enforcement officers executed the Tracking Warrant and began obtaining electronic location information regarding the cellular telephone associate with a telephone number ending in 1247. (See Id.).
Government's Exhibit 2 is the warrant application, supporting affidavit, and warrant authorizing the use of an electronic tracking device, as well as, the Receipt, Inventory, and Return form completed as a result of the execution of the Tracking Warrant. At the Motions Hearing, the Government, without objection, offered the warrant application, supporting affidavit, warrant, and Receipt, Inventory, and Return form into evidence as Government's Exhibit 2. (Motions Hearing Transcript [Docket No. 94] at 8).
As one of his pretrial motions, Defendant filed a motion seeking to suppress all evidence resulting from the July 18, 2022, Tracking Warrant. (Def.'s Mot. [Docket No. 82]). Defendant argued that the affidavit submitted in support of the application for the July 18, 2022, Tracking Warrant failed to provide a basis upon which to find probable cause in support of issuing the July 18, 2022, Tracking Warrant. (Id.).
In its written response to Defendant's Motions prior to the Motions Hearing, the Government agreed to self-suppress all electronic evidence stemming from the execution of the July 18, 2022, Tracking Warrant. (Gov't's Resp. [Docket No. 87] at 19). On the record at the February 22, 2024, Motions Hearing, counsel for the Government reiterated that the Government agreed to self-suppress all electronic evidence resulting from the execution of the July 18, 2022, Tracking Warrant. (Tr. 13).
Throughout this Order and Report and Recommendation, the Court refers to the transcript of the February 22, 2024, Motions Hearing by the abbreviation “Tr.” (Transcript [Docket No. 94]).
On the basis of the Government's proffer that it would self-suppress all electronic evidence resulting from the execution of the July 18, 2022, Tracking Warrant, Defendant withdrew as moot his Motion, [Docket No. 82], seeking to suppress all evidence resulting from the execution of the July 18, 2022, Tracking Warrant. (Tr. 13).
Following the February 22, 2024, Motions Hearing, Defendant filed a “Motion to Amend Judgement,” [Docket No. 92], in which he seeks “to amend the decision to moot the electronic surveillance evidence stemming from” the July 18, 2022, Tracking Warrant. The Court will construe Defendant's Motion in his favor as a reassertion of his request to suppress all evidence flowing from the execution of the July 18, 2022, Tracking Warrant.
However, Defendant's request to suppress all evidence resulting from the execution of the July 18, 2022, Tracking Warrant remains moot. As observed above, the Government has twice affirmatively stated that it will self-suppress all evidence resulting from the execution of the July 18, 2022, Tracking Warrant. The Government's agreement to self-suppress all evidence flowing from the July 18, 2022, Tracking Warrant renders moot Defendant's request to suppress that same evidence. See, e.g., United States v. Hollman, No. 23-cr-290 (JWB/TNL), 2024 WL 913220, at *1 (D. Minn. Mar. 4, 2024); United States v. Beck, No. 19-cr-184 (MHC/JSA), 2020 WL 6112187, at *3 (N.D.Ga. Oct. 16, 2020), affd, (11th Cir. Aug. 7, 2023); United States v. Armstead, No. 11-cr-143, 2011 WL 6204598, at *2 (N.D. Iowa Dec. 13, 2011), report and recommendation adopted, 2011 WL 6842511 (N.D. Iowa Dec. 29, 2011).
Because Defendant is proceeding pro se, the Court here provides some context as to the consequences of the Government's decision here. The Government's decision to self-suppress all evidence flowing from the July 18, 2022, Tracking Warrant means that the Government will not be able to introduce in its case-in-chief any evidence which was obtained as a result of the execution of the July 18, 2022, Tracking Warrant. Additionally, in considering whether there exists a basis to find probable case in the affidavits submitted in support of the applications for the other challenged search warrants in the present case, the Court will not consider any information in those affidavits which was derived from the execution of the July 18, 2022, Tracking Warrant. Likewise, the Court, in determining whether there exists probable cause to support the issuance of the search warrants challenged in the present case, will not consider Defendant's statements made in May 2022 and August 2022, which the Government also agreed to self-suppress.
Therefore, the undersigned recommends that Defendant's Motion to Suppress Tracking Warrant, [Docket No. 92], be DENIED as moot.
IV. Defendant's Motions to Suppress. [Docket Nos. 80, 81].
Defendant also seeks an Order of this Court suppressing all evidence resulting from the search of his hotel room and his person pursuant to a search warrant, as well as, the search of two cellular telephones which were searched pursuant to a separate search warrant. (Def.'s Mots. [Docket Nos. 80, 81]). In support of this request, Defendant argues that each affidavit submitted in support of the respective application for the at-issue search warrants did not contain a basis upon which to find probable cause in support of the issuance of said search warrants. (See Id.). As discussed in more detail below, Defendant also argues that evidence obtained from the search of the at-issue cellular telephones requires suppression because, according to Defendant, there was a warrantless search of the cellular telephones prior to law enforcement obtaining a warrant to search the cellular telephones. (See Id.).
Defendant Motions to Suppress, [Docket Nos. 80, 81], each address Defendant's request to suppress evidence flowing from the search of his hotel room and his request to suppress evidence resulting from the search of the two cellular telephones. Because the Motions overlap, the Court will contemporaneously discuss the Motions.
A. Standard of Review
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const. Amend. IV. “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” United States v. Davis, 569 F.3d 813, 816 (8th Cir. 2009) (citing Katz v. United States, 389 U.S. 347, 357 (1967)).
The Eighth Circuit has held that “[a]n affidavit establishes probable cause for a warrant if it sets forth sufficient facts to establish that there is a fair probability that contraband or evidence of criminal activity will be found in the particular place to be searched.” United States v. Mutschelknaus, 592 F.3d 826, 828 (8th Cir. 2010) (internal quotation marks and citation omitted). “Probable cause is a fluid concept that focuses on ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'” United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). Courts use a “totality of the circumstances test . . . to determine whether probable cause exists.” United States v. Hager, 710 F.3d 830, 836 (8th Cir. 2013) (citation omitted); see United States v. Wells, 347 F.3d 280, 287 (8th Cir. 2003). The sufficiency of a search warrant affidavit is examined using “common sense and not a hypertechnical approach.” United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007) (citation and internal quotations omitted); United States v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005).
“In ruling on a motion to suppress, probable cause is determined based on ‘the information before the issuing judicial officer.'” United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (quoting United States v. Reivich, 793 F.2d 957, 959 (8th Cir. 1986)). “Therefore, ‘[w]hen the [issuing judge] relied solely upon the supporting affidavit to issue the warrant, only that information which is found in the four corners of the affidavit may be considered in determining the existence of probable cause.'” United States v. Wiley, No. 9-cr-239 (JRT/FLN), 2009 WL 5033956, at *2 (D. Minn. Dec. 15, 2009) (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005)) (alterations in Wiley).
In addition, the issuing court's “determination of probable cause should be paid great deference by reviewing courts.” Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)). “[T]he duty of a reviewing court is simply to ensure that the [issuing court] had a ‘substantial basis for . . . concluding]' that probable cause existed.” Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
The facts contained in this section are derived from the parties' exhibits admitted in the present case, as well as, the testimony of Justin Erickson, a former police officer with the City of Bemidji police department who at the times relevant to the present Motions was assigned to the Paul Bunyan Drug Task Force and the Headwaters Task Force (“Officer Erickson”) at the February 22, 2024, Motions Hearing.
Since at least mid-2021, Officer Erickson had been involved in an ongoing controlled substances investigation aimed at Defendant. (Gov't's Ex. 1). In June of 2021, Officer Erickson spoke with a confidential informant (“CI 1”) who informed Officer Erickson that Defendant was selling fentanyl and cocaine out of an apartment belonging to Karla Thompson in Bemidji, Minnesota. (Id.). In October 2021, CI 1 informed Officer Erickson that Defendant was still selling fentanyl out of the same apartment. (Id.).
Government's Exhibit 1 is the warrant application, supporting affidavit, and warrant to search Defendant's person and Defendant's room at the Hotel Bemidji. At the Motions Hearing, the Government, without objection, offered the warrant application, supporting affidavit, and warrant into evidence as Government's Exhibit 1. (Tr. 8).
In May of 2022, a second confidential informant (“CI 2”) informed officers with the Paul Bunyan Task Force that Defendant was selling fentanyl out of Karla Thompson's apartment. (Id.). CI 2 also informed the officers that Defendant travelled to the Minneapolis and St. Paul area to restock his supply of controlled substances. (Id.).
In July of 2022, law enforcement officers spoke with a cooperating defendant (“CD 1”)who wished to provide law enforcement with information for consideration on a criminal charge in state court. CD 1 informed law enforcement officers that Karla Thompson and her sister were selling controlled substances from Karla Thompson's apartment. (Id.). CD 1 also informed law enforcement that Defendant was supplying Thomoson and her sister with the fentanyl being sold. (Id.).
Although this individual is referred to as a cooperating defendant, Defendant Antonio Trevyll McGraw-Williams is the sole defendant in the present case. The moniker of cooperating defendant used in Officer Erickson's affidavit appears to reference only the fact that the referred to individual is a defendant in an unrelated criminal case in state court. Nevertheless, the Court retains the use of the “cooperating defendant” moniker for the sake of consistency.
On July 13, 2022, law enforcement officers searched Karla Thompson's apartment pursuant to a state search warrant unrelated to the present case. (Id.). During that search, approximately 125 grams of fentanyl was discovered. (Id.). Karla Thompson was subsequently arrested and charged in Minnesota state court with first degree controlled substance possession with intent to sell. (Id.).
At some time after July 30, 2022, but before August 30, 2022, Officer Erickson spoke with a different confidential informant (“CI 3”) who wished to provide law enforcement with information in exchange for consideration on separate criminal charges. (Id.). CI 3 informed Officer Erickson that Defendant supplied Karla Thompson with fentanyl, and Defendant had previously been in an intimate relationship with Karla Thompson. (Id.). CI 3 also informed law enforcement officers that although Defendant often travelled to the Minneapolis and St. Paul area to restock his supply of controlled substances, Defendant had been travelling to that area less frequently following Karla Thompson's arrest. (Id.). CI 3 stated that they had previously purchased “large amounts” of fentanyl from Defendant on several occasions, and CI 3 further informed law enforcement that they had personally seen Defendant with hundreds of grams of fentanyl at a time. (Id.).
CI 3 further informed law enforcement that since Karla Thomson's arrest Defendant had been staying in hotels in the Bemidji area. (Id.). CI 3 stated that Defendant was using his cellular phone to set up controlled substance transactions. (Id.).
Officer Erickson again spoke with CI 3 on August 29, 2022. (Id.). At that time, CI 3 informed Officer Erickson that Defendant was staying by himself in room 203 of the Hotel Bemidji in Bemidji, Minnesota. (Id.). CI 3 further informed Officer Erickson that earlier in the day on August 29, 2022, CI 3 had been in room 203 with Defendant. (Id.). While in room 203 with Defendant, CI 3 observed several bags of fentanyl, digital scales, and materials used to package controlled substances in room 203 with Defendant. (Id.).
The parties' filings and Officer Erickson's testimony indicate that CI 3 saw the inside of room 203 when CI 3 was participating in a controlled purchase of fentanyl from Defendant. (See Tr. 33-39, 41-42). Officer Erickson's affidavit does not, however, reference the interaction as a controlled purchase; instead, his affidavit provides the information obtained during the controlled purchase without indicating that the information was obtained during a controlled purchase. Because the fact that this information was obtained during a controlled purchase of narcotics was not presented to the issuing judge at the time he determined that probable cause existed to support the issuance of the search warrant authorizing law enforcement to search room 203, the Court will not consider that information in determining whether Officer Erickson's affidavit contains a reasonable basis upon which to find probable cause existed to support the issuance of the search warrant authorizing law enforcement to search room 203 and Defendant's person. See United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009).
After receiving this information from CI 3, law enforcement officers conducted physical surveillance of the Hotel Bemidji. (Id.). During this surveillance, officers observed Defendant meet with several individuals “with what looked to be hand to hand transactions outside the front and rear doors of the hotel. These transactions were short in nature and items looked to be exchanged between [Defendant] and the other person.” (Id.).
On August 30, 2022, Officer Erickson submitted an application for a state court search warrant seeking a search warrant authorizing law enforcement to search the Defendant's person and room 203 of the Hotel Bemidji. (Id.). In his affidavit submitted in support of the application for the August 30, 2022, Search Warrant, Officer Erickson provided the details of law enforcement's investigation of Defendant, including all the facts provided above.
The Honorable John Melbye, District Court Judge for the State of Minnesota, Ninth Judicial District, County of Beltrami, determined that probable cause existed to support the issuance of the August 30, 2022, Search Warrant (“Hotel Search Warrant”). (Id.). The August 30, 2022, Search Warrant authorized law enforcement officers to search the Defendant's person and room 203 of the Hotel Bemidji for, among other things, controlled substances, items associated with the consumption and distribution of controlled substances, and cellular phones. (Id.).
Immediately thereafter law enforcement officers, including Officer Erickson, went to the Hotel Bemidji to execute the Hotel Search Warrant in the morning hours of August 30, 2022. (See Tr. 43). While Officer Erickson was in route to the Hotel Bemidji, two other officers conducting surveillance of the Hotel Bemidji observed Defendant exit the hotel. (Tr. 43). Law enforcement decided to execute the Hotel Search Warrant while Defendant was outside the hotel. (Tr. 43-44). The two officers approached Defendant, advised him of the Hotel Search Warrant, and place Defendant in handcuffs. (Tr. 44). Defendant provided the officers with two keycards for room 203, and officers seized one cell phone (a black Samsung phone) from Defendant's person. (Tr. 44). Officer Erickson and another law enforcement officer then went up to room 203 to search the hotel room. (Tr. 44).
After approaching room 203, Officer Erickson and the other officer knocked on the door; said “housekeeping” while simultaneously inserting the keycard into the door's lock; knocked on the door a second time while opening the door approximately two inches; and said “housekeeping” for a second time. (Def.'s Ex. 19). This took approximately eight seconds. Approximately two seconds later, Officer Erickson announced “Police. Search Warrant” followed by the second officer stating “Police. Search Warrant.” (Id.). Each officer then repeated the announcement two more times. (Id.). These announcements took approximately 16 seconds. (Id.). During this time, the officers never opened the door more than approximately two inches. (Id.).
Defendant's Exhibit 19 is the flash drive containing a copy of the video from the body-worn camera of the officer who accompanied Officer Erickson to room 203. At the Motions Hearing, Defendant, without objection, offered the copy of the video into evidence as Defendant's Exhibit 19. (Tr. 7). The body-worn camera video is approximately 2 minutes and 22 seconds in length capturing only the officers' approach and initial entry into room 203; the video does not continue into the subsequent search of room 203. (See Def.'s Ex. 19).
After not receiving a response, the officers pushed open the door to room 203 and entered the room. (Id.). The officers pushed open the door to enter room 203 approximately 26 seconds after first saying “housekeeping.” (Id.).
As a result of executing the Hotel Search Warrant, law enforcement discovered 89 grams of suspected fentanyl, a blender, a bag of sugar, twenty-seven unused micro-baggies, a digital scale, and two cellular telephones. (Gov't's Ex. 3). The first cellular telephone (a black Samsung phone) was located on Defendant's person, and the second cellular phone (a Verizon phone) was located in room 203. (Id.).
Government's Exhibit 3 is the warrant application, supporting affidavit, and warrant to search the contents of the two cellular phones seized during the execution of the Hotel Search Warrant. At the Motions Hearing, the Government, without objection, offered the warrant application, supporting affidavit, and warrant into evidence as Government's Exhibit 3. (Tr. 8).
On August 31, 2022, Officer Erickson submitted an application for a state court search warrant seeking a search warrant authorizing law enforcement to search the contents of the two cellular telephones seized during the execution of the Hotel Search Warrant. (Id.). In his affidavit submitted in support of the application for the August 31, 2022, Search Warrant, Officer Erickson provided the details of law enforcement's investigation of Defendant, including all the facts provided above. (Id.).
Officer Erickson's affidavit in support of the August 31, 2022, search warrant also contained additional information. (Id.). In his affidavit Officer Erickson attested that, based on his training and experience, distributors of controlled substances often utilize cellular telephones to set up controlled substances transactions. (Id.). Officer Erickson further attested that the quantity of suspected fentanyl and the other items seized as a result of the execution of the Hotel Search Warrant was consistent with Defendant being a distributor of controlled substances. (Id.).
On August 31, 2022, Judge Melbye determined that probable cause existed to support the issuance of the August 31, 2022, Search Warrant (“Cell Phone Search Warrant”). (Id.). The August 31, 2022, Search Warrant authorized law enforcement officers to search the contents of the two cellular telephones seized during the execution of the Hotel Search Warrant. (Id.).
C. Discussion
As observed above, Defendant seeks an Order of this Court suppressing all evidence resulting from the search of his hotel room and his person pursuant to the Hotel Search Warrant, as well as, all evidence resulting from the search of two cellular telephones which were searched pursuant to the Cell Phone Search Warrant. (Def.'s Mots. [Docket Nos. 80, 81]). In support of this request, Defendant argues that neither affidavit submitted in support of these at-issue search warrants contains a reasonable basis upon which to find that probable cause existed to support the issuance of the respective search warrant. (See Id.).
1. Hotel Search Warrant
As observed above, Defendant argues that the affidavit Officer Erickson submitted in support of the application for the Hotel Search Warrant lacked a reasonable basis upon which to find that probable cause existed to support the issuance of the Hotel Search Warrant. (See Id.). Specifically, Defendant argues that the affidavit lacked a basis upon which to find probable cause because the confidential informants and the confidential defendant, who provided much of the information contained in Officer Erickson's affidavit, were not reliable. (See Id.). The Court finds this argument to be unpersuasive.
The Court first considers whether the information from the confidential informants, if reliable, along with the other information contained in Officer Erickson's affidavit, would have provided Judge Melbye with a substantial basis upon which to conclude that probable cause existed to issue the Hotel Search Warrant.
Officer Erickson's affidavit provided that in the twenty-four hours preceding the authoring of his affidavit, CI 3 informed Officer Erickson that Defendant was staying alone in room 203 of the Hotel Bemidji in Bemidji, Minnesota. The affidavit further provided that CI 3 had personally observed Defendant with 2-3 ounces of fentanyl. CI 3 also stated that they observed several bags of fentanyl, digital scales, and packaging materials in room 203 with Defendant.
Officer Erickson's affidavit also provided that CI 1, CI 2, CI 3, and CD 1 each separately proffered other information regarding Defendant's alleged distribution of controlled substances prior to August 30, 2022. In the month preceding August 30, 2022, CI 3 informed Officer Erickson that they had previously purchased “large amounts of fentanyl” from Defendant on “several” occasions. CI 3 further stated that they had observed Defendant with hundreds of grams of fentanyl at a time. CI 1 and CI 2 both separately stated to law enforcement officers that Defendant was selling fentanyl from Karla Thompson's apartment in Bemidji. Moreover, CI 2 and CD 1 both told law enforcement that Defendant was also supplying fentanyl to Karla Thompson for her to sell.
It is well established that “[t]he statements of a reliable confidential informant are themselves sufficient to support probable cause for a search warrant.” United States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998) (citations omitted). If a confidential informant is found to be reliable, the question remains as to whether the confidential informant's statements provide a reasonable basis upon which to find a fair probability that law enforcement will find contraband or evidence of criminal activity in the particular place to be searched. See United States v. Mutschelknaus, 592 F.3d 826, 828 (8th Cir. 2010).
Upon reviewing the totality of the circumstance in the present case, the Court concludes that, if the confidential informants and cooperating defendant were reliable, Officer Erickson's affidavit in support of the application for the Hotel Search Warrant would have provided Judge Melbye with a substantial basis on which to conclude that probable cause existed to justify issuance of the Hotel Search Warrant. In the twenty-four hours preceding the issuance of the Hotel Search Warrant, CI 3 informed law enforcement officers that CI 3 had personally observed fentanyl and paraphernalia associated with the distribution of fentanyl in room 203 of the Hotel Bemidji with Defendant. CI 3 also reported having observed Defendant with 2-3 ounces of fentanyl in his possession. This information from CI 3, if CI 3 is found to be reliable, provided Judge Melbye with a substantial basis on which to conclude that probable cause existed to justify issuance of the Hotel Search Warrant.
Defendant contends, however, that the confidential informants, including CI 3, were not reliable. Therefore, according to Defendant, the information obtained from CI 3 cannot be the basis upon which probable cause exists.
“The core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable.” United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993). “The reliability of a confidential informant can be established if the person has a history of providing law enforcement officials with truthful information.” United States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998) (citations omitted). Such reliability can also be established through law enforcement's corroboration of information provided by a confidential informant. United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993).
“If [some] information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that the informant provides, though uncorroborated, is also reliable.” United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993); see United States v. Leppert, 408 F.3d 1039, 1041 (8th Cir. 2005); United States v. Evans, 4 F.4th 633, 637 (8th Cir. 2021). “Even the corroboration of minor, innocent details can suffice to establish probable cause.” United States v. Buchanan, 574 F.3d 554, 562 (8th Cir. 2009) (quoting United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001)); see United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998).
In his affidavit, Officer Erickson specifically attested that certain information provided by CI 3 was verified by law enforcement. For example, after CI 3 informed law enforcement that Defendant was staying in room 203 of the Hotel Bemidji, Officer Erickson and other law enforcement officers conducted physical surveillance of the Hotel Bemidji where they observed Defendant have short, separate interactions with several individuals. While this may be an “innocent” detail, it “sufficiently corroborate the” information provide by CI 3 “for the purposes of probable cause.” United States v. Edwards, No. 21-cr-255 (NEB/ECW), 2022 WL 4112436, at *7 (D. Minn. June 21, 2022), report and recommendation adopted, 2022 WL 3536135 (D. Minn. Aug. 18, 2022); United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001). The credibility of the information provided by CI 3 is bolstered by the fact that the provided information was based on CI 3's personal observations. See, e.g., United States v. Leppert, 408 F.3d 1039, 1042 (8th Cir. 2005); United States v. Mims, 567 F.Supp.2d 1059, 1068 (D. Minn. 2008).
Further lending credibility to the reliability of CI 3 is the fact that CI 3 made certain statements to law enforcement against CI 3's own penal interest. See, e.g., United States v. Mays, 993 F.3d 607, 615 (8th Cir. 2021). Specifically, CI 3 informed law enforcement that CI 3 had previously purchased “large amounts” of fentanyl from Defendant on “several” occasions. Although CI 3's statement against their penal interest was made to law enforcement in the month preceding the execution of the Hotel Search Warrant as opposed the day before the execution of the Hotel Search Warrant like CI 3's other statements, the statement against their penal interest still lends reliability to CI 3's other statements including the statement CI 3 made in the twenty-four hours preceding the execution of the Hotel Search Warrant which form the basis for probable cause to support the issuance of the Hotel Search Warrant. See United States v. Leppert, 408 F.3d 1039, 1041-42 (8th Cir. 2005).
The reliability of the information CI 3 provided is additionally bolstered by the fact that other information obtained from CI 3 was corroborated by information separately gathered from other confidential informants. For example, CI 1, CI 2, CD 1, and CI 3 each separately informed law enforcement that Defendant supplied fentanyl to Karla Thompson, and that prior to Karla Thompson's arrest, Defendant had been selling fentanyl out of Karla Thompson's apartment. These confidential informants having separately provided the same information “reciprocally” corroborates the information provided by each informant. See, e.g., United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998); United States v. Keys, 721 F.3d 512, 518 (8th Cir. 2013); United States v. Barnes, No. 18-cr-120 (ADM/KMM), 2019 WL 3293467, at *5 (D. Minn. Apr. 8, 2019), report and recommendation adopted, 2019 WL 2353659 (D. Minn. June 4, 2019), aff'd, 9 F.4th 977 (8th Cir. 2021); United States v. Light, No. 20-cr-147 (PAM/LIB), 2021 WL 1325683, at *17 (D. Minn. Jan. 15, 2021), report and recommendation adopted, 2021 WL 1187260 (D. Minn. Mar. 30, 2021).
For this same reason, CI 1, CI 2, and CD 1 are also deemed reliable informants for the purposes of determining probable cause in the present case. See Fulgham, 143 F.3d at 401 (discussing reciprocal corroboration of confidential informants when multiple confidential informants separately provide the same information to law enforcement). The reliability of CI 1 and CI 2 is further bolstered by the fact that Officer Erickson's affidavit stated that both CI 1 and CI 2 had previously provided information to law enforcement which led to arrests of persons for controlled substance related crimes. See, e.g., United States v. Williams, 10 F.3d 590, 594 (8th Cir. 1993); United States v. Alexander, No. 6-cr-403 (DSD/FLN), 2007 WL 851228, at *6 (D. Minn. Mar. 20, 2007); United States v. Edwards, 891 F.3d 708, 711 (8th Cir. 2018).
In the present case, the record reflects that Officer Erickson's affidavit submitted in support of the application for the Hotel Search Warrant demonstrated that the information provided by CI 3 was based largely on CI 3's own personal observations; that CI 3 made statements against their own penal interest to law enforcement; and that portions of the information CI 3 provided had been independently corroborated, including corroboration through physical surveillance by law enforcement and corroboration from other independent confidential informants. The totality of the circumstances demonstrates that this information adequately establishes that CI 3 was reliable for the purposes of determining the existence of probable cause.
Defendant also argues that all evidence flowing from the execution of the Hotel Search Warrant should be suppressed because law enforcement officers violated the “knock and announce” rule in executing the Hotel Search Warrant. (See Def.'s Mot. [Docket No. 81] at 912). Defendant asserts that law enforcement violated the “knock and announce” rule while executing the Hotel Search Warrant on room 203 because the officers approached the door to room 203 with the keycard; knocked on the door while saying “housekeeping”; inserted the keycard into the door's lock; knocked a second time while again saying “housekeeping”; and opened the door all within “a few” seconds. Thus, according to Defendant, suppression of all evidence seized in the execution of the Hotel Search Warrant is required. The Court finds this argument to be unpersuasive.
With limited exceptions not relevant to the present case, the knock-and-announce rule requires that, before law enforcement officers executing a warrant enter a non-open dwelling, the law enforcement officers must knock on the door; announce their identity and purpose; and wait a reasonable time after the knock and announcement before entry. See Hudson v. Michigan, 547 U.S. 586, 589-90 (2006); 18 U.S.C. § 3109 (codifying the common law knock-and-announce rule). However, the remedy for a violation of the knock-and-announce rule is not the suppression of evidence. See, e.g., Hudson, 547 U.S. at 589-90; United States v. Diaz-Ortiz, 927 F.3d 1028, 1030 (8th Cir. 2019). The exclusionary rule is “inapplicable” to either the knock-and-announce rule or a violation of the knock-and-announce rule. See, e.g., Hudson, 547 U.S. at 594.
In the present case, Defendant's argument regarding the knock-and-announce rule is foreclosed by Hudson. Even assuming solely for the sake of argument that law enforcement officers violated the knock-and-announce rule in executing the Hotel Search Warrant, the officers still “would have executed the warrant” and seized the evidence on Defendant's person and inside room 203. See Hudson, 547 U.S. at 592. Any purported violation of the knock-and-announce rule had no effect on the validity of the warrant or the search and seizure of evidence pursuant to the execution of the Hotel Search Warrant, and the exclusionary rule thus does not apply. Id. at 594; Diaz-Ortiz, 927 F.3d at 1030.
In summation, the Court finds that Officer Erickson's affidavit submitted in support of the Hotel Search Warrant provided a sufficient basis upon which Judge Melbye could reasonably conclude that the execution of the Hotel Search Warrant would result in a fair probability that contraband or evidence of a crime would be found. Officer Erickson's affidavit also demonstrates that CI 3 was sufficiently reliable for purposes of making a probable cause determination. Thus, Officer Erickson's affidavit submitted in support of the Hotel Search Warrant provided a sufficient basis upon which Judge Melbye could reasonably conclude that probable cause existed to support the issuance of the Hotel Search Warrant.
In addition, assuming solely for the sake of argument that Officer Erickson's affidavit was not sufficient to establish probable cause, the Court concludes that officers relied in good faith on the probable cause determination by Judge Melbye when executing the Hotel Search Warrant.
Although evidence obtained as a result of the execution of a warrant unsupported by probable cause is generally inadmissible, Mapp v. Ohio, 367 U.S. 643 (1961), there is an exception “when the police conduct a search in ‘objectively reasonable reliance' on a warrant later held invalid.” Davis v. United States, 564 U.S. 229, 238-39 (2011) (quoting United States v. Leon, 468 U.S. 897, 922 (1984)). There are four circumstances in which the good-faith exception does not apply:
(1) the magistrate judge issuing the warrant was misled by statements made by the affiant that were false or made “in reckless disregard for the truth”; (2) “the issuing magistrate judge wholly abandoned his [or her] judicial role”; (3) the affidavit in support of the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (4) the warrant is “so facially deficient . . . that the executing officers cannot reasonably presume it to be valid.United States v. Marion, 238 F.3d 965, 969 (2001).
The record presently before the Court shows that law enforcement's good-faith reliance on the Hotel Search Warrant militates against suppressing the evidence obtained during the execution of the Hotel Search Warrant. In his affidavit in support of his application for the Hotel Search Warrant, Officer Erickson presented sufficient facts indicating that CI 3 was sufficiently reliable for the purposes of determining probable cause; that controlled substances were present in room 203 of the Hotel Bemidji in Bemidji, Minnesota; and that the execution of the Hotel Search Warrant would lead to the discovery of evidence of a crime.
Accordingly, the affidavit in support of the application for the Hotel Search Warrant was not so lacking in indicia of probable cause as to render law enforcement's belief in its existence entirely unreasonable nor was the warrant so facially deficient that the executing officers could not have reasonably presumed the Hotel Search Warrant to be valid. Likewise, there is simply no evidence on the record now before the Court that Judge Melbye wholly abandoned his judicial role or was misled in any way.
Therefore, to the extent Defendant's Motions to Suppress seek to suppress evidence flowing from the execution of Hotel Search Warrant, the undersigned recommends that Defendant's Motions to Suppress, [Docket Nos. 80, 81], be DENIED.
2. Cell Phone Search Warrant
As observed above, Defendant also seeks an Order of this Court suppressing all evidence obtained as a result of the execution of the Cell Phone Search Warrant. (Def.'s Mots. [Docket No. 80, 81]). Each of Defendant's argument in support of this request for suppression is premised on Defendant's mistaken belief that the cellular telephones were first search prior to law enforcement having obtained a search warrant authorizing them the search the two at-issue cellular telephones. (See Def.'s Mot. [Docket No. 80] at 1, 3-4, 6-8; Def.'s Mot. [Docket No. 81] at 4, 6-8). Defendant asserts that after law enforcement officers seized the two cellular telephones on August 30, 2022, Officer Erickson accessed the black Samsung cellular phone and sent text messages to three individuals while posing as Defendant. (Def.'s Mot. [Docket No. 80] at 3-4).
Defendant's assertion that Officer Erickson accessed the black Samsung phone and sent out text messages on August 30, 2022, after Defendant had already been arrested is based entirely on Defendant's belief that the time stamps on various text message sent on August 30, 2022, demonstrate that these text messages were sent from the black Samsung cellular phone after he was arrested. (See Id.). Defendant does not, however, account for the fact that the time stamps on these text messages are not designated in local time.
Defendant's exhibits 1-4 are copies of text messages extracted from the black Samsung cellular phone seized by law enforcement on August 30, 2022. (Def.'s Exs. 1-4). These exhibits indicate that on August 30, 2023, text message were sent from the black Samsung cellular telephone at the following times: “3:12:13 PM (UTC+0)”; “3:12:26 PM (UTC+0)”; “3:13:11 PM (UTC+0)”; “3:43:13 PM (UTC+0)”; and “3:44:21 PM (UTC+0).” (See Def.'s Exs. 1-4). Defendant believes that these time stamps demonstrate that these text messages (purportedly from the afternoon of August 30, 2022) were sent from the black Samsung cellular phone after Defendant was placed under arrest on the morning of August 30, 2022.
At the Motions Hearing, Defendant, without objection, offered the printed copies of the extracted text messages into evidence as Defendant's Exhibits 1, 2, 3, and 4. (Tr. 7).
Defendant's assertion does not, however, account for the difference between the Universal Time Coordinated (UTC) and the Central Standard Time Zone (CST) in which Defendant was arrested. In the month of August, during which Daylight Savings Time is being observed, the difference in time between UTC and CST is five hours. See Collier v. Bronson, No. 15-cv-498 (CG/M), 2017 WL 1424900, at *1 n.1 (S.D. Ala. Apr. 20, 2017). Thus, each of the text messages Defendant highlights was sent between 10:12 a.m. and 10:44 a.m. on August 30, 2022, before Defendant was placed under arrest.
Courts are permitted to, and regularly do, take judicial notice of the difference between the world's time zones. See, e.g., Id.; United States v. Brown, No. 19-cr-191 (TAV/HBG), 2021 WL 6545270, at *3 (E.D. Tenn. Dec. 22, 2021), report and recommendation adopted, 2022 WL 164534 (E.D. Tenn. Jan. 18, 2022); United States v. Penn, No. 20-cr-00152 (PAB), 2021 WL 4991140, at *2 (D. Colo. Oct. 27, 2021); Cuaresma v. Lockheed Martin Corp., No. 17-cv-324 (ACK/RT), 2019 WL 404424, at *4 n.8 (D. Haw. Jan. 31, 2019); Selwyn v. Bruck L. Offs., No. 19-cv-135 (ORL/GJK), 2020 WL 13598626, at *3 (M.D. Fla. July 1, 2020).
The record now before the Court lacks any indication that law enforcement officers sent text messages from black Samsung cellular phone. Likewise, the record now before the Court lacks any indication that law enforcement searched the contents of either of the cellular phones prior to obtaining the Cell Phone Search Warrant authorizing them to do so.
Defendant's Motions could also be liberally construed as asserting that Officer Erickson's affidavit submitted in support of the application for the Cell Phone Search Warrant lacked a substantial basis upon which to find that probable cause existed to support the issuance of the Cell Phone Search Warrant. (See Def.'s Mots. [Docket Nos. 80, 81]). Defendant's argument regarding probable cause related to the Cell Phone Search Warrant mirrors the arguments he raised related to the Hotel Search Warrant, and the Court has already found those arguments to be unpersuasive.
Nevertheless, in the abundance of caution the Court will review the Cell Phone Search Warrant to determine whether Officer Erickson's affidavit submitted in support thereof provided a sufficient basis upon which to find probable cause to support the issuance of the Cell Phone Search Warrant.
As noted above, the Eighth Circuit has held that “[a]n affidavit establishes probable cause for a warrant if it sets forth sufficient facts to establish that there is a fair probability that contraband or evidence of criminal activity will be found in the particular place to be searched.” United States v. Mutschelknaus, 592 F.3d 826, 828 (8th Cir. 2010) (internal quotation marks and citation omitted). Courts use a “totality of the circumstances test . . . to determine whether probable cause exists.” United States v. Hager, 710 F.3d 830, 836 (8th Cir. 2013) (citation omitted). “In ruling on a motion to suppress, probable cause is determined based on ‘the information before the issuing judicial officer.'” United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (quoting United States v. Reivich, 793 F.2d 957, 959 (8th Cir. 1986)). The issuing court's “determination of probable cause should be paid great deference by reviewing courts.” Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)).
Considering Officer Erickson's affidavit submitted in support of the application for the Cell Phone Search Warrant, Judge Melbye could reasonably have concluded that there was a fair probability that evidence of a crime or contraband would be found in the two at-issue cellphones which are the subjects of the Cell Phone Search Warrant. Put differently, the Court concludes that Judge Melbye had a sufficient basis upon which to believe that probable cause existed to support the issuance of the Cell Phone Search Warrant authorizing law enforcement to search the contents of the two at-issue cellphones.
Specifically, the Court notes that, in his affidavit, Officer Erickson provided the details of law enforcement's investigation of Defendant, including information obtained from the search of room 203 of the Hotel Bemidji and the contraband seized during the execution of that search. The affidavit also noted that CI 3 informed Officer Erickson that Defendant utilized his cellular telephone to contact individuals to set up controlled substance transactions, that the black Samsung phone was found on Defendant's person, and that the Verizon flip-phone was located in the hotel room with the other contraband which was seized. Furthermore, Officer Erickson attested that, based on his training and experience, distributors of controlled substances often use cellular telephones to arrange controlled substance transactions, and he further attested that the evidence seized from room 203 was consistent with Defendant being a distributor of controlled substances.
Judge Melbye was entitled to rely upon Officer Erickson's training and experience to infer that the totality of the circumstances demonstrated that evidence of a crime would be found on the two at-issue cellular phones seized during the execution of the Hotel Search Warrant. See, e.g., United States v. Franklin, No. 19-cr-315 (DGK), 2022 WL 3572697, at *11 (W.D.Mo. July 28, 2022) (citing United States v. Keele, 589 F.3d 940, 944 (8th Cir. 2009)), report and recommendation adopted, 2022 WL 3572498 (W.D. Mo. Aug. 18, 2022); United States v. Mayweather, 993 F.3d 1035, 1042-43 (8th Cir. 2021), reh'g denied (May 19, 2021); United States v. Jones, 74 F.4th 941, 949 (8th Cir. 2023).
Moreover, Courts have long recognized cellular telephones as tools of the drug trade. See e.g., United States v. Oliver, No. 15-cr-164 (DSD/BRT), 2015 WL 13731345, at *8 n.10 (D. Minn. Oct. 13, 2015), report and recommendation adopted, 2015 WL 7432334 (D. Minn. Nov. 23, 2015); United States v. White, No. 22-cr-207 (JRT/ECW), 2023 WL 5753678, at *19 (D. Minn. June 5, 2023), report and recommendation adopted, 2023 WL 5558838 (D. Minn. Aug. 29, 2023), reconsideration denied, 2024 WL 1976704 (D. Minn. May 3, 2024); United States v. Green, No. 19-cr-103 (MJD/ECW), 2020 WL 5652476, at *8 (D. Minn. Sept. 23, 2020), aff'd, 2020 WL 6337705 (D. Minn. Oct. 29, 2020); United States v. Oliver, No. 16-cr-258 (DSD/BRT), 2016 WL 11186991, at *8 (D. Minn. Dec. 28, 2016), report and recommendation adopted, 2017 WL 187142 (D. Minn. Jan. 17, 2017), aff'd, 950 F.3d 556 (8th Cir. 2020). Indeed, several Courts have observed that cellular telephones are ubiquitous to the level that they are the primary means of communication for most people. See, e.g., United States v. Eggerson, 999 F.3d 1121, 1127 (8th Cir. 2021); see also Riley v. California, 573 U.S. 373, 401 (2014) (“Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information.”).
In summation, the Court finds that Officer Erickson's affidavit submitted in support of the application for Cell Phone Search Warrant provided a sufficient basis upon which Judge Melbye could reasonably have concluded that there was a fair probability that evidence of a crime would be found in the search of the two at-issue cellular telephones. Thus, Officer Erickson's affidavit submitted in support of the Cell Phone Search Warrant provided a sufficient basis upon which Judge Melbye could reasonably conclude that probable cause existed to support the issuance of the Cell Phone Search Warrant.
In addition, assuming solely for the sake of argument that the Court were to determine that the affidavit of Officer Erickson was insufficient to establish probable cause, the Court concludes that officers relied in good faith on the probable cause determination by Judge Melbye when executing the Cell Phone Search Warrant.
Although evidence obtained as a result of the execution of a warrant unsupported by probable cause is generally inadmissible, Mapp v. Ohio, 367 U.S. 643 (1961), there is an exception “when the police conduct a search in ‘objectively reasonable reliance' on a warrant later held invalid.” Davis, 564 U.S. at 238-39 (quoting Leon, 468 U.S. at 922). As discussed above, there are four circumstances in which the good-faith exception does not apply. See Marion, 238 F.3d at 969.
The consideration of these circumstances as applied to the present case demonstrates that law enforcement's good-faith reliance on the Cell Phone Search Warrant issued by Judge Melbye militates against suppressing the evidence obtained during the execution of the Cell Phone Search Warrant. For all the reasons discussed above, Officer Erickson's affidavit in support of the Cell Phone Search Warrant was not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Similarly, the Cell Phone Search Warrant was not “so facially deficient . . . that the executing officers cannot reasonably presume it to be valid.” Lastly, there is no indication on the record now before the Court that Judge Melbye was misled by any statement within Officer Erickson's affidavit nor any indication that Judge Melbye wholly abandoned his judicial role in issuing the Cell Phone Search Warrant.
Therefore, to the extent Defendant's Motions to Suppress seek to suppress evidence flowing from the execution of Cell Phone Search Warrant, the undersigned recommends that Defendant's Motions to Suppress, [Docket Nos. 80, 81], be DENIED.
V. Conclusion
Therefore, based on the foregoing and all the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT Defendant's Motions for Funds, [Docket Nos. 65, 66, 67, 69], are DENIED without prejudice
Furthermore, based on the foregoing and all the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED THAT:
1. Defendant's Motion to Suppress Tracking Warrant, [Docket No. 92], be DENIED as moot; and
2. Defendant's Motions to Suppress Evidence, [Docket Nos. 80, 81], be DENIED.
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “A party may file and serve specific written objections to a magistrate judge's proposed findings and recommendation within 14 days after being served with a copy of the recommended disposition[.]” A party may respond to those objections within 14 days after being served a copy of the objections. LR 72.2(b)(2). All objections and responses must comply with the word or line limits set forth in LR 72.2(c).
Under Advisement Dated: This Report and Recommendation will be considered under advisement 14 days from the date of its filing. If timely objections are filed, this Report and Recommendation will be considered under advisement from the earlier of: (1) 14 days after the objections are filed; or (2) from the date a timely response is filed.