Opinion
Crim. No. 02-121 (1, 3) ADM/SRN
July 3, 2002
Joseph T. Dixon, Esq., Assistant United States Attorney, for the United States of America.
Robert J. Kolstad, Esq., Kolstad Law Office, Minneapolis, Minnesota, for Defendant Burns.
Andrew S. Birrell, Esq., Birrell Newmark, Minneapolis, Minnesota, for Defendant Walker.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Defendants Charles Francois Burns and Lashawn Markia Walker's Objections [Doc. Nos. 54, 55, 56] to the June 10, 2002, Report and Recommendation ("RR") of Magistrate Judge Susan Richard Nelson [Doc. No. 50]. In the RR, Judge Nelson recommends that Defendant Walker's Motion to Suppress Statements and Motion to Suppress Evidence Obtained by Search Seizure be denied, and Defendant Burns' Motion to Suppress Physical Evidence, Statements Made by Defendant or Identifications of Defendant Obtained as a Result of Any Illegal Searches, Seizures, Interrogations, or Identifications be denied, and the Motion to Suppress All Electronic Surveillance be denied as moot. The factual background for this matter is adequately set forth in the RR and is incorporated by reference for the purposes of Defendants' present objections. For the reasons set forth below, the Objections are denied and the RR is adopted.
II. DISCUSSION
A district court must make an independent, de novo evaluation of those portions of an RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).
A. Walker's Motion to Suppress Statements
Judge Nelson found that because Walker was not subject to interrogation in the back of the squad car, the arresting officer was not required to provide her with a Miranda warning. Judge Nelson also found no coercion induced the statements Walker seeks to suppress. Accordingly, Judge Nelson denied Walker's Motion to Suppress the Statements. Walker objects to this determination, arguing that placing Walker into the squad car with Burns was reasonably likely to elicit an incriminating response from Walker. See Def. Mem., at 2 (citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).
A Miranda warning is required when a suspect is both in custody and subject to interrogation. United States v. Hatten, 68 F.3d 257, 262 (8th Cir. 1995). While Walker and Burns were confined in the back of the squad car, they spoke to one another and their conversation was video-recorded. Such a conversation between two suspects does not constitute interrogation. See United States v. Ingle, 157 F.3d 1147, 1150 (8th Cir. 1998). "When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking." Illinois v. Perkins, 496 U.S. 292, 296 (1990). When the arresting officers left Walker and Burns alone together in the squad car and video-taped their conversation, it did not trigger Miranda protections. "Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns." Id. at 297. Walker does "not have a reasonable or legitimate expectation of privacy in statements made to a companion while seated in a police car." United States v. Clark, 22 F.3d 799, 802 (8th Cir. 1994). Walker's statements were not made in response to any question or statement by law enforcement officers. See Hatten, 68 F.3d at 262. Since Walker was not subjected to interrogation, her Motion to Suppress is properly denied.
B. Walker's Motion to Suppress Evidence Obtained by Search Seizure
Walker moved to suppress evidence obtained during the search of the house at 11199 Cedar Pointe Drive, because the warrant listed the address as 11199 Cedar Pointe Drive South, Hopkins, Minnesota, when in fact the residence is within Minnetonka, Minnesota. Judge Nelson found that the address is located near the border of the two suburbs, although it actually is in Minnetonka. Michael Edward Perry, an officer with the Bureau of Criminal Apprehension, testified that he had no difficulty finding the house based on the address listed in the warrant and he was unaware of any other house with an address of 11199 Cedar Pointe Drive in any other suburb. Walker presented no evidence that there was a misidentification of the residence.
The Fourth Amendment states, "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. To satisfy the particularity requirement, the place to be searched must be "described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort" and to avoid mistakenly searching the wrong premises. United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979). Minor errors in a warrant, which do not reflect deliberate falsehoods, are insufficient to require suppression of the evidence obtained by good faith execution of the warrant. United States v. Searcy, 181 F.3d 975, 980 (8th Cir. 1999); United States v. Johnson, 64 F.3d 1120, 1127 (8th Cir. 1995). Here, the house to be searched was on the border of two suburbs, and the warrant mistakenly identified the suburb as Hopkins, instead of Minnetonka. The street address on the warrant was correct. Mistakenly switching the two bordering suburbs does not render the warrant invalid for lack of particularity. In good faith reliance on the warrant, the officers found the only house at 11199 Cedar Pointe Drive and executed the search warrant. Walker's Motion is denied.
C. Burns' Motion to Suppress Physical Evidence, Statements Made by Defendant or Identifications of Defendant Obtained as a Result of Any Illegal Searches, Seizures, Interrogations, or Identifications
Burns contends the officers who arrested him lacked probable cause, arguing that no independent investigation confirmed the allegations of the informants and nothing found during the search connected Burns to the drugs. Judge Nelson found that the police had sufficient probable cause at the time they arrested Burns. Based upon first-hand knowledge, two informants provided detailed descriptions of Burns' possession of drugs and intention to sell the drugs. One of the informants had been present at the 11199 Cedar Pointe Drive residence and observed Burns packaging cocaine there. Judge Nelson concluded that the officers had corroborated the informants' tips and had probable cause to arrest.
"Probable cause for an arrest exists when the totality of circumstances demonstrates that the arresting officer personally knows or has been reliably informed of sufficient facts to warrant a belief that a crime has been committed and that the person to be arrested committed it." United States v. Reinholz, 245 F.3d 765, 778 (8th Cir. 2001) (citations omitted). Law enforcement officers are entitled to "substantial latitude in interpreting and drawing inferences from factual circumstances." United States v. Washington, 109 F.3d 459, 465 (8th Cir. 1997) (citations omitted). By the time of Burns' arrest, the police had accumulated detailed information from multiple informants and corroborated the tips through their own investigation. There was sufficient probable cause to arrest Burns. Burns' Motion to Suppress evidence resulting from this arrest is denied.
D. Burns' Motion to Suppress All Electronic Surveillance
As noted in the RR, Burns requested that his Motion to Suppress All Electronic Surveillance be denied as moot. See RR at 16; Tr. at 6-7. It is so ordered.
E. Motion to Suppress Physical Evidence
Defendants did not object to Judge Nelson's recommendation regarding the Motion to Suppress Physical Evidence. The Rules require a party objecting to an RR to "specifically identify the portions of [the RR] to which objection is being made and the basis for such objection." D. Minn. LR 72.1(c)(2). Absent any specific basis for an objection, this portion of the RR is adopted and the Motion to Suppress is denied.
F. Motion for Severance
Finally, Defendants appeal Judge Nelson's Order denying their motions to sever, arguing that joinder is improper here. However, neither Burns nor Walker identify specific facts showing that their defense is "irreconcilable" with the defense of their co-defendant or that the "jury will be unable to compartmentalize the evidence as it relates to separate defendants." United States v. Gutberlet, 939 F.2d 643, 645 (8th Cir. 1991). "Rarely, if ever, will it be improper for co-conspirators to be tried together." United States v. Wint, 974 F.2d 961, 965 (8th Cir. 1992) (citations omitted). Defendants have not demonstrated that joinder will result in clear prejudice to their chances of acquittal at trial. The Motion for Severance was properly denied.
III. CONCLUSION
Based upon the foregoing, the RR, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that:
(1) Defendants' Objections to the RR [Doc. Nos. 54, 55, 56] are DENIED;
(2) The RR [Doc. No. 50] is ADOPTED in its entirety;
(3) Walker's Motion to Suppress Statements [Doc. No. 24] is DENIED;
(4) Walker's Motion to Suppress Evidence Obtained by Search Seizure [Doc. No. 25] is DENIED;
(5) Burns' Motion to Suppress Physical Evidence, Statements Made by Defendant or Identifications of Defendant Obtained as a Result of Any Illegal Searches, Seizures, Interrogations, or Identifications [Doc. No. 42] is DENIED; and
(6) Burns' Motion to Suppress All Electronic Surveillance [Doc. No. 41] is DENIED as moot;
(7) Defendants' Appeals [Doc. Nos. 54 56] are DENIED.