671 F.2d 1140 (8th Cir. 1982), 81-1618, United States v. McGlynn

Docket Nº:81-1618.
Citation:671 F.2d 1140
Party Name:UNITED STATES of America, Appellant, v. Michael John McGLYNN and Kevin John Schantzen, Appellees.
Case Date:March 01, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1140

671 F.2d 1140 (8th Cir. 1982)

UNITED STATES of America, Appellant,


Michael John McGLYNN and Kevin John Schantzen, Appellees.

No. 81-1618.

United States Court of Appeals, Eighth Circuit

March 1, 1982

Submitted Dec. 15, 1981.

Page 1141

John M. Lee, Asst. U. S. Atty., Janice M. Symchych, Asst. U. S. Atty., argued, Daniel W. Schermer, Asst. U. S. Atty., D.Minn., Minneapolis, Minn., Dwight L. Pringle, Legal Intern, for appellant.

Scott F. Tilsen, argued, Asst. Federal Defender, D.Minn., Minneapolis, Minn., for appellee Schantzen.

John R. Wylde, argued, Minneapolis, Minn., for appellee McGlynn.

Before LAY, Chief Judge, and HENLEY and ARNOLD, Circuit Judges.

HENLEY, Circuit Judge.

The United States has appealed an order of the United States District Court for the District of Minnesota granting appellee Kevin John Schantzen's motion to suppress evidence taken from his person, and also granting appellee Michael John McGlynn's motion to suppress evidence taken from his person and seized from his automobile pursuant to a search warrant. We reverse and remand.

The essential facts as set forth in the magistrate's report and recommendation are not disputed. On September 9, 1980 Officer Ronald Johnson, a police officer in the Narcotics Division of the Minneapolis Police Department, received information from Officer Piazza of the Robbery Division that four hospital pharmacies in Minnesota and South Dakota had been robbed within the past month. 1 Large quantities of dilaudid and morphine had been taken, and the robber in each case was described as a

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white male, 5'4 to 5'5 in height, wearing a nurse's uniform and wig.

An informant had advised Piazza that Schantzen had committed the robberies. In addition, Piazza had learned that Schantzen was 5'4 tall and was residing at the 180 Degree Halfway House with appellee McGlynn. All of this information was passed on to Officer Johnson.

A second informant told Officer Johnson that McGlynn was distributing large quantities of dilaudid and morphine that had been taken in hospital pharmacy robberies. In the past, this informant had supplied information leading to arrests and convictions.

Armed with this information, Officer Johnson placed Schantzen and McGlynn under surveillance. On September 9, 1980 McGlynn was seen leaving his place of employment and driving to the residence of Steven Towe, Schantzen's half-brother. McGlynn was observed to enter that residence, and about two minutes later he left the Towe residence and drove to the Halfway House. He parked his car (a Mazda) on the street and entered the building. A short time later, Officer Brademan of the Narcotics Squad observed Schantzen and Towe come out of the Halfway House and approach McGlynn's car. Schantzen entered the vehicle, reached under the front seat, and emerged with a rather thick envelope.

Schantzen and Towe then entered a blue Lincoln Continental and drove approximately one and one-half blocks, where they parked directly behind an undercover narcotics surveillance vehicle. Officer Shanahan, the occupant of that vehicle, subsequently radioed that the Lincoln's occupants appeared to be exchanging something. Officer Brademan thereupon left his vehicle and walked on the sidewalk past the Lincoln. As he approached it from the rear, he noticed the front passenger seat occupant looking repeatedly over his left shoulder. He then observed a large amount of money, as well as the previously mentioned envelope, spread out on the front seat of the Lincoln. Officer Brademan concluded that he was observing a drug transaction. He therefore identified himself as a police officer, ordered the occupants to come out of the Lincoln, and arrested them. The money, totalling $4,680.00, was seized, and Schantzen and Towe were advised of their rights. When asked who the money belonged to, neither would reply.

Five to ten minutes after these arrests, McGlynn drove up in his Mazda, stopped, and asked what was going on. He was promptly arrested, and $2,400.00 was seized from his person.

The officers then applied for and obtained from a Hennepin County District Judge a warrant for the search of McGlynn's Mazda. 2 A search of that vehicle pursuant to the warrant yielded morphine tablets and a nurse's uniform.

At the suppression hearing, the magistrate heard the testimony of several of the officers involved in the surveillance, as well as the testimony of Officers Johnson and Piazza. He then made extensive findings of fact, and, in a well-reasoned memorandum, recommended that the motions to suppress be denied. Upon its examination of "the briefs and arguments of counsel, and the files, records, and proceedings herein ..." 3, however, the district court ordered that the subject evidence be suppressed.

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The underlying facts are fully set forth in the magistrate's report and recommendation, and these facts are undisputed. And we observe that the district court's order granting the motions for suppression can fairly be said to result only from the following conclusions of the district judge:

(1) That the evidence seized from Schantzen was inadmissible, either because his arrest was not supported by probable cause or because the seizure of the items in his possession was impermissible under the fourth amendment;

(2) That the evidence seized from McGlynn's person was inadmissible, either because McGlynn's arrest was not supported by probable cause or because the evidence seized from his person was impermissibly seized; and

(3) That the affidavit accompanying Officer Johnson's application for the warrant could not support the issuance of the warrant, because some of...

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