U.S. v. Mims
| Decision Date | 18 June 2008 |
| Docket Number | No. 08-CR-7(JMR/JSM).,08-CR-7(JMR/JSM). |
| Citation | 567 F.Supp.2d 1059 |
| Parties | UNITED STATES of America v. Jimmie Glen MIMS (1), Elizabeth Ann Nyberg (2), and Robert Allen Kreisel (3). |
| Court | U.S. District Court — District of Minnesota |
Defendants Nyberg and Kreisel object to the Report and Recommendation, issued May 12, 2008 [Docket No. 89], by the Honorable Janie S. Mayeron, United States Magistrate Judge. The Report recommended denying defendants' motions to suppress statements and evidence. Defendants' objections to the Report were timely filed, pursuant to Local Rule 72.2.
Based upon a de novo review of the record herein, the Court adopts the Magistrate's Report and Recommendation.
Accordingly, IT IS ORDERED that:
1. Jimmie Glen Mims' Motion to Suppress Evidence Obtained as a Result of Search and Seizure is denied [Docket No. 39].
2. Elizabeth Ann Nyberg's Motion to Suppress Search and Seizure is denied [Docket No. 51].
3. Elizabeth Ann Nyberg's Motion to Suppress Statements is denied [Docket No. 52].
4. Elizabeth Ann Nyberg's Motion to Declare Title 21 U.S.C. § 841 Unconstitutional is denied [Docket No. 53].
5. Robert Allen Kreisel's Motion to Suppress Statements, Admissions, and Answers is denied [Docket No. 57].
6. Robert Allen Kreisel's Motion to Suppress Evidence Obtained as a Result of Search and Seizure is denied [Docket No. 61].
7. Robert Allen Kreisel's Motion to Declare Title 21 U.S.C.
The above matter came on before the undersigned upon defendant Jimmie Glen Mims' Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 39]; defendant Elizabeth Ann Nyberg's Motions to Suppress Search and Seizure [Docket No. 51], to Suppress Statements [Docket No. 52], and to Declare Title 21 U.S.C. 841 Unconstitutional [Docket No. 53]; and upon defendant Robert Allen Kreisel's Motions to Suppress Statements, Admissions and Answers [Docket No. 57], to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 61], and to Declare Title 21 U.S.C. Sec. 841(b)(1)(B)(vii) Unconstitutional [Docket No. 69].
David Genrich, Assistant United States Attorney, appeared on behalf of the United States of America; Lee R. Johnson, Esq. appeared on behalf of defendant Jimmie Glen Mims; Paul C. Engh, Esq. and Shannon Rae Elkins, Esq. appeared on behalf of defendant Elizabeth Ann Nyberg; arid George E. Rapaich, Esq. appeared on behalf of Robert Allen Kreisel. All defendants were personally present. The matter was referred to the undersigned by the District Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Based upon the pleadings, the pre-hearing submissions, exhibits submitted at hearing on April 8, 2008, and testimony taken from Officer Brian Stroshane, it is recommended that defendant Jimmie Glen Mims' Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 39] be DENIED; that defendant Elizabeth Ann Nyberg's Motions to Suppress Search and Seizure [Docket No. 51], to Suppress Statements [Docket No. 52], and to Declare Title 21 U.S.C. 841 Unconstitutional [Docket No. 53] be DENIED; and that defendant Robert Allen Kreisel's Motions to Suppress Statements, Admissions and Answers [Docket No. 57], to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 61], and to Declare Title 21 U.S.C. Sec. 841(b)(1)(B)(vii) Unconstitutional [Docket No. 69] be DENIED.1
Mims, Nyberg and Kreisel are all charged with one count of conspiracy to manufacture and distribute marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. At issue are two search warrants, one Mims' and Nyberg's residence, and one for Kreisel's residence; the Mirandized statements provided by Nyberg and Kreisel following their arrests; and the constitutionality of the penalty provision, 21 U.S.C. § 841(b)(1)(B)(vii).
There were two separate search warrants for the residence located at XXX West 104th Street. The first warrant was for a flyover thermal image of the home. See Gov't Ex. 1 (). The second search warrant was for the search of the premises. See Gov't Ex. 2 (). In their motions to suppress, Mims and Nyberg addressed only the second search of the premises. Because neither Mims nor Nyberg contested the thermal imagery search of XXX West 104th Street, the Court recommends denying that portion of their motions to suppress.2 The balance of this Report and Recommendation focuses on the validity of the second search warrant, Government Exhibit 2.3
The warrant for the premises located at XXX West 104th Street was applied for by Detective Otterness and signed by Judge Tony Leung of Hennepin County District Court on January 30, 2008. It was executed on the following day, January 31, 2008.
A summary of the relevant portions of the affidavit accompanying the search warrant described the basis for the warrant as follows:
In January of 2008, the affiant, Detective Otterness, received information regarding a marijuana grow operation at XXX West 104th Street in Bloomington, Minnesota. This information was obtained from a cooperating defendant (CD # 1) who was currently incarcerated on drug and weapons charges in the United States District Court of Minnesota. CD # 1 stated that the residence was being utilized to grow high grade hydroponic marijuana and Psiloeybin mushrooms. CD # 1 stated that a white male named Jimmie Mims was living at the address.
CD # 1 stated that he/she began purchasing controlled substances from Mims in June of 2006; that he/she had purchased high grade marijuana from Mims on at least twenty occasions from the residence at XXX West 104th Street and as recently as late September or early October of 2007. CD # 1 stated that Mims sold pound quantities of marijuana for $3,000 and ounce quantities for $300 to $400.
CD # 1 stated that when he/she was at the residence in September or October 2007, Mims had a large-scale marijuana growing operation in the basement of the residence, including sophisticated lighting and potting materials. CD # 1 stated that there were approximately 200 mature plants growing at the time. CD # 1 also stated that Mims was growing Psiloeybin mushrooms and observed 60-70 mushrooms. CD # 1 stated that he/she had also observed quantities of crack cocaine and methamphetamine inside the residence, and observed Mims in possession of a 9mm semi-automatic handgun and that Mims had it in the basement of the residence.
While Detective Otterness was conducting a follow-up regarding this information, he learned that the Bureau of Criminal Apprehension also had information related to Mims and the XXX West 104th Street residence. Detective Otterness spoke with BCA Special Agent Henning regarding the investigation. Agent Henning had obtained information from another cooperating defendant, CD # 2, who was currently charged in the United States District Court of Minnesota on drug trafficking charges. CD # 2 stated that he/she had been to the XXX West 104th Street residence with another individual identified as Robert Smith, who is also currently charged in the United States District Court of Minnesota on drug trafficking charges. CD # 2 stated that he/she had been to the XXX West 104th Street residence with Smith on multiple occasions and had contact with the residents, who CD # 2 identified as Mims and a female named Elizabeth Nyberg. CD # 2 had been at the residence as recently as late October of 2007.
CD # 2 stated that Smith advised CD # 2 that Smith and Mims utilized the XXX West 104th Street residence to grow marijuana and mushrooms, that Smith stashed cocaine and methamphetamine at the residence, and that the growing operation had been in operation for several years.
In December of 2007, CD # 2 directed Special Agent Henning to the West 104th Street residence and identified it as the residence Mims and Smith used for their drug trafficking operation.
Special Agent Henning subpoenaed records from Xcel Energy for XXX West 104th Street and two neighboring residences. Detective Otterness indicated that the records showed that the XXX West 104th Street residence was using approximately 2-3 times the amount of electricity as the neighboring residences. Based on his training and experience, which included previous indoor marijuana growing operations, Detective Otterness believed this to be indicative of a marijuana growing operation.
On January 22, 2008, Detective Otterness's partner, Officer Stroshane, obtained a search warrant to conduct a flyover to gauge the amount of heat radiating from the residence at West 104th Street.4 The flyover warrant was executed but the results were inconclusive due to the subzero temperature that evening.
On January 29, 2008, Detective Otterness attempted to obtain trash from the residence on its scheduled day for removal, but was unable to because the garbage was never set curbside.
Detective Otterness confirmed through Minnesota Driver and Vehicle Services that Mims listed XXX West 104th Street as his home address.
See Gov't Ex. 2.
Mims and Nyberg each move to suppress evidence obtained during the search and seizure of their residence on January 31, 2008 on grounds that the search warrant, Government Exhibit 2, lacks probable cause. Both contend that the search warrant affidavit provides insufficient information regarding the credibility of the cooperating defendants,...
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