U.S. v. Robinson

Decision Date25 July 2006
Docket NumberNo. CRIM. 06-95 JRT/FLN.,CRIM. 06-95 JRT/FLN.
Citation441 F.Supp.2d 1029
PartiesUNITED STATES of America, Plaintiff, v. Edward G. ROBINSON, Defendant.
CourtU.S. District Court — District of Minnesota

Andrew R. Winter, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN, for plaintiff.

Jordan S. Kushner, Law Office of Jordan S. Kushner, Minneapolis, MN, for defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

TUNHEIM, District Judge.

Defendant Edward Robinson has been indicted on charges of possession with intent to distribute cocaine base, possession of a firearm in furtherance of a drug trafficking crime, and felon in possession of a firearm. This case is currently before the Court on defendant's motions to suppress evidence. In a Report and Recommendation dated May 19, 2006, United States Magistrate Judge Franklin L. Noel recommended that defendant's motion to suppress witness identifications be denied; that defendant's motion to suppress evidence from search and seizure be denied; and that defendant's motion to suppress statements be granted. Defendant timely objected to the Report and Recommendation,1 and this Court has conducted a de novo review of the objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.2(b). For the reasons discussed below, the Court holds that defendant's motion to suppress evidence of the search and seizure is denied, and the motion to suppress statements is granted in part.2

BACKGROUND

Defendant Edward Robinson first came under the investigation of Officer Mark Nelson of the East Metro Drug Task Force in early February 2006. Officer Nelson states that he had been in contact with a confidential informant ("CI") who told Nelson that defendant lived at the apartment in question and that defendant was selling cocaine from that address. The CI also stated that he had personally been inside the apartment numerous times to purchase narcotics from defendant.

Officer Nelson conducted an investigation to verify that defendant resided at the address stated by the CI. In confirming defendant's residence, Nelson observed that defendant listed that apartment as his address when he was arrested for aggravated assault on December 27, 2005. Nelson also relied on statements made by defendant to Sgt. Bergren in a December 2005 interview, in which defendant disclosed that he resided at the address in question and that the name of his girl-friend was Ebony Brown. Subscriber information subpoenaed from Xcel Energy indicated that Ebony Brown was listed as the subscriber for the apartment in question.

The statements made by defendant to Sgt. Bergren, upon which Officer Nelson relied, were the result of a conversation after defendant was brought into custody as a suspect in a homicide that Sgt. Bergren was investigating. The conversation took place in an interview room at the Ramsey County jail, where defendant was being held. Sgt. Bergren testified at the suppression hearing that defendant immediately informed him that his attorney advised him not to talk about the homicide investigation. Sgt. Bergren then proceeded to ask whether defendant would be willing to meet with Sgt. Bergren if defendant's attorney were present and requested contact information from the defendant. Defendant informed Sgt. Bergren that he resided at the apartment in question, and Sgt. Bergren indicated that he also asked and discovered that the name of defendant's girlfriend was Ebony Brown. Sgt. Bergren testified that defendant was never given a Miranda warning, and that Sgt. Bergren did not attempt to contact defendant's attorney, either before or after he requested information about defendant's residence and girlfriend, even though defendant identified his attorney.

After conducting this investigation into defendant's residence, Officer Nelson allegedly utilized the CI to execute a controlled buy from the defendant at the apartment in question. According to his application for a search warrant, Officer Nelson searched the CI prior to initiation of the buy, and observed the CI enter and exit the apartment building, but he did not observe the CI enter the particular apartment allegedly occupied by defendant.

On February 17, 2006, approximately 40 hours after the controlled buy, a search warrant was issued for the following items: cocaine; mail demonstrating the renter of the premises; money and bank statements showing profit from the sale of drugs; scales and other paraphernalia used in the sale or use of drugs; photos showing drug use, drug paraphernalia, or gang affiliation; all other drugs covered under the controlled substance law; and guns and other weapons. The search warrant requested a no-knock entry to prevent destruction of evidence and to protect the safety of the officers. The no-knock entry was granted and the search warrant was executed without knocking and announcing on February 27, 2006 at around 10:00 a.m. Officer Nelson testified that no one was present at the time the warrant was executed and that a copy of the warrant was left at the residence. The officers seized documents with defendant's name on them, a firearm, a shoe box containing a scale, baggies and suspected crack cocaine, and miscellaneous photographs.

Defendant was observed walking outside of the apartment building a few hours after the search, and he was arrested. Upon arrest, defendant was searched and a key to the apartment was discovered. Defendant was later identified in a photo lineup by the caretaker of the apartment building as someone whom he had seen coming and going from the apartment in question.

In the ten-day period between issuance of the search warrant and its execution on February 27, Officer Nelson conducted surveillance of the apartment building entrance on two days for not more than an hour each day. He did not observe defendant going in or out of the building, did not witness any drug activity connected to the apartment, and did not receive further information from the CI relevant to the warrant.

Defendant moves to suppress any evidence derived from the search of the apartment, primarily on the grounds that the no-knock warrant was unreasonable and that the search warrant had grown stale based on the ten-day delay in executing it. Defendant also moves to suppress the statements made to Sgt. Bergren and any further evidence that was the fruit of those statements.

ANALYSIS
I. Motion To Suppress Evidence As A Result Of An Improper No-Knock Entry

Defendant contends that the no-knock warrant issued for the search of his apartment was invalid. Specifically, defendant contends that Officer Nelson failed to provide sufficient evidence to demonstrate a reasonable suspicion that evidence would be destroyed or that safety would be threatened if the police complied with the knock and announce requirement. The Magistrate Judge assumed the invalidity of the no-knock warrant, but found that the good faith exception to the exclusionary rule applied because the police reasonably relied on the warrant issued by the judge. The Court need not express judgment on either question.

The Supreme Court's recent decision in Hudson v. Michigan, ___ U.S. ___, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), held that the remedy of exclusion is inapplicable and unjustified in the context of a knock and announce violation. See id. at 2165, 2168. In light of this decision, defendant's request for exclusion of evidence based on the no-knock entry can no longer be maintained and his motion to suppress on this ground is accordingly denied.

II. Motion To Suppress Evidence As A Result Of A Stale Search Warrant

"A delay in executing a search warrant may make probable cause fatally stale." United States v. Rugh, 968 F.2d 750, 754 (8th Cir.1992). Search warrants are to be executed promptly, but it is generally accepted that the warrant need only be executed within a reasonable time after its issuance. See United States v. Shegog, 787 F.2d 420, 422 (8th Cir.1986). Execution within a reasonable time "should not be determined by means of a mechanical test with regard to the number of days from issuance, nor whether any cause for delay was per se reasonable or unreasonable. Rather it should be functionally measured in terms of whether probable cause still existed at the time the warrant was executed." Id. (emphasis original). In determining whether probable cause has dissipated, the Court will consider the lapse of time since issuance of the warrant, the nature of the criminal activity, and the kind of property subject to search. See United States v. Gibson, 123 F.3d 1121, 1124 (8th Cir.1997). The Eighth Circuit has also consistently considered whether the police had evidence of continuing or long-term criminal activity. See e.g. U.S. v. Morrow, 90 Fed.Appx. 183, 184 (8th Cir.2004) (second undercover buy at premises between issuance of warrant and execution kept warrant from growing stale during seven day delay); United States v. McCoy, 6 Fed.Appx. 493, 495-96 (8th Cir.2001) (given the suspect's history of drug dealing and ongoing investigation, there "was no reason for officers to believe that the warrant would become stale before the expiration date"); Gibson, 123 F.3d at 1125 (CI's statements about drug trafficking activity at apartment and police observation of traffic in and out of apartment indicated on-going drug activity); Shegog, 787 F.2d at 422 (CI's tip about future drug delivery made eight day delay reasonable). Despite this guidance, the determination whether a warrant has grown stale "necessarily depends upon the facts and circumstances of each case," Shegog, 787 F.2d at 423, as the fundamental inquiry is whether probable cause continued to exist under the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

In this case, Officer Nelson waited a full ten days between issuance of the warrant and execution of the search. Continuing...

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