United States v. Andrews

• Decision Date: 08 May 2019
• Docket Number: Criminal File No. 18-CR-149 (SRN/DTS)
• Citation: 381 F.Supp.3d 1044
• Parties: UNITED STATES of America, Plaintiff, v. Norris Deshon ANDREWS, Defendant.
• Court: U.S. District Court — District of Minnesota

381 F.Supp.3d 1044

UNITED STATES of America, Plaintiff,

v.Norris Deshon ANDREWS, Defendant.

Criminal File No. 18-CR-149 (SRN/DTS)

United States District Court, D. Minnesota.

Signed May 8, 2019

Norris Deshon Andrews, Sherburne County Jail, 13880 Business Center Dr., Ste. 200, Elk River, MN 55330, pro se

Daniel L. Gerdts, 331 Second Ave. S., Ste. 705, Minneapolis, MN, standby counsel for Defendant

Jeffrey Paulsen, United States Attorney's Office, 300 South Fourth Street, Ste. 600, Minneapolis, MN 55415, for the Government

ORDER

SUSAN RICHARD NELSON, United States District Judge Before the Court are Defendant Norris Deshon Andrews' Objections ("Objections") [Doc. No. 145-3¹ ] to the February 21, 2019 Order and Report and Recommendation ("Order & R & R") [Doc. No. 133] filed by Magistrate Judge David T. Schultz. The Order & R & R addressed several of Andrews' pretrial discovery motions, his motion challenging pretrial detention, and a number of motions to dismiss the Indictment and suppress evidence. The magistrate judge held four evidentiary hearings on these motions on September 10 and 19, 2018, October 5, 2018, and December 17, 2018. Combined, the hearings were over 14 hours long. In the Order & R & R, the magistrate judge denied Andrews' motions that sought to suppress evidence or dismiss the Indictment. (See Order & R & R at 23–26.)

Pursuant to Andrews' request to appear before the district court judge on his Objections and other matters, (see Def.'s Letter at 4 [Doc. No. 143] ), this Court held status conferences on April 2 and 8, 2019. At the April 2 status conference, attorney Kevin O'Brien represented Andrews. (See Apr. 2, 2019 Minutes [Doc. No. 154].) On April 8, Andrews appeared pro se and Mr. O'Brien served as standby counsel. (See Apr. 8, 2019 Minutes [Doc. No. 157].) At both status conferences, the Court heard oral argument on Defendant's Objections to the Order & R & R and took the Objections under advisement.² For the reasons set forth below, Andrews' Objections are overruled.

I. BACKGROUND

A. Shooting, Identification of Suspect, and Surveillance

Andrews is charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (See Indictment [Doc. No. 1].) The charge stems from a shooting that occurred at approximately 4:45p.m. on May 15, 2018, near an apartment complex in the 1700 block of Plymouth Avenue North in Minneapolis. (Def. Ex. 14 (MPD Case Rpt., Creighton Supp. 13); Sept. 10 Hr'g Tr. at 9–10 [Doc. No. 51].) Security camera footage of the incident shows a group of people congregating on a sidewalk adjacent to an outdoor parking area. (See Gov't Ex. 1 ("Cropped Video"); Def. Ex. 18 ("Uncropped Video").) Two people arrive in a blue SUV with no front license plate and approach the group of people. (Id. ) The driver of the SUV—a black man with a larger frame, long dreadlocks, glasses, a dark colored t-shirt, distressed jeans, and athletic shoes—appears to engage in conversation with members of the assembled group. (Id. ) Eventually, he brandishes a gun and fires several shots before driving away by himself in the SUV. (Id. ) His former passenger runs away from the scene on foot. (Id. )

Shortly thereafter, officers arrived at the scene of the shooting, (see Def. Ex. 14 (MPD Case Rpt., Creighton Supp. 13)), including Minneapolis Police Sgt. Kelly O'Rourke. (Sept. 10, 2018 Hr'g Tr. at 10.) Investigating officers spoke with percipient witnesses. (Id. at 12–13.) Although the parties dispute whether these persons were eyewitnesses to the shooting itself, O'Rourke learned the following information from officers' discussions with numerous witnesses: the shooter was described as a large, heavy-set black male, wearing glasses, with his hair in long dreadlocks, driving a blue Chevy Tahoe SUV, the shooter was called "N.O.", his full name was Norris Andrews, he was seen arguing with the victims before the shooting took place, the person accompanying him was named Montrel Tyson, and a witness provided Andrews' cell phone number and a photo of him. (Id. at 13, 17; Def. Ex. 15 (MPD Case Rpt., Bauer Supp. 9); Def. Ex. 58 (MPD Full Case Rpt., Pearson Supp. 3, Hanneman Supp. 6, Spee Supp. 11).) Sgt. O'Rourke accessed a law enforcement database, found jail photos of Norris Andrews, and compared them to the images of the shooter from the security camera video. (Sept. 10, 2018 Hr'g Tr. at 13.) He believed that they depicted the same person. (Id. at 14.) He also conducted a Google search of the suspect's cell phone number, which indicated that the subscriber's last name was Andrews. (Id. ; Sept. 19, 2018 Hr'g Tr. at 59 [Doc. No. 62].)

From other investigating officers, Sgt. O'Rourke learned that about an hour earlier, a "shots-fired" call had been placed in the same general area, at 25^th and Girard Avenue North, and similar shell casings were found at the scene. (Sept. 10, 2018 Hr'g Tr. at 14.) Sgt. O'Rourke testified that in that earlier incident, "a blue Chevy Tahoe with no plates was described as a potential suspect vehicle." (Id. at 14; Gov't Ex. 10 (Incident Rpt.) at 2 (call log noting, "ACCORDING TO WITNESSES BLU TAHOE WAS SHOOTING AT PLE IMPALA LOW RIDER."; "DARK BLU TAHOE WITH NO PLATES"; "SHOTS FIRED .. CLR SAW BLU TK LEFT ON GIRARD IN UNK DIRECTION .. CLR HEARD PPL ARGUING.") (emphasis in original); Def. Ex. 58 (MPD Full Case Rpt., Creighton Supp. 13) (stating that 911 caller/witness identified the shooting vehicle as a dark blue Chevy Tahoe without any plates and the driver was a large black male with dark skin and long braided hair)).

Based on the similarities between the two incidents, the information from witnesses at the later shooting, and the shooting captured on the security camera footage, Sgt. O'Rourke submitted an exigent circumstances order to T-Mobile, the service carrier of the cell phone number in question, to "ping" the phone in order obtain real-time locations and call detail records for the suspect's cell phone. (Id. at 15; Gov't Ex. 3 (T-Mobile Exigent Request).) Sgt. O'Rourke provided the following facts in support of the exigent situation: "[L]ife threatening shooting of two victims, one was shot in the chest. Eye witnesses know the suspect to currently be using [phone number]. Zetx shows a last name of a subscriber to be the same as the suspect." (Gov't Ex. 3 (T-Mobile Exigent Request) at 1.) Sgt. O'Rourke provided further detail on a supplement to the form:

The suspect has been identified as using XXX-XXX-XXXX by an eye witnesses [sic] to the crime. I am a police investigator with the Minneapolis Police Department and have been so for 20 years. On this day there was a shots fired call at 23^rd and Fre[ ]mont Avenue in north Minneapolis (18-156610) at 1518 hours.

The shooting being investigated occurred at 1642 hours at 1711 Fre[ ]mont Avenue north in Minneapolis. The same suspect vehicle was described at both scenes. The second scene produced a video that showed the individual that is known to use the target number getting into the described suspect vehicle. The identified suspect also has an extensive criminal history involving weapons and narcotics. On this day during the second shooting he was said to be settling up with a debtor. The egregious part is that after shooting one of the victims multiple times the suspect got back out of his vehicle and made another attempt to finish him off, shooting at him a few more times. I believe at this point it has only been a few hours and the suspect is armed and danger[ous] and is a threat to public safety after showing he can shoot multiple people and commit multiple shootings in a short period of time.

(Id. at 2.) Sgt. O'Rourke testified that the above-quoted section of the application contained a typographical error with respect to the shooting address—the shooting occurred at 1711 Plymouth Avenue North, not 1711 Fremont Avenue. (Oct. 5, 2018 Hr'g Tr. [Doc. No. 69] at 22–23.) After he submitted the exigent order, Sgt. O'Rourke received emails approximately every 15 minutes with information on the location of the phone. (Sept. 10, 2018 Hr'g Tr. at 20.)

At approximately 11:00 p.m., the phone appeared to be stationery in the vicinity of 2810 Girard Avenue North.³ (Id. at 20–21.) At approximately 11:30 p.m., Sgt. O'Rourke dispatched two police officers, Officer Andrew Schroeder and Sgt. Joel Pucely, to the area in order to locate Andrews. (Id. at 21.) To familiarize himself with Andrews' appearance, Sgt. Pucely looked at a prior booking photo or driver's license image of Andrews, as well as still images from the surveillance video. (Oct. 5, 2018 Hr'g Tr. at 13, 157.) After the officers looked for Andrews without successfully finding him, Sgt. Pucely continued his surveillance of the area alone, parked at 29^th and Girard Avenue in an unmarked squad car. (Id. at 14–15, 71.)

From his position, Pucely observed a white GMC Yukon with Minnesota dealer license plates drive by twice. (Id. at 15–16.) He found the vehicle's movements suspicious, suggesting that the driver was looking for someone. (Id. at 16.) The Yukon eventually parked. (Id. at 17.) Using a pair of binoculars and the illumination of streetlights, Sgt. Pucely saw two people leave a house, jog towards the Yukon, and get inside the SUV. (Id. at 16–18, 51–52.) Although Sgt. Pucely could not see their faces, he believed that one of them matched the description of the shooting suspect, based on similarities in build and hairstyle. (Id. at 18, 36.) Sgt. Pucely watched as the Yukon pulled away from the curb, but failed to signal, and turned onto 29^th Avenue North without coming to a full stop at a stop sign. (Id. at 18–19.) Sgt. Pucely followed the Yukon and called Officer Schroeder to assist in a vehicle stop. (Id. )

B. Stop and Search of the Yukon

Sgt. Pucely turned on his lights to initiate a stop for the two moving violations, and the Yukon promptly pulled over. (Id. at 20.) Several other officers also arrived. (See Def. Ex. 7 (Dashcam Video).) The...