LeeAnn K. Bell and Manda M. Sertich, Assistant United States Attorneys, for the plaintiff, United States of America.
Shannon R. Elkins, Assistant Federal Defender, for defendant Chandan Prentiss Hurd.
REPORT AND RECOMMENDATION
ARTHUR J. BOYLAN, Magistrate Judge.
This action came on for hearing before the Court, Chief Magistrate Judge Arthur J. Boylan, on August 5, 2013, at the U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota. The court has issued a separate Order on Motions, dated August 6, 2013, reserving defendant's motion for suppression of evidence for submission to the district court on report and recommendation.
Based upon the file and documents contained therein, along with testimony and exhibits received at hearing, the magistrate judge makes the following:
During the early morning hours of March 23, 2013, Minneapolis Police Officers Martin and Englund were patrolling the city's Second Precinct in their squad car. Martin was driving. As the squad traveled east on Broadway Street, it approached the intersection with Buchanan Street. This area surrounding Broadway and Buchanan is one of the more highly-patrolled areas of the Second Precinct, and has a higher level of criminal activity than other areas within the Precinct. Much of the criminal activity involves narcotics or domestic disputes.
At approximately 12:15 a.m., the officers observed a vehicle facing northbound on Buchanan just north of that street's intersection with Broadway. The vehicle drew their attention because it was stopped in the middle of the street. The area is darkly lit but the officers noticed that a male, despite the cold weather, was standing outside the car next to the driver's side. Immediately to the north of the intersection where the vehicle was stopped, on either side of the street, there are no houses or other buildings.
Based on his experience and the circumstances of the stopped vehicle, Officer Martin suspected a possible narcotics transaction.
Upon making his observations, Martin stopped, backed the squad up and turned left onto Buchanan, pulling up behind and to the side of the vehicle. At that same time, Englund called dispatch, reporting that they were checking on a suspicious vehicle. Once the squad car pulled up behind the stopped car, the driver of the vehicle pulled off to the side of the road approximately 20 to 30 feet ahead. Meanwhile, the man, later identified as defendant Hurd, continued to stand in the middle of the street. Officers Martin and Englund did not activate the squad car lights or video recorder. One of the officers turned on the squad's spotlight.
Immediately upon the police car pulling up, Hurd started walking toward the squad. While approaching the officers, Hurd had his hands in the pockets of his jacket. The officers, concerned for their safety, immediately got out of their squad. While doing so, they directed Hurd to remove his hands from his pockets as they were uncertain about whether he was armed. As Hurd continued to approach, Martin noticed that Hurd had a blank stare on his face. It appeared to Martin as though Hurd was trying to decide what to do or that he was possibly high or intoxicated. In addition to noting Hurd's demeanor, Officer Martin estimated that Hurd was six-foot, three inches tall and weighted approximately three hundred pounds and that as such, that he was physically larger than either Martin or Englund. As he approached the officers, Hurd was saying something to the effect that there's no problem here; I'm just trying to give the driver directions.
In compliance with the officers' command, Hurd momentarily took his hands out of his pockets as he continued to walk toward them. After about five seconds, however, Hurd placed his hands back in his pockets while continuing to walk towards the officers. Both officers then began approaching Hurd. As they did so, they continued to command that he take his hands out of his pockets. Officer Martin did not ask Hurd his name nor did they tell him to stop approaching.
Once Officer Martin was within arms-length, he grabbed Hurd's right arm to control it so that Hurd could not pull something out of his pocket. Officer Englund grabbed Hurd's left arm. The officers continued to command Hurd to take his hands out of his pockets. Following Hurd's refusal to remove his hands, the officers attempted to pull his hands from his pockets, but Hurd resisted. Eventually, the officers maneuvered Hurd to the hood of the squad car. By this point, Officer Martin believed that Hurd was hiding something. In an attempt to have Hurd comply with the police commands, Officer Martin drew his Taser and warned Hurd that he could be tased if he did not do as directed. The officers continued to direct Hurd to take his hands out of his pockets and Hurd continued to refuse. The officer's struggle with Hurd continued with their trying to draw Hurd's hands out of his pockets. Their efforts included their delivering strikes to his back area as Hurd was leaned over the hood, in an attempt to get Hurd to remove his hands.
During this interaction, the female driver of the stopped vehicle, Ashley Squalls, exited her car and started walking toward the officers. Officer Martin pointed his Taser at Ms. Squalls and directed her to sit on the curb behind her vehicle. Upon Squall's compliance with his ...