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United States v. Rodrigues

United States District Court, Eighth Circuit

September 24, 2013

United States of America, Plaintiff,
v.
Ricardo Lamar Rodrigues, Defendant.

REPORT AND RECOMMENDATION

JEANNE J. GRAHAM, Magistrate Judge.

This case came before the undersigned United States Magistrate Judge for a pretrial motion hearing on September 11, 2013. Thomas M. Hollenhorst appeared on behalf of the United States of America, and Alejandro A. Espinosa appeared on behalf of Defendant Ricardo Lamar Rodrigues. The motions presently before the Court are Defendant's Motion to Suppress (ECF No. 29) and Motion to Dismiss (ECF No. 30). While the motions were docketed as two separate entries, the documents are identical.

The case was referred to this Court pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1 to conduct a hearing and submit a report and recommendation to the Honorable Joan N. Ericksen, United States District Judge. Trial in this matter is set to commence on October 21, 2013.

I. Procedural Background

An Indictment was filed against Defendant on July 16, 2013, charging him with Conspiracy to Distribute Actual Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 1); Attempted Possession with Intent to Distribute Actual Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 2); Distribution of Actual Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 3); Possession with Intent to Distribute Actual Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count 4); Using, Carrying, and Possessing Firearms During and in Relation to, and in Furtherance of, a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 5); and Felon in Possession of Firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 6). (Indictment, ECF No. 8.)

At the September 11 motion hearing, the Government called Drug Enforcement Administration Agent Travis Ocken to testify. The Government also introduced into evidence an application for a search warrant and a search warrant for a residence on Kyle Avenue North in Brooklyn Center, Minnesota. (Gov't Ex. 1.) Defendant's arguments for suppression and dismissal are that (1) the search warrant was not supported by probable cause; (2) officers who executed the search warrant exceeded its scope; (3) the search warrant failed to describe with particularity the things to be seized; and (4) Defendant was arrested without probable cause.

II. Probable Cause for the Search Warrant

A search warrant was executed at Defendant's residence on Kyle Avenue North in Brooklyn Center, Minnesota, on June 17, 2013. Bloomington Police Officer T. Maloney provided the application and affidavit in support of the warrant.

A. Facts Averred in Officer Maloney's Affidavit

Officer Maloney averred the following facts in his affidavit. Officer Maloney has worked as a Bloomington police officer since 2002 and is assigned to the Drug Enforcement Administration as a Task Force Officer. (Gov't Ex. 1 at 2.) In that position, he primarily investigates federal narcotics violations, and he has become familiar with the day-to-day operations of narcotics trafficking organizations, importation and distribution methods, and means used to avoid detection by law enforcement. ( Id. )

In approximately April 2013, a "cooperating defendant" ("CD") told Officer Maloney that he or she had purchased methamphetamine from Defendant for several years. ( Id. ) The CD had also personally seen Defendant engage in other drug transactions during which Defendant carried a small-caliber, semi-automatic handgun. ( Id. ) The CD knew that Defendant frequently received packages of methamphetamine from Arizona. ( Id. ) Other sources told law enforcement officers that associates of Defendant had transported narcotics in different vehicles associated with the Kyle Avenue residence and that one associate might have traveled to Arizona recently to purchase methamphetamine. ( Id. )

Following up on this information, Officer Maloney contacted an investigator with the Drug Task Force, who advised Officer Maloney that a controlled delivery of methamphetamine had been conducted at the Kyle Avenue address in February 2013. ( Id. ) The package was intercepted by law enforcement, and Defendant was charged with possession of methamphetamine. ( Id. ) Officer Maloney also learned that Defendant lived with two other individuals at the Kyle Avenue address, Mark Anthony Selbitschka and Richard Henry Selbitschka. ( Id. ) Mark Anthony Selbitschka has a prior conviction for possession of a machine gun or short-barreled shotgun, and Richard Henry Selbitschka has a prior conviction for carrying a weapon without a permit, as well as prior drug arrests. ( Id. )

Within seventy-two hours of the search warrant being executed at Defendant's residence, Officer Maloney arranged for the CD to engage in a controlled purchase of methamphetamine from Defendant. ( Id. ) The CD made a recorded telephone call to Defendant and arranged to meet Defendant at his house on Kyle Avenue. ( Id. ) Officer Maloney gave the CD pre-recorded buy money and searched the CD's person and vehicle. ( Id. ) The CD then traveled to Defendant's house and entered through a side door. ( Id. ) Officer Maloney monitored the conversation between the CD and Defendant through a listening and recording device, and the officer overheard a conversation pertaining to drugs. ( Id. ) After the drug transaction was complete, the CD left Defendant's house and met Officer Maloney at a predetermined location. ( Id. ) The CD confirmed he had purchased methamphetamine from Defendant and gave the drugs to the officer. ( Id. ) The drugs tested positive for methamphetamine. ( Id. )

On June 17, 2013, the day the search warrant was obtained but before it was executed, officers surveilling the Kyle Avenue address saw Defendant drive from the residence to a nearby gas station. ( Id. ) Defendant transferred a large, rolled object into another vehicle. ( Id. ) After Defendant drove away, he was stopped and arrested for the prior sale of a controlled substance. ( Id. ) A search of his person yielded a medication ...


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