Amber M. Brennan, Esq., Assistant United States Attorney, for the plaintiff, United States of America;
Ryan P. Garry, Esq., for the defendant, Mario Ronrico Smith.
REPORT AND RECOMMENDATION
ARTHUR J. BOYLAN, Chief Magistrate Judge.
This action came on for hearing before the Court, Chief Magistrate Judge Arthur J. Boylan, on October 2, 2013, at the U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415. The court issued an Order on Motions dated October 3, 2013, reserving defendant Mario Ronrico Smith's motions to suppress evidence and dismiss the action for submission to the district court on report and recommendation.
Based upon the file and documents contained therein, along with witness testimony and exhibits received at hearing, the magistrate judge makes the following:
Vehicle Stop. Crystal Police Officer Timothy Tourville was on routine patrol duty during the 6:30 p.m. to 6:30 a.m. shift on December 4, 2011. During the shift Officer Tourville located his squad car in a parking lot near a bridal shop in a commercial area along Bass Lake Road for the purpose of detecting eastbound speed limit violators on Bass Lake Road. At 11:51 p.m. the officer stopped a vehicle being driven by defendant Mario Ronrico Smith for traveling at the rate of 41 miles per hour in a 30 miles per hour speed zone. No other improper driving conduct was observed. Upon making the stop the officer approached the vehicle driver and asked for a driver's license and proof of insurance. Defendant Smith produced a driver's license, but stated that the vehicle belonged to his aunt and he was not sure he had proof of insurance with him. During the encounter the officer smelled a faint odor of marijuana, as if someone in the car had recently smoked marijuana, coming from inside the vehicle. The defendant was cooperative and polite and the officer did not observe behavior indicating that the driver was impaired by drugs or alcohol. The defendant was the sole occupant of the car.
Officer Tourville went back to his squad car to conduct a driver's license and outstanding warrant check, and he called for backup assistance at that time. At 11:57, while still waiting for the backup to arrive, the officer returned to the defendant's vehicle and asked for permission to search the car, stating that he smelled a slight odor of marijuana. Defendant Smith denied permission to search, stating that consent was denied because it was his aunt's car. Officer Tourville again returned to his squad car and called for a drug detection dog to check the vehicle. Thereafter, Officer Barland arrived at the scene as backup. The K9 officer arrived within approximately five minutes after being summoned.
When the squad car with the drug detection dog arrived, the driver parked in front of the defendant's vehicle, though not in such a way that the defendant was blocked in. At that time, approximately 12:08 a.m., the defendant drove forward and fled from the officers. The K9 vehicle immediately followed and was in turn followed by Officer Tourville and the backup squad. During the subsequent chase Officer Tourville relinquished his second position to the backup police vehicle driven by Officer Barland. Officer Tourville temporarily lost sight of the defendant's vehicle but the car chase ended with the use of a police maneuver on a frontage road to I-94 at approximately 12:13 a.m. Officer Tourville subsequently observed the defendant jumping over a fence and fleeing on foot across the freeway. The officer continued to pursue on foot across lanes of traffic until the defendant went over another fence and the officer lost track of him. Defendant Smith was not apprehended that night.
Following the unsuccessful foot chase Officer Tourville went to the defendant's vehicle where it was stopped on the frontage road. The car had been damaged in the stop maneuver. From outside the vehicle the officer observed a duffel bag on the front seat that appeared to contain a taped brick-like package. A second similar package was on the seat outside the duffel bag. The car was impounded and towed to the Crystal Police Department, but was not immediately searched by Officer Tourville.
Vehicle Search Warrant. On December 5, 2011, Hennepin County District Court Judge Peterson issued a warrant to search a particularly identified 2006 blue Dodge Charger (Gov't Hrg. Ex. A). The search warrant identified the objects of the warrant as controlled substances, drug packaging equipment and supplies, documents and electronic devices showing drug distribution activities and indicating the names and addresses of drug sources and customers, monies from drug sales, materials showing constructive possession of seized items, firearms, and evidence of drug ownership.
The warrant was issued on the basis of probable cause contained in the Affidavit of City of Crystal Police Investigator Pete Underthun, including information obtained in the course of the initial vehicle stop by Officer Tourville, the flight from police and the ensuing chase, and the plain view observation of suspected drug packages inside the vehicle. The affidavit also referenced a positive K9 drug alert on the vehicle.
Cell Phone Search Warrant. On December 7, 2011, at 10:00 a.m., United States Magistrate Judge Steven E. Rau issued a warrant to search three particularly described cellular telephones and a Garmin Global Positioning System (Gov't Hrg. Ex. B). The search warrant identified the objects of the warrant as electronic records of phone numbers; call records; names, addresses, and numbers in the phone memory; voice mail records and access information; e-mail and Internet access information; photos; GPS points; travel routes; longitude and latitude data; origination and destination points; and drug and currency stash locations.
The warrant was issued on the basis of probable cause contained in the Affidavit of DEA Task Force Officer and Dakota County Sheriff's Deputy Matthew Schepers, again reciting information obtained in the course of the initial vehicle stop by Officer Tourville, the flight from police and the ensuing chase, the plain view observation of suspected drug packages inside the vehicle, and the positive K9 drug alert on the vehicle. The warrant application further ...