United States District Court, D. Minnesota
Thomas Calhoun-Lopez, Esq., United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.
Kurt B. Glasser, Esq., Smith & Glasser, LLC, Minneapolis, Minneapolis, MN, and Manvir K. Atwal, Esq., Office of the Federal Defender, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for a ruling on Defendant Albert Terrell Ellis's Objection [Docket No. 40] to Magistrate Judge Leo I. Brisbois's March 17, 2014 Report and Recommendation [Docket No. 39] ("R&R"). Judge Brisbois recommends denying Ellis's Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 18], Ellis's Motion to Suppress [Docket No. 31], and Ellis's Motion to Dismiss Indictment [Docket No. 30]. For the reasons stated below, the Court overrules Ellis's Objection and adopts Judge Brisbois's R&R.
The factual history of this dispute is more fully recited in Judge Brisbois's R&R and is incorporated here by reference. Only the relevant of facts are stated below.
During the events in question, Ellis was living with A.G., a woman, in a duplex unit rented by J.C., another woman. In September 2012, the Duluth police department learned from a confidential informant (CI) that the CI had purchased heroin from an unidentified black male living in J.C.'s apartment.
On October 10, 2012, police received a phone call from J.C.'s mother, indicating J.C. was possibly at risk of harm. The police dispatched Investigator Matthew McShane and Officers Rendulich and Johnson to the duplex.
Officer Rendulich arrived on scene first, and observed Ellis and A.G. loading belongings into a Ford Expedition outside the duplex. The duplex had an upper unit and a lower unit, with a shared storage area in the basement. At an evidentiary hearing in this case, Ellis testified Rendulich patted him down and instructed him to remain outside while the officer went inside.
Investigator McShane testified that when he arrived at the scene, Rendulich and Ellis were standing in the front yard and speaking in a casual manner. Rendulich then went inside while McShane remained outside with Ellis. Ellis testified that he did not feel free to leave. Ellis told McShane that J.C. and A.G. had argued, and that J.C. had instructed them to leave the apartment. McShane and Ellis then went inside the apartment so Ellis could continue removing his and A.G.'s belongings. At the same time, Rendulich and J.C. stepped outside.
At some point, Officer Rendulich instructed Investigator McShane via radio that he should conduct a pat-down search of Ellis. McShane testified he did not know if Rendulich had previously conducted a pat-down search of Ellis. McShane believed it unlikely Officer Redulich would have conducted a pat-down search and then subsequently instructed McShane to conduct a second pat-down. McShane testified that he asked Ellis if he would consent to a search of his person, and Ellis gave verbal consent while raising his arms as a physical expression of consent. McShane conducted the search, discovered bundles of cash, and returned them to Defendant's pocket. McShane described the interaction as polite and cordial.
Defendant agreed the interaction was cordial, but testified McShane did not ask to conduct the search. Instead, McShane simply stated, "I need to pat you down, " and Ellis thus did not feel he could refuse. However, Ellis also testified the officers allowed him to move around freely and to continue removing his belongings from the apartment. Ellis confirmed that he raised his arms as a sign of consent to the search. After the search, Ellis and A.G. left the scene in the Ford Expedition.
Meanwhile, J.C. told Officer Rendulich that Ellis kept a firearm and ammunition in the shared basement storage area of the building. She suggested he search the basement, escorted him there, and then showed him ammunition she said belonged to Ellis. Rendulich advised McShane of the ammunition. About 15 to 20 minutes later, as ...