United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
JEANNE J. GRAHAM, Magistrate Judge.
This matter is before the undersigned United States Magistrate Judge on Defendant Michael Anthony Lindsey's Motion to Suppress All Evidence Obtained from Unlawful Searches and Seizures (ECF No. 15). The Court held an evidentiary hearing on July 14, 2014. Amber M. Brennan appeared on behalf of the United States of America, and Daniel L. Gerdts appeared on behalf of Defendant. The briefing on the dispositive motion was complete on July 25, 2014. As briefing was in progress, Defendant filed a motion for a Franks hearing (ECF No. 29).
On June 9, 2014, Defendant was indicted for one count of being an armed career criminal in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e). At the July 14 hearing, the Government called one witness, Sergeant David Swierzewski of the Minneapolis Police Department, and offered into evidence for the limited purpose of the suppression hearing three exhibits: Government Exhibit 1, a compact disc with an audio and video recording of the squad video; Government Exhibit 2, the search warrant and supporting affidavit for the search of a Buick LeSabre; and Government Exhibit 3, the search warrant and supporting affidavit for a buccal swab DNA sample of Defendant. Defendant also introduced two exhibits: Defendant's Exhibit 1, a compact disc containing a recording of a 911 call; and Defendant's Exhibit 2, a compact disc containing a recording of a witness interview.
A. Sergeant Swierzewski's Testimony
Sergeant Swierzewski testified that he works for the Minneapolis Police Department, primarily on patrol with the 911 emergency response squad. In the early morning hours of April 6, 2014, he was working patrol with his partner, Officer Jeddeloh, in the Phillips neighborhood of south Minneapolis, when they received a 911 call of shots fired near 33rd Street and Fifth Avenue. Dispatch told the officers that the caller saw a four-door, light-colored or tan vehicle firing shots and stated that the vehicle was circling the area. When Sergeant Swierzewski and Officer Jeddeloh arrived in the neighborhood to respond to the call, they spotted a vehicle matching the caller's description which was traveling at a high rate of speed south on Fifth Avenue. The vehicle was a Buick LeSabre, and they began to follow it from approximately 250 to 300 feet behind. While the officers followed the vehicle, dispatch relayed that the caller had seen the squad car trailing the suspect vehicle when it passed the caller's house again. The officers followed the vehicle as to turned west onto 35th Street and north onto Second Avenue before taking the exit for northbound Interstate 35W. After observing the conduct of the vehicle's driver on the exit for 35W, Sergeant Swierzewski manually activated the squad car's video recorder at approximately 1:22 a.m.
At the hearing, the Government played the squad video as Sergeant Swierzewski described what was happening. He saw the vehicle swerving all over the road, crossing the left lane and swerving into the shoulder. The vehicle took the offramp for Interstate 94 west, almost struck the barrier on the right, and kicked up dust on the right shoulder of the road. Once on the highway, the vehicle was not moving particularly fast, but the driver could not stay in a single lane and continued swerving back and forth. The vehicle then moved from the far right-hand lane to the lane on its left before crossing back into the right lane. As it entered the Lowry Tunnel, it crossed from the far right lane into the far left lane, moving across the solid white lines that separate each lane of traffic in the tunnel. The car then swerved and almost hit the left-side wall of the tunnel twice. As the squad car reached the footbridge connecting Loring Park to the Walker Art Center, the officers activated the squad car's emergency lights and siren to stop the vehicle. Sergeant Swierzewski explained that the officers did not attempt to stop the vehicle earlier because they were waiting until assisting squads were in position behind them. At least one assisting squad also activated its emergency lights and siren.
The vehicle failed to stop, continued westbound on Interstate 94, and then exited on Olsen Memorial Highway. The vehicle continued up the offramp and almost hit the concrete median. Upon reaching the red light at the top of the ramp, the vehicle stopped. The driver of the vehicle appeared to take off his seatbelt, lean to the right, and make furtive movements as if he were recovering something from the passenger side of the vehicle. Another officer yelled out that the driver was reaching for something. An officer shouted, "Hands, " for the driver to show his hands, but the driver did not do so. An officer then shouted, "Put your hands up." After several further shouts from officers to raise his hands, the driver still had not done so. A short time later, an officer told the driver over loudspeaker, "Driver, step out of the vehicle, put your hands up, do it now." The driver appeared to be lifting his arms to comply with the officer's order, and then the driver's side door opened, and the driver stepped out. It took approximately thirty seconds for the driver to comply with officers' orders.
Officer Jeddeloh arrested the driver-Defendant-for felony fleeing in a motor vehicle and handcuffed him. Sergeant Swierzewski and another officer approached the vehicle to check whether any other occupants were inside the vehicle. After determining that Defendant was the sole occupant, Officer Jeddeloh initiated a search of the vehicle from the driver's side, and Sergeant Swierzewski began to search the vehicle from the passenger's side. Under Minneapolis Police Department policy, personnel on the scene conduct an inventory search of a vehicle whenever the vehicle is going to be towed or impounded. Police planned to tow the vehicle because it was an instrument in the crime of fleeing police in a motor vehicle. When Sergeant Swierzewski leaned into the vehicle to begin the search, he immediately saw a small, semiautomatic handgun underneath the front left portion of the front passenger seat-i.e., on the side closer to the driver. Sergeant Swierzewski did not need to move anything in the vehicle in order to see the gun. He then gestured to another officer off camera to indicate that he found a gun. Once the gun and shell casings were located in the vehicle, the officers stopped the search because the vehicle was being taken for evidence.
B. 911 Call
Defendant entered into evidence a disc containing the audio recording of a witness's call to 911 (Def.'s Ex. 1). The caller told dispatch that someone started shooting at his car as he was parking it on the 3300 block of Fifth Avenue. He thought the shooter fired six shots, but none of them hit him, only his car. The caller also stated that the car that fired the shots was blue, perhaps a Chevrolet, which headed north on Fifth Avenue.
C. Witness Interview
Defendant also entered into evidence an audio recording made at 4:00 p.m. on April 8, 2014, of Sergeant Christopher House's interview of the victim of the shooting (Def.'s Ex. 2). He told Sergeant House that, around 1:30 a.m. on April 6, he was facing north while parking his car in front of his house at 3317 Fifth Avenue when another car pulled up beside him and started shooting. The victim was certain he saw two people in the car and believed they shot at him five or six times. He ran into the house when he heard the shots fired. He then saw the vehicle turn around and come back ...