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United States v. Duncan

United States District Court, D. Minnesota

October 7, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
Arlene Jean Duncan, Defendant.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter comes before the undersigned United States Magistrate Judge upon Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 31]. This case has been referred to the undersigned Magistrate Judge for report and recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held a pretrial motions hearing on September 3, 2014, regarding the parties' pretrial discovery motions[1] and Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 31].

The Court granted the parties' request for additional, post-hearing briefing regarding Defendant's motion to suppress, and the Court took the motion under advisement as of September 29, 2014.

For reasons discussed herein, the Court recommends DENYING Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 31].

I. BACKGROUND

Defendant Arlene Jean Duncan ("Defendant") is charged with one count of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1151, 1153(a), and 3559(f)(3). (Indictment [Docket No. 1]).

Defendant moves the Court for an order suppressing any and all physical evidence obtained as a result of the execution of two search warrants issued in connection with the present case.[2] (See [Docket Nos. 31, 48]). Defendant generally argues that the warrants' supporting affidavits do not offer facts sufficient to support a finding of probable cause and were "so deficient that a reasonable police officer could not [have relied] on them in good faith." (Def.'s Mem. [Docket No. 48], at 1). More specifically, Defendant argues that the warrants' supporting affidavits merely speculate that a crime had been committed and that evidence of said crime may be found in the contents of Defendant's cell phone. (Id. at 3-4).

II. DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED AS A RESULT OF SEARCH AND SEIZURE, [DOCKET NO. 31]

A. Standard of Review

The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, " and that "no warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. Amend. IV. "An affidavit for a search warrant need only show facts sufficient to support a finding of probable cause." United States v. Parker , 836 F.2d 1080, 1083 (8th Cir. 1987). Probable cause exists when "a practical, common-sense" evaluation of "all the circumstances set forth in the affidavit" demonstrates "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates , 462 U.S. 213, 238 (1983). "Probable cause is a fluid concept that focuses on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" United States v. Colbert , 605 F.3d 573, 576 (8th Cir. 2010) (quoting Gates , 462 U.S. at 231). "The existence of probable cause depends on whether, in the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Solomon , 432 F.3d 824, 827 (8th Cir. 2005) (quoting United States v. Murphy , 69 F.3d 237, 240 (8th Cir. 1995) (quoting, in turn, Gates , 462 U.S. at 238)).

As alluded to above, courts examine the sufficiency of a search warrant affidavit using "common sense and not a hypertechnical approach." United States v. Grant , 490 F.3d 627, 632 (8th Cir. 2007) (citation and internal quotations omitted). "Therefore, [w]hen the [issuing judge] relied solely upon the supporting affidavit to issue the warrant, only that information which is found in the four corners of the affidavit may be considered in determining the existence of probable cause.'" United States v. Wiley, No. 09-cr-239 (JRT/FLN), 2009 WL 5033956, at *2 (D. Minn. Dec. 15, 2009) (Tunheim, J.) (quoting Solomon , 432 F.3d at 827; edits in Wiley). "In ruling on a motion to suppress, probable cause is determined based on the information before the issuing judicial officer.'" United States v. Smith , 581 F.3d 692, 694 (8th Cir. 2009) (quoting United States v. Reivich , 793 F.2d 957, 959 (8th Cir. 1986)). Nevertheless, "[a] magistrate's determination of probable cause should be paid great deference by reviewing courts, '" Gates , 462 U.S. at 236 (quoting Spinelli v. United States , 393 U.S. 410, 419 (1969)). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for... [concluding]' that probable cause existed." Gates , 462 U.S. at 238-39 (quoting Jones v. United States , 362 U.S. 257, 271 (1960)).

B. Analysis

On February 19, 2014, Minnesota Bureau of Criminal Apprehension Special Agent Daniel Baumann ("SA Baumann") drafted an affidavit in support of an application for a search warrant for electronically stored data for Defendant's cell phone for the time period of February 9-13, 2014, to be retrieved from Defendant's cell phone provider, Verizon Wireless. (Gov't Ex. 1, at 1). In support of the application for the warrant, SA Baumann detailed his relevant background, training, and experience. (Id. at 2). SA Baumann stated that on the evening of February 11, 2014, the Mahnomen County Sheriff's Department received a medical call for assistance. (Id.) The caller, Arlene Duncan, reported a young child in respiratory distress and reported that the child was unconscious and exhibiting shallow breathing. (Id.) The Mahnomen County Ambulance and Waubun Fire Department responded. (Id.) Responders transported the child to the Mahnomen Health Center prior to flying him to the Sanford Hospital in Fargo, North Dakota, via helicopter. (Id.)

The following day, February 12, 2014, White Earth Indian Child Welfare ("ICW") contacted the White Earth Tribal Police Department concerning the medical emergency, as initial reports indicated that child abuse may be involved. (Id.) That same day, White Earth Tribal Police Investigator John McArthur contacted SA Baumann and ...


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