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United States v. Gore

United States District Court, D. Minnesota

October 23, 2014

United States of America, Plaintiff,
v.
Brian Todd Gore, Defendant.

Sarah E. Hudleston, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN (for the Government); and

Douglas Olson, Assistant Federal Defender, Office of the Federal Defender, Minneapolis, MN (for Defendant).

REPORT & RECOMMENDATION

TONY N. LEUNG, Magistrate Judge.

This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure (ECF No. 26) and Motion to Suppress Statements, Admissions, and Answers (ECF No. 27). These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable Patrick J. Schiltz, District Judge of the United States District Court for the District of Minnesota, under 28 U.S.C. ยง 636 and D. Minn. LR 72.1(a)(3).

A hearing was held on September 8, 2014. Assistant United States Attorney Sarah E. Hudleston appeared on behalf of the United States of America (the Government). Assistant Federal Defender Douglas Olson appeared on behalf of Defendant Brian Todd Gore.

The Court heard testimony from Special Agent Jonathan Duzan with Homeland Security Investigations. The Court received the following exhibits: Government Exhibit 1, an audio recording of a September 14, 2012 interview with Defendant, and Government Exhibits 2, 3, and 4, completed consent-to-search forms for an Astro van, a home in Inver Grove Heights, and a storage unit in Iowa, respectively.

Post-hearing briefing is now complete and these motions are ripe for a determination by the Court.

I.

Based upon the file and documents contained therein, along with the testimony presented and exhibits received, the undersigned Magistrate Judge makes the following:

FINDINGS

On September 14, 2012, Special Agent Duzan was involved in the execution of search warrant at AME Sports located inside Rosedale Mall in Roseville, Minnesota. The search warrant was part of an ongoing investigation into counterfeit sports apparel. In connection with that investigation, law enforcement had previously spoken with the store's owner, who stated that he had obtained counterfeit jerseys from Defendant in the past. While the search warrant was being executed, Special Agent Duzan and Minnesota State Patrol Captain Jay Swanson spoke with the store's owner in the backroom. The store's owner stated that Defendant was due to deliver some Minnesota Twins jerseys later that same day. Prior to Defendant's arrival, law enforcement found approximately 83 counterfeit jerseys at AME Sports.

That afternoon, around 4:00 p.m., Defendant parked his van at the Rosedale Mall loading dock and exited carrying a brown cardboard box. The box was covered in yellow tape, consistent with other boxes Special Agent Duzan had observed containing counterfeit jerseys. The box also resembled other boxes Special Agent Duzan had observed at the DHL shipping hub addressed to the store's owner. Defendant carried the box into AME Sports, placed it on the counter, and began taking jerseys out of the box.

Special Agent Duzan approached Defendant and told Defendant that he wanted to discuss what was in the box. Initially, Defendant was quite agitated and Special Agent Duzan placed him in handcuffs. Special Agent Duzan explained in further detail why law enforcement was present. Defendant relaxed and Special Agent Duzan asked if Defendant would like to speak with law enforcement. Defendant, Special Agent Duzan, and Captain Swanson then went to an office-type area in the back of the store.

There was a small table in the office area. Before sitting down at the table, Special Agent Duzan asked Defendant if he would like the handcuffs removed and subsequently took off the handcuffs. The interview with Defendant was recorded. (Gov't Ex. 1.) Captain Swanson read Defendant his Miranda rights. ( Id. ) Defendant stated he understood his rights and agreed to speak with law enforcement. ( Id. ) Special Agent Duzan testified that by this point, Defendant had relaxed substantially and appeared willing to cooperate with law enforcement. The interview lasted approximately eight minutes. ( Id. ) Captain Swanson began the interview by asking Defendant his name and birthdate. ( Id. ) During the interview, Defendant stated that the counterfeit items he has "run in" came from China via DHL. ( Id. ) Defendant stated that he ordered the jerseys online, which were then shipped to him after he sent money to the seller. ( Id. ) Defendant stated that the boxes were addressed to his father. ( Id. ) Defendant also stated that he had been "caught" selling counterfeit jerseys in Florida a few years ago. ( Id. ) In the course of the interview, Defendant also confirmed that a federal probationary term he was serving had expired approximately two weeks ago.

Captain Swanson asked whether Defendant had any jerseys out in his vehicle. ( Id. ) Defendant responded that all of the jerseys in his vehicle were "totally licensed." ( Id. ) Captain Swanson next asked how many jerseys Defendant had in his home. ( Id. ) Defendant stated that he had some old jerseys at his home. ( Id. ) Captain Swanson then asked Defendant if he would be willing to give consent to search his vehicle and his home and seize the jerseys. ( Id. ) Defendant responded, "Whatever's counterfeit you guys can take." ( Id. ) Defendant subsequently executed consent-to-search forms for his home and van. (Gov't Exs. 2, 3.)

Special Agent Duzan testified that, during the interview, Defendant appeared coherent and did not appear to be intoxicated or impaired in anyway. Special Agent Duzan further testified that Defendant maintained eye contact, appeared to understand the questions posed, and responded appropriately. Special Agent Duzan testified that neither he nor Captain Swanson raised their voices at Defendant or made any promises or threats to him.

While Defendant was speaking with Special Agent Duzan and Captain Swanson, other agents were counting, photographing, and identifying the jerseys inside the box Defendant brought in. These agents, who were trained to identify counterfeit sports trademarks, determined that the jerseys that Defendant had brought in were counterfeit. Special Agent Duzan, who is also trained to recognize ...


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