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United States v. Johnson

United States District Court, D. Minnesota

November 12, 2014

United States of America, Plaintiff,
Derek Lamon Johnson, Defendant.

Carol M. Kayser and Sarah E. Hudleston, United States Attorney's Office, Minneapolis, Minnesota, for Plaintiff.

Manvir K. Atwal, Office of the Federal Defender, Minneapolis, Minnesota, for Defendant.




This matter is before the Court on Defendant's Objections [Doc. No. 54] to Magistrate Judge Steven E. Rau's September 11, 2014 Report and Recommendation [Doc. No. 43], which recommended that Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Doc. No. 15] be denied in part and denied without prejudice in part. For the following reasons, the Court overrules Defendant's Objections and adopts the Report and Recommendation in its entirety.


On May 5, 2014, Defendant was indicted on one count of being a felon in possession of a firearm (armed career criminal). (Indictment at 1 [Doc. No. 1].) This charge resulted from a traffic stop conducted by Brooklyn Park Police Department Sergeant Elliot Faust of a vehicle driven by Defendant. At the motions hearing on July 14, 2014 in this case, the Magistrate Judge heard testimony from Sergeant Faust related to this event and received multiple exhibits into evidence, including a copy of the squad video from Sergeant Faust's squad car ("Govt.'s Ex. 1"), a copy of the squad video from Officer Kor Zoua Xiong's squad car, and several photographs. (Report and Recommendation dated Sept. 11, 2014 [Doc. No. 43] ("R&R"), at 2.)

The Magistrate Judge's Report and Recommendation ("R&R") thoroughly sets forth the factual and procedural background of this case, and the Court incorporates the R&R by reference and recites facts only to the extent necessary to rule on Defendant's Objections. Briefly stated, shortly before 8:00 p.m. on February 1, 2014, Sergeant Faust pulled over a vehicle driven by Defendant because the taillights were not illuminated. (July 14, 2014 Mot. Hr'g Tr. [Doc. No. 31] ("Tr."), at 7-8, 12-13.) Sergeant Faust approached the driver's side of the vehicle with a lighted flashlight and, according to his testimony, "immediately noted the smell of fresh marijuana coming from the vehicle" when Defendant rolled down the window. (Id. at 13-14; Govt.'s Ex. 1, at 19:59-20:01.) Sergeant Faust explained to Defendant that the vehicle's taillights were not working and asked to see Defendant's driver's license and insurance information. (Tr. at 13.) He also asked the passenger for identification and told Defendant and the passenger that he noticed the odor of marijuana. (Id. at 14-15.) In addition, Sergeant Faust testified that he noticed green flakes that appeared to be marijuana on Defendant's shirt and that Defendant's seat was reclined "unusually far backwards." (Id.)

Sergeant Faust has worked in law enforcement for seven years and has training and experience in narcotics. (Id. at 5-6, 25.) He testified that, in his experience, individuals will recline their car seats in order to hide something behind the seat. (Id. at 14.) Sergeant Faust decided to conduct a narcotics investigation and requested backup. (Id. at 15-16.) When Officer Xiong arrived, Sergeant Faust told her that Defendant was sitting "back deep" in his seat, that Defendant had "green stuff" on his shirt that "look[ed] like weed, " and that Defendant and the passenger were on federal probation and were "super nervous." (Govt.'s Ex. 1, at 20:04:50-20:05:10.) Sergeant Faust testified that when he approached the vehicle a second time, he noticed a new smell of "cologne or some type of deodorizer." (Tr. at 18.) According to Sergeant Faust, in his experience, individuals will use cologne or a deodorizer as a masking agent to conceal the smell of illegal narcotics. (Id. at 18-19.)

After Defendant and the passenger were removed from the vehicle and searched, Sergeant Faust, Officer Xiong, and a third officer conducted a search of the vehicle. (Id. at 20, 35.) Sergeant Faust testified that "[he] searched the vehicle because [he] detected the odor of fresh marijuana coming from the vehicle, and [he] also observed fresh marijuana particles inside the vehicle." (Id. at 21.) The officers found a mason jar containing marijuana in the vehicle's center console, a handgun behind the driver's seat, an ammunition magazine in the trunk, and a digital scale. (Id. at 21-23, 34, 37.) Sergeant Faust testified that no tools used to smoke marijuana were found in the vehicle and that he could not recall whether he found a masking agent in the vehicle. (Id. at 29-32.) Sergeant Faust also collected a cell phone from Defendant. (Id. at 27.)

On June 6, 2014, Defendant moved to suppress the firearm, the jar with marijuana, and "personal items." (Mot. to Suppress Evid. Obtained as a Result of Search and Seizure [Doc. No. 15].) After the July 14 hearing, the parties submitted supplemental briefing [Doc. Nos. 40, 41]. The Magistrate Judge issued his R&R on September 11, 2014. He rejected Defendant's challenges to Sergeant Faust's credibility and made the following findings of fact:

... Sergeant Faust smelled the odor of fresh marijuana, observed [marijuana flakes] on [Defendant's] shirt, and observed [Defendant] acting in a very nervous manner during his initial approach to [Defendant's] vehicle. The Court further finds that during his first approach to the vehicle Sergeant Faust observed the driver's seat, in which [Defendant] was sitting, and that the seat was reclined unusually far backwards. In addition, the Court finds that upon approaching [Defendant's] vehicle for a second time, Sergeant Faust detected the smell of cologne or other masking agent. Finally, the Court finds that Sergeant Faust observed [marijuana flakes] on both [Defendant] and the passenger during the course of their respective pat-down searches.

(R&R, at 14-15.) Based on these findings, the Magistrate Judge determined that there was reasonable suspicion to extend the scope of the initial traffic stop. (Id. at 15-18.) He also found that, "[u]nder the totality of the circumstances, there was ample probable cause to search [Defendant's] vehicle." (Id. at 19.) Accordingly, the Magistrate Judge recommended that Defendant's motion to suppress be denied to the extent that Defendant seeks the suppression of evidence seized during the search of the vehicle. (Id. at 20.) To the extent that the motion seeks to suppress the cell phone, the Magistrate Judge recommended denial without prejudice. (Id. at 22.) He reasoned that, "[g]iven the very limited facts in the record regarding the cell phone, the absence of a legal argument by ...

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