United States District Court, D. Minnesota
Jeffrey S. Paulsen, Esq., Assistant United States Attorney, Minneapolis, MN, for Plaintiff.
Marcus L. Almon, Esq., Almon Law Office, St. Paul, MN, and Caroline Durham, Esq., St. Paul, MN, for Defendant.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for a ruling on Cartez Lamar Cook's Objection [Docket No. 45] to Magistrate Judge Jeffrey J. Keyes's November 17, 2014 Report and Recommendation [Docket No. 39] ("R&R"). In the R&R, Judge Keyes recommends denying Cook's Motion for Suppression of Statements [Docket No. 14] and Motion for Suppression of Unlawful Search [Docket No. 15]. After a de novo review of the record, and for the reasons stated below, Cook's Objection is overruled and Judge Keyes's R&R is adopted.
Shortly after 2:00 a.m. on November 25, 2013, Minneapolis Police Officer Christopher P. Kelley and his patrol partner were on routine patrol duty on the 4400 block of Nicollet Avenue South in Minneapolis. Hr'g Tr. [Docket No. 36] 4-5. This residential neighborhood includes some businesses and a tavern, and has a high rate of street crimes such as auto theft, theft from persons, and burglary. Id. at 6. The officers were patrolling the area around bar closing time to deter auto theft by watching for vehicles that had been started by bar patrons for warming and then left unattended as the drivers went back inside to escape the cold. Id.
The officers observed an idling Oldsmobile Alero parked on the side of the street. Id. at 7-8, 13. The car was legally parked with no apparent traffic or equipment violations. Id. at 16. When the officers first drove by the idling Oldsmobile, they could not determine whether it was occupied. Id. at 7-8. They drove around the block and approached the Oldsmobile again from the rear. Id. at 8. This time, the officers saw two occupants in the vehicle, one in the driver's seat and the other directly behind the driver. Id. at 8-9. Based on the time of night and the nature of the neighborhood, Officer Kelley decided to make contact with the occupants. Id. at 8-9.
Officer Kelley parked the squad car in the street approximately 3/4 of a car length behind the Oldsmobile. Id. at 15. The squad was offset from rather than directly behind the car. Id . Officer Kelley activated the second setting of the squad car's emergency lights, also called "wigwag" lights, to alert the occupants that the police were behind them. Id. at 8-9. The wig-wag lights produced an alternating light pattern and the full light bar was not engaged. Id. at 8.
The officers then left their squad car and walked towards the Oldsmobile, with Officer Kelley approaching on the driver's side and his partner on the passenger side. Id. at 10. As the officers neared the Oldsmobile, Cook, who was in the driver's seat, rolled down the window. Id. at 9-10. At that point, Officer Kelley smelled a strong odor of marijuana emanating from the car. Id. at 9. Based on this odor, Officer Kelley decided to take Cook into custody and placed him in handcuffs. Id. at 10.
Immediately after Cook was handcuffed, the rear seat passenger, Curtis Leroy Johnson, jumped over the car's console area and lunged toward Kelley's partner. Id. at 11. Kelley pushed Cook to the ground, ordered him to stay there, and went to help his partner who was struggling with Johnson. Id. at 12. As the officers were getting Johnson under control, Cook fled on foot, still in handcuffs. Id. at 12. Kelley radioed for assistance in locating Cook, and responding officers found him moments later in a gray Monte Carlo that belonged to Cook and was being driven by his girlfriend. Id. at 12-13, 21-22. Cook was then arrested. Id. at 13. He had an Apple iPhone in his possession at the time of the arrest. Id. at 22.
After Johnson was under control, Kelley observed in the Oldsmobile what he suspected to be marijuana and crack cocaine in the back seat where Johnson had been sitting. Id. at 13. The car was towed and impounded. Id . The officers obtained search warrants for the Oldsmobile, iPhone, and a DNA swab from Cook. Id. at 22-26.
At the time of his arrest, Cook was a suspect in the murder of Derrick Holt, who had been shot days earlier on November 22, 2013 in Minneapolis. Id. at 20. Holt's cell phone records showed that an hour or two before he died, Holt had been in telephone contact with the cell phone used by Cook. Id. at 21, 28-29. The last time Holt was seen alive, he was with Cook in Cook's gray Monte Carlo. Id. at 21.
A search of the Oldsmobile produced a.40 caliber handgun found on the floor under the center console in the front seat. Id. at 25. A casing found at the Holt murder scene matched the handgun from the vehicle. Id. at 24-25. The DNA on the handgun was consistent with Cook's. Id. at 26-27. The search of Cook's cell phone ...