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United States v. Duran

United States District Court, D. Minnesota

April 21, 2015

United States of America, Plaintiff,
v.
Jesus Rubio Duran (2), Defendant.

Thomas Calhoun-Lopez, Esq., United States Attorney's Office, 300 South 4th Street, Suite 600, Minneapolis, Minnesota 55415, for Plaintiff.

Kirk M. Anderson, Esq., Anderson Law Firm, PLLC, 310 Fourth Avenue South, Suite 7000, Minneapolis, Minnesota 55415, for Defendant.

Scott A. Lewis, Esq., Scott Lewis Law Firm, P.A., 250 2nd Avenue South, Suite 225, Minneapolis, Minnesota 55401, for Defendant.

REPORT AND RECOMMENDATION

STEVEN E. RAU, Magistrate Judge.

The above-captioned case came before the undersigned on Defendant Jesus Rubio Duran's ("Duran") Motion to Suppress Physical Evidence [Doc. No. 51] and Motion to Suppress Statements [Doc. No. 52] (collectively, the "Motions to Suppress"). This matter was referred for the resolution of the issues raised in Duran's Motions to Suppress pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court recommends that the Motions to Suppress be denied.

I. BACKGROUND

On December 1, 2014, a grand jury indicted Duran and co-defendants Alejandro Reyes-Rojas ("Reyes-Rojas") and Jose Luis Valencia ("Valencia") with one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. (Indictment) [Doc. No. 25 at 1]. Reyes-Rojas and Duran were also charged with one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). ( Id. at 2).

Reyes-Rojas did not file pretrial motions and pleaded guilty on February 4, 2015. (Letter to Mag. Judge Dated Dec. 22, 2014) [Doc. No. 49]; (Minute Entry Dated Feb. 4, 2015) [Doc. No. 70]. Valencia withdrew his pretrial motions. (Letter to Mag. Judge Dated Feb. 20, 2015) [Doc. No. 72]. Duran filed several pretrial motions, and a hearing was held on February 23, 2015. (Minute Entry Dated Feb. 23, 2015) [Doc. No. 73]. Sergeant Burt Emerson ("Sergeant Emerson") and Officer Christian Freichels ("Officer Freichels") testified on behalf of the Government, and the Court received one exhibit, a search warrant, into evidence. (Ex. & Witness List) [Doc. No. 74]. The parties submitted supplemental briefing. See (Minute Entry Dated Feb. 23, 2015). The Court issued an order on Duran's non-dispositive motions, and took Duran's Motions to Suppress under advisement on March 24, 2015. See ( id. );[1] (Order Dated Feb. 25, 2015) [Doc. No. 76].

II. FACTS[2]

On November 5, 2014, Officer Freichels and other law enforcement officers executed search warrants at addresses on Nebraska Avenue and Larpenteur Avenue in Maplewood, Minnesota.[3] (Tr. at 21). As a result of the search warrant executed on Nebraska Avenue, the officers discovered "a large amount of currency, drug ledgers, and a small amount of drugs." ( Id. ). The execution of the Larpenteur Avenue search warrant yielded "a digital scale that had [m]ethamphetamine residue on it." ( Id. at 21-22). During the Larpenteur Avenue search, Reyes-Rojas, who was previously unknown to law enforcement, entered the apartment. ( Id. at 22, 32). Law enforcement officers' investigation suggested Reyes-Rojas entered the apartment to pick up drug proceeds. ( Id. at 24). The officers arrested and searched Reyes-Rojas but did not find any drugs or guns. ( Id. at 32); see also ( id. at 23). He had been driven to that location by a Mr. Rivas ("Rivas"). ( Id. at 22). Officers searched Rivas's vehicle and did not find any drugs or guns. ( Id. at 32). After speaking to Reyes-Rojas and Rivas, officers determined that they had come from an apartment on McKnight Avenue, and Rivas agreed to show the officers where the apartment was located. ( Id. at 22). The McKnight Avenue apartment was Reyes-Rojas's apartment. ( Id. at 23). Rivas identified a man who was driving around in the parking lot near the McKnight Avenue apartment as a person who had come from the McKnight Avenue apartment. ( Id. at 22-23). Sergeant Emerson, who was conducting surveillance on the McKnight Avenue apartment at the direction of Officer Freichels, believed that the individual driving around in the parking lot was waiting for someone or conducting counter-surveillance, meaning he was looking for signs of someone conducting surveillance on the apartment. ( Id. at 7-8, 10-11); see also ( id. at 22-23).

Officer Freichels was concerned that Reyes-Rojas's associates may learn that Reyes-Rojas was arrested. See ( id. at 23). Additionally, the occupants of the McKnight Avenue apartment appeared concerned that they were being watched. ( Id. ). A person who was cooperating with law enforcement in this investigation previously told Officer Freichels that if members of the drug trafficking organization ("DTO") learned or suspected that one of their associates was arrested or unreachable, the DTO members may "try to remove or destroy evidence." ( Id. at 23-24). For these reasons, Officer Freichels believed "time was of the essence" because evidence in the McKnight Avenue apartment may be lost if law enforcement officers did not "obtain a search warrant or go knock at the door immediately." ( Id. at 23). Freichels ordered investigators to knock on the door of the McKnight Avenue apartment. ( Id. at 23, 25). The investigators included Sergeant Emerson, Commander Richard Clark ("Commander Clark"), Investigator Chris Tayson ("Investigator Tayson"), and Investigator John Ferrian ("Investigator Ferrian"), who had been conducting surveillance with Sergeant Emerson. ( Id. at 8, 11).

The investigators were wearing street clothes and vests that either said "police" or "sheriff" on both the front and back. ( Id. at 18). Their badges were visible, but Sergeant Emerson could not recall whether he or any of the other officers had their weapons drawn. ( Id. ). One of the officers knocked on the door, which was opened by Duran. ( Id. at 12). At that point, law enforcement officers working on the investigation did not know anything about Duran. ( Id. at 34). Commander Clark asked Duran something along the lines of "May we come in?" or "[D]o you mind if we come in?" or "Can we come inside and talk?" ( Id. at 13, 19). Duran was standing in the doorway, and in response to Commander Clark's question, "pivoted on his foot to the side while raising one arm, sort of [at] waist level[.]" ( Id. at 13-14). Sergeant Emerson interpreted this gesture to be an invitation to enter the apartment. ( Id. at 14).

When the investigators entered the apartment, they saw the same person who officers believed was conducting counter-surveillance in the living room. ( Id. ). Investigators Tayson and Ferrian stayed with this individual while Sergeant Emerson and Commander Clark conducted a protective sweep. ( Id. at 14-15). The protective sweep consisted of checking "the bedroom and the bathroom just to make sure no one else was in the apartment" because they knew very little information about the apartment and drug traffickers frequently have weapons. ( Id. at 15). During the sweep, Sergeant Emerson and Commander Clark saw, in plain view in the bedroom, a "bag of drug packaging materials that was consistent with the previous investigation." ( Id. at 15);[4] see also ( id. at 25). Sergeant Emerson provided this information to Officer Freichels, and then "froze" the apartment, meaning the officers ensured that no one destroyed evidence, that there were no weapons, and that no one went into or out of the apartment until a search warrant was obtained. ( Id. at 15); see also ( id. at 11). Duran and the other occupant were handcuffed and waited with the officers. ( Id. at 15-16). None of the officers conducted any additional searches during this time. ( Id. ).

Officer Freichels obtained a search warrant from a Ramsey County District Court judge that authorized a search of the McKnight Avenue apartment. ( Id. at 26); see (Gov't's Ex. 1). Officer Freichels, who was wearing street clothes and carrying a concealed weapon, executed the search warrant between 6:00 p.m. and 6:30 p.m. that day and found approximately two pounds of methamphetamine. ( Id. at 27, 30, 35). He asked for a Spanish-speaking law enforcement officer to come to the apartment because he wanted to interview Duran, who did not speak English. ( Id. at 27-28, 36-37). Officer Freichels, Officer Aguirre, the Spanish-speaking officer, and Duran spoke in the back bedroom. ( Id. at 29).[5] Officer Aguirre read Duran a standard DEA card containing Miranda warnings in Spanish. ( Id. at 28-29). Although he did not sign a waiver, Duran said that he understood his rights, and he agreed to talk to Officer Freichels. ( Id. at 28-29, 37).

During the interview, Duran acknowledged that he knew methamphetamine was in the apartment. ( Id. at 29). He denied being involved in selling drugs, but admitted that he deposited money into Wells Fargo bank accounts under the direction of Reyes-Rojas. ( Id. at 29-30). When Officer Freichels attempted to get more information about depositing money, Duran declined to answer those questions. ( Id. at 30). The conversation lasted ten minutes, and Duran was calm throughout and did not raise his voice or have any emotional outbursts. ( Id. at 30-31). Officer Freichels did not raise his voice or draw his weapon. ( Id. at 30). Officer Freichels believed Duran to be of average intelligence; Duran provided coherent answers, and did not mention any type of medical problem. ( Id. at 31).

III. MOTION TO SUPPRESS PHYSICAL EVIDENCE

Duran argues that the officers' initial warrantless entry into the apartment was not justified by voluntary consent or exigent circumstances. (Def.'s Mem. of Law in Supp. of Mots. to Suppress, "Duran's Mem. in Supp.") [Doc. No. 80 at 5-8]. Thus, Duran argues that any items observed during the protective sweep should not have been included in the search warrant. ( Id. at 8-9). Absent those items, Duran argues the search warrant is not supported by probable cause. ( Id. ).

A. Legal Standard

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'" United States v. Brown, 634 F.3d 435, 438 (8th Cir. 2011) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

"A defendant's voluntary consent to be searched is an exception to the Fourth Amendment's warrant requirement." United States v. Esquivias, 416 F.3d 696, 700 (8th Cir. 2005) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). "[A] consent to a search is voluntary unless, in light of all the circumstances, pressures exerted upon the suspect have overborne his will." United States v. Magness, 69 F.3d 872, 874 (8th Cir. 1995) (internal quotation marks omitted). "[T]he Fourth Amendment requires only that the police reasonably believe the search to be consensual." United States v. Cedano-Medina, 366 F.3d 682, ...


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