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United States v. Duran

United States District Court, D. Minnesota

May 19, 2015

United States of America, Plaintiff,
Jesus Rubio Duran, Defendant.

Thomas Calhoun-Lopez, Esq., Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, for Plaintiff.

Kirk M. Anderson, Esq., Anderson Law Firm, PLLC, Minneapolis, MN, for Defendant.


ANN D. MONTGOMERY, District Judge.


This matter is before the undersigned United States District Judge for a ruling on Jesus Rubio Duran's ("Duran") Objections [Docket No. 86] to Magistrate Judge Steven E. Rau's April 21, 2015 Report and Recommendation [Docket No. 85] ("R&R"). In the R&R, Judge Rau recommends denying Duran's Motion to Suppress Physical Evidence [Docket No. 51] and Motion to Suppress Statements [Docket No. 52]. After a thorough de novo review of the record and for the reasons stated below, Duran's Objections are overruled and Judge Rau's R&R is adopted.


On November 5, 2014, Officer Christian Freichels ("Officer Freichels") and other law enforcement officers executed search warrants at two separate addresses in Maplewood, Minnesota, one on Nebraska Avenue and one on Larpenteur Avenue. At the Nebraska Avenue address, a large amount of currency, drug ledgers, and a small amount of drugs was discovered. At the Larpenteur Avenue address, officers found a digital scale with methamphetamine residue. While law enforcement officers were searching the Larpenteur Avenue address, Alejandro Reyes-Rojas ("Reyes-Rojas") entered the apartment. The officers believed Reyes-Rojas entered the apartment to retrieve drug proceeds. Reyes-Rojas was driven to the apartment by Rivas.[2] After speaking with both Reyes-Rojas and Rivas, officers determined that the men had come from Reyes-Rojas's apartment on McKnight Avenue. Rivas agreed to show the officers where the apartment was located.

After arriving in the vicinity of the McKnight Avenue apartment, Rivas identified a man driving around in the parking lot as someone who was previously inside the apartment. Sergeant Burt Emerson ("Sergeant Emerson"), who was conducting surveillance of the apartment, believed that the individual was either waiting for someone or conducting counter-surveillance.

The officers reported that the occupants of the McKnight Avenue apartment appeared concerned that they were being watched. Earlier, an individual cooperating with law enforcement told Officer Freichels that members of the drug trafficking organization under investigation may try to remove or destroy evidence if they suspected or learned one of their associates was arrested or unreachable. Officer Freichels was concerned that individuals connected to Reyes-Rojas could have learned that he was arrested. Concerned about evidence destruction, Officer Freichels believed time was of the essence and ordered officers to knock at the door of the McKnight Avenue apartment immediately.

At least four officers approached the door of the apartment. The officers were wearing street clothes and vests identifying them as law enforcement. Their badges were also visible. It is uncertain if any of the officers displayed their weapons. One of the officers knocked on the door, which was opened by Duran. At this stage of the investigation, Duran was unknown to law enforcement. Commander Richard Clark ("Commander Clark") asked for permission to enter. In response, Duran turned slightly to the side while raising one arm near his waist. The investigators interpreted this motion as a gesture for them to enter the apartment.

Upon entering the apartment, the officers observed the same individual who had been previously seen circling the parking lot. During the course of a protective sweep, Sergeant Emerson and Commander Clark observed drug materials in plain view. While a search warrant was obtained, Duran and the other occupant were handcuffed. None of the officers conducted any additional searches prior to the warrant being signed.

Officer Freichels executed the search warrant later that day. The search revealed approximately two pounds of methamphetamine. Officer Freichels summoned Officer Aguirre, a Spanish speaking officer, to assist in interviewing Duran in the back bedroom of the apartment. Officer Aguirre read Duran his Miranda rights from a standard DEA card. Duran did not sign a waiver form but he stated that he understood his rights and he agreed to speak with Officer Freichels.

Duran's interview lasted approximately ten minutes. Duran admitted knowledge of the drugs but denied involvement in their sale. Duran did admit depositing money into a Wells Fargo bank account under the direction of Reyes-Rojas. During the interview, Duran was calm; he did not raise his voice or have any emotional outbursts. Officer Freichels described Duran's answers as coherent and believed Duran to be of average intelligence. Officer Freichels did not raise his voice or draw his weapon during the interview. The interview concluded when Duran refused to answer any further questions.

Duran moves to suppress the physical evidence discovered in plain view as a result of the warrantless entry. Without the evidence discovered by the officers in plain view, Duran argues that the search warrant was not supported by probable cause. Duran additionally moves to suppress the statements made to Officer Freichels under the theory that his waiver of his right to an attorney was involuntarily obtained because of the police-dominated environment. In the R&R, Judge Rau recommends denying both motions, concluding that Duran voluntarily consented to the warrantless entry and that his waiver prior ...

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