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United States v. Rush

United States District Court, D. Minnesota

July 13, 2015

United States of America,
Daniel Miguel Rush, Defendant.

Thomas M. Hollenhorst, United States Attorney’s Office, 600 U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415, for Plaintiff

Kevin C. Cornwell, Law Office of Kevin C. Cornwell, 102 South 29th Avenue West, Suite 206, Duluth, Minnesota 55806, for Defendant


SUSAN RICHARD NELSON, United States District Judge

This matter is before the Court on the Report and Recommendation (“R&R”) of Magistrate Judge Leo I. Brisbois dated June 8, 2015 [Doc. No. 23]. In the R&R, Magistrate Judge Brisbois recommends that this Court deny Defendant’s Motion for Suppression of Evidence [Doc. No. 18]. Defendant filed objections to the R&R [Doc. No. 25], and subsequently filed amended objections, based on revised language in Minn. R. Crim. P. 6.01 [Doc. No. 26]. The Government filed a response to Defendant’s amended objections [Doc. No. 27]. The Court has reviewed de novo those portions of the R&R to which the parties object, as required by 28 U.S.C. § 636(b)(1) and Fed. R. Crim. P. 59(b)(3). Based on that review, the Court adopts in part, and declines to adopt in part, the magistrate judge’s R&R, and denies the Motion to Suppress.


Defendant was charged by indictment with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one count of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 924(g)(1) and 924(a)(2). The factual background of this case is set forth in the R&R, which the Court incorporates herein by reference. Briefly, on January 30, 2015, the Duluth Police Department executed a search warrant at a Duluth apartment. (R&R at 2 [Doc. No. 23].) Prior to the execution of the warrant, law enforcement officers learned of narcotics sales (some of which were the subject of controlled buys) at the apartment and learned that during those sales, firearms were in plain view. (Id.) A tactical response team executed the warrant, during which time they observed Defendant on a mattress in the apartment’s living room. (Id. at 3.) The tactical response team encountered fourteen persons in the apartment, as well as various firearms and hypodermic needles in plain view. (Id.) Officers discovered a sawed-off shotgun on a mattress occupied by Defendant. (Id.)

Because of the number of persons inside the residence and the presence of firearms and contraband, the officers executing the warrant removed the fourteen persons from the apartment. (Id.) Duluth Police Officer Jason Eikam, who testified for the Government at the hearing on the instant motion, conducted pat searches of the persons removed from the apartment. (Id.) Officer Eikam testified that he performed the pat searches because the investigation, in which he had participated, had produced general information that weapons were in the apartment and because he had overheard comments from the tactical response team members, during the execution of the warrant, about the presence of firearms in the apartment. (Id.) Officer Eikam was previously acquainted with Defendant and knew him to be a convicted felon, prohibited under federal law from possessing firearms or ammunition. (Id. at 4.) While Officer Eikam was generally aware that weapons had been found inside the apartment, he was not specifically aware that Defendant had been found on a mattress on which there was a gun, nor did he possess any other specific information to indicate that Defendant possessed a weapon on his person. (Id.)

Once Defendant was removed from the apartment, Officer Eikam asked him if he had any weapons on his person. (Id.) Officer Eikam testified that he asked this question because he knew of the general presence of firearms and narcotics inside the apartment and was concerned about the safety of law enforcement officers. (Id.) Defendant responded that he had some hypodermic needles and possibly a pipe in his pockets. (Id. at 4-5.) Officer Eikam then asked if the needles had been capped, to which Defendant responded that he did not know. (Id. at 5.) Officer Eikam was concerned that an uncapped needle could injure the officers or Defendant himself. (Id.)

Officer Eikam patted down the outside of Defendant’s right front pants pocket, feeling an object that he suspected was a hypodermic needle. (Id.) Because of the orientation of the object, he felt that he could remove it without risk of injury, and did so. (Id.) The object was, in fact, a hypodermic needle. (Id.) In the course of removing the needle, Officer Eikam felt a second object in the same pocket, but was unsure whether it was another hypodermic needle or a pipe. (Id.) He reached in to remove the object, at which point he determined that it was a shotgun shell. (Id.) Officer Eikam replaced the shell in Defendant’s pocket, and then checked Defendant’s left front pants pocket. In that pocket, he found and removed a second hypodermic needle as well as a glass pipe. (Id.)

After the pat-down search, Defendant was eventually transported to the Duluth Police Department. (Id.) Pursuant to an inventory search, the shotgun shell was removed and recorded. (Id.)

In his Motion to Suppress Evidence, Defendant moves to suppress all evidence obtained from the warrantless search of his person, arguing that the search exceeded the scope and purpose permitted by Terry v. Ohio, 392 U.S. 1 (1968), in violation of the Fourth Amendment. (Mot. for Supp. of Evid. [Doc. No. 18].) The Government argues that the search was lawful under Terry for purposes of officer safety, or, alternatively, as a search incident to arrest. (R&R at 9 [Doc. No. 23].)

In the R&R, Magistrate Judge Brisbois first found that Defendant was properly detained during the execution of the search warrant. (Id. at 9.) The magistrate judge next found that the pat-down search of Defendant to remove the needles was lawful under Terry for purposes of officer safety. (Id. at 10.) However, the magistrate judge found that Officer Eikam exceeded the scope of Terry by removing the shotgun shell from Defendant’s pocket “[b]ecause the character of the shotgun shell was not immediately apparently to Officer Eikam. . . .” (Id.) (emphasis in original).

Regarding the Government’s alternative argument that the search of Defendant’s pockets was conducted incident to a lawful arrest – and therefore the evidence obtained was admissible – the magistrate judge found that while the officers did not inform Defendant that he was placed under arrest, he was subject to de facto arrest. (Id. at 11-12.) As to whether probable cause existed for de facto arrest, Magistrate Judge Brisbois found that evidence of the sawed-off shotgun at the time of Officer Eikam’s search of Defendant’s person was insufficient to create probable cause. (Id. at 14.) However, the magistrate judge found that probable cause existed for arrest based on Defendant’s possession of hypodermic needles, which is a misdemeanor under Minn. Stat. § 151.40, Subd. 1.[1] (Id. at 14-15.) Accordingly, the magistrate judge found that Officer Eikam had probable cause to arrest Defendant and that the search of his pockets was lawful as a search incident to a de facto arrest. (Id. at 15.)

In his Objections, Defendant contends that because Minn. R. Crim. P. 6.01, Subd. 1(a) classifies the possession of hypodermic needles as a misdemeanor offense, for which arrest is not generally warranted subject to certain exceptions, there could be no valid defacto arrest. (Def.’s Am. Objections at 1-2 [Doc. No. 26].) Defendant therefore argues that Officer ...

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