United States District Court, D. Minnesota
M. Hollenhorst, United States Attorney's for United
States of America
P. Bruder, Mitchell Bruder & Johnson, for Shawn David
REPORT AND RECOMMENDATION
BOWBEER, United States Magistrate Judge
case came before the undersigned United States Magistrate
Judge for a pretrial motion hearing on September 6 and 7,
2016. The case has been referred for resolution of pretrial
matters pursuant to 28 U.S.C. § 636 and District of
Minnesota Local Rule 72.1. In this Report and Recommendation,
the Court will address Defendant Shawn David Reilly's
Motion to Suppress Evidence Obtained as a Result of Search
and Seizure and Motion to Suppress Defendant's
Statements, Admissions, and Answers [Doc. No. 42]. The
parties' nondispositive motions were addressed in a
separate Order [Doc. No. 56]. For the reasons set forth
below, the Court recommends that the motion to suppress be
denied in its entirety.
12, 2016, Shawn David Reilly was charged by Indictment with
one count of Conspiracy to Distribute Methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846; and
two counts of Possession with Intent to Distribute
Methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). (Indictment [Doc. No. 1].) Reilly filed the
motion to suppress evidence at issue on August 16, 2016.
According to his original motion and his attorney's
remarks at the hearing, Reilly is seeking to suppress
evidence seized from his vehicle as a result of a traffic
stop and search of his vehicle on June 22, 2016. He also asks
to suppress statements he made to a law enforcement officer
on June 23, 2016, and evidence seized pursuant to search
warrant executed at his residence on June 23, 2016.
Government submitted six exhibits into evidence at the
pretrial motion hearing: (1) Gov't Ex. 1: an audio
recording of statements Reilly made on June 22 and 23, 2016;
(2) Gov't Ex. 2: an application, supporting affidavit,
and search warrant for the north half of a duplex located at
13xx Fourth Avenue Southwest in Rochester, Minnesota; (3)
Gov't Ex. 3: a criminal complaint and statement of
probable cause filed in Minnesota v. Reilly, Case
No. 74-CR-16-1305 (Steele Cty. Dist. Ct. June 24, 2016); (4)
Gov't Ex. 4: Register of Actions for Minnesota v.
Reilly, Case No. 74-CR-16-13051305 (Steele Cty. Dist.
Ct.); (5) Gov't Ex. 5: a state court order dated June 23,
2016, assigning the Third District Public Defender to
represent Reilly; and (6) Gov't Ex. 6: Owatonna Police
Department Manual Patrol Procedure 306: Impounding and
Releasing Motor Vehicles. Minnesota Bureau of Criminal
Apprehension Special Agent Thomas Oliveto and Owatonna Police
Officer John Petterson testified as witnesses for the
Government. Reilly testified on his own behalf.
Reilly's post-hearing memorandum, he confirmed he is
seeking to suppress evidence on the following grounds: (1)
the traffic stop of his vehicle violated the Fourth
Amendment; (2) even if the stop was lawful, the search of the
vehicle violated the Fourth Amendment; (3) the search warrant
for his residence contained information derived from the
unlawful stop and search of his vehicle; and (4) his
statements to Officer Oliveto on June 23 were obtained in
violation of the Fifth and Sixth Amendments. (Def.'s Mem.
Supp. Mot. Suppress at 7 [Doc. No. 76].)
16, 2016, Agent Oliveto received a phone call from Agent Sean
Cooper of the South Central Drug Investigation Unit. (Mot.
Hr'g Tr. 1 at 8:20-22 [Doc. No. 62].) Agent Cooper said
he had an individual in custody, Ron Curtis Hill, who had
information about a methamphetamine dealer, a white male
named “Shawn, ” who lived in Rochester,
Minnesota. (Mot. Hr'g Tr. 1 at 8:23-25, 9:1, 9:16-18.)
Hill did not know “Shawn's” last name.
According to Hill, “Shawn” lived near the
fairgrounds, close to a Walgreens, and drove an older, green
car with dents and rust, possibly a Toyota. (Mot. Hr'g
Tr. 1 at 9:19-22; 31:14-17, 48:11-14.) Agent Oliveto showed
Hill a Google map of the area, and Hill identified
“Shawn's” house as a duplex on the corner of
14th Street SW and 5th Avenue SW in Rochester. (Mot. Hr'g
Tr. 1 at 10:17-21, 13:15-17.) Hill said he had purchased
methamphetamine from “Shawn” at
“Shawn's” house ten to fifteen times over the
previous three months. (Mot. Hr'g Tr. 1 at 9:23-25,
10:1-2.) Hill also said “Shawn” had a tattoo of a
cross on his elbow and was about thirty-six years
(Mot. Hr'g Tr. 1 at 9:5-6, 31:22-25.)
speaking with Hill, Agent Oliveto called the Task Force
Commander for the Violent Crimes Enforcement Team in
Rochester and asked if he knew anyone by the name
“Shawn” at the duplex identified by Hill. (Mot.
Hr'g Tr. 1 at 10:13-16, 10:22-24.) The Task Force
Commander did not, but he offered to assist in the
investigation by checking local databases and driving by the
residence. (Mot. Hr'g Tr. 1 at 10:24-25, 11:1-2.) After
determining the address was 13xx Fourth Avenue Southwest,
Agent Oliveto drove by the residence and saw the individual
he subsequently identified as Shawn Reilly outside. (Mot.
Hr'g Tr. 1 at 11:3-9, 32:15-25.) The agent observed
suspicious activity during subsequent surveillance. (Mot.
Hr'g Tr. 1 at 11:24-25, 12:1 24.) Specifically, vehicles
came and went from the house, but stayed only five to ten
minutes at a time. Generally, only one individual would leave
the vehicle, while others remained in the car. The individual
would meet with Reilly, who was doing construction work in
the yard, and the two would walk together out of Agent
Oliveto's sight. Based on Agent Oliveto's experience
and training, he concluded the activity was drug trafficking.
(Mot. Hr'g Tr. 1 at 13:4-9.)
point during the surveillance of Reilly's house, Agent
Oliveto determined that Reilly drove a green Acura, not a
Toyota. (Mot. Hr'g Tr. 1 at 13:18-24, 31:18-21.) The car
was not registered to anyone named “Shawn, ”
however. (Mot. Hr'g Tr. 1 at 33:10-14.) During
surveillance on June 22, 2016, Agent Oliveto saw the Acura
drive away from the residence. (Mot. Hr'g Tr. 1 at
13:18-20, 13:24-25, 14:1.) Agent Oliveto followed, hoping to
conduct a traffic stop and ascertain
“Shawn's” last name. (Mot. Hr'g Tr. 1 at
14:3-6.) He did not know at first if “Shawn” was
in the vehicle, but he was able to determine at a stoplight
that he was the driver. (Mot. Hr'g Tr. 1 at 36:8-9,
36:19-25, 37:4-12.) The Acura proceeded to Highway 52 North,
then exited on to Highway 14 heading westbound out of
Rochester toward Owatonna. (Mot. Hr'g Tr. 1 at 14:9-12.)
Hill lived in Owatonna. (Mot. Hr'g Tr. 1 at 14:18-20.)
Agent Oliveto followed the Acura, he noticed it was traveling
well above the legal speed limit, both when it was leaving
Rochester and when it entered the four-lane area of Highway
14 where the speed limit increased from 55 to 65 mph. (Mot.
Hr'g Tr. 1 at 15:3-10; Mot. Hr'g Tr. 2 at 19:16-19.)
Although Agent Oliveto did not have a radar device, he
determined that the Acura was speeding based on his own speed
as he followed the Acura and the increasing distance between
his car and the Acura. (Mot. Hr'g Tr. 1 at 15:11-18.)
Agent Oliveto was traveling at 65 to 70 mph. (Mot. Hr'g
Tr. 1 at 15:19-20.) He concluded the Acura was traveling more
than 65 mph. (Mot. Hr'g Tr. 1 at 15:22-24.)
Reilly's car was leaving the Rochester area, Agent
Oliveto contacted Agent Cooper and asked if he could arrange
for a squad car to set up surveillance along westbound
Highway 14 to observe a possible traffic violation. (Mot.
Hr'g Tr. 1 at 14:21-24, 39:17-20.) Agent Cooper was
familiar with the investigation from his previous interaction
with Hill. (Mot. Hr'g Tr. 1 at 39:21-24.) Agent Oliveto
described the Acura to Agent Cooper and continued to follow
it. (Mot. Hr'g Tr. 1 at 40:3-4, 40:15-21.) His speed
varied between 65 and 75 mph. (Mot. Hr'g Tr. 1 at
Petterson was the patrol officer assigned to assist Agent
Oliveto in stopping the Acura and identifying the driver.
(Mot. Hr'g Tr. 1 at 69:25, 70:1-6.) Officer Petterson
knew the stop was related to a narcotics investigation. (Mot.
Hr'g Tr. 1 at 70:9-11.) Agent Oliveto gave Officer
Petterson regular updates on the Acura's location, speed,
and appearance as Agent Oliveto followed the car. (Mot.
Hr'g Tr. 1 at 42:7-11, 42:14-16, 51:11-13.) Agent Oliveto
told Officer Petterson to search the vehicle once it was
stopped if there was legal justification to do so. (Mot.
Hr'g Tr. 1 at 44:5-9.)
Petterson testified that Agent Oliveto told him the Acura was
traveling about 76 mph as the Acura crested an overpass over
Highway 218. (Mot. Hr'g Tr. 1 at 51:11-13.) From his
location in the median of Highway 14, Officer Petterson saw
two cars cresting the hill at the same time. (Mot. Hr'g
Tr. 1 at 51:18-25.) His radar unit registered a speed of 76
mph, but he did not know which of the two cars his radar
detected. (Mot. Hr'g Tr. 1 at 52:1-3, 53:13-16.) The cars
appeared to him to be traveling at about the same speed.
(Mot. Hr'g Tr. 1 at 73:18.) Officer Petterson surmised
that the Acura was speeding because it was traveling at about
the same speed as the other car and there were no other cars
in the immediate area that would have interfered with the
radar signal. (Mot. Hr'g Tr. 1 at 52:7-20.) He did not
lock the screen on the radar display, which was consistent
with his typical practice not to do so. (Mot. Hr'g Tr. 1
at 75:21, 76:8-20.)
testified that he saw Officer Petterson's police car
parked in the median of Highway 14 after he crested the hill.
(Mot. Hr'g Tr. 2 at 102:20-24.) His cruise control was
set at 65 or 66 mph, and he checked his speed when he saw the
police car. (Mot. Hr'g Tr. 2 at 103:4-9.) Reilly also
noticed a car ahead of him in the same lane of traffic. (Mot.
Hr'g Tr. 2 at 103:10-22.) Reilly did not believe he was
speeding, although he conceded it was possible. (Mot.
Hr'g Tr. 2 at 104:6, 107:5-10.)
the Acura and the other car came into Officer Petterson's
view, both cars slowed down as they passed Officer
Petterson's car. (Mot. Hr'g Tr. 1 at 52:21-24.)
Officer Petterson verified that the Acura was the vehicle
described by Agent Oliveto, and Officer Petterson pulled out
from the center median on to westbound Highway 14 and
activated his squad car video. (Mot. Hr'g Tr. 1 at
54:1-8; Mot. Hr'g Tr. 2 at 88:8-10.) When Agent Oliveto
saw Officer Petterson's squad car enter Highway 14, Agent
Oliveto exited the highway. (Mot. Hr'g Tr. 1 at 40:22-25,
Acura was traveling about 65 mph at this point, and “it
took a little while” for Officer Petterson to catch up
to it. (Mot. Hr'g Tr. 1 at 54:8-10.) When Officer
Petterson approached the Acura, it was traveling in the right
lane of traffic behind several other cars. (Mot. Hr'g Tr.
2 at 88:11-25, 89:1.) Officer Petterson engaged his lights
and stopped the car. (Mot. Hr'g Tr. 1 at 54:9-11.) He
asked the driver for his license and insurance and verified
that the driver's name was Shawn Reilly. (Mot. Hr'g
Tr. 1 at 54:17-21.) Officer Petterson checked Reilly's
driver's license status on his squad car computer, which
displayed the status as “cancelled IPS.” (Mot.
Hr'g Tr. 1 at 55:10-13.) “IPS” is the
abbreviation for “inimical to public safety.”
(Mot. Hr'g Tr. 1 at 55:13-14.) Officer Petterson also
learned that Reilly was not the registered owner of the
Acura. (Mot. Hr'g Tr. 1 at 1:57:20.) Reilly gave Officer
Petterson a yellow receipt for a Department of Motor Vehicles
temporary driver's license issued in August 2015. (Mot.
Hr'g Tr. 1 at 55:5-7; Mot. Hr'g Tr. 2 at 90:1-4,
90:24-25, 91:1-2.) The receipt indicated that some payments
had been made, but not that the license had been reinstated.
(Mot. Hr'g Tr. 1 at 56:1-7; Mot. Hr'g Tr. 2 at
91:2-3, 91:12-15.) Driving with a license cancelled IPS is a
gross misdemeanor for which the driver is typically arrested,
taken to jail, and charged by criminal complaint. (Mot.
Hr'g Tr. 1 at 57:4-7; Mot. Hr'g Tr. 2 at 89:20-22.)
The license plates are also removed from the driver's
vehicle. (Mot. Hr'g Tr. 1 at 57:21-23.) Officer Petterson
informed Reilly that he was under arrest. (Mot. Hr'g Tr.
2 at 91:16-24.) Approximately thirteen minutes had passed
since the Acura was stopped. (Mot. Hr'g Tr. 2 at
Petterson decided to impound the Acura for several reasons:
Reilly was not the registered owner of the Acura; the owner
was not present; both occupants of the vehicle would be taken
into custody; the Acura's license plates would be
removed; and the Acura was parked at the base of a ramp from
County Road 45, which was a high traffic area on a major
highway. (Mot. Hr'g Tr. 1 at 57:23-24, 62:7-21.) Officer
Petterson testified that he relied on sections I.A, I.B, and
I.C of the Owatonna Police Department vehicle impoundment
policy to impound the Acura. (Mot. Hr'g Tr. 1 at
63:19-25; Gov't Ex. 6.) Section I.A provides that vehicle
may be impounded “[w]hen the vehicle driver has been
cited for No MN D.L., DAR, DAS, DAC, and the vehicle is not
legally parked or creates a safety hazard and the driver
cannot make reasonable arrangements to have the vehicle
moved.” (Gov't Ex. 6 at 1.) Section I.B provides
that vehicle may be impounded “[w]hen the vehicle is
uninsured and the vehicle is not legally parked or creates a
safety hazard.” (Id.) Section I.C provides
that vehicle may be impounded “[w]hen the owner or the
driver (if the owner is not present or competent) is arrested
and the vehicle is not legally parked or creates a safety
hazard and the driver/owner cannot make reasonable
arrangements to have the vehicle moved.” (Id.)
Reilly asked for permission to call someone to come and move
the vehicle, but Officer Petterson denied his request. (Mot.
Hr'g Tr. 2 at 91:25, 92:1-5.)
girlfriend, Katie Johnson, was a passenger in the Acura.
(Mot. Hr'g Tr. 1 at 16:15-17.) Another officer who had
arrived at the scene, Officer Callahan, asked Johnson to exit
the vehicle and identify herself. (Mot. Hr'g Tr. 1 at
59:20-21.) Officer Callahan then spoke with Johnson about
where she and Reilly were going and what they were doing.
(Mot. Hr'g Tr. 1 at 59:21-25.) Officer Petterson noticed
that Johnson's purse, which she had taken out of the
Acura, “was extremely large and bulging, ” so he
asked if she had taken anything from the car and put it in
her purse. (Mot. Hr'g Tr. 1 at 60:7-12.) She said no and
that everything in the purse was hers. (Mot. Hr'g Tr. 1
at 60:10-15.) Officer Petterson asked to look in the purse,
and Johnson consented. (Mot. Hr'g Tr. 1 at 60:16-17.) By
this time, about thirty minutes had passed since the Acura
was stopped. (Mot. Hr'g Tr. 2 at 96:22-25.) Before
Officer Petterson looked in Johnson's purse, he smelled
an odor of marijuana emanating from it. (Mot. Hr'g Tr. 1
at 61:18-20.) Once he looked inside the purse, Officer
Petterson saw “a digital scale that had crystal, what I
believed was methamphetamine” and two syringes. (Mot.
Hr'g Tr. 1 at 61:16-18.) Johnson was arrested for
possession of methamphetamine. (Mot. Hr'g Tr. 1 at 61:25,
on the methamphetamine seized from Johnson's purse,
Officer Petterson decided to conduct a canine sniff of the
perimeter of the Acura with his certified narcotics dog.
(Mot. Hr'g Tr. 1 at 64:17-25; 65:1-2.) The canine alerted
on the front passenger-side door, indicating the presence of
cocaine, methamphetamine, heroin, or marijuana. (Mot.
Hr'g Tr. 1 at 65:15-19.) Officer Petterson next opened
the trunk of the Acura to begin an inventory search. (Mot.
Hr'g Tr. 1 at 65:22-25, 66:1-3.) He had briefly opened
the trunk earlier during the encounter, but was sidetracked
by other activities and conversations, and shut the trunk
before he saw anything inside. (Mot. Hr'g Tr. 1 at
66:5-10, 66:15-20.) The second time he opened the trunk and
searched it, he found a bag containing approximately two
kilograms of methamphetamine. (Mot. Hr'g Tr. 1 at
16:22-25, 67:15-25.) The Acura was later towed to an impound
lot. (Mot. Hr'g Tr. 1 at 68:6-10.) Reilly was transported
to the Steele County Jail. (Mot. Hr'g Tr. 2 at
approximately 5:25 p.m. on June 22, Agent Oliveto attempted
to speak with Reilly at the Steele County Jail. (Mot.
Hr'g Tr. 1 at 17:2-4, 17:7-8, 21:6-8.) The attempted
interview occurred in a room at the jail, and Reilly was not
handcuffed. (Mot. Hr'g Tr. 1 at 17:8-13.) Agent Oliveto
told Reilly why he had been arrested and advised him of his
Miranda rights. (Mot. Hr'g Tr. 1 at 17:15-16;
Gov't Ex. 1.) Reilly said he understood his rights. (Mot.
Hr'g Tr. 1 at 17:19-21; Gov't Ex. 1.) In response to
Agent Oliveto's question about his destination, Reilly
said, “I really don't feel like I should answer any
questions right now.” (Gov't Ex. 1.) Agent Oliveto