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United States v. Reilly

United States District Court, D. Minnesota

November 4, 2016

United States of America, Plaintiff,
v.
Shawn David Reilly (2), Defendant.

          Thomas M. Hollenhorst, United States Attorney's for United States of America

          Glenn P. Bruder, Mitchell Bruder & Johnson, for Shawn David Reilly

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, United States Magistrate Judge

         This 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.

         I. Procedural Background

         On July 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].)[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.

         The 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.

         In 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].)

         II. Relevant Facts

         On May 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].)[2] 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 old.[3] (Mot. Hr'g Tr. 1 at 9:5-6, 31:22-25.)

         After 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[4] 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.)

         At some 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.)

         As 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.)

         As 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 42:4-9.)

         Officer 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.)

         Officer 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.)

         Reilly 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.)

         When 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, 41:1.)

         The 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 96:1-11.)

         Officer 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.)

         Reilly's 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, 62:1.)

         Based 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 104:12-14.)

         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 asked, ...


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