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United States v. Oliver

United States District Court, D. Minnesota

December 28, 2016

United States of America, Plaintiff,
v.
Houston Oliver, Defendant.

          LeeAnn K. Bell, Esq., United States Attorney's Office, counsel for Plaintiff.

          Gary R. Wolf, Esq., Wolf Law Office, counsel for Defendant Oliver.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON United States Magistrate Judge.

         Defendant Houston Oliver was indicted on a single count of conspiracy to distribute cocaine. (Doc. No. 1, Indictment.) He was previously indicted for the same offense in United States v. Oliver, et al., Case No. 15-cr-164 (DSD/BRT). On March 14, 2016, the Government moved to dismiss the previous indictment against Defendant prior to trial. (Case No. 15-cr-164, Doc. No. 188.) That motion was granted by United States District Judge David S. Doty. (Case No. 15-cr-164, Doc. No. 189.) The Government re-indicted the Defendant on September 27, 2016.

         Defendant moved to suppress in the previous case, an evidentiary hearing was held, and this Court issued a Report and Recommendation that Defendant's motion to suppress and for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), be denied. (Case No. 15-cr-164, Doc. No. 117, October 13, 2015 Report and Recommendation (“R&R”).) Judge Doty adopted this Court's Report and Recommendation on November 23, 2015. (Case No. 15-cr-164, Doc. No. 146, November 23, 2015 Order Adopting R&R.)

         Defendant now moves to suppress on grounds that are largely duplicative of those that were raised in the previous case. (Doc. No. 18.) Defendant also moves to dismiss the Indictment. (Doc. No. 17.) An evidentiary hearing was held on Defendant's motions on November 15, 2016. (Doc. No. 29.) At the hearing, Minneapolis Police Sergeant John Biederman testified about the investigation that led to the seizure of Defendant's gray BMW in Minnesota. (Doc. No. 33, 11/15/16 Mot. Hr'g Tr. [hereinafter “Tr.”] at 13-35.) Also at the hearing, the Government prospectively offered as exhibits the search warrants for Defendant's BMW, cell phones, residence, hotel room, and other properties. (Doc. No. 30, Exhibit List.)[1] Based on the evidence presented at the hearing, and for the reasons detailed below, this Court recommends that Defendant's motions to suppress and to dismiss be denied.

         I. Factual History

         Sergeant John Biederman is a twenty-year veteran of the police force who has worked many types of cases, including narcotics cases. (Tr. at 13.) Sergeant Biederman has also worked with many reliable confidential informants (“CI” or “CRI”). (Tr. at 14.) A CRI is a person who has a track record of providing reliable and accurate information to law enforcement that assists in prosecution, gathering of evidence, and making arrests. (Id.)

         On November 25, 2014, Sergeant Biederman was contacted by a CRI. (Id.) The CRI told Sergeant Biederman that Defendant, along with Desmond Williams and James Green, would be mailing cocaine from Arizona to the Minneapolis-St.Paul area. (Tr. at 14-15.) According to the CRI, Williams and Green would be bringing the packages to a post office in Maricopa, Arizona. (Tr. at 15.) The cocaine would be placed in a package originally designed to hold flatware and mailed in a two-day priority package box. (Tr. at 15-16.) Historically, Defendant had mailed cocaine using two-day priority packages from the post office. (Tr. at 15.) Given the CRI's proven track record over the “last several years, ” which included supplying information that led to evidence, arrests, and felony convictions, Sergeant Biederman considered the information to be reliable and passed it along to Minneapolis Postal Inspector John Western. (See Gov't Ex. 2 at 2; Tr. at 16.)

         Armed with this information, the Postal Inspector found two packages, both two-day priority mail, of similar weight and with similar handwriting, one from Maricopa's post office and the other from Chandler, Arizona. (Gov't Ex. 2 at 2; Tr. at 17.) A drug dog alerted to the presence of cocaine in the packages, and the Postal Inspector obtained a search warrant. (Tr. at 17.) The search revealed, as the CRI described, cocaine packaged in silverware boxes. (Id.) Each package contained approximately two kilograms of cocaine. (Gov't Ex. 2 at 2.)

         Sergeant Biederman, along with Minneapolis Police Officer Danielle Evans, spoke with Desmond Williams on November 30, 2014. (Tr. at 18; Gov't Ex. 2 at 2.) Biederman and Evans have over a decade of police experience and were assigned to investigate weapons and narcotics offenses. (Gov't Ex. 2 at 2; Gov't Ex. 6 at 2.) Williams admitted to sending one of the packages of cocaine, and stated that Green had mailed the other. (Tr. at 18; Gov't Ex. 2 at 2.) Williams's description of the package was similar to the CRI's description. (Tr. at 18.) Williams also stated that he and Green were present when Defendant packaged the drugs at an Arizona home and that Defendant had supplied him with a cell phone to use for drug-related business. (Gov't Ex. 2 at 2; Gov't Ex. 6 at 2.)

         Around the same time, Sergeant Biederman also learned from the CRI that Defendant would be transporting a large quantity of cocaine from Arizona to Minnesota in a gray BMW with Minnesota plates, scheduled to arrive in Minnesota on November 30, 2014. (Gov't Ex. 2 at 2; Tr. at 19.) A records check revealed that Defendant was the owner of a 2002 BMW 745li with Minnesota plates 672CAZ. (Tr. at 19; Gov't Ex. 1 at 2.) On November 30, 2014, Minneapolis Police officers set up on I-35 in an effort to locate the vehicle. (Gov't Ex. 2 at 2.) The vehicle was located on I-35 around Lakeville and stopped by Minnesota State Patrol on the Crosstown/I-35 commons. (Id.) Although the vehicle was registered to Defendant, a man named Sharrod Rowe was the driver and sole occupant of the car when it was pulled over. (Gov't Ex. 2 at 2-3; Gov't Ex. 6 at 2.) The vehicle was not searched at that time. (Gov't Ex. 1 at 1; Gov't Ex. 2 at 2-3.) Instead, it was towed to an impound lot. (Gov't Ex. 1.) The following day, on December 1, 2014, Williams notified Sergeant Biederman that Defendant was “hysterical” over the fact that law enforcement had stopped his BMW and taken Rowe into police custody. (Gov't Ex. 2 at 2.)

         On December 2, 2014, Sergeant Biederman secured a warrant to search Defendant's impounded BMW for narcotics, “[i]tems that show responsibility for narcotics” and “a connection between the narcotics or vehicle with an address or person, ” and “[d]ocuments, mailings, keys, address books, cell phones (and content), receipts, bills, rental agreements, photographs, notes and other media.” (Gov't Ex. 1 at 4.) Officers promptly executed the search warrant and found six kilograms of cocaine hidden inside a speaker in the trunk of the BMW, a receipt in Green's name for new tires purchased on November 28, 2014, a cell phone, and documents addressed to Defendant at particular addresses on Dupont Avenue North and Washington Avenue in Minneapolis. (Gov't Ex. 1 at 5; Gov't Ex. 2 at 2-3.)

         Sergeant Biederman and Officer Evans then re-interviewed Williams, who told them that Defendant recently contacted him by telephone and told him, in coded language, that six bricks of cocaine were in the BMW when it was stopped. (Gov't Ex. 2 at 2.) Williams also told the officers that Defendant lived in a home on Dupont Avenue North, owned a second-story loft on North Washington Avenue, owned another building on West Broadway Avenue, and was currently staying with his girlfriend in a Minneapolis hotel. (Gov't Ex. 5 at 3.) Sergeant Biederman confirmed that Defendant was connected to these properties and determined that Defendant's girlfriend had rented room 134 at the Marriot Hotel, 525 North Second Street. (Id.)

         Later that day, Sergeant Biederman obtained four additional warrants to search Defendant's Dupont Avenue home, Washington Avenue loft, West Broadway Avenue building, and Marriott Hotel room for narcotics; cash and proceeds from the sale of narcotics; and documents, mailings, photographs, keys, address books, notes, receipts, ledgers, and “other media that shows standing at an address, responsibility for a vehicle, connections between persons, the location of the proceeds from the sale of narcotics, or that a crime has been committed.” (See Gov't Exs. 2-5 at 1.) The warrants for the addresses on Dupont, Washington, and West Broadway Avenues also expressly authorized the seizure of cell phones; the warrant for the Marriot Hotel room did not. (See id.)

         Sergeant Biederman's affidavits in support of all four search warrants were virtually identical and recounted the information provided by the CI; the CI's track record over the last several years; Williams's statements and “confirm[ation] of the [CI's] information concerning the packages being dropped off at the post office, the way they were packaged, and those involved”; and the other investigative efforts corroborating the CI's information, including the two packages of cocaine intercepted by postal inspectors, the traffic stop of Defendant's BMW on November 30, 2014, and the subsequent recovery of six kilograms of cocaine from the trunk. (Id.) The affidavits did not identify Williams by name, instead describing him as “one of the people involved in dropping the packages off at the post office” who had spoken to the police on November 30, December 1, and December 2, 2014. (See, e.g., Gov't Ex. 2 at 2-3.) They did, however, include Sergeant Biederman's averment that, based on his training, experience, and conversations with other officers, drug traffickers often keep relevant records, documents, and cash proceeds in their homes, offices, and other premises that “they own or control.” (Id. at 3; Gov't Ex. 3 at 3; Gov't Ex. 4 at 3; Gov't Ex. 5 at 3.) The state judge who issued the warrants found probable cause to believe that the listed items were either contraband or would contain evidence of a crime, and that they would be found in the premises under Defendant's control.[2] (See, e.g., Gov't Ex. 2 at 5.)

         Police officers executed the four premises warrants between 4:00 p.m. and 7:00 p.m. on December 2, 2014, beginning with the Marriott Hotel room. (See Gov't Ex. 2-5 at 6.) Defendant was in the hotel room at the time and placed under arrest. (Gov't Ex. 6 at 2.) A search of his person incident to that arrest uncovered cash, an identification card, and some credit cards. (Gov't Ex. 5 at 6.) Officers also seized five cell phones that were found on the bed in the hotel room, various documents, and a small amount of suspected marijuana. (See Gov't Ex. 5 at 6; Gov't Ex. 6 at 2.) During the execution of the search warrants for Defendant's Dupont Avenue home and Washington Avenue loft, officers seized various documents, pieces of mail, a bank deposit bag, and a priority mail box. (Gov't Ex. 2 at 6; Gov't Ex. 4 at 6.) And from the West Broadway Avenue building owned by Defendant and occupied by Green, officers seized documents, two cell phones, and prescription bottles in Green's name. (Gov't Ex. 3 at 6; Gov't Ex. 6 at 2.)

         Nearly three weeks later, on December 23, 2014, Officer Evans secured a warrant to search the numerous cell phones recovered by the police during their investigation, including the cell phone seized incident to Green's arrest and the five cell phones found on the bed at the Marriott Hotel. (Gov't Ex. 6.) Evans's supporting affidavit detailed the narcotics investigation into Defendant, Green, and Williams, including the information supplied by the CI, the packages of cocaine intercepted by postal inspectors, Williams's statements that Defendant and Green were involved in the packaging and shipment of the cocaine, and the six kilograms of cocaine recovered from Defendant's BMW. (Id. at 2.) The affidavit also attested to the CI's reliability, noting that the informant had provided accurate information in the past which had led to “evidence, arrests and convictions.” (Id.) Based on her fourteen years of experience as a police officer and conversations with other law enforcement officials, Evans averred that the cell phones might contain data relevant to the drug-trafficking investigation, including data showing that Defendant, Green, Williams, and Rowe had “been in communication with each other during relevant times in the drug conspiracy or otherwise know each other.” (Id.) The state judge who issued the warrant found probable cause to believe that the cell phones were either used in the commission of a crime or would contain evidence tending to show that a crime had been committed. (Id. at 4.) While it is clear that the cell phones were searched pursuant to the December 23, 2014 warrant, there is nothing in the record about the results of those searches. (See Id. at 6.)

         II. ...


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