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United States v. Mathews

United States District Court, D. Minnesota

March 9, 2017

United States of America, Plaintiff,
v.
Terrence Terrell Mathews, aka Terrence Terrell Matthews, Defendant. Civil No. 16-3583 ADM

          Julie E. Allyn, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Terrence Terrell Matthews, [1] pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for a ruling on Defendant Terrence Terrell Matthews' (“Matthews”) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“§ 2255 Motion”) [Docket No. 130][2] and Motion for Release of Information Regarding Brooklyn Park Police Records of K-9 Handler, Officer Pluman and Certification Records of His K-9 Partner “Ozzy” [Docket No. 134].

         Matthews contends he was deprived of his constitutional right to effective assistance of counsel because his court-appointed attorney did not sufficiently challenge the reliability of two positive alerts by a trained police dog sniffing under the door of the apartment where Matthews lived. The dog sniffs were used to establish probable cause for a search warrant. The search resulted in the seizure of the handgun that lead to Matthews being indicted as a felon in possession of a firearm.

         Matthews also moves for an order compelling the Brooklyn Park Police Department to produce the canine's certification and training records. For the reasons set forth below, Matthews' Motions are denied.

         II. BACKGROUND[3]

         In January 2013, Melanie Hines (“Hines”), Matthews' occasional girlfriend and the mother of his child, contacted the Brooklyn Park Police Department to report a stolen firearm. United States v. Mathews, 784 F.3d 1232, 1233 (8th Cir. 2015). Hines identified Matthews, a felon, as a possible suspect in the theft investigation. Id. Hines also suggested that Matthews may be involved in trafficking heroin. Id. at 1233-34.

         Later in January, Brooklyn Park Police Officer Pluman (“Officer Pluman”) used a drug detecting canine certified by the United States Police Canine Association (“USPCA”) to conduct a “narcotic sniff” in the common hallway area of Matthews' mother's apartment complex, where Matthews resided. Id. at 1234; Hr'g Tr., June 3, 2013 [Docket No. 31] at 11-12. The dog alerted for the presence of narcotics outside the door to Matthews' mother's apartment. Mathews, 784 F.2d at 1234. In February 2013, Officer Pluman returned with the same police dog and conducted a second narcotic sniff in the common hallway area outside the apartment. Id. The dog again alerted for narcotics at the lower door seam of the same apartment. Id. When Officer Pluman led the dog to four other apartment doors in the same area, the dog did not alert for narcotics. Id.

         On February 25, 2013, a state court judge issued a search warrant authorizing a search of Matthews' mother's apartment for evidence of drugs and firearms. Id. Brooklyn Park Police Detective Andrew Suerth (“Detective Suerth”) swore to the affidavit supporting the warrant application. United States v. Mathews, No. 13-79, 2013 WL 5781566, at *5 (D. Minn. Oct. 25, 2013). Detective Suerth was the primary investigator on the case and had directed Officer Pluman to conduct the canine sniffs of Matthews' mother's apartment. Hr'g Tr. at 5-6. Detective Suerth's affidavit described the two dog alerts outside the apartment where Matthews resided. Mathews, 2013 WL 5781566, at *5. The affidavit further stated that the drug detection dog was a USPCA certified narcotics detector canine. Id. On February 27, 2013, the police executed the warrant for the apartment and located drug paraphernalia, a digital scale, trace amounts of heroin, and a firearm. Id. at *1.

         On April 15, 2013, a federal grand jury returned an indictment charging Matthews with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Indictment [Docket No. 8].

         Following the indictment, Matthews filed multiple pretrial motions, including a motion to suppress the evidence seized during the search of the apartment. See Mot. Suppress [Docket No. 21]. Matthews argued that the search warrant was not supported by probable cause because it “lacked specificity . . . with regard to the dog sniff.” Id. at 1.

         A hearing on Matthews' motions was held on June 3, 2013 before Chief Magistrate Judge Arthur J. Boylan. See Min. Entry [Docket No. 25]. Detective Suerth was the sole witness at the hearing. See generally, Hr'g Tr. Detective Suerth's testimony included the certification and reliability of the canine that was used to conduct the sniff outside the door to Matthews' mother's apartment. Id. at 12-15, 19, 39. Detective Suerth stated that the drug detection dog had been cross-trained to detect the odor of narcotics as well as patrol apprehension. Id. at 12. Additionally, Detective Suerth testified that he had no reason to doubt the canine's reliability because Officer Pluman and the canine had performed narcotic sniffs for Detective Suerth in the past that had proven reliable. Id. at 15, 50-51.

         Matthews' attorney cross-examined Detective Suerth on issues concerning the validity of the canine search, including the canine's certification. Id. at 39-40, 50-53, 67-69. For example, defense counsel entered a USPCA certification for the canine dated March 2013 into evidence in an effort to show that the dog had not been certified until a month after the February 25, 2013 search warrant was issued. Id. at 39-40. However, Detective Suerth testified on redirect that the canine had been certified since April 2012, several months before the narcotics sniff at issue. Id. at 61. Chief Magistrate Judge Boylan's Report and Recommendation [Docket No. 50] recommended the denial of ...


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