United States District Court, D. Minnesota
E. Allyn, Assistant United States Attorney, United States
Attorney's Office, Minneapolis, MN, on behalf of
Terrence Terrell Matthews,  pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
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.
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].
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.
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.
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.
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.
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.
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].
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.
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.
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