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United States v. Bettis

United States District Court, D. Minnesota

August 7, 2017

United States of America, Plaintiff,
v.
CJ Bettis, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          WILHELMINA M. WRIGHT UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the June 19, 2017 Report and Recommendation (R&R) of United States Magistrate Judge Tony N. Leung. (Dkt. 37.) The R&R concludes that Defendant CJ Bettis has standing to challenge the November 8, 2016 search of an automobile in which Bettis was the driver. The R&R then recommends denying Bettis's motion to suppress the evidence obtained from that search because law enforcement had probable cause to support the search. Bettis objects to the R&R's probable cause determination, (Dkt. 40), and the United States objects to the R&R's standing determination, (Dkt. 43). For the reasons addressed below, the Court overrules the parties' objections, adopts the R&R, and denies Bettis's motion to suppress.

         BACKGROUND

         As the relevant factual background and procedural history are addressed in detail in the R&R, the Court need not repeat them at length here. The summary that follows is based on facts that are undisputed for the purpose of the Court's resolution of the issues addressed in the R&R and the parties' objections.[1]

         Bettis has multiple prior convictions arising from the possession or distribution of heroin. He finished serving a prison sentence for his most recent conviction in 2015. In summer 2016, law enforcement learned from confidential informants that Bettis and his family members were selling heroin. In addition, an anonymous tipster told law enforcement in September 2016 that Bettis had 300 grams of heroin hidden at his residence. The tipster's information was not corroborated, however. Based on all of the information received, law enforcement officers obtained a court order permitting them to track Bettis's movements using the GPS technology in a cellular telephone believed to be associated with Bettis.

         On November 7, 2016, Minneapolis Police Officer Benjamin Henrich learned that the telephone associated with Bettis was in Chicago, and Officer Henrich knew that Bettis was using a Toyota Camry that had been rented by Bettis's wife. Suspecting that Bettis had driven the Toyota Camry to Chicago to obtain heroin, Officer Henrich coordinated with other law enforcement officers to surveil and possibly intercept Bettis on his return trip from Chicago. On November 8, 2016, Minnesota State Patrol Trooper Derrick Hagen, who was a member of Officer Henrich's surveillance team, located the Toyota Camry on Interstate 94 and observed it commit three traffic violations. Based on his observations, Trooper Hagen initiated a traffic stop of the Toyota Camry at 4:53 p.m. The driver of the Toyota Camry, who Trooper Hagen recognized as Bettis, gave false identification information to Trooper Hagen. Trooper Hagen identified the female passenger in the vehicle as Dalia Taha, a friend of Bettis.

         Trooper Hagen detected the odor of marijuana coming from the passenger compartment of the vehicle and moved Bettis to the back of the squad car. Next, Trooper Hagen questioned both Bettis and Taha separately about their trip to Chicago. Taha told Trooper Hagen that she went to Chicago with Bettis for one day to attend a funeral; but she did not know who died or on what day the funeral had occurred. Bettis told Trooper Hagen that he took his son to Chicago three days earlier to attend a birthday party for his cousin. Bettis did not mention a funeral.

         Trooper Hagen walked his drug-detection canine, Jack, around the Toyota Camry. Jack is trained to detect odors, including those from marijuana and heroin. Jack alerted on the exterior of the driver's door and, when brought inside the vehicle, indicated the presence of drugs by scratching on the center console cup holder area. Marijuana remnants were found in the vicinity of the center console cup holder. Trooper Hagen and two other troopers searched the vehicle, but they found no contraband. Because the law enforcement officers continued to suspect that heroin was hidden in the vehicle, Officer Henrich directed that the vehicle be seized for a more thorough search. The vehicle was taken to the Hopkins Police Department garage. During a canine search the next day, the odor of narcotics was detected in the vehicle. Law enforcement officers obtained and executed a search warrant, seizing approximately 200 grams of heroin from a hollowed-out cavity in the driver's headrest.

         The Indictment in this case charges Bettis with distribution of heroin and possession with intent to distribute heroin. Bettis filed several pretrial motions, including a motion to suppress the evidence obtained as a result of the search of the Toyota Camry. The magistrate judge held an evidentiary hearing on April 21, 2017, and subsequently issued an R&R that recommends denying Bettis's motion to suppress evidence. The R&R first concludes that Bettis has standing to challenge the search in light of his wife's testimony that she gave him permission to use the Toyota Camry. The R&R next rejects Bettis's argument that probable cause dissipated when the officers did not locate contraband or other evidence during their initial roadside search and concludes that the law enforcement officers had probable cause to seize the Toyota Camry for the purpose of continuing their search.

         ANALYSIS

         Bettis objects to the R&R's probable cause determination, and the United States objects to the R&R's standing determination. This Court reviews each determination de novo. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); LR 72.2(b)(3); accord Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam).

         I. Standing

         As a threshold matter, the R&R concludes that Bettis has standing to challenge the search of the rental car. The United States had 14 days from the date of the R&R to object to the R&R's standing determination. LR 72.2(b)(1). It did not do so. Instead, the United States objects to this aspect of the R&R for the first time in its response to Bettis's objections. The United States' objection, therefore, is untimely.

         Notwithstanding its untimeliness, the United States' objection also lacks merit. The R&R concludes that Bettis has standing to challenge the search of the rental car even though it was not rented in his name, he was not listed on the rental agreement as an authorized driver, and he lacks a driver's license. In support of this conclusion, the R&R relies on governing Eighth Circuit precedent, which provides that a defendant has standing to challenge the search of a rental car if the defendant presents “at least some evidence of consent or permission from the lawful . . . renter to give rise to an objectively reasonable expectation of privacy.” United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995); accord United States v. Best, 135 F.3d 1223, 1225 (8th ...


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