United States District Court, D. Minnesota
ORDER ADOPTING REPORT AND RECOMMENDATION
WILHELMINA M. WRIGHT UNITED STATES DISTRICT JUDGE
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
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
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.
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.
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.
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.
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.
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).
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.
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 ...