United States District Court, D. Minnesota
Bradley M. Endicott, United States Attorney for the
K. Atwal, for Defendant
MEMORANDUM OPINION & ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Franklin L. Noel
dated September 19, 2017 [Doc. No. 84]. In the R&R,
Magistrate Judge Noel recommends that this Court: (1) deny
Defendant's Motion to Suppress Statements, Admissions and
Answers [Doc. No. 61]; (2) deny Defendant's Motion to
Suppress Evidence Obtained as a Result of Search and Seizure
[Doc. No. 62]; and (3) terminate Defendant's pro
se Motion to Dismiss [Doc. No. 77]. Defendant filed
Objections to the R&R [Doc. No. 90], and the Government
filed a Response to Defendant's Objections [Doc. No. 93].
The Court has reviewed de novo those portions of the
R&R to which Defendant objects, as required by 28 U.S.C.
§ 636(b)(1) and Fed. R. Crim. P. 59(b)(3). Based on that
review, the Court adopts the magistrate judge's R&R
in its entirety, denies both motions to suppress, and
terminates the pro se Motion to Dismiss.
17, 2015, Defendant was charged by indictment with one count
of being a felon in possession of a firearm and one count of
being a felon in possession of ammunition, both in violation
of 18 U.S.C. § 922(g)(1) and § 924(e). (Indictment,
Counts 1-2 [Doc. No. 10].) The underlying details of the
charges-as well as the procedural history of this case- are
set forth more fully in the R&R, which this Court
incorporates herein by reference. (See R&R at
5 2015, Defendant drove to the Brooklyn Center Probation
Department (“BCPD”) seeking to relinquish to his
probation officer a gun and bullets he had found under the
front seat of the vehicle he was driving. (Id. at
4.) Defendant parked, left the gun in the vehicle, put the
bullets in his pocket, and went inside the BCPD.
(Id.) After listening to Defendant, Bobbi
Harrington, his probation officer, called 911. (Id.)
She sought to have Defendant arrested, stating that she
believed he was under the influence of methamphetamine, which
constituted a violation of his supervised release.
dispatcher sent Brooklyn Center Police Officer Brian Burtus
to the scene. (Id.; July 7, 2017 Mots. Hr'g Tr.
(“Mots. Hr'g”) at 5 [Doc. No. 76].) Based on
information from Harrington, Burtus learned from the
dispatcher that Defendant was a gang member, has a history of
weapons, was not violent, and that “they wanted
[Burtus] to take him into custody . . . for a parole
violation for methamphetamine use.” (Mots. Hr'g at
8, 40-41; R&R at 4.) Burtus was told that Harrington
requested an Apprehension and Detention Order
(“A&D”).(Mots. Hr'g at 7, 14.) Burtus
arrived at the BCPD and waited for his partner. (Id.
at 13.) The two then approached the building and were met
outside by another probation officer, Deanne Schultz, whom
Burtus observed was “extremely nervous and
excited.” (Id. at 13- 14.) Schultz again
mentioned Defendant's gang history and told the officers
that “[Defendant] more than likely has a gun on him
right now.” (Id. at 14.)
the officers finally entered the building, Burtus saw
Defendant sitting on a chair in the lobby talking to
Harrington. (Id. at 15.) Burtus observed a bulge in
Defendant's coat pocket, and became “concerned that
it could be a firearm.” (Id.) Burtus then
approached Defendant and told him that he was under arrest.
(Id. at 16.) When Burtus arrested Defendant, Burtus
had not yet received a copy of the A&D. (Id. at
Burtus was handcuffing Defendant, Defendant began talking
about the car he had driven and parked outside. (Id.
at 17.) Defendant told Burtus, “I have something in my
car.” (Id.) Without issuing Miranda
warnings, Burtus then asked, “what's in your car,
” to which Defendant responded “a
gun.” (Id. at 17, 47-48.) Burtus then
asked Defendant if he had any weapons or anything illegal in
his person. (Id. at 17, 48.) Defendant responded
that he had bullets in his pocket. (Id. at 18.)
Burtus proceeded to search Defendant, and retrieved from his
person a plastic bag containing bullets as well as the key to
the car Defendant had parked outside. (Id. at
18-19.) Defendant was taken to the back seat of the squad
car, (id. at 19, 49), and the car that Defendant was
driving was then searched without a warrant. (Id. at
22, 49.) A handgun was found underneath the front
driver's seat of the car. (Id. at 22.) At some
point later that day, the car was towed pursuant to the
Brooklyn Center Police Department towing policy.
(Id. at 27-28.)
testified about Defendant's demeanor during the arrest.
He indicated that although Defendant was “talkative and
rambling[, ] . . . there was nothing that appeared to be out
of the ordinary with him.” (Id. at 20.) In
fact, Burtus testified that Defendant was very cooperative,
not agitated, did not appear to be under the influence, and
that up to the time of his arrest, Burtus did not perceive
Defendant to be mentally unstable or paranoid. (Id.
at 20- 21, 55.)
searching the car and retrieving the gun, Burtus left the
BCPD with Defendant in the back seat of the squad car.
(Id. at 30.) Burtus drove about a block and parked.
(Id.) He then read Defendant the Miranda
warnings from a card. (Id.) Defendant told Burtus
that he understood his rights and would talk to him.
(Id. at 31-32, 52.) Defendant then relayed the
details of how he got the vehicle the night before his arrest
and how he had found the gun and bullets in the car.
(Id. at 32.) Although Burtus noted that
Defendant's story “[wa]s a little odd, ” at
no point in the conversation did Burtus develop concerns that
Defendant might have a mental impairment or might be under
the influence of controlled substances. (Id. at 33.)
In fact, Burtus indicated that Defendant was
“cooperative” throughout the interrogation.
after Defendant's arrest, Police Detective Terry Olson
commenced his investigation of the case. (Id. at
58.) Olson obtained and executed a search warrant for a DNA
sample from Defendant. (Id.) After he collected the
DNA sample, Olson read Defendant another set of
Miranda warnings. (Id. at 60.) Defendant
indicated that he understood his rights and was willing to
speak with Olson. (Id. at 58.) Olson testified that
during the interrogation, Defendant “was very
polite” and, although he “rambled at times,
” was cooperative. (Id. at 60.) According to
Olson, Defendant neither appeared to be under the influence
of controlled substances nor appeared to have a mental
impairment. (Id. at 61.) However, by the end of his
interaction with Defendant, Olson had developed a concern
that paranoia was a “potential issue” for
Defendant. (Id. at 69.)
these events and the indictment, Defendant filed a motion for
a psychiatric evaluation to determine if he was competent to
stand trial, which this Court granted. (R&R at 2; June
30, 2015 Order [Doc. No. 15].) After the evaluation, on
October 27, 2015, the magistrate judge held a competency
hearing, and concluded that Defendant was not mentally
competent to stand trial. (R&R at 2; Oct. 27, 2015 Order
[Doc. No. 20].) Shortly thereafter, the magistrate judge
ordered that Defendant be involuntarily medicated, pursuant
to Sell v. United States, 539 U.S. 166 (2003), to
determine if he could be rendered competent to stand trial.
(R&R at 2.) Defendant then underwent several months of
treatment and evaluation, and at a hearing held on March 29,
2017, the magistrate judge concluded that his mental
condition had so improved as to render him competent to stand
trial, so long as he maintains his current medication
protocol. (R&R at 3; March 29, 2017 Order [Doc. No. 46].)
Defendant filed the underlying motions to suppress and a
pro se Motion to Dismiss. Defendant first seeks to
suppress evidence obtained as a result of search and seizure.
(See Doc. No. 62.) He argues that his warrantless
arrest violated his Fourth Amendment rights because it was
not supported by probable cause. (Def.'s Mem. Support
Mots. Suppress (“Def.'s Mem.”) at 8-12 [Doc.
No. 78].) Accordingly, he argues that the evidence the police
found-the bullets ...