United States District Court, D. Minnesota
Calhoun-Lopez, United States Attorney's Office, counsel
M. Paule, Robert M. Paule, PA, counsel for defendant
REPORT AND RECOMMENDATION
KATHERINE MENENDEZ, UNITED STATES MAGISTRATE JUDGE.
defendant, Kalil Wesley Dunn, filed nine motions in this
matter and the Court conducted a hearing on those motions on
September 12, 2017. Min., ECF No. 27. The Court issued a
brief order addressing six of the motions and took the
remaining three motions under advisement. Ord., ECF No. 29.
The Court now considers these outstanding motions.
Dunn asks that this Court sever the first three counts from
the remainder of the indictment. Def.'s Mot. for
Severance, ECF No. 20. Mr. Dunn also challenges the seizure
of evidence during two motor-vehicle searches as lacking
legal basis. Def.'s Mot. to Suppress Evid., ECF No. 21.
Finally, Mr. Dunn challenges “[a]ny and all statements,
admissions and answers” he made to law enforcement on
April 12, 2017 and June 20, 2017 “on the grounds that
they are ‘fruit of the poisonous tree' following
from the illegal search[es] of his motor vehicle and
subsequent arrest[s].” Def.'s Mot. to Suppress
Statements, ECF No. 22. For the reasons set forth below, the
Court recommends that all three motions be denied.
charges against Mr. Dunn arose out of two separate encounters
between Mr. Dunn and law enforcement officers: one on April
12, 2017 and one on June 20, 2017.
April 12, 2017, Minneapolis Police Officer Richard Knoche and
his partner, Officer Schroeder, were on routine patrol when
they received a call regarding a four-car accident in
Minneapolis around 1:00 AM. Mot. Hrg. Tr. at 13-15, ECF No.
32. A witness on the scene told Officer Schroeder that Mr.
Dunn's Buick car ran into three parked cars before
spinning to a stop, blocking and facing oncoming traffic.
Id. at 16-17; see also Gov't Ex. 1
(depicting the scene upon the officers' arrival). Mr.
Dunn was standing outside of his car upon the officers'
arrival. Mot. Hrg. Tr. at 27.
Schroeder instructed Officer Knoche to detain Mr. Dunn, with
whom Officer Schroeder had had prior contacts. Id.
at 23. Officer Knoche testified that Mr. Dunn was
intoxicated, slurring his words, struggling to communicate,
and swaying on his feet. Id. Though Officer Knoche
activated his body camera during this interaction, it does
not depict Mr. Dunn very clearly. See Gov't Ex.
6. To the extent that the footage does depict Mr. Dunn, it
does not plainly support the allegation that Mr. Dunn was
slurring his speech or struggling to communicate. See
Id. Officer Knoche also testified that Mr. Dunn
struggled to formulate sentences when the officer inquired
about Mr. Dunn's potential need for medical care, but his
body camera footage did not capture this interaction. Mot.
Hrg. Tr. at 28. Officer Knoche did not memorialize his
observations as to Mr. Dunn's intoxication in the police
report he prepared about the property damage. Id. at
27, 31. He determined that documenting his beliefs about Mr.
Dunn's drunkenness was not necessary because he did not
pursue any intoxication-related charges against Mr. Dunn.
Id. at 31. Mr. Dunn denies that he was intoxicated,
instead contending that he had fallen asleep while driving.
Id. at 125-26.
Mr. Dunn's car was blocking traffic and had sustained
sufficient damage to seem unmovable, the officers decided to
tow it pursuant to Minneapolis Police Department policy. Mot.
Hrg. Tr. at 17-18; see also Gov't Ex. 3
(Minneapolis Police Department Policy as to Vehicle
Impounding and Towing). Mr. Dunn had already contacted a
towing company to arrange a tow of his vehicle, but
Minneapolis Police Department policy does not require police
to inquire as to a driver's desire to make his own
arrangements for vehicle removal prior to impoundment. Mot.
Hrg. Tr. at 43, 128; Gov't Ex. 3 at 7-701(D). Before
impounding the car, the officers conducted an inventory
search pursuant to department policy. Mot. Hrg. Tr. at 18-19;
Gov't Ex. 3 at 7-702. In that search, the officers
recovered a Sig Sauer 9-millimeter handgun, a Kel-Tec .22
handgun with a laser sight, two bags of suspected crack
cocaine, two digital scales, and two cell phones. Mot. Hrg.
Tr. at 19; Gov't Ex. 4.
Police Officer Danielle Evans spoke with Mr. Dunn at Hennepin
County Jail approximately eight hours after his arrest. Mot.
Hrg. Tr. at 46-47. Before interviewing Mr. Dunn, Officer
Evans advised him of his rights and Mr. Dunn indicated his
understanding. Id. at 49-50; see also
Gov't Ex. 7. The entire interview was recorded. Gov't
20, 2017, Minneapolis Police Officer Donnell Crayton and his
partner, Officer Kong Moua, were on routine patrol in their
vehicle around 6:25 PM. Mot. Hrg. Tr. at 54-55. Officer
Crayton saw Mr. Dunn drive past him and his partner in a
silver Toyota Scion car and make eye contact as he did so.
Id. at 55-56. Officer Crayton recognized Mr. Dunn
from previous encounters. Id. at 55. Officer Crayton
believed that Mr. Dunn sped away from the officers after
passing them. Id. at 57.
officers turned around to follow Mr. Dunn and had to speed to
catch up with him. Id. at 57-58. Officer Crayton
observed traffic violations of speeding and failure to
properly indicate multiple turns, and testified that there
were children playing in the neighborhood. Id. at
58-59, 80. After a few blocks of pursuit, the officer
activated his lights as a result of Mr. Dunn's reckless
driving and Mr. Dunn pulled over. Id. at 61-62, 80.
Mr. Dunn parked the car, got out, and began walking away.
Id. at 61-62. Officer Crayton instructed Mr. Dunn to
stop, put his hands up, and walk toward the squad, but Mr.
Dunn was “slow to follow those commands.”
Id. at 62. Before following any commands, Mr. Dunn
appeared to reach behind his back. Id. Given Mr.
Dunn's lack of prompt cooperation, the possibility that
he was armed, and the potential that he would flee, Officer
Crayton detained him in handcuffs. Id. at 62, 84-85.
Mr. Dunn had pulled over and exited the vehicle, Officer Moua
“walked up to the vehicle to make sure nobody else was
inside.” Id. at 92. Though he did not see
another person, Officer Moua “observed a plastic bag
containing what appeared to be crack cocaine” with a
lighter next to it through the driver's side window.
Id.; see also Gov't Ex. 8. Based on his
training and experience, Officer Moua recognized the crack
cocaine through the window and retrieved the key for the car.
Mot. Hrg. Tr. at 93-95. He then initiated a search of the car
and located what appeared to be a Glock pistol with a
magazine and a magazine drum. Id. at 96-98; see
also Gov't Exs. 9, 10, 12, 13. Although Officer Moua
took photographs of the evidence found during the search,
including the gun and the drugs, he did not take those
photographs in the order in which the items were discovered.
Mot. Hrg. Tr. at 113-14. He agreed that he photographed and
collected the weapon and ammunition first because
“drugs didn't endanger anyone if [he] were to leave
them there.” Id. at 114.
Dunn was subsequently taken to Hennepin County Jail.
Id. at 116. Minneapolis Police Officer Adam Lepinski
and ATF Special Agent Bryan Lervoog interviewed Mr. Dunn at
the Hennepin County Jail two days after his arrest.
Id. at 115-16. The interview was recorded.
Id. at 117; see also Gov't Ex. 15.
Officer Lepinski began the interview by advising Mr. Dunn of
his rights, and Mr. Dunn indicated that he understood. Mot.
Hrg. Tr. at 117; Gov't Ex. 15.