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United States v. Kline

United States District Court, D. Minnesota

February 23, 2018

United States of America, Plaintiff,
v.
David Kline, Defendant.

          Nathan Hoye Nelson, Esq., Assistant United States Attorney, counsel for Plaintiff.

          Kassius O. Benson, Esq., Kassius Benson Law, PA, counsel for Defendant.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON, United States Magistrate Judge

         Defendant David Kline was indicted on one count of conspiracy to distribute a controlled substance and one count of possession with intent to distribute a controlled substance. (See Doc. No. 1.) On January 2, 2018, Defendant moved to suppress evidence obtained as a result of the execution of a search warrant on his residence, and also to suppress statements that he made to police officers during the execution of the search warrant. (Doc. Nos. 55, 56.) The Government submitted two exhibits for the Court's review in connection with these motions: the search warrant application, affidavit, and warrant, and an audio recording of the custodial interview. (See Doc. No. 74, Ex. List.) Defendant waived his right to appear at the motions hearing, and the motions were submitted on the papers and taken under advisement as of February 12, 2018. (See Doc. No. 70.)

         For the reasons stated below, this Court recommends that Defendant's motions be denied.

         I. Factual Background

         On July 7, 2017, Officer Adam Lepinski (“Officer Lepinski”) sought and obtained a warrant to search Defendant's residence in Eagan, Minnesota. (Ex. 1.) Beginning in May 2017, Officer Lepinski had been involved in an ongoing investigation of a group of individuals selling drugs in the Minneapolis area. (Id. at 2.) Search warrants related to this drug ring had previously resulted in the seizure of about three pounds of heroin, 1.5 pounds of crack cocaine, three guns, and tens of thousands of dollars. (Id.)

         Officer Lepinski's affidavit in support of the July 7, 2017 search warrant detailed information received in May 2017 from a confidential reliable informant (“CRI”) who was “knowledgeable about the narcotics ring.” (Ex. 1 at 2.) According to the CRI, a person known as “B” was involved in the drug ring, selling large amounts of heroin and cocaine received from an unknown source in Chicago. (Id.) The CRI reported seeing “B” in possession of heroin, cocaine, and hundreds of thousands of dollars in cash on multiple occasions since April 2017. (Id.) The CRI also knew “B” to live “in a suburb south of Minneapolis.” (Id.) The CRI further described “B's” vehicles, including a black Infiniti SUV. (Id.) The affidavit explained that the “CRI had provided information multiple times in the past and had been found to be accurate and reliable, ” and that the CRI's information had “led to the recovery of multiple firearms, narcotics” and resulted in arrests/charges. (Id.)

         The CRI's information, according to the affidavit, was corroborated by a second confidential informant (“CI”) who was knowledgeable about the same drug ring. (Ex. 1 at 2.) In June 2017, the CI provided “identical information regarding ‘B' selling large amounts of heroin and cocaine.” (Id.) The CI said he or she believed “B” lived in the “south metro” area and drives a black Infiniti SUV. (Id.)

         Using “various investigative techniques, ” Officer Lepinski identified Defendant as “B.” (Ex. 1 at 2.) Officer Lepinski showed a photograph of Defendant to the CRI and the CI, both of whom confirmed it was the correct individual. (Id.) Moreover, during the execution of a previous search warrant related to this drug ring in North Minneapolis on May 1, 2017, Officer Lepinski found a receipt near large amounts of heroin and crack cocaine. (Ex. 1 at 3.) The receipt was from a “Total Wine” store in Eagan, near Defendant's residence, and surveillance video from the store at the date and time listed on the receipt showed an individual that appeared to be Defendant. (Id.) Officer Lepinski showed a still image from the video to the CRI and CI, both of whom confirmed the person in the photo was Defendant. (Id.) Officer Lepinski ran a criminal history check on Defendant and found a conviction for first degree possession of crack cocaine. (Id.)

         Through surveillance and the use of various law enforcement databases, Officer Lepinski determined that Defendant lived in the south metro area, identifying an apartment in Eagan, Minnesota as Defendant's residence. (Id. at 2-3.) Officer Lepinski also observed a black Infiniti SUV parked in the apartment's underground garage. (Id. at 3.) Within 72 hours prior to applying for the warrant at issue, Officer Lepinski went to Defendant's apartment and used an “Ion Scan” swab on the door to the residence, which tested positive for the presence of cocaine. (Id. at 3.)

         Officers executed the warrant on July 14, 2017, seizing various documents, car keys, a black duffel bag, and items of clothing. (Ex. 1 at 8.) During the execution of the warrant, Officer Lepinski had an audio-recorded conversation with Defendant. (Ex. 2.) The officer introduced himself to Defendant and explained he had a search warrant as part of a narcotics investigation and wanted to take the opportunity to speak with Defendant to see if he had “anything to say to us.” (Ex. 2 at 0:22-0:50.) Defendant replied: “go ahead.” (Id. at 0:50-52.) Officer Lepinski then read Defendant his rights and explicitly asked him “do you understand those?” (Id. at 0:50-1:40.) Defendant responded: “yeah.” (Id. at 1:40-42.) Officer Lepinski explained to Defendant some information about the search warrant and proceeded to ask Defendant several questions, which were answered by Defendant. (Id. at 1:42-9:30.) At no time during the conversation did Defendant ask for an attorney or invoke his right to remain silent. (See Ex. 2.)

         II. Analysis

         Defendant argues that the July 7 warrant to search his apartment lacked probable cause because the information in the search warrant affidavit was “stale.” (Doc. No. 68, Def.'s Mem. in Supp. of Mot. to Suppress Tangible Evid. 1.) Defendant also argues that the statements he made to Officer Lepinski during the execution of the search warrant should be suppressed because he was in custody and he did ...


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