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United States v. Ferriera

United States District Court, D. Minnesota

March 23, 2018

United States of America, Plaintiff,
v.
Robert John Ferriera, Defendant.

          Benjamin Bejar, United States Attorney for Plaintiff.

          Douglas Olson, Office of the Federal Defender for Defendant.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the Court on Defendant's Objection [Doc. No. 45] to Magistrate Judge Leo I. Brisbois's January 17, 2018 Report and Recommendation [Doc. No. 42], which recommended that Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Doc. No. 23] and Defendant's Motion to Suppress Statements, Admissions and Answers [Doc. No. 24] be denied. For the following reasons, the Court overrules Defendant's Objection and adopts the Report and Recommendation in its entirety.

         II. BACKGROUND

         Defendant was indicted on one count of possession of an unregistered firearm, one count of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. (Indictment [Doc. No. 1] at 1.) The charges arose from Wadena County Police searches of Defendant and his apartment after police received a complaint that Defendant possessed a short-barrel shotgun. (Report and Recommendation [Doc. No. 42] (“R&R”) at 2.) At the motions hearing on November 7, 2017, the Magistrate Judge heard testimony from Sergeant Brandon Pearson and Officer Nate Warner of the Wadena County Police, and Defendant. (Id. at 1.)

         The R&R thoroughly sets forth the background of this case, and the Court incorporates the R&R by reference and recites facts only to the extent necessary to rule on Defendant's objections. Briefly stated, on July 3, 2017, Sgt. Pearson reported to the police station to speak with a complainant who had come to the station to report an incident. (Id. at 2.) Upon meeting the complainant, Sgt. Pearson recorded her name, phone number, and other contact information, before taking her recorded statement. (Id.)

         The complainant had recently come from Defendant's apartment, where she had been attempting to retrieve a bicycle and collect a debt on behalf of a third party. (Id.) When she asked Defendant about the items, he became agitated and retrieved a “short shotgun, ” removed it from its holster, broke it open at the action, loaded a shell from his pocket into the gun, and closed it. (Id. at 2-3.) Defendant then waved the gun around and told the complainant that he used the gun when he felt he or his family were being threatened. (Id. at 3.) The complainant told Defendant that she was scared, after which he apologized, unloaded the gun, and put it away. (Id.) The complainant subsequently left the apartment and drove directly to the police station, which was a block away, to report the incident. (Id.)

         After hearing the complaint, Sgt. Pearson believed Defendant could be in unlawful possession of a short-barrel shotgun and that his interaction with the complainant could have been a second degree assault involving a firearm. (Id.) Sgt. Pearson notified other officers of the complaint, and then called Defendant, with whom he was already familiar, on his cellphone. (Id.) Over the phone, Sgt. Pearson asked Defendant if he would speak with him, and Defendant agreed. (Id.)

         Sgt. Pearson and Officer Warner drove to Defendant's apartment in separate vehicles. (Id.) Outside the apartment, Sgt. Pearson told Defendant about the complaint, and asked to search Defendant's apartment. (Id. at 4.) Defendant denied having the gun and denied Sgt. Pearson's request to search his apartment. (Id.) According to the officers, Sgt. Pearson then asked Defendant to accompany him to Officer Warner's car, and Defendant voluntarily complied. (Id.) At Officer Warner's car, Sgt. Pearson told Defendant he would have to wait in the squad car, but that the officers would first have to perform a pat-down search. (Id.)

         Sgt. Pearson patted Defendant's pants pocket and felt a hard, cylindrical object that he believed could be a weapon. (Id.) After Sgt. Pearson removed the object, he found that it was a yellow 20-gauge shotgun shell. (Id.) Upon discovering the shell, Sgt. Pearson told Defendant to wait in the squad car while the officers obtained a search warrant for Defendant's apartment. (Id.) According to the officers, Defendant responded “that won't be necessary” because he would show the officers where the shotgun was located in the apartment. (Id. at 5.) He then said he had initially lied about having the shotgun, explained that he took it from a gang member in California, and said he knew he was not allowed to possess firearms. (Id.)

         According to the officers, Defendant led them into the apartment and directed Sgt. Pearson to the bedroom where the shotgun was hidden under the bed linens. (Id.) After recovering the gun, Sgt. Pearson asked if there was any ammunition, at which point Defendant silently retrieved a black cloth bag filled with more shotgun shells. (Id.) The officers informed Defendant he would have to come with them to the Wadena County Jail, but they first allowed him to secure his apartment. (Id.) Defendant accompanied the officers over to another deputy who had arrived, where he was placed in handcuffs and informed he was under arrest. (Id. at 6.)

         Defendant's testimony differed substantially from that of the officers. In brief, he testified that he was handcuffed by Sgt. Pearson during their initial conversation, before he was searched. (Id.) After finding the shotgun shell, the officers said they were getting a warrant, then returned five to ten minutes later waving a piece of paper in Defendant's face, said “got it” and “mumbled something” about Defendant's dog. (Id.) Defendant was concerned that the officers would shoot his dog when they entered the apartment, and requested to accompany them in order to hold his ...


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