United States District Court, D. Minnesota
Benjamin Bejar, United States Attorney for Plaintiff.
Douglas Olson, Office of the Federal Defender for Defendant.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
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.
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.)
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.
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.)
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.
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.)
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.)
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.
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 ...