United States District Court, D. Minnesota
Clifford B. Wardlaw, Assistant United States Attorney, United
States Attorney's Office, Minneapolis, MN, for Plaintiff.
C. Ede, Assistant Federal Defender, Office of the Federal
Defender, Minneapolis, MN, for Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Plaintiff United States of America's (the
“Government”) Objections [Docket No. 61] to
Magistrate Judge Leo I. Brisbois' March 21, 2018 Report
and Recommendation [Docket No. 57] (“R&R”),
and to Defendant Cody Jorrell Loud, Sr.'s
(“Loud”) Objection [Docket No. 60] to the
R&R, Judge Brisbois recommends granting Loud's Motion
to Suppress Evidence Obtained as a Result of Search and
Seizure [Docket No. 27], denying Loud's Motion to
Suppress Statements, Admissions, and Answers [Docket No. 28],
and denying as moot Loud's Motion for Hearing Pursuant to
Franks v. Delaware [Docket No. 29]. After a thorough
de novo review of the record and for the reasons stated
below, the Government and Loud's Objections are overruled
and Judge Brisbois' R&R is adopted.
relevant facts are detailed in the R&R and are
incorporated here by reference. See R&R at 2-4.
Briefly, between February 2015 and July 2016, the Red Lake
Department of Public Safety received five anonymous telephone
calls reporting alleged drug sales on the Red Lake Indian
Reservation. R&R at 2. Criminal Investigator Paul Smith
(“CI Smith”) of the Red Lake Department of Public
Safety either personally received the phone calls or was
present while another officer took the calls, and he recorded
the information provided by the callers. Hr'g Tr. [Docket
No. 51] at 14-15, 20, 37-38.
details of the five calls are as follows. On February 7,
2015, an anonymous caller stated that Loud was selling
narcotics on the Red Lake Reservation. On March 27, 2015, an
anonymous caller stated that Loud was selling heroin for
$150.00 per gram from a residence at the Redby Trailer Court
on the Red Lake Reservation, and that a silver and gold Honda
Civic was parked in front of the residence. On April 18,
2016, an anonymous caller stated that he had been told that
Loud was selling “meth from” the biggest trailer
in the Redby Trailer Court, and that the trailer in question
was on the east side of the trailer court. The anonymous
caller did not provide his name when asked to do so. On July
3, 2016, an anonymous caller stated that
“parties” were selling “meth” from a
blue trailer house near the Redby Elderly apartments in the
“back of town trailer courts in Redby[, ]” and
that “numerous people” in Red Lake and the Redby
community were aware of the drug sales. Lastly, on July 7,
2016, an anonymous caller stated that Loud had “just
moved his product” from his house to a trailer closest
to the Redby Elderly apartments in the Redby Trailer Court,
and that “product and packaging materials were inside
the residence.” R&R at 2-3 (quoting Govt. Ex. 1 at
8); Hr'g Tr. at 33-35. The identity of the caller is not
known for any of the telephone calls, nor is it known whether
the calls were made by the same person or were from different
callers. Hr'g Tr. 37-38, 41. CI Smith made no attempt to
corroborate any of the information provided by the anonymous
caller(s). Id. at 24-25.
8, 2016, solely as a result of the five anonymous telephone
calls, CI Smith prepared an Application for a Search Warrant
for the “Reported Cody Loud Trailer” and attached
an Affidavit in Support of the Application. R&R at 3. The
Affidavit specified the information from the anonymous phone
calls, but CI Smith described the calls as having been from
“concerned citizens” and did not state that the
“concerned citizens” were anonymous callers.
Hr'g Tr. at 41. Additionally, the Affidavit does not
state that the April 18, 2016 caller refused to provide his
name or that this caller was relaying secondhand information.
Hr'g Tr. at 35-37, 41.
Smith presented the Application and Affidavit in Support to
Red Lake Tribal Judge Austin J. Needham, who issued the
search warrant. Id. at 21-22. The same day, July 8,
2016, CI Smith executed the search warrant on Loud's
trailer. Id. at 22. During the search, law
enforcement seized (1) a bag of approximately 49 grams of
alleged marijuana, (2) a scale with white/brown residue, (3)
two “loading devices” with white/brown residue,
(4) approximately $8, 223 in U.S. currency, (5) a plate with
white/brown powdery substance on it, (6) approximately 50
clonazepam pills, (7) approximately 171 grams of alleged
heroin, and (8) approximately 200 gabapentin pills.
See Def.'s Mot. Suppress Evidence [Docket No.
27] at 1.
was charged by Indictment with one count of possession of
heroin with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and §§ 841(b)(1)(B).
See Indictment [Docket No. 12]. Loud now moves to
suppress the evidence obtained as a result of the search,
arguing that the search warrant was issued without a
sufficient showing of probable cause in violation of the
Fourth Amendment, and that the good-faith exception to the
exclusionary rule recognized in United States v.
Leon, 468 U.S. 897 (1984) does not apply.
Brisbois found that the search warrant lacked probable cause
because the affidavit submitted in support of the warrant
relied solely on anonymous and uncorroborated tips to law
enforcement. R&R at 6-9. Judge Brisbois also determined
that the good-faith exception under Leon did not
apply because: (1) it was objectively unreasonable for an
officer with over 10 years of experience to present a judge
with an affidavit that included only uncorroborated
information obtained from anonymous callers; and (2) CI
Smith's involvement in both the deficient search warrant
application and the subsequent execution of the search
warrant invalidated any argument that the executing officers
were unaware of the insufficiency of the affidavit underlying
the search warrant. Id. at 10-13.
on the conclusion that the exclusionary rule applies, Judge
Brisbois recommends granting Loud's Motion to Suppress
Evidence. Given this recommendation, Judge Brisbois found it
unnecessary to address an alternative argument by Loud that
the search warrant was invalid under Franks v.
Delaware, 438 U.S. 154 (1978). ...