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United States v. Loud

United States District Court, D. Minnesota

May 7, 2018

United States of America, Plaintiff,
v.
Cody Jorrell Loud, Sr., Defendant.

          Clifford B. Wardlaw, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, for Plaintiff.

          Keala C. Ede, Assistant Federal Defender, Office of the Federal Defender, Minneapolis, MN, for Defendant.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         In 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.

         II. BACKGROUND

         The 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.

         The 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.

         On July 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.

         CI 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.

         Loud 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.

         Judge 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.

         Based 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). ...


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