United States v. Demar James

          Alan A. Slaughter, Jr., United States Attorney's Office, Minneapolis, Minnesota, for Plaintiff.

          Peter B. Wold, Wold Morrison Law, Minneapolis, Minnesota, for Defendant.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE

         The above-captioned case comes before the undersigned on Defendant Martavis Shawn Demar James's (“James”) Motion to Suppress Search and Seizure of Items [Doc. No. 18]. The case was referred for resolution of pretrial matters pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. No. hearing was held, and the Court took these motions under advisement on October 30, 2018. See (Oct. 30, 2018 Order [Doc. No. 23] (cancelling the motion hearing on the basis of representations made by the parties). For the reasons stated below, the Court recommends that James's Motion to Suppress be denied.

         I. BACKGROUND

         On September 12, 2018, James was indicted on five counts of Interference with Commerce by Robbery and one count of Attempted Interference with Commerce by Robbery. (Indictment [Doc. No. 1].) The indictment was in connection with robberies or attempted robberies of at least ten businesses in the Minneapolis and Saint Paul metropolitan area committed by the same individual between March and June 2018. (Government's Resp. to Def.'s Suppression Mot., “Mem. in Opp'n” [Doc. No. 20 at 1].)

         A. The Robberies and James's Arrest

         From March 2018 to June 2018, there were roughly ten robberies of CVS, Big Lots, Walgreens, and Dollar Tree store locations across the Twin Cities. See (Mem. in Opp'n Ex. 1 [Doc. No. 20-1 at 4-5]; Mem. in Opp'n Ex. 2 [Doc. No. 20-2 at 4-5]; Mem. in Opp'n Ex 3 [Doc. No. 20-3 at 4-5].) The Government alleges the perpetrator of each robbery utilized the same modus operandi in the commission of these crimes. (Ex. 1 at 4-5; Ex. 2 at 4-5; Ex. 3 at 4-5.) The male perpetrator would “case” the store by loitering in the parking lot of the establishment for roughly ten minutes before entering the store wearing a black jacket with the hood up, a black face mask covering the bottom half of his face, black gloves, and brandishing a black handgun. (Ex. 1 at 4; Ex. 3 at 4.) The perpetrator would approach an employee and demand to be led to the safe in the business office where he would prompt the employee to place bills into a red and black duffel bag, then he would order the employees to lie on the floor, and exit the store on foot. (Ex. 1 at 4-5; Ex. 2 at 4-5; Ex. 3 at 4-5.) Each robbery occurred in the last thirty minutes of the store's business hours. (Ex. 1 at 4-5; Ex. 2 at 4-5; Ex. 3 at 4-5.)

         Unable to identify the perpetrator of these robberies through surveillance videos at these locations, law enforcement agents applied for search warrants for cellular tower data in the vicinity to determine whether “a particular cellular phone number (ostensibly held by the robber) could be identified during the time frames of each of the respective robberies.” (Mem. in Opp'n at 2); see also (Ex. 1; Ex. 2; Ex. 3.) The search warrants were reviewed and issued by three different state court judges. See (Ex. 1; Ex. 2; Ex. 3.)

         Analysis of the cellular information revealed that the same cellphone number was near at least five of the six robbery locations during the time of the robberies. (Mem. in Opp'n at 2.) On this basis, law enforcement agents were granted a search warrant for the use of an active GPS “ping” geolocation data for James's cellphone and the use of a pen register to monitor James's movements. (Id. at 3); see also (Mem. in Opp'n Ex. 5 [Doc. No. 20-5].) On June 1, 2018, agents followed James to a CVS store located in Eden Prairie, Minnesota where they observed him casing and approaching the store while wearing the same or similar black clothing, black gloves, and mask seen in the surveillance video. (Mem. in Opp'n at 3.) James, however, was unable to enter the store; the doors had been locked by law enforcement and CVS employees, thwarting James's robbery of this location. (Id.) James walked back to his vehicle and, once inside, he was arrested. (Id.)

         As part of a search incident to his arrest, law enforcement agents searched the main cabin of the vehicle and located a black and red duffel bag in the passenger seat. The duffel bag appeared to be the same one used in the commission of the other robberies and contained a bank deposit bag that was taken during the commission of one of the CVS robberies. (Id.) Law enforcement also found a handgun under the driver's seat and James's cellphone in the vehicle's center console. (Id.)

         B. Challenged Warrants

         James moves to suppress evidence obtained as a result of searches conducted pursuant to nine warrants issued by Anoka and Hennepin County District Courts. (Def.'s Mot. to Suppress [Doc. No. 18 at 1].) James primarily challenges the first three warrants, each of which authorized the collection of cellular tower dumps and call detail record information from Verizon Wireless, AT&T Mobility, Sprint Corporation, and T-Mobile USA, of all cellular devices utilizing the cell site/sector near the specified areas for a variety of dates, times, and locations correlated with the robberies. (Id. at 2.) James argues these search warrants were exploratory searches and lacked definiteness and the necessary probable cause. (Id. at 2-3.)

         The first set of robberies occurred on March 21, 2018, March 29, 2018, and April 6, 2018. (Ex. 1 at 4-5.) On April 11, 2018, Minneapolis Police Sergeant Jeffrey Waite (“Sgt. Waite”) applied for and received the first warrant authorizing cellular tower dumps and call detail record information of all cellular devices near the first three robbery locations. (Ex. 1 at 1-2.) The search warrants were constrained to an approximately ninety-minute time frame on the date of each robbery. (Ex. 1 at 1-2.)

         Subsequently, three more robberies with almost identical details including the perpetrator's attire, time of robbery, and method of robbery occurred on April 11, 2018, April 26, 2018, and May 4, 2018. (Ex. 2 at 4-5.) Two warrants were applied for and granted on May 8, 2018, authorizing the release of the same type of information from the same carriers called for by the first search warrant. (Ex. 2; Ex. 3.) These search warrants were limited to cellular towers near the alleged criminal activity for a ...