United States District Court, D. Minnesota
H. MacDonald, United States Attorney, and Jeffrey Paulsen,
Assistant United States Attorney, for plaintiff.
C. Ede, for defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF
R. TUNHEIM CHIEF JUDGE
Marquis Tucker was indicted for being a Felon in Possession
of a Firearm in violation of 18 U.S.C. § 922(g)(1).
(Indictment, Apr. 18, 2018, Docket No. 1.) Tucker filed a
Motion to Suppress evidence discovered after a police
officer's stop, pat down, and warrantless search of his
person. (Mot. to Suppress, June 14, 2018, Docket No. 19.)
Additionally, he filed a Motion for Disclosure of a
government informant and to compel the government to make the
informant available for interview. (Mot. for Disclosure, June
14, 2018, Docket No. 25.)
Judge David Schultz held a motions hearing on July 9, 2018.
(Min. Entry for Mot. Hr'g, July 9, 2018, Docket No. 31.)
Subsequently, he took supplemental briefing on the above
motions. In an Order and Report and Recommendation
(“R&R”), Magistrate Judge Schultz recommended
denying Tucker's Motion to Suppress and denied his Motion
for Disclosure.(Order and R. & R. at 9-10, Sept. 24,
2018, Docket No. 45.) Tucker objected to both the
recommendation and the order, and specifically objected to
several factual findings made by the Magistrate Judge.
(Def.'s Obj. to R. & R., Oct. 9, 2018, Docket No.
46.) Because the Court concludes that the challenged police
action was constitutional, the Court will adopt the
recommendation of the Magistrate Judge and deny Tucker's
Motion to Suppress. Additionally, because the Magistrate
Judge did not err in denying the Motion for Disclosure, the
Court will overrule Tucker's objection.
facts of this case come largely from the testimony of two
police officers. Because the Court will adopt the facts found
by the Magistrate Judge without change, and because the
Magistrate Judged relied almost exclusively on the testimony
of those officers, the Court will cite directly to the
early 2018, the city of St. Paul police received a tip from a
confidential informant that a man named Kevin White was
dealing drugs around the area of the Twins Market in east St.
Paul. (Tr. of Mot. Hearing (“Tr.”) at 13:20-15:6,
July 16, 2018, Docket No. 34.) Police used the informant on
two occasions in early 2018 to conduct controlled buys from
White. (Id. at 15:7- 17:11.) One of the previous two
buys took place in the Twins Market parking lot, the other
took place about six blocks from the Twins Market.
(Id. at 16:19-17:7.) Police then initiated a plan to
set up a third controlled buy-using the same informant-on
March 27, 2018 with the intent to arrest White afterwards.
(Id. at 17:12-15.) On that day, police set up
surveillance and observed White drive to and park near
Margaret Park, a public park five blocks from the Twins
Market. (Id. at 19; 26:20-27:4.) Officer Colby Bragg
was the informant's main handler, and the informant was
in Bragg's car when White arrived at the park. (See
Id. at 16; 20.)
he exited the vehicle, Bragg checked the informant to ensure
that he did not have drugs on him. (Id. at 20:8-10.)
Then, as planned, the informant exited Bragg's vehicle
and began walking to White's car. (Id. at
20:23-21:4.) Bragg was able to see the informant the entire
time. (Id. at 41:7-18.) After spending approximately
two minutes at White's car, the informant walked away
and, shortly after that, called Bragg and told him that he
had made the purchase. (Id. at 21:3- 15.) The
informant than made her way back to Bragg's car, where
she handed Bragg what appeared to be crack-cocaine.
(Id. at 21:24-22:22.) At that point, Bragg ordered
other officers, who were positioned in the surrounding
neighborhood, to move in on White and make the arrest.
(Id.) Five to ten minutes elapsed from the time that
the informant left White's car to the time that Bragg
gave the order to move in. (Id. at 22:12-16;
Joseph Sauro was one of the officers on the arrest team.
While he was awaiting Bragg's order to move in, he was
parked a few blocks away from White, and could not see him or
his vehicle. (Id. at 62:24-63:6.) However, Sauro was
already familiar with White, and testified that “it had
been rumored that [White] had had guns or [went] along with
people who had guns.” (Id. at 49:23-50:2.)
When Sauro received word from Bragg that the informant made
the purchase and that he could move in to make the arrest, he
and the other two officers in his car quickly made their way
to White's location. (Id. at 51:1-21.) While
Sauro was en route, another unidentified officer warned over
the radio to “be advised of those other guys that were
buying.” (Gov't Ex. 2 (body camera footage), on
file with Court; see also Tr. at 63:11-64:17.)
turning onto the street that White was parked on, Sauro saw
the target vehicle and saw two males near the car. (Tr. at
52:25-53:4.) One was leaning into the vehicle, the other,
defendant Marquis Tucker, was about a foot behind the first
male. (Id. at 53:5-8.) At this time, no one on the
arrest team, or Bragg, had any prior knowledge of Tucker, nor
was he a target of their investigation. (Id. at
45:3-8, 50:3-6.) Nevertheless, when Sauro arrived at
White's car he told everyone to show their hands.
(Id. at 53:12-18.) He then approached White's
car and, as he did so, noticed a bag of marijuana on the
center console. (Id. at 53:16-17, 54:10-17.)
Sauro's training and experience led him to believe the
bag could've either been for personal use or for sale to
others. (Id. at 73:2-16.) He also noticed that there
were two additional people in White's car. (Id.
then proceeded to handcuff Tucker and patted him down.
(Id. at 56:2-9.) He immediately felt a handgun in
the waistband of Tucker's pants. (Id. at
56:7-15.) Sauro removed the gun and detained Tucker while he
attended to the other individuals at the scene. (Id.
at 57:7- 19.) Shortly thereafter, Sauro conducted a check of
the firearm's serial number, and was notified that it was
stolen. (Id. at 58:17-23.) At that point, Tucker was
arrested and fully searched by another officer, who found
crack-cocaine in one of Tucker's pockets. (Id.
initial matter, the Court considers Tucker's legally
relevant factual objections. When reviewing the factual
findings of a Magistrate Judge, the Court conducts a de novo
review, and at a minimum must “consider the actual
testimony” underlying the factual findings in order to
“make its own determinations of disputed
issues.” Branch v. Martin, 886 F.2d 1043, 1046
(8th Cir. 1989). Tucker urges the Court to
reconsider the two officers' testimony and to decline to
adopt certain facts which were found by the Magistrate Judge
and based on that testimony.
Tucker objects to the Magistrate Judge's finding that
Bragg and his informant had executed two controlled buys
before the March 27 controlled buy. He argues that the
existence of those two controlled buys was not sufficiently
established because Bragg did not give any specifics about
the controlled buys during his testimony, the government
never produced any police reports from those two controlled
buys, and because the informant did not
testify. Having reviewed the testimony, the Court
credits the testimony of Bragg on this issue and sees no
reason to doubt his credibility. Bragg testified and was
cross-examined extensively about the prior controlled buys,
provided the location and approximate location of them, and
stated that White ...