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United States v. Tucker

United States District Court, D. Minnesota

December 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARQUIS WILLYJOHN TUCKER, Defendant.

          Erica H. MacDonald, United States Attorney, and Jeffrey Paulsen, Assistant United States Attorney, for plaintiff.

          Keala C. Ede, for defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JOHN R. TUNHEIM CHIEF JUDGE

         Defendant 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.)

         Magistrate 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.[1](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.

         BACKGROUND

         The 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 underlying testimony.

         In 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.)

         Before 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; 43:9-12.)

         Officer 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.)

         Upon 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. at 55:22-56:1.)

         Sauro 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. at 59:2-18.)

         DISCUSSION

         I. FACTUAL OBJECTIONS

         As an 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.

         First, 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.[2] 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 ...


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