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United States v. Thompson

United States District Court, D. Minnesota

January 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RYAN ISIAH THOMPSON (1), Defendant.

          REPORT AND RECOMMENDATION

          Katherine Menendez United States Magistrate Judge.

         This matter is before the Court on two suppression motions filed by Ryan Isiah Thompson: (1) Defendant's Pretrial Motion To Suppress Statements, Admissions, Answers And Evidence That Is The Fruit Of Such Statements, ECF No. 24; and (2) Defendant's Pretrial Motion to Suppress Search and Seizure, ECF No. 25. The Court held a hearing on these motions on October 22, 2018, at which St. Paul Police Officers Shawn Longen and Jason Whitney testified and the Court received several exhibits into evidence.[1] The parties filed post-hearing briefing.[2] For the reasons that follow, the Court recommends that Mr. Thompson's motions be granted/denied.

         I. Background

         Officer Longen is assigned to a narcotics unit of the Ramsey County Violent Crimes Enforcement Team (“VCET”) as a K-9 handler. Tr. 7:9-13. He investigates violent crimes and narcotics-related offenses in the Twin Cities. Tr. 8:4-8. In that role he began investigating Mr. Thompson's suspected involvement in distribution of controlled substances in February of 2018.

         Officer Whitney also works in the St. Paul Police Department as a K-9 officer and conducted a traffic stop of Mr. Thompson's vehicle on May 6, 2018 at the direction of the VCET narcotics unit. Tr. 58:10, 60:13-62:1. Both officers testified about their involvement in the investigation of Mr. Thompson.

         Initial Meeting with Person ABC

         Around February 11, 2018, Officer Longen was contacted by a “concerned citizen”[3] with information linking Mr. Thompson, among others, to the distribution of heroin in St. Paul. Tr. 8:16-22, 9:7-10:1. Officer Longen stated that when ABC came to him with information, he “said he wanted to do the right thing, ” and did not request any payment. Tr. 46:6-13. Around March 7, 2018, however, ABC became a paid informant. Tr. 8:25-9:2, 43:23-44:1. Sometime in mid-March, ABC also told Officer Longen that he provided information because he wanted Officer Longen to speak to his probation officer about reducing his probation time. Tr. 52:6-11. ABC has a criminal record and one of his convictions requires him to register as a sex offender. Tr. 46:14-19.

         In their initial meeting, ABC told Officer Longen that Mr. Thompson would often drive from St. Paul to Chicago to pick up large amounts of heroin from a source there and bring it back to the Twin Cities for distribution. See Tr. 10:2- 10; Tr. 63:2-7. ABC explained that Mr. Thompson would also occasionally take the Megabus from the Twin Cities to Chicago and back. Tr. 11:19-12:1. ABC said that Mr. Thompson had been arrested in Illinois and Minnesota for drug-related crimes. Tr. 12:2-5.

         ABC also told Officer Longen that Mr. Thompson was driving a silver Saturn station wagon at the time, that the vehicle would be parked at an apartment building on 677 Wells Street where Mr. Thompson lived, and that Mr. Thomson had “a couple firearms” that he kept at his apartment. Tr. 10:11- 11:4. He had also seen Mr. Thompson driving a green Nisan Maxima with the license plate AKS 913. Tr. 11:5-13. ABC shared some recent videos that ABC had taken of Mr. Thompson in his apartment, and in the footage Officer Longen saw stacks of money on a black case, a black handgun, and another firearm that appeared to be a TEC-9 or MAC-10 style gun. Tr. 12:6-22. In the same videos, Mr. Thompson could be seen sitting on a couch with baggies containing “what appeared to be controlled substances sitting next to him.” Tr. 12:6-16.

         After the initial meeting with ABC, Officer Longen attempted to confirm the information he received. Officer Longen was able to verify Mr. Thompson's age, which ABC had also discussed. Tr. 13:16-20; see also Gov't Ex. 1 at 2 (indicating that a background check on Mr. Thompson returned his date of birth, corroborating information provided by ABC). He checked the license plate ABC provided and learned that the green Nissan was registered to Mr. Thompson, though it was registered at an address on Robert Street, not Wells. Tr. 13:5-13. Officer Longen sent ABC an unmarked picture of Mr. Thompson, which ABC confirmed was the person he had identified as being involved in distribution of heroin. Tr. 13:21-14:1. Officer Longen checked Mr. Thompson's criminal history and verified that he had arrests in Illinois and Minnesota for drug-related offenses. Tr. 14:4-9. He also began conducting surveillance of the apartment building at 677 Wells and saw Mr. Thompson driving the green Nissan Maxima. Tr. 14:13-17.

         Wisconsin State Patrol Traffic Stop and ABC's Recording

         Later in February of 2018, ABC told Officer Longen that Mr. Thompson had been stopped by Wisconsin State Patrol (“WSP”). Tr. 14:23-15:1. Officer Longen contacted WSP and verified that Mr. Thompson had been stopped on February 26, 2018 while driving the green Nissan Maxima eastbound on Interstate 94. Tr. 15:5-17. WSP arrested Mr. Thompson for possession of marijuana and his car was towed. Tr. 8:13.

         Shortly after the WSP traffic stop, on February 27th or 28th, ABC made a secret recording of a conversation he had with Mr. Thompson. Tr. 15:21-24, 17:5-10. In that conversation, Mr. Thompson discussed the WSP trooper making contact with him during the traffic stop, explained that he had marijuana in the car and on his person, and stated that the stop would have been “much worse” for him “if he would have had the work with him.” Tr. 16:1-12. Officer Longen testified that “work” is a common term used to describe drugs. Tr. 16:1-12. Mr. Thompson talked to ABC about “licks, ” a term used to refer to customers by a person who deals drugs, and “zips, ” which is a slang term for ounces. Tr. 16:1-12. He also discusses having a “whoop, ” which is a slang term for a gun, locked inside his glovebox at the time of the WSP stop. Tr. 16:13-22. Mr. Thompson stated that on his return trip, he was speeding, and if he had been stopped again he would have told police that he was irritated by the previous stop. Tr. 16:13-22.

         February 28th Tracking Warrant and Order

         Based on the information he had received from ABC and his own corroboration of certain details, on February 28, 2018, Officer Longen wrote an application for a search warrant to place a GPS tracking device on the green Nissan Maxima. Tr. 19:14-23; Gov't Ex. 1. In the application for the tracking warrant, Officer Longen explained that ABC, a “Concerned Citizen, ” stated that Mr. Thompson was involved in the sale and distribution of heroin. Gov't Ex. 1 at 2. ABC knew Mr. Thompson's name, approximate age, and provided a description of his appearance. Id. Officer Longen explained that ABC: (1) identified Mr. Thompson's silver Saturn vehicle; (2) said that he lives at 677 Wells and uses the location to store heroin; and (3) said that he is known to possess and carry firearms. Id. Officer Longen also stated that ABC said Mr. Thompson purchased a green Nissan Maxima and used it to take trips to and from the Chicago area to pick up heroin from a source. Id. The application states that ABC knew details about Mr. Thompson's criminal history, including drug-trafficking arrests in the Chicago area. Id. at 2, 3.

         Officer Longen's affidavit describes the details he was able to corroborate from ABC's statements. He confirmed the green Maxima was registered to Mr. Thompson at a Robert Street address. Gov't Ex. 1 at 2. He corroborated ABC's information about Mr. Thompson's age and appearance. Id. Officer Longen stated that surveillance at the Wells apartment revealed that Mr. Thompson was driving both the green Maxima and the silver Saturn station wagon, further confirming information provided by ABC. Id. Officer Longen was also able to verify that WSP had conducted a traffic stop on February 26th and that Mr. Thompson was arrested for possession of marijuana. Id. at 3. And Officer Longen states that a criminal history check corroborated information provided by ABC about arrests for drug-related offenses. Id. Based on this application, Ramsey County District Court Judge Joy Bartscher authorized the installation of the GPS tracking device on the green Maxima. Id. at 4.[4] The warrant permitted the tracking for a period of 60 days. Id. at 5. The application for the GPS tracking device does not mention the recording ABC made of his conversation with Mr. Thompson following the stop by WSP. Nor does the application mention the videos ABC provided to Officer Longen at their initial meeting.

         On February 28th, Officer Longen also wrote an application for an “order authorizing the installation and use of a pen register, trap device, and electronic tracking device” on a cellular phone with the number ending in 0727. Tr. 19:14- 23; Gov't Ex. 2. The application for this order is based on similar information from ABC that led to the tracking warrant for the green Maxima.[5] Id. at 3-4. Officer Longen's affidavit corroborated details ABC provided about: (1) Mr. Thompson's name, age, and appearance; (2) his vehicles; (3) his presence at the 677 Wells apartment; and (4) his criminal history. Id. Officer Longen's affidavit states that ABC said Mr. Thompson uses the 0727 phone number to conduct narcotics trafficking and that he communicated with Thompson using that number. Id. at 3. Officer Longen further states that he checked the phone number through a police database that showed it was registered to “Mike Jones” at a non-existent address in St. Paul, but in his experience, people involved in trafficking narcotics commonly use false names and addresses to conceal their identities. Id. at 4. Based on this information, Judge Bartscher issued the Order authorizing the police to track the cell phone. Id. at 6-7. This application does not mention either the videos ABC provided to Officer Longen at their initial meeting or the secret recording ABC made of Mr. Thompson following the WSP traffic stop.

         March 5th Traffic Stop

         ABC continued providing information to Officer Longen about other individuals and Mr. Thompson on an ongoing basis through May of 2018. Tr. 16:25-19:1. As to other targets, ABC provided information that Officer Longen was able to verify, including details regarding an individual who was being investigated by the United State Bureau of Alcohol, Tobacco, Firearms, and Explosives. Tr. 19:8-13. With respect to Mr. Thompson, ABC gave Officer Longen updated phone numbers when Mr. Thompson would change them. Tr. 19:2-6. ABC also discussed Mr. Thompson's “day-to-day activities if he knew [Mr. Thompson] was at a certain location....” Tr. 19:6-8.

         ABC told Officer Longen in early March of 2018 that he believed Mr. Thompson was running out of product and would be making a trip to Chicago to pick up heroin to bring back to the Twin Cities. Tr. 21:1-7. The GPS tracking device that Judge Bartscher had approved for the green Maxima was then placed on the vehicle on March 4, 2018. Tr. 20:16-18. At 2:30 a.m. on March 5, 2018, the GPS tracking device indicated that the green Maxima was heading east on I-94 toward Chicago. Tr. 20:19-23, 21:8-12. When it arrived in Chicago, the vehicle remained there for 20 minutes and then began heading west back toward St. Paul. Tr. 21:13-24.

         Believing the vehicle might contain illegal drugs, St. Paul police stopped the vehicle on I-94. Tr. 21:25-22:5. Officers had Mr. Thompson exit the vehicle and called for a K-9 to sniff the car. The dog alerted on an odor of marijuana in the center console. Tr. 22:24-23:6. Law enforcement searched the car, but did not locate anything of interest. Tr. 23:5-6. Nothing was seized, and Mr. Thompson was allowed to leave. Tr. 23:7-16.

         March 6th Recording

         On March 6, 2018, ABC provided Officer Longen a recording of Mr. Thompson discussing this traffic stop. Tr. 23:17-24. During the 20-30 minute recording, Mr. Thompson states that he believed he is under investigation and law enforcement may be monitoring his phones. Tr. 24:3-11. Mr. Thompson discussed his suspicion that people were informing on him and distancing himself from people, including ABC. Tr. 25:16-19. He also discussed “letting things cool off” during a 90-day period that he believed law enforcement had to investigate him. Tr. 25:19-22.

         Mr. Thompson explained to ABC that he noticed surveillance vehicles following him on I-94 because he had been speeding and cars behind him were attempting to keep up. Tr. 24:11-17. He stated that he attempted to exit on White Bear Avenue to see if these other vehicles would follow him. Tr. 24:17-19. Mr. Thompson also repeatedly discussed having “a hundred on me, ” and questioned “what if law enforcement would have found that.” Tr. 24:20-25:2. He told ABC that he was worried when the dog alerted on the vehicle and thought he would not see his family again. However, he believed that the officer searching the vehicle had been unable to find where the heroin was hidden because he was wearing gloves. Tr. 25:3-11. Mr. Thompson also discussed on the recording how good his product is and how he can provide “the best dope for the cheapest price.” Tr. 26:2-4. He described mixing drugs with other substances to maximize profit. Tr. 26:4-9.

         April 2nd Tracking Warrant and Order

         ABC told Officer Longen in early March that Mr. Thompson had purchased a newer Nissan Maxima that was silver and had tinted windows and that he obtained a new phone number ending in 3045. Tr. 27:3-16. ABC said that Mr. Thompson left the green Maxima in Chicago because the car had been stopped twice. Tr. 27:3-9. Officer Longen contacted a person in the United States Drug Enforcement Agency in Chicago, who confirmed that the green Maxima was parked overnight at addresses associated with Mr. Thompson in an area where a gang called the “Four Corner Hustlers … is known to control the distribution of heroin.” Tr. 28:22-29:5. Officer Longen conducted surveillance again at the 677 Wells apartment building and saw Mr. Thompson pull up behind the building in a silver Maxima, exit the vehicle, and go into the apartment. Tr. 28:6-13.

         Based on this new information, Officer Longen applied for a warrant to install a GPS tracking device on the silver Maxima and for an order authorizing the tracking of the phone with the number ending in 3045. Tr. 29:9-14; Gov't Exs. 1 & 2. In the application for the silver Maxima tracking warrant, Officer Longen repeats much of the information he learned from ABC that led to the original tracking warrant for the green Maxima. Gov't Ex. 3 at 2-3. Officer Longen also shared the updated information he learned, including that: (1) ABC told him Mr. Thompson had a newer silver Maxima with tinted windows; (2) surveillance indicated Thompson drove the vehicle to the 677 Wells apartment; and (3) the DEA confirmed the green Maxima had been left overnight at addresses associated with Thompson in an area controlled by gangs involved in the distribution of heroin. Id. at 3. This application did not mention the March 5, 2018 traffic stop and search of the green Maxima that resulted in no seizure of contraband. Judge Bartscher approved the GPS tracking warrant on April 2, 2018, authorizing the installation of the device and monitoring for a 60-day period. Id. at 6-7.

         The application for an order authorizing tracking of the new phone number ending in 3045 similarly repeated the information Officer Longen obtained from ABC that led to the previous phone tracking order. Gov't Ex. 4 at 2-4. Officer Longen explained that ABC had changed his phone number and began using the number ending in 3045 in connection with the distribution of narcotics. Id. at 3. The application also stated that a check of the number in the police database showed it registered to “Mike Jones, ” which was the same name associated with the 0727 number that was tracked pursuant to the February 28, 2018 order. Id. at 4. This application did not include the new information Officer Longen learned from more recent communications with ABC, nor the results of the March 5th traffic stop. On April 2, 2018, Judge Bartscher signed the Order authorizing the tracking of the cell phone associated with the 3045 number for a 60-day period. Id. at 6-7.

         Subsequent Tracking and Surveillance

         Officer Longen placed a tracker on the silver Maxima on April 5th. Tr. 31:12-14. On April 13th, Officer Longen saw that the tracker went down to the Union Depot station in downtown St. Paul and surveillance video that day showed that Mr. Thompson boarded the Megabus bound for Chicago. Tr. 31:15-25. On April 16th, the tracker showed that the silver Maxima returned to the Union Depot. Tr. 32:1-4. That afternoon, Mr. Thompson returned from a bus trip, got in the Maxima, and left. Tr. 32:5-9. The tracker also showed that the silver Maxima traveled to Chicago on April 20th and returned on April 22nd. Tr. 32:10-17. Officer Longen did not arrange for another stop of Mr. Thompson for either of these events because he did not review the tracker data and surveillance video from the bus trip until it was too late. Tr. 32:18-33:3.

         On May 1st or 2nd, officers conducted loose surveillance of Mr. Thompson driving around in the silver Maxima. Tr. 33:12-34:14. Officers saw Mr. Thompson make several very short stops at an intersection and at two different gas stations. Tr. 33:13-23. They also observed him pull into a Target store parking lot in Roseville for a short period of time. Tr. 33:23-25. Mr. Thompson then drove to the Midway Target in St. Paul, where he passed by the front of the store very slowly, leading Officer Longen to conclude that he was trying to see if anyone was following him. Tr. 33:25-34:12.

         On May 3rd, the GPS tracker showed that the silver Maxima drove back to the Union Depot. Tr. 34:15-18. Officer Longen was interested in this because he knew that Mr. Thompson took the Megabus from Union Depot to Chicago, and suspected that he picked up heroin on those trips to transport back to the Twin Cities. Tr. 34:21-25. The phone tracker for the number ending in 3045 was observed at the Union Depot as well, and then it “pinged, ” indicating that it was heading toward Chicago. Tr. 35:1-8. Further tracking of the phone indicated that it remained in Chicago for a few days and then headed back toward St. Paul along the I-90/I-94 corridor. Tr. 35:9-19.

         May 6th Traffic Stop

         Believing that Mr. Thompson would be returning to the Union Depot in St. Paul carrying heroin he obtained in Chicago, on May 6, 2018, Officer Longen contacted other VCET members to set up surveillance at Union Depot and waited for the Megabus to arrive. Tr. 35:20-36:2. Mr. Thompson was seen getting off the Megabus carrying a single sling-style bag that was “a camouflage-tannish color.” Tr. 36:10-15. Around that same time, the silver Maxima pulled into the parking area below the Union Depot station, which officers saw was driven by a female. Tr. 36:16-20. Officers saw Mr. Thompson get into the driver's seat and the woman moved to the passenger seat. Tr. 36:20-22. The vehicle then pulled away from the Union Depot and headed out of downtown St. Paul. Tr. 37:1-2.

         Officer Longen had already decided to have the vehicle stopped and searched. Tr. 36:3-9, 37:3-8. Officer Longen had made that determination based on his cumulative investigation and he intended the search to occur regardless of any alert from a K-9 sniff of the vehicle. Tr. 39:10-23. In particular, Officer Longen was aware that a Nissan Maxima has an empty space underneath the center console that narcotics traffickers can use to hide contraband and understood that if heroin is not in a vehicle for very long, the odor may not spread out in the vehicle enough for a dog to alert on its presence. Tr. 39:24-40:25.

         VCET officers told Officer Whitney that they observed Mr. Thompson getting off the Megabus and believed he was carrying a large amount of heroin and was known to carry firearms. Tr. 38:4-14. They also told him that they were planning to search Mr. Thompson and the vehicle. Tr. 39:5-13. After Officer Whitney received the call from the VCET officers, he was near the east side of St. Paul. Tr. 61:20-62:14. He drove down to the area of the Union Depot so that he could conduct the traffic stop. Tr. 62:19-23. Over the radio, he heard that the Maxima left the Union Depot and was traveling over the Kellogg bridge onto Third Street. Tr. 65:9-17.

         He caught up to the vehicle about 3 to 5 minutes after it left the Union Depot and activated his emergency lights. Tr. 37:9-38:2, 65:20-66:11. The Maxima did not stop immediately, but traveled at a slow pace for approximately a block after he activated the lights. Tr. 66:6-13. Officer Whitney and Officer Heroux, one of several other officers who arrived on the scene, spoke to the two occupants of the vehicle, Mr. Thompson and a woman identified as J.L.J., his significant other. Tr. 67:21-68:11. Officer Whitney testified that his goal during the interaction was to make Mr. Thompson feel comfortable because he did not want the situation to escalate, creating a threat to public safety. Officer Whitney did this because he had been told about Mr. Thompson's firearms history and suspected possession of narcotics. Tr. 68:16-24. Officer Whitney told Mr. Thompson that he was being stopped for the tint on the vehicle's windows and because the vehicle did not have license plates. Tr. 68:25-69:3.

         Officer Whitney asked Mr. Thompson where he was coming from. Tr. 68:25-69:3. Mr. Thompson stated that he had just dropped off his child near Maryland and White Bear Avenue. Tr. 69:4-11; Gov't Ex. 8 at 4-5. Mr. Thompson also mentioned that he and J.L.J. were on their way to get coffee and something to eat, but she wanted to change clothes before they did. Gov't Ex. 8 at 6. Based on the information Officer Whitney received about Mr. Thompson having gotten off the Megabus and the Maxima having left the Union Depot, Officer Whitney believed that Mr. Thompson was not telling the truth about dropping off his child. Tr. 69:12-14.

         Officer Whitney had Mr. Thompson shut off the engine of the car and step outside the vehicle. Tr. 70:8-19. He told Mr. Thompson he was not under arrest and pat-searched him for weapons, but he found only a phone and some “blunts.”[6] Tr. 70:22-71:1; Gov't Ex. 8 at 8. They had a conversation about Mr. Thompson's claim that he had just dropped off his child in an area that was far away from the place he was stopped. Tr. 71:8-21, Gov't Ex. 8 at 8-9.

         During the stop, Officer Whitney eventually asked Mr. Thompson if there was anything illegal in the silver Maxima. Tr. 72:7-14; Gov't Ex. 8 at 10. Mr. Thompson had not been read any Miranda[7] warnings at this point. Tr. 72:15-16. Officer Whitney testified that he was concerned about the contents of the vehicle because some heroin is laced with fentanyl and because a gun in the vehicle creates a safety concern. Tr. 72:17-73:1. Mr. Thompson said that there was nothing illegal in the car. Gov't Ex. 8 at 10. At that point, Officer Whitney went to speak to J.L.J., and asked her if there was anything illegal in the car. Gov't Ex. 8 at 13. Officer Whitney had J.L.J. exit the vehicle and explained to Mr. Thompson that he was going to have the dog go around the car to see if it alerted. Gov't Ex. 8 at 14. Mr. Thompson protested that there was an insufficient basis for the dog to sniff the vehicle. Gov't Ex. 8 at 14-15; Tr. 74:19-24.

         Before the dog-sniff and before any officer went into the vehicle, Mr. Thompson stated: “My girls have their guns license.... She has a gun license.” Tr. 78:19-21; Gov't Ex. 21. Officer Whitney asked if there was a gun in the car, and Mr. Thompson stated: “Yeah, but she has a gun license.” Tr. 78:22-23; Gov't Ex. 8 at 16. Officer Whitney asked where the gun was, and Mr. Thompson told him that “[i]t's in the front seat in her bag.” Tr. 79:1-; Gov't Ex. 8 at 16. Officer Whitney testified that he asked if there was a gun in the car because Thompson said that his J.L.J. had a gun permit and asked follow-up questions due to concerns for his own safety and that of the other officers. Tr. 80:6-21.

         Officer Whitney then brought the dog around the car, but the dog did not react in a way that indicated any controlled substance was in the vehicle. Tr. 80:22-81:3. Nevertheless, Officer Whitney entered the vehicle, looked in the sling-style bag near the front seat, and found a TEC-9 firearm in it, along with several other items. Tr. 80:24-81:6. Officer Longen eventually arrived on the scene and located heroin that was hidden near the center console, which Officer Whitney removed from the vehicle. Tr. 82:20-83:11. Mr. Thompson was arrested.

         677 Wells ...


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