United States District Court, D. Minnesota
Jeffrey S. Paulsen, United States Attorney for Plaintiff
Deshon Andrews, Pro Se Defendant
ORDER & REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
Norris Deshon Andrews is charged with one count of being a
felon in possession of a firearm. The charge stems from a
shooting that occurred on May 15, 2018. Foregoing his right
to counsel, Andrews seeks to suppress, in effect, any
evidence the Government may possibly use at trial and seeks
the disclosure of an eyewitness. He also moves to dismiss the
indictment against him, contending that the Government's
agents engaged in outrageous conduct and that there is a lack
of probable cause. All of these motions are denied.
4:45 on May 15, 2018, Minneapolis police responded to a
shooting near 1711 Plymouth Avenue North. Def. Ex. 14 (Case
Report Suppl. 13). They found two victims, who were taken to
the hospital. Id. Officers obtained security camera
footage of the shooting. Hr'g Tr., Sept. 10, 2018
(“Sept. 10 Tr.”), at 10-11, Docket No. 51;
Gov't Ex. 1 (“Cropped” Video); Def. Ex. 18
(“Uncropped” Video). The video shows two
individuals arrive in a blue SUV with no license plate and
approach a group of people. Sept. 10 Tr. 11-12; Gov't Ex.
1. One of the individual appears to talk to someone in the
group, then pulls a gun and fires several shots before
driving away in the SUV. Sept. 10 Tr. 10; Gov't Ex. 1.
female witness told an officer she believed the shooter to be
Norris Andrews, who went by the nickname “N.O.”
Def. Ex. 15 (Case Report Suppl. 9). She described him as
being “a heavy set black male, approximately 6 feet,
with long dread locks, ” and showed the officer a
picture of Andrews from her phone. Id. The witness
also provided a phone number she believed Andrews used. Sept.
10 Tr. 13. Using this information, along with booking photos,
Sergeant Kelly O'Rourke concluded that Andrews appeared
to be the shooter in the security video. Id. at
13-14. He also discovered that the phone number provided by
the witness was linked to a subscriber with the last name of
Andrews. Id. at 14.
O'Rourke also learned of another shooting that occurred
nearby, about an hour before the one he was investigating,
where officers found similar shell casings. Id. A
witness to that shooting described the shooter as “a
large black male, dark skin and long braided hair, ”
and the vehicle he was driving as a blue Chevrolet Tahoe.
Id. at 14-15; Def. Ex. 14 (Case Report Suppl. 13).
Based on this information, Sgt. O'Rourke wrote an exigent
order for real time location updates and call detail records
to T-Mobile, the service provider for the phone number
associated with Andrews. Sept. 10 Tr. 15; Gov't Ex. 3.
After submitting the exigent order, Sgt. O'Rourke
received emails about every 15 minutes giving him the
approximate location of the phone. Sept. 10 Tr. 20; Gov't
11 o'clock that evening, the phone stopped moving,
staying near 2810 Girard Avenue North. Sept. 10 Tr. 21;
Gov't Ex. 9. Sgt. O'Rourke sent two other police
officers, Officer Andrew Schroeder and Sergeant Joel Pucely,
to look for Andrews and the blue Tahoe around 2810 Girard.
Hr'g Tr., Oct. 5, 2018 (“Oct. 5 Tr.”), at
12-13, Docket No. 69. The officers searched a small radius
around 28th and Girard, but did not find the Tahoe or
Andrews. Id. at 14, 158.
sat in his patrol car, Sgt. Pucely noticed a white GMC Yukon
drive slowly past him twice. Id. at 15. The Yukon
stopped on Girard and Pucely saw two men, one matching
Andrews's general description, come out of a yard and get
in the car. Id. at 18, 28. The Yukon pulled away
from the curb without signaling and then turned onto 29th
Avenue North without completely stopping at the stop sign.
Id. at 18-19. Sgt. Pucely followed the Yukon and
called Officer Schroeder. Id. at 19. When Officer
Schroeder was in a position to help him, Sgt. Pucely stopped
the Yukon for the two moving violations. Id. at 20.
As they stopped the Yukon, Officer Schroeder pulled alongside
Sgt. Pucely and noticed someone in the back seat of the Yukon
lean over, out of his view. Id. at 159-60.
Pucely approached the vehicle and saw three people, two
seated in front and one seated behind the driver.
Id. at 21; Def. Ex. 31 (Sgt. Pucely's Body Cam).
When Sgt. Pucely reached the car, he recognized the backseat
passenger as Andrews. Oct. 5 Tr. 21. He ordered Andrews to
step out of the vehicle, handcuffed him, and placed him in
the back of a police car without incident. Id. at
21; Def. Ex. 31. Other officers arrived and helped remove the
other two occupants from the Yukon and take them into
custody. Oct. 5 Tr. 21-22; Def. Exs. 31, 32.
O'Rourke asked the officers at the scene to tow the
Yukon, and officers conducted an inventory search before
moving the vehicle. Oct. 5 Tr. 90, 95. During that search, an
officer found a 9mm handgun under the back seat. Id.
at 105; Def. 11 (Case Report Suppl. 30). Officers took
Andrews and the other two individuals to City Hall for
questioning. Gov't Ex. 7 (Appl. for Search Warrant 3);
Def. Ex. 32.
Subsequent Searches and Identifications
O'Rourke interviewed the driver of the Yukon, Dominique
Smith. He learned that Andrews and the other passenger,
Montreal Tyson, had originally asked her to pick them up
around 26th Street and James Avenue North. Sept. 10 Tr.
24-25. Sgt. O'Rourke sent officers to that area, where
they found a blue Tahoe. Id. at 25. He later
obtained a warrant to search the Tahoe. Sept. 19 Tr. 13;
Gov't Ex. 7. Inside, officers found identification
linking Andrews to the car. Sept. 19 Tr. 14; Gov't Ex. 7
(Receipt, Inventory and Return).
days after the shooting, Sgt. O'Rourke interviewed one of
the two shooting victims in the hospital. Sept. 19 Tr. 15.
The victim described the shooter as having long hair and
wearing glasses. Id. at 16. The sergeant prepared a
six photo lineup and returned to the hospital. Id.;
Gov't Ex. 6. He instructed the victim that the shooter
may not be in one of the photos and to view the photos one at
a time. Sept. 19 Tr. 18. The victim identified Andrews as the
shooter. Id. at 19; Gov't Ex. 6.
getting a warrant, Sgt. O'Rourke also took a DNA sample
from Andrews. Sept. 19 Tr. 20; Def. Ex. 31 (Findings and
unusual course of Andrews's pretrial motions and hearings
warrants a brief discussion. Andrews was originally
represented by Mr. Aligada of the Federal Defenders Office.
Mr. Aligada filed a number of pretrial motions. See
Docket Nos. 24-31, 40-42. The Court held a hearing on
September 10 and addressed the non-dispositive
motions. Sept. 10 Tr. 6-7. The evidentiary portion
of the hearing was cut short when Mr. Aligada requested a
continuance to review an exhibit the Government attempted to
introduce, but had not disclosed. Id. at 26-28.
the hearing resumed on September 19, Andrews informed the
Court he wished to represent himself, at least for the
hearing, and bring additional motions. Sept. 19 Tr. 3-8. The
Court found that Andrews knowingly and voluntarily waived his
right to representation at the hearing. Id. at 9-10.
Sgt. O'Rourke testified, and Andrews cross examined him
for an extended period of time. Id. at 21-70, 73-87.
Because Sgt. O'Rourke's testimony went until nearly
5:30 p.m., the Court continued the hearing. Id. at
90. The hearing reconvened on October 5 at 9 a.m. Oct. 5 Tr.
2. Andrews continued to represent himself with Mr. Aligada as
standby counsel. Id. at 2-3. Sgt. Pucely and Officer
Schroeder testified, as did Andrews. Id. at 297. The
hearing lasted nearly seven hours. Court Minutes, Oct. 5,
2018, Docket No. 48.
the hearing, Andrews filed several pro se motions. Docket
Nos. 53-59, 65-66. The Court also approved Mr. Aligada's
request to withdraw as counsel and appointed Kevin
O'Brien from the Criminal Justice Act Panel to represent
Andrews. Order, Oct. 18, 2018, Docket No 64; Order for
Appointment of Counsel, Docket No. 67. Following a November 9
hearing, it was unclear whether Andrews wished to proceed pro
se. It was also unclear which motions were properly before
the Court. So, the Court ordered Mr. O'Brien to withdraw
all of the prior motions not already disposed of, and refile
any appropriate motions after discussing them with Andrews,
which he did. See Docket Nos. 75, 80, 85-88.
sent a letter to the Court indicating he was unhappy with Mr.
O'Brien. Letter to the Court, Nov. 14, 2018, Docket No.
92. So, the Court held a final hearing on December 17.
Andrews waived his right to counsel, but Mr. O'Brien was
appointed to serve as standby counsel. Dec. 17 Tr. 4. Andrews
then testified and entered exhibits regarding motions he had
filed or intended to file. Id. at 41-127. The Court
allowed Andrews to file any of the pro se motions and
exhibits he had previously filed but which Mr. O'Brien
had not refiled because he did not believe he could do so
consistent with his ethical obligations. Id. at 146.
refiled all of his original pro se motions and exhibits and
the Government filed a response. After the Government's
response, Andrews filed eight new pro se motions, and a
memorandum of support. Despite these new motions being
untimely, the Court will address them on the merits with the
Procedural Motions (Docket Nos. 75, 96, 105, 109-11)
makes several procedural requests in his outstanding motions.
First, Andrews asks the Court to admit Defendant's
Exhibits 31-51 (Docket No. 105). The Court has reviewed the
exhibits and the motion is granted. He also seeks discovery
of various pieces of evidence purportedly possessed by the
Government but not yet turned over to him (Docket No. 75).
The Government has agreed to provide the requested material
to the extent it exists. But, it notes that none of the
individuals who testified at the pretrial hearing testified
to the Grand Jury and that Andrews's phone has not been
searched. The Court is satisfied that Andrews's request
is now moot based upon the Government's representations.
Andrews seeks to reopen the evidentiary hearing to call
additional witnesses (Docket No. 111) and to present oral
argument on his motions (Docket No. 110). These motions are
denied. The Court set a schedule at the end of the December
17 hearing, and Andrews has not sufficiently demonstrated a
need to reopen the hearing. Andrews's testimony and
argument during the hearings addressed all of his motions,
and he filed a written memorandum with the help of his
standby counsel. The Court is confident that Andrews has had
a fulsome opportunity to present the arguments for his
motions, and it will consider them accordingly.
Andrews asks the Court to grant him a new detention hearing
(Docket Nos. 96, 109). In support of this hearing, he notes
that his mother has cancer and her health is deteriorating.
Mot. for Detention Bond Hr'g 2, Docket No. 96. He also
contends, for several reasons, he cannot mount a proper
defense from jail and there are no outstanding warrants
against him. Mot. Revocation of Order and for Detention
Hr'g, Docket No. 109.
the cited grounds as true, they do not entitle Andrews to a
new detention hearing. A detention hearing may be reopened
“if the judicial officer finds that information exists
that was not known to the movant at the time of the hearing
and that has a material bearing on the issue whether there
are conditions of release that will reasonably assure the
appearance of such person as required and the safety of any
other person and the community.” 18 U.S.C. §
3142(f). Even if he were given the chance to present
compelling evidence, none of the grounds Andrews posits
materially bear on assuring his further appearance in court
or the safety of the community. Moreover, as his repeated and
voluminous filings make clear, Andrews's ability to
prepare and present a defense has not been unduly hampered by
his current incarceration. Accordingly, his motion is denied.
Motions to Dismiss (Docket Nos. 80, 98, 100-01,
seeks to dismiss the indictment against him for outrageous
government conduct. “[I]n rare instances, the
investigative methods employed by law enforcement could be
‘so outrageous that due process bars the government
from invoking the judicial process to obtain a
conviction.'” United States v. Combs, 827
F.3d 790, 794 (8th Cir. 2016) (quoting United States v.
King, 351 F.3d 859, 867 (8th Cir. 2003)). Dismissal is
appropriate only when the Government's conduct
“falls within the narrow band of the most intolerable
government conduct, namely, actions violating that
fundamental fairness, shocking to the universal sense of
justice, mandated by the Due Process Clause.”
Id. at 794-95 (internal quotations and citations
omitted). Andrews asserts that the government has engaged in
such outrageous conduct by fabricating incriminating
evidence, destroying exculpatory evidence, withholding
evidence, engaging in vindictive prosecution, interfering
with his right to confront his accusers, and intimidating a
witness.None of his arguments are availing and the
motions are denied. Because many of the grounds for dismissal
are repeated throughout his various motions, the Court will
address each ground, rather than each motion, in turn.
Fabrication of evidence
Andrews contends that the Government has fabricated most of
the evidence in its case against him, including making false
statements in police reports, generating false ballistics
reports, forging a search warrant, planting evidence in the
two vehicles searched in relation to this case, forging a new
title for the Tahoe, and allowing officers to perjure
themselves to support the fabricated evidence. The Court is
unconvinced. It has examined the documents that Andrews
contends contain clear discrepancies, but does not see the
concerns he has raised. Andrews provides no other basis for
any of these accusations other than his own testimony. This
is not enough to meet the “heavy burden of proving
outrageousness on the part of the government.”
United States v. Gleason, 980 F.2d 1183, 1187 (8th
Destruction of ...