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United States v. Lussier

United States District Court, D. Minnesota

March 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
Darwin Lee Lussier, Sr., Defendant.

          REPORT AND RECOMMENDATION

          HONORABLE LEO I. BRISBOIS, U.S. MAGISTRATE JUDGE.

         This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636 and Local Rule 72.1, upon Defendant Darwin Lee Lussier, Sr.'s (hereinafter “Defendant”) Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 32], upon Defendant's Motion for Hearing Pursuant to Franks v. Delaware, [Docket No. 33], and upon Defendant's Motion to Dismiss Indictment, or alternatively to Suppress Evidence and Testimony Due to Destruction and Spoliation. [Docket No. 35].

         The Court held a motions hearing on January 14, 2019, regarding the parties' pretrial motions.[1] At the motions hearing, the parties requested the opportunity to submit supplemental briefing, which was completed on February 12, 2019, at which time all motions, [Docket No. 32; Docket No. 33; Docket No. 35], subject to Report and Recommendation were under advisement.

         For the reasons discussed herein, the Court recommends that Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 32], be GRANTED; Defendant's Motion for Hearing Pursuant to Franks v. Delaware, [Docket No. 33], be DENIED as moot; and Defendant's Motion to Dismiss Indictment, or alternatively to Suppress Evidence and Testimony Due to Destruction and Spoliation, [Docket No. 35], be DENIED.

         I. BACKGROUND AND STATEMENT OF FACTS

         A. Background

         Defendant is charged with one count of assault with a dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3), 1151, and 1153(a); and one count of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1151, and 1153(a). (Indictment [Docket No. 15]).

         B. Facts

         In his Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 32], Defendant moves the Court for an Order suppressing any evidence obtained as a result of the October 8, 2018, execution of the search warrant for the premises and the person described as:

14921 Circle Pines Rd, Red Lake, MN 56671 located in the little rock district. Known to be the Darwin Lussier residence described as a walking shield house located in the circle pines area, road across from the water tower, 2nd house on the left.

(Gov't Ex. 1 at 1).[2]

         The record presently before the Court indicates that on October 8, 2018, Criminal Investigator Ronald Leyba's (hereinafter “CI Leyba”) applied for a search warrant. The affidavit in support of the search warrant now at issue, in addition to CI Leyba's credentials and qualifications, stated the following:

Your affiant is involved in an investigation involving Darwin Lee Lussier DOB: 05-28-1966 in regards to an incident that occurred on October 7, 2018 on an assault on Dawn Neadeau.
On October 7, 2018, Officer Hamre responded [to] the residence and was advised and took pictures of Dawn Neadeau's head where she was struck with an object and had multiple bruises from this assault. Dawn was taken to IHS for her wounds. Officer Hamre looked for the suspect named by the victim as: Darwin Lee Lussier. Ofc. Hamre stated he had fled into the woods. Ofc. Hamre was advised that Darwin has (2) two bench warrants for his arrest for drugs and other incidents. Ofc. Hamre was made aware that Darwin would not allow the victim to leave the residence.
As of October 5th, 2018 I am aware that Darwin has been utilizing his home as narcotic location to supply and distribute narcotics.
On March 15, 2018, I Criminal Investigator Ron Leyba was notified by Criminal Investigator Kelly Brunelle that he was informed that a house in circle pines was selling narcotics and that they have a lot of methamphetamine there. Information provided to CI Brunelle was that people from Mahnomen were dropping off a load of narcotics at the residence of Darwin Lussier.
On March 15, 2018, I Criminal Investigator Ron Leyba collaborated this information and requested a marked unit to check for large amount of traffic in the circle pines area and confirmed that there was an unusual amount of traffic coming from this area.
Your affiant knows that Patrick Desjarlait has an extensive criminal history which includes (2) controlled substances crimes, assaults. Your affiant verified on March 16, 2018, that Patrick Desjarlait currently has Tribal warrants for his arrest for active contempt.

(Gov't Ex. 1 at 3) (errors in original).

         In addition to the above information, CI Leyba included in the affidavit that he possesses training and experience in investigative techniques regarding narcotics and narcotics enforcement. (Gov't Ex. 1 at 2). CI Leyba also included in the affidavit that he has knowledge, through training and experience, of the evidentiary value of cellular phones and the various ways cellular phones can be used to further a drug-related crime. (Gov't Ex. 1 at 3).

         II. DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED AS A RESULT OF SEARCH AND SEIZURE. [DOCKET NO. 32].

         In his Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 32], Defendant seeks to suppress evidence obtained as a result of the execution of the October 8, 2018, search warrant. Defendant argues that the search warrant was issued absent a sufficient showing of probable cause. (Def.'s Mem., [Docket No. 45], at 10). Specifically, Defendant argues that: (1) the search warrant application and affidavit lack a nexus between the criminal activity and the searched residence (Id. at 13); (2) the affidavit relied on wholly conclusory and/or second-hand information (Id. at 18); (3) the affidavit supplied “stale and unrelated information” (Id. at 23); and (4) that the Leon good-faith exception to the warrant requirement does not save the search conducted in the present case. (Id. at 27).

         A. Standard of Review

         The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, ” and that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const. Amend. IV. The Eighth Circuit has held that “[a]n affidavit establishes probable cause for a warrant if it sets forth sufficient facts to establish that there is a fair probability that contraband or evidence of criminal activity will be found in the particular place to be searched.” United States v. Mutschelknaus, 592 F.3d 826, 828 (8th Cir. 2010) (internal quotation marks and citation omitted). “Probable cause is a fluid concept that focuses on ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'” United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). Courts use a “totality of the circumstances test . . . to determine whether probable cause exists.” United States v. Hager, 710 F.3d 830, 836 (8th Cir. 2013) (citation omitted).

         The sufficiency of a search warrant affidavit is examined using “common sense and not a hypertechnical approach.” United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007) (citation and internal quotations omitted). “In ruling on a motion to suppress, probable cause is determined based on ‘the information before the issuing judicial officer.'” United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (quoting United States v. Reivich, 793 F.2d 957, 959 (8th Cir. 1986)). “Therefore, ‘[w]hen the [issuing judge] relied solely upon the supporting affidavit to issue the warrant, only that information which is found in the four corners of the affidavit may be considered in determining the existence of probable cause.'” United States v. Wiley, No. 09-cr-239 (JRT/FLN), 2009 WL 5033956, at *2 (D. Minn. Dec. 15, 2009) (Tunheim, J.) (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005)) (alterations in Wiley). In addition, the issuing court's “determination of probable cause should be paid great deference by reviewing courts.” Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)). “[T]he duty of a reviewing court is simply to ensure that the [issuing court] had a ‘substantial basis for . . . conclud[ing]' that probable cause existed.” Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).

         B. Analysis

         i. Probable Cause

         As previously noted, Defendant argues that the search warrant was issued absent a sufficient showing of probable cause. (Def.'s Mem. [Docket No. 45], at 10). Specifically, Defendant argues that: (1) the search warrant application and affidavit lack a nexus between the criminal activity and the searched residence (Id. at 13); (2) the affidavit relied on wholly conclusory and/or second-hand information (Id. at 18); (3) the affidavit supplied “stale and unrelated information” (Id. at 23); and (4) that the Leon good-faith exception to the warrant requirement does not save the search conducted in the present case. (Id. at 27).

         Defendant argues that the information in CI Leyba's affidavit supporting the application for the October 8, 2018, search warrant contained no facts to establish that evidence of any crime whatsoever would be found at the residence described as 14921 Circle Pines Rd, Red Lake, MN 56671. In response, the Government asserts that Defendant “abandons viewing the supporting affidavit with a common sense, totality of the circumstances approach and rather dissects each word and each sentence with a hyper technical eye towards probable cause.” (Mem. in Opp., [Docket No. 49], at 5).

         Probable cause determinations “d[o] not deal with hard certainties, but with probabilities.” Gates, 462 U.S. at 231. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]' that probable cause existed.” Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). Additionally, facts supporting a search warrant “must be sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be ...


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