United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Katherine Menendez, United States Magistrate Judge.
Dwight Frederick Barnes has filed motions to suppress
evidence obtained during the execution of several search
warrants and a warrantless arrest. (ECF Nos. 43, 51) He also
seeks to dismiss the Indictment against him on a variety of
grounds. (ECF No. 49.) For the reasons discussed below, the
Court recommends that Mr. Barnes's motions be DENIED.
investigation into Mr. Barnes for drug trafficking began in
mid-July 2017 led by Rochester Police Department
Investigators Shamus Ryan and Kelly McMillin. (Transcript of
the Dec. 4, 2018 Motions Hearing at 27.) Around that time, a
confidential informant advised Investigator Ryan that he knew
of an area drug dealer named “New York, ” and
provided him with New York's phone number, ending in
-9283. (Id.; see also Govt. Ex. 1 at
000550.) Under Investigator Ryan's direction and
supervision, that informant called the -9283 phone number in
order to set up a controlled buy. (Tr. 27-28.) The man who
answered the other line had a deep and distinctive voice, one
that Investigator Ryan would later testify he recognized as
belonging to Mr. Barnes. Investigator Ryan instructed the
informant to arrange to purchase $500 worth of drugs. New
York told the informant to call back later, and when he did,
the informant was instructed to meet a man named Chad at a
specified address. (Id. at 28.) However, the
controlled buy ultimately fell through. (Id.)
the planned buy did not occur, the investigation continued.
Investigator McMillin spoke with a different informant, who
corroborated some of what Investigator Ryan had already
learned. A third informant provided information that helped
further develop a picture of New York. Ultimately, the
officers learned that New York was a black man known to be
one of the largest drug dealers in Rochester. (Govt. Ex. 1.)
He regularly drove a Dodge Charger, and his phone number
matched the one that had been used to set up the unsuccessful
controlled buy. (Tr. 29, 31-32, 34.) New York was an alias
known by the Rochester Police Department to be used by Mr.
Barnes, whose distinctive voice on unrelated body camera
footage matched that of the man who answered New York's
phone. (29, 32- 33.) And Mr. Barnes had been observed driving
a Dodge Charger during past traffic stops and surveillance.
(Tr. 31.) Armed with this information, the investigators
sought search warrants.
McMillin applied for a pen register, trap and trace, and
tracking warrant for the phone associated with the -9283
number on August 22, 2017. The affidavit contained two
mistakes. First, an erroneous phone number was put in the
caption of the affidavit, although that incorrect number was
not repeated in the affidavit or the warrant itself. (Govt.
Ex. 1.) Second, Investigator McMillin incorrectly wrote that
Investigator Ryan had spoken with the informant that had
given them the -9283 number in August 2017, even though the
conversation had actually occurred in July. (Compare
Govt. Ex. 1 at 000550 with Tr. 27.) Regardless, the
warrant was issued by Judge Stevens of Olmstead County and
executed on the same day.
McMillin applied for another pen register, trap and trace,
and tracking warrant for a business phone number associated
with Mr. Barnes, ending in -4603, on September 6, 2017. The
first several paragraphs of the affidavit were essentially
copied from the previous warrant, with one significant
difference. In the fourth paragraph, which describes the
phone call and attempted controlled buy, the affidavit omits
the fact that the call took place using the -9283 number, not
the -4603 number that the warrant was being requested for.
(Compare Govt. Ex. 1 at 000550 with Govt.
Ex. 2 at 000520.) Instead, the application states that the
call had been made to “this phone number, ”
arguably implying that it was made to the phone for which the
second tracking warrant was being sought, -4603. Additional
information specifically regarding Mr. Barnes's regular
use of the -4603 number was also added to the affidavit.
(Govt. Ex. 2 at 000520-21.) The affidavit described that the
number had been used for calls from an inmate at a local jail
as well as for calls between Mr. Barnes and the Rochester
Police Department. The warrant was issued by Judge Chase of
Olmstead County and executed the same day.
other warrants at issue in this motion were issued in the
months of September and October. On September 28, 2017, a
search warrant was issued for Mr. Barnes's business Gmail
account, firstname.lastname@example.org. (Govt. Ex. 4.) On
October 13, 2017, investigators applied for and were issued a
search warrant for Mr. Barnes's personal Gmail account,
email@example.com. (Govt. Ex. 3.) Each of these warrants
directed broad seizure of all data associated with these
accounts, followed by a more targeted review and analysis of
the seized information, in order to locate data associated
with criminal activity.
final warrant at issue sought account ownership information,
current balances, and transaction records for Mr.
Barnes's personal and business bank accounts at Wells
Fargo Bank. (Govt. Ex. 7.) This warrant has an unusual
procedural history. It was issued on October 16, 2017 and
executed on the same day. (Govt. Ex. 7 at 00001989.) However,
it was returned more than a year later, on November 5, 2018.
Furthermore, the return was not filed with the Olmstead
County Clerk until December 12, 2018. (Id.) It was
later discovered that the search warrant had inadvertently
not been included in the filing, so the return was later
refiled on February 12, 2019. (Id. at 00002003.)
the investigation, officers learned of Mr. Barnes's
alleged involvement in trafficking through a variety of other
sources. Investigator Ryan learned that while Mr. Barnes was
incarcerated in October 2016, jail staff had observed him
involved in suspicious activity. Mr. Barnes was on work
release (released to work during the day, but returned to the
jail at night), and on his return from work, staff observed
Mr. Barnes with “stacks of hundred dollar bills.”
(Tr. 30.) They also overheard Mr. Barnes speaking with
another inmate about packaging items in plastic.
(Id.) Jail staff believed this conversation referred
to drugs. (Id.)
Barnes had multiple interactions with law enforcement, and on
at least one occasion had bragged to officers that he owned
several nice vehicles, that he paid for everything in cash,
and told the officers that they must be jealous because they
could not live like he did. (Id. at 31.) Suspecting
that this cash may not be from legitimate sources,
investigating officers requested tax returns for Mr. Barnes
for 2014-2016, but found that he had not filed any taxes for
those years. (Id.) Investigator Ryan also considered
the vehicles that Mr. Barnes had been seen driving during
interactions with law enforcement and surveillance, including
a 2011 Cadillac Escalade, a 2014 Dodge Charger, and a 2017
Can-Am Spyder. (Id. at 34.) Investigator Ryan
learned that none of these vehicles were in Mr. Barnes's
name-the registered owner was an individual that law
enforcement never saw, despite the significant surveillance
conducted during the investigation. (Id.) Officers
went to the dealerships where the cars had been purchased and
learned that the registered owner of the vehicles had
purchased them with Mr. Barnes in tow. (Id.) The
salespeople informed officers that in each instance, it
appeared that Mr. Barnes, and not the registered owner, was
making the decisions. (Id. at 35.) Investigator Ryan
testified that in his experience, putting vehicles in another
person's name is indicative of criminal activity because
it is intended to evade law enforcement. (Id.)
Ryan identified at least two other customers of Mr. Barnes
who officers hoped would cooperate with law enforcement and
participate in a controlled drug buy. (Id. at 36.)
However, the individuals refused to participate in any
undercover transactions, claiming that Mr. Barnes was
incredibly dangerous, and they were “deathly
afraid” of him. (Id. at 37.) While the
individuals were unwilling to participate in a buy, they did
provide information to law enforcement. In August of 2017,
one customer described New York as an individual who drove an
Escalade from whom they had purchased methamphetamine at
least five times in the previous month. (Id. at 38;
see also Govt. Ex. 7 at 0002035.)
customer knew Mr. Barnes by name and knew that he often went
by New York. (Id. at 39.) She told investigators
that she had purchased two to three pounds of methamphetamine
in total from Mr. Barnes since he had been released from
prison. (Id.) She also knew how he brought drugs
into Rochester. (Id. at 40.) According to the
informant, Mr. Barnes had a brother who lived in Las Vegas
who shipped drugs to Minnesota for him. (Tr. 59.) These drugs
were shipped to various addresses within Rochester. (Tr. 40.)
Mr. Barnes did not pick the packages up himself, but instead
sent others to do so. (Id.) One of the addresses
that Mr. Barnes used was the 11th Street address of the
deceased father of a man named Eric Hoerner. (Id.)
Mr. Barnes's Arrest
October 20, 2017, Rochester Police responded to a 911 call
just before 11:00 a.m. regarding an incident occurring at the
11th Street Hoerner address. (Tr. 63-64.) Shawna Cada, Eric
Hoerner's girlfriend, called 911 after a package was
dropped off at the doorstep of the 11th Street house. She
informed the operator that two men came to the house and
wanted to retrieve the package from the house. (Id.
at 46.) She told them she would not give them the package,
and when it was delivered at 10:57 a.m., she brought it
inside. (Id.) Shortly thereafter, however, one of
the men returned to the door and demanded the package.
(Id.) Ms. Cada refused and took a picture of the
person at the door. (Id. at 64.) The picture was of
a black man in a dark sweatshirt, but it was not Mr. Barnes.
(Id.; see also Def. Ex. G.) However, GPS
data from Mr. Barnes's phone placed him within a block
and a half of the address just minutes before the man came to
Ms. Cada's door. (Tr. 74-75.)
Hoerner arrived at the 11th Street address shortly after the
police arrived and claimed it was “New York” who
was trying to get the package. Mr. Hoerner explained that New
York had come by earlier that morning, driving a white Dodge
Charger. (Tr. 46.) Mr. Barnes asked Mr. Hoerner if he could
have packages sent to the 11th Street address. (Tr. 46, 73.)
Mr. Hoerner told him that he was clean, not involved in drugs
anymore, and refused to have drugs delivered to the house.
(Id. at 46.) Mr. Hoerner also told officers that Mr.
Barnes had traveled to a restaurant near the 11th Street
address, Cheap Charlies, where Mr. Hoerner was eating lunch
to try to convince him to release the package. (Id.
at 47.) Mr. Hoerner refused. (Id.)
tracking data corroborates much of Mr. Hoerner's
description of events. Investigator Ryan testified that the
GPS location data collected as a result of the phone tracking
warrants “pinged” the location of the phone
approximately every fifteen minutes. (Id. at 83.)
This data revealed that Mr. Barnes's phone was at the
11th Street address at 10:20 a.m., about forty minutes before
the package arrived. (Id. at 73, 83-84.) At
approximately 10:54 a.m., three minutes before the package
arrived at the 11th Street address, location data indicated
that Mr. Barnes was within a block and a half of the
residence. (Id. at 84.) However, no location data
confirms or refutes that Mr. Barnes went to Cheap Charlies in
between his visits to the 11th Street address. (Id.
officers opened the package at the 11th Street address, they
found approximately two pounds of suspected methamphetamine.
(Id.) Law enforcement officers decided to arrest Mr.
Barnes. Using the phone they had already used to gain GPS
data as to his whereabouts, officers located Mr. Barnes at a
construction site sometime after noon. (Id. at 48,
82.) Mr. Barnes was not driving the Dodge Charger that Ms.
Cada described, but instead had a different vehicle.
(Id. at 48.) Mr. Barnes broke the cell phone he was
carrying, and officers took him into custody. (Id.)
Barnes challenges the pen register, trap and trace, and
tracking warrants issued for both phone numbers associated
with him for lacking probable cause. He also argues that the
affidavit for the -4603 warrant contained serious
misstatements that rendered it invalid. Mr. Barnes challenges
the search warrants issued for his email accounts as
overbroad. Additionally, he argues that his warrantless
arrest was without probable cause. Finally, he seeks
dismissal of his indictment as a remedy for several due
process violations. The Court addresses each of Mr.
Barnes's arguments in turn.
The Warrant for the -9283 Phone (the “ -9283
Barnes asserts that the -9283 tracking warrant was not based
on an adequate showing of probable cause because the
informants utilized by Officer McMillin were unreliable.
However, a review of the information contained within the
four corners of the warrant demonstrates that it was
supported by an adequate showing of probable cause.
Furthermore, the Court determines that even if probable cause
did not exist, the Leon good faith exception would
save the warrant.
Fourth Amendment states that “no warrants shall issue,
but upon probable cause.” The standard for determining
whether a search warrant had probable cause to issue is
Whether probable cause to issue a search warrant has been
established is determined by considering the totality of the
circumstances. If an affidavit in support of a search warrant
sets forth sufficient facts to lead a prudent person to
believe that there is a fair probability that contraband or
evidence of a crime will be found in a particular place,
probable cause to issue the warrant has been established.
United States v. Notman, 831 F.3d 1084, 1088 (8th
Cir. 2016) (quotations and citations omitted.) A
“common sense” approach should be used when
determining whether probable cause has been established,
considering all the evidence available. Illinois v.
Gates, 462 U.S. 213, 238 (1983); States v.
Solomon, 432 F.3d 824, 827 (8th Cir 2007). In
particular, applications and affidavits for search warrants
“should be read with common sense and not in a grudging
hyper technical fashion.” United States v.
Ryan, 293 F.3d 1059, 1061 (8th Cir. 2002) (quoting
United States v. Goodson, 165 F.3d 610, 613 (8th
Cir. 1999) (internal quotation marks omitted).
affidavit contains information provided by one or more
confidential informants, the reliability of that informant is
critical to the determination of probable cause. A
confidential informant may be considered reliable in a number
of circumstances, including when
the information is based on his or her first-hand
observations, or the informant has provided information
against his or her penal interest or that implicates him or
herself, or the informant's information is corroborated
by another informant or by the investigating officers, even
where the facts which are corroborated are seemingly
United States v. Mims, 567 F.Supp. 2d, 1059, 1068
(D. Minn. 2008) (collecting cases). In circumstances where
multiple informants provide information that is
“reciprocally corroborative, ” that information
can be enough to support a finding of probable cause.
United States v. Fulgham, 143 F.3d 399, 401 (8th
this legal backdrop, it is clear that the information
contained in the affidavit in support of the -9283 warrant
established probable cause. In this case, three CIs provided
information that Investigator Kelly McMillin relied upon.
Each provided details to Investigator McMillin that
corroborated the other's information. The first CI,
CI1,  is an individual who had previously
provided reliable information to Investigator McMillin in
other cases. (Govt. Ex. 1 at 000549.) CI1
identified a black man using the nickname “New
York” who is one of the ...