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United States v. Barnes

United States District Court, D. Minnesota

April 8, 2019

United States of America, Plaintiff,
v.
Dwight Frederick Barnes Defendant.

          REPORT AND RECOMMENDATION

          Katherine Menendez, United States Magistrate Judge.

         Defendant 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.

         I. Factual Background

         An 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.)

         Although 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.

         A. The Warrants

         Investigator 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.

         Investigator 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.

         Several 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, lifechangingfinances@gmail.com. (Govt. Ex. 4.) On October 13, 2017, investigators applied for and were issued a search warrant for Mr. Barnes's personal Gmail account, dfbarnes@gmail.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.

         The 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.)

         B. Additional Investigation

         Throughout 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.)

         Mr. 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.)

         Investigator 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.)

         Another 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.)

         C. Mr. Barnes's Arrest

         On 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.)

         Mr. 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.)

         GPS 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. at 84-7.)

         When 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.)

         II. Analysis

         Mr. 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.

         A. The Warrant for the -9283 Phone (the “ -9283 warrant”)

         Mr. 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.

         1.Probable Cause

         The 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 well-established:

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).

         When an 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 innocuous.

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 Cir. 1998).

         Against 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, [1] 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 ...


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