United States District Court, D. Minnesota
Jeffrey S. Paulsen, Assistant United States Attorney, United
States Attorney's Office, Minneapolis, MN, on behalf of
D. Richman, Esq., RD Richman Law, St. Louis Park, MN, on
behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE.
matter is before the undersigned United States District Judge
for consideration of Defendant Syed Ben Al-Amin's
(“Al-Amin”) Objection [Docket No. 46] to
Magistrate Judge Steven E. Rau's February 13, 2019 Report
and Recommendation (“R&R”) [Docket No. 45].
In the R&R, Judge Rau recommends denying Al-Amin's
Motion to Suppress Statements, Admissions, and Answers
(“Motion to Suppress Statements”) [Docket No.
19], and denying Al-Amin's Motion to Suppress Evidence
Obtained as a Result of Search and Seizure (“Motion to
Suppress Evidence”) [Docket No. 20]. Also before the
Court for consideration is the Government's Objection
[Docket No. 48] to the R&R's definition of search
incident to arrest. After a de novo review of the record, and
for the reasons stated below, Al-Amin's Objection is
sustained in part and denied in part. The Government's
Objection is also sustained in part and denied in part.
Al-Amin's Motions are denied for the reasons stated
Approach and Arrest
August 6, 2018, at about 1:24 p.m., Minneapolis Police
Officer Paul Gillies (“Officer Gillies”) was
dispatched to respond to a 911 call alleging a violation of a
restraining order. December 20, 2018 Corrected Motions
Hearing Transcript (“Tr.” and “Suppression
Hearing”) [Docket No. 38] at 7. Officer Gillies was
informed that a female caller had reported “her husband
was following her in a car and that they had pulled over in
the area of 12th and Fremont, ” id.
at 8, a location in North Minneapolis.
Officer Gillies approached 12th and Fremont, he
saw two cars parked, one “right behind” the
other. Id. at 10. Al-Amin was standing outside the
lead car's driver side window and was “yelling and
screaming” at the occupant. Id. Officer
Gillies witnessed Al-Amin punch the window. The driver of the
car, later identified as Al-Amin's wife, responded by
pulling her car forward, “probably 30 feet or
so.” Id. at 11. Al-Amin walked back to the
unoccupied second car and climbed into the front passenger seat.
Id. at 12.
point, Officer Gillies' body camera recording is
available to compare with his testimony. Gov't Ex. 1, at
18:27:26. The body camera shows Al-Amin in the passenger seat
with the passenger side door still open. Id. at
18:27:28-33. Officer Gillies testified that he could see
Al-Amin moving his arms inside the car and “frantically
doing something” as Officer Gillies pulled up in the
squad car. Tr. at 13. The bodycam footage shows Officer
Gillies stop his vehicle, open the door, and point his
firearm at Al-Amin. Gov't Ex. 1 at 18:27:26-32. There is
no audio for this portion of the video. Within three or four
seconds of when Officer Gillies opens his door Al-Amin exits
his vehicle with his raised hands empty, shutting the
passenger door once he is out. Id. at 18:27:32-36.
Al-Amin then can be seen to turn and walk around to the
driver side while still holding his hands raised.
Id. at 18:27:37-49. Then Al-Amin leans over and
opens the driver side door. Id. at 18:27:50. Officer
Gillies taps his body camera and the audio turns on.
Id. at 18:27:56. Officer Gillies repeatedly yells
for Al-Amin to “get on the ground.” Id.
at 18:27:57-28:14. Al-Amin seems to reconsider getting into
the driver side, pushes the door shut and walks away from the
vehicle to the center of the road where he lays down.
Id. at 18:28:05-14.
point, Minneapolis Police Officer Ryan Keyes'
(“Officer Keyes”) body camera shows that as he
pulled up his squad car, Al-Amin walks away from his car and
lays down. Def. Ex. 1 at 18:28:10-14. The officers then
approach and Officer Keyes handcuffs Al-Amin. Id. at
18:28:26-35; Tr. at 48. Officer Gillies has a brief exchange
with Al-Amin about Al-Amin punching the window of the first
parked car. Def. Ex. 1 at 18:28:38. The officers arrest
Al-Amin for violation of a no contact order and place him in
the back of Officer Gillies' squad car. Def. Ex. 1; Tr.
at 15, 17.
Al-Amin is secured in the squad car, Officer Gillies turns to
his fellow officers and states, “He punched her window
as I turned the car, ” and, “he tried to lock up
the vehicle, and weird shit, dumping stuff out of his
pockets.” Def. Ex. 1 at 18:29:33-42. Officer Gillies
then approaches Al-Amin's wife, who is on the sidewalk
after having walked from her vehicle back toward the scene.
Gov't Ex. 1 at 18:29:49-53. Officer Gillies asks her if
she “actually” has a restraining order.
Id. at 18:29:50-53. The audio does not pick up her
response, but Officer Gillies says, “oh, you both have
one [, a restraining order]?” Id. at
18:29:55-57. Officer Gillies then walks toward Al-Amin's
vehicle and states, “I just wanna see what he was
dumping.” Id. at 18:30:05-07. Officer Gillies
opens the defendant's car door and rummages around, first
on the floor of the passenger compartment, then looking into
the center console, and finally popping open the glove box.
Id. at 18:30:12-40, 18:30:34 (when Officer Gillies
touched the glove compartment). As Officer Gillies walks over
to Al-Amin's car, Officer Keyes is told by Al- Amin's
wife, that Al-Amin threatened to shoot out her car's
tires and had a gun in his car. Def. Ex. 1 at 18:30:14.
Officer Keyes asked, “where?” Id. at
18:30:17 Al-Amin's wife can be heard saying, “I
don't know, ” but then she repeats the gun threat
allegation. Id. at 18:30:17-29. Officer Keyes walks
over closer to Al-Amin's vehicle and tells Officer
Gillies, “...she says he's got a gun somewhere in
the car, just so you know.” Id. at
18:30:29-32. Two to three seconds later, Officer Gillies can
be heard saying, “found it. ” Id. at
August 7, 2018, Sergeant Jerod Silva (“Sergeant
Silva”) interrogated Al-Amin while he was in custody.
Gov't Ex. 2. The Government agrees to refrain from using
Al-Amin's pre-Miranda statements to Sergeant
Silva. But, Al-Amin also objects to the possible use of his
post-Miranda warning statements, arguing that the
pre-Miranda statements and the officer's actions
surrounding them taints the post-statements. Therefore, the
conduct of the interview will be considered.
videotaped interview shows Sergeant Silva enters the
interview room at approximately 3:16:00. Gov't Ex. 2.
Before Sergeant Silva is finished introducing himself and
before he asks a single question, Al-Amin interrupts
(3:16:52) Sergeant Silva and talks at him for seven minutes
(3:23:54), whereupon, Sergeant Silva excuses himself for 15
minutes (until 3:38:52). Id. After the break,
Sergeant Silva reenters the room and again Al-Amin talks at
Sergeant Silva for almost an hour without questions (until
approximately 4:32:00). At this point, Sergeant Silva
interrupts Al-Amin to read him his Miranda warning.
Al-Amin states, “So, this is where the official
interview starts.” Id. at 4:32:46. Sergeant
Silva asks for Al-Amin's full name and spelling, birth
date, and other biographical data and then as he is about to
be read his rights, Al-Amin interrupts Sergeant Silva again
to tell him why he does not have a phone. Sergeant Silva
reads the Miranda warning at 4:34:19. Al-Amin
acknowledges the warning with a verbal “yes, ”
indicating that he understands. After Al-Amin is
Mirandized, the interrogation continues.