Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Andrews

United States District Court, D. Minnesota

May 8, 2019

United States of America, Plaintiff,
v.
Norris Deshon Andrews, Defendant.

          Norris Deshon Andrews, Sherburne County Jail, pro se

          Daniel L. Gerdts, standby counsel for Defendant

          Jeffrey Paulsen, United States Attorney's Office, for the Government

          ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         Before the Court are Defendant Norris Deshon Andrews' Objections (“Objections”) [Doc. No. 145-3[1] to the February 21, 2019 Order and Report and Recommendation (“Order & R&R”) [Doc. No. 133] filed by Magistrate Judge David T. Schultz. The Order & R&R addressed several of Andrews' pretrial discovery motions, his motion challenging pretrial detention, and a number of motions to dismiss the Indictment and suppress evidence. The magistrate judge held four evidentiary hearings on these motions on September 10 and 19, 2018, October 5, 2018, and December 17, 2018. Combined, the hearings were over 14 hours long. In the Order & R&R, the magistrate judge denied Andrews' motions that sought to suppress evidence or dismiss the Indictment. (See Order & R&R at 23-26.)

         Pursuant to Andrews' request to appear before the district court judge on his Objections and other matters, (see Def.'s Letter at 4 [Doc. No. 143]), this Court held status conferences on April 2 and 8, 2019. At the April 2 status conference, attorney Kevin O'Brien represented Andrews. (See Apr. 2, 2019 Minutes [Doc. No. 154].) On April 8, Andrews appeared pro se and Mr. O'Brien served as standby counsel. (See Apr. 8, 2019 Minutes [Doc. No. 157].) At both status conferences, the Court heard oral argument on Defendant's Objections to the Order & R&R and took the Objections under advisement.[2] For the reasons set forth below, Andrews' Objections are overruled.

         I. BACKGROUND

         A. Shooting, Identification of Suspect, and Surveillance

         Andrews is charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (See Indictment [Doc. No. 1].) The charge stems from a shooting that occurred at approximately 4:45p.m. on May 15, 2018, near an apartment complex in the 1700 block of Plymouth Avenue North in Minneapolis. (Def. Ex. 14 (MPD Case Rpt., Creighton Supp. 13); Sept. 10 Hr'g Tr. at 9-10 [Doc. No. 51].) Security camera footage of the incident shows a group of people congregating on a sidewalk adjacent to an outdoor parking area. (See Gov't Ex. 1 (“Cropped Video”); Def. Ex. 18 (“Uncropped Video”).) Two people arrive in a blue SUV with no front license plate and approach the group of people. (Id.) The driver of the SUV-a black man with a larger frame, long dreadlocks, glasses, a dark colored t-shirt, distressed jeans, and athletic shoes-appears to engage in conversation with members of the assembled group. (Id.) Eventually, he brandishes a gun and fires several shots before driving away by himself in the SUV. (Id.) His former passenger runs away from the scene on foot. (Id.)

         Shortly thereafter, officers arrived at the scene of the shooting, (see Def. Ex. 14 (MPD Case Rpt., Creighton Supp. 13)), including Minneapolis Police Sgt. Kelly O'Rourke. (Sept. 10, 2018 Hr'g Tr. at 10.) Investigating officers spoke with percipient witnesses. (Id. at 12- 13.) Although the parties dispute whether these persons were eyewitnesses to the shooting itself, O'Rourke learned the following information from officers' discussions with numerous witnesses: the shooter was described as a large, heavy-set black male, wearing glasses, with his hair in long dreadlocks, driving a blue Chevy Tahoe SUV, the shooter was called “N.O.”, his full name was Norris Andrews, he was seen arguing with the victims before the shooting took place, the person accompanying him was named Montrel Tyson, and a witness provided Andrews' cell phone number and a photo of him. (Id. at 13, 17; Def. Ex. 15 (MPD Case Rpt., Bauer Supp. 9); Def. Ex. 58 (MPD Full Case Rpt., Pearson Supp. 3, Hanneman Supp. 6, Spee Supp. 11).) Sgt. O'Rourke accessed a law enforcement database, found jail photos of Norris Andrews, and compared them to the images of the shooter from the security camera video. (Sept. 10, 2018 Hr'g Tr. at 13.) He believed that they depicted the same person. (Id. at 14.) He also conducted a Google search of the suspect's cell phone number, which indicated that the subscriber's last name was Andrews. (Id.; Sept. 19, 2018 Hr'g Tr. at 59 [Doc. No. 62].)

         From other investigating officers, Sgt. O'Rourke learned that about an hour earlier, a “shots-fired” call had been placed in the same general area, at 25th and Girard Avenue North, and similar shell casings were found at the scene. (Sept. 10, 2018 Hr'g Tr. at 14.) Sgt. O'Rourke testified that in that earlier incident, “a blue Chevy Tahoe with no plates was described as a potential suspect vehicle.” (Id. at 14; Gov't Ex. 10 (Incident Rpt.) at 2 (call log noting, “ACCORDING TO WITNESSES BLU TAHOE WAS SHOOTING AT PLE IMPALA LOW RIDER.”; “DARK BLU TAHOE WITH NO PLATES”; “SHOTS FIRED . . CLR SAW BLU TK LEFT ON GIRARD IN UNK DIRECTION . . CLR HEARD PPL ARGUING.”) (emphasis in original); Def. Ex. 58 (MPD Full Case Rpt., Creighton Supp. 13) (stating that 911 caller/witness identified the shooting vehicle as a dark blue Chevy Tahoe without any plates and the driver was a large black male with dark skin and long braided hair)).

         Based on the similarities between the two incidents, the information from witnesses at the later shooting, and the shooting captured on the security camera footage, Sgt. O'Rourke submitted an exigent circumstances order to T-Mobile, the service carrier of the cell phone number in question, to “ping” the phone in order obtain real-time locations and call detail records for the suspect's cell phone. (Id. at 15; Gov't Ex. 3 (T-Mobile Exigent Request).) Sgt. O'Rourke provided the following facts in support of the exigent situation: “[L]ife threatening shooting of two victims, one was shot in the chest. Eye witnesses know the suspect to currently be using [phone number]. Zetx shows a last name of a subscriber to be the same as the suspect.” (Gov't Ex. 3 (T-Mobile Exigent Request) at 1.) Sgt. O'Rourke provided further detail on a supplement to the form:

The suspect has been identified as using XXX-XXX-XXXX by an eye witnesses [sic] to the crime. I am a police investigator with the Minneapolis Police Department and have been so for 20 years. On this day there was a shots fired call at 23rd and Fre[]mont Avenue in north Minneapolis (18-156610) at 1518 hours. The shooting being investigated occurred at 1642 hours at 1711 Fre[]mont Avenue north in Minneapolis. The same suspect vehicle was described at both scenes. The second scene produced a video that showed the individual that is known to use the target number getting into the described suspect vehicle. The identified suspect also has an extensive criminal history involving weapons and narcotics. On this day during the second shooting he was said to be settling up with a debtor. The egregious part is that after shooting one of the victims multiple times the suspect got back out of his vehicle and made another attempt to finish him off, shooting at him a few more times. I believe at this point it has only been a few hours and the suspect is armed and danger[ous] and is a threat to public safety after showing he can shoot multiple people and commit multiple shootings in a short period of time.

(Id. at 2.) Sgt. O'Rourke testified that the above-quoted section of the application contained a typographical error with respect to the shooting address-the shooting occurred at 1711 Plymouth Avenue North, not 1711 Fremont Avenue. (Oct. 5, 2018 Hr'g Tr. [Doc. No. 69] at 22-23.) After he submitted the exigent order, Sgt. O'Rourke received emails approximately every 15 minutes with information on the location of the phone. (Sept. 10, 2018 Hr'g Tr. at 20.)

         At approximately 11:00 p.m., the phone appeared to be stationery in the vicinity of 2810 Girard Avenue North.[3] (Id. at 20-21.) At approximately 11:30 p.m., Sgt. O'Rourke dispatched two police officers, Officer Andrew Schroeder and Sgt. Joel Pucely, to the area in order to locate Andrews. (Id. at 21.) To familiarize himself with Andrews' appearance, Sgt. Pucely looked at a prior booking photo or driver's license image of Andrews, as well as still images from the surveillance video. (Oct. 5, 2018 Hr'g Tr. at 13, 157.) After the officers looked for Andrews without successfully finding him, Sgt. Pucely continued his surveillance of the area alone, parked at 29th and Girard Avenue in an unmarked squad car. (Id. at 14-15, 71.)

         From his position, Pucely observed a white GMC Yukon with Minnesota dealer license plates drive by twice. (Id. at 15-16.) He found the vehicle's movements suspicious, suggesting that the driver was looking for someone. (Id. at 16.) The Yukon eventually parked. (Id. at 17.) Using a pair of binoculars and the illumination of streetlights, Sgt. Pucely saw two people leave a house, jog towards the Yukon, and get inside the SUV. (Id. at 16-18, 51-52.) Although Sgt. Pucely could not see their faces, he believed that one of them matched the description of the shooting suspect, based on similarities in build and hairstyle. (Id. at 18, 36.) Sgt. Pucely watched as the Yukon pulled away from the curb, but failed to signal, and turned onto 29th Avenue North without coming to a full stop at a stop sign. (Id. at 18-19.) Sgt. Pucely followed the Yukon and called Officer Schroeder to assist in a vehicle stop. (Id.)

         B. Stop and Search of the Yukon

         Sgt. Pucely turned on his lights to initiate a stop for the two moving violations, and the Yukon promptly pulled over. (Id. at 20.) Several other officers also arrived. (See Def. Ex. 7 (Dashcam Video).) The driver was a woman, Montrel Tyson was the front seat passenger, and Norris Andrews, who Sgt. Pucely recognized from the booking photos, was the backseat passenger. (Oct. 5, 2018 Hr'g Tr. at 20-21.) Sgt. Pucely testified that as he approached the car from the rear, he could not see into the back window because it was tinted. (Id. at 73-74.) Officer Schroeder testified that from his vantage point alongside the Yukon, however, he could see into it and observed the backseat passenger move around, “leaning towards the I guess passenger side of the vehicle[.]” (Id. at 159-60.) Pucely asked Andrews to step out of the vehicle, at which time Andrews was handcuffed and moved to the back seat of Pucely's squad car. (Id. at 21.)

         Sgt. Pucely's police bodycam video shows that prior to transporting Andrews, Pucely asked Andrews to exit the squad car and submit to a search of his person. (Def. Ex. 32 (Pucely Bodycam) at 3:19-3:40.) While Pucely performed the search of Andrews' pockets, another officer asked Andrews for his name, (id. at 3:39), which Andrews provided, adding, “You got my I.D.” (Id. at 3:40-3:44.) Sgt. Pucely responded, “I didn't get an I.D. from you, that's what I'm looking for, ” and repeated, “I didn't find an I.D. anywhere.” (Id. at 3:45-48.)

         In the squad car, Sgt. Pucely entered Andrews' name in a Minnesota driver's license database. (Id. at 7:54-8:12.) The I.D. results screen, visible from Pucely's bodycam footage, included Andrews' name, date of birth, and address. (Id. at 8:12.) Sgt. Pucely verbally verified with Andrews his middle name and date of birth. (Id. at 8:13-8:19.) Sgt. Pucely then asked Andrews for his current address. (Id. at 8:31-32.) After Andrews responded, Pucely stated, “Okay, so your I.D. is correct.” (Id. at 8:34-8:35.)

         Upon arrival at the police station, Sgt. Pucely guided Andrews to the door and through the lobby, indicating directions with a manila envelope that apparently contained any items removed from Andrews' pockets. (Id. at 19:08-19:21.) When Andrews inquired about the whereabouts of his cell phone, Sgt. Pucely initially stated that Andrews did not have a cell phone on his person. (Id. 19:09-19:11) Andrews protested, stating, “Y'all took my stuff outta my pockets, my I.D. and stuff should be in there.” (Id. at 19:21.) Sgt. Pucely responded, “All I took out of your pockets were keys, ” gesturing with the manila envelope. (Id. at 19:33.) While escorting Andrews to the interview room, Sgt. Pucely phoned officers at the scene of the stop. (Id. at 20:09-20:22.) He explained that when he first approached the Yukon and asked Andrews to exit it, he had removed the phone from Andrews' lap, and likely placed it on the roof of the Yukon. (Id. at 20:09; see also Def. Ex. 7 (Dashcam Video) (showing officer place object on roof of vehicle).) It appears that officers located the phone. (Def. Ex. 32 (Pucely Bodycam) at 20:30-20:40.) (Sgt. Pucely states, “Just make sure it's powered off.”)

         Booking photos taken of Andrews show a black man with long dreadlocks and glasses, wearing a dark colored t-shirt, a jacket, distressed jeans, and black athletic shoes with red and white trim. (Def's Ex. 5 (May 15, 2018 Photos); Gov't Ex. 5 (May 15, 2018 Photos).)

         Prior to towing the Yukon, officers conducted a search of the vehicle at the scene of the stop. (Oct. 5, 2018 Hr'g Tr. at 90, 94-95.) They found a 9mm handgun under the back seat in the vicinity of where Andrews had been seated. (Id. at 21-22; 105.)

         C. Search of Tahoe, Forensics, and Photo Array Identification

         Sgt. O'Rourke interviewed the driver of the Yukon, identified at that time as Dominque or Domonique Smith. (Sept. 10 Hr'g Tr. at 24-25; Gov't Ex. 7 (Search Warrant & App.) at 3.) Andrews disputes that that is her true name and states that her name is actually Rachelle Hawkins. (Oct. 5, 2018 Hr'g Tr. at 292-93, 295; Def. Ex. 30 (Photograph).) Sgt. O'Rourke testified that through his investigation, he believed that Smith's father was the owner of the Yukon and had consented to her use of it. (Sept. 10, 2018 Hr'g Tr. at 23.) Smith stated that earlier that evening, she had received a call from Tyson or Andrews, asking for a ride from the approximate area of 26th Street and James Avenue North. (Id.) Because she was late to arrive, she received a subsequent call, directing her to 2810 Girard. (Id.)

         Sgt. O'Rourke then sent officers to the vicinity of 26th Street and James Avenue North, where they found a blue Tahoe, which was taken into police custody. (Id. at 13.) In July 2018, Sgt. O'Rourke applied for a search warrant to search the Tahoe, [4] which he obtained. (See Gov't Ex. 7 (Search Warrant & App.).) Inside the vehicle, officers found identification bearing Andrews' name, including a Minnesota driver's license, a Visa debit card, a temporary proof of insurance card, and a Robbinsdale Police Department citation. (Id.; Sept. 19, 2018 Hr'g Tr. at 14.) Andrews contends that his driver's license was planted by the searching officers, asserting that Sgt. Pucely had obtained his identification card earlier, when he was taken into custody. (See Def. Ex. 32 (Pucely Bodycam).)

         Sgt. O'Rourke obtained a court order for a DNA sample and fingerprint sample from Andrews, as well as a photo line-up. (Sept. 19, 2018 Hr'g Tr. at 19-20; Gov't Ex. 8 (Hennepin Cty. Order).) As to fingerprint evidence, specifically “friction ridge impression evidence, ” the Minneapolis Crime Lab analyzed the gun for evidence, comparing it to samples obtained from Andrews and Tyson. (Def. Ex. 27 (Crime Lab Rpt.) at 1.) The Crime Lab Report indicates a match between a friction ridge impression found on the gun and Andrews' right thumb fingerprint. (Id.) In addition, investigators test-fired a discharged cartridge casing from the gun, finding that they matched the casings left at the Plymouth Avenue shooting. (Def. Ex. 58 (MPD Full Case Rpt., Carlson Supp. 44).)

         Approximately three days after the shooting, Sgt. O'Rourke interviewed one of the shooting victims in the hospital. (Sept. 19, 2018 Hr'g Tr. at 15.) The victim stated that he could not identify the shooter by name, but described him as having “long dreads or braids, just long hair, glasses.” (Id. at 16.) Among other things, the victim stated that he had been talking to his “auntie” when Defendant fired shots at him. (See Dec. 17, 2018 Hr'g Tr. [Doc. No. 115] at 80-81.) After the shots were fired, the victim contended that the shooter got into a blue truck, with someone else at the wheel, and fired additional shots at the victims from the window of the moving vehicle. (Id.)

         Later, Sgt. O'Rourke returned to the hospital with a photo array. (Sept. 19, 2018 Hr'g Tr. at 16.) The photo array included a composite page with six photographs, followed by six sheets of paper containing the individual photographs from the composite page, one picture per page. (Gov't Ex. 6 (Photo Array).) All of the photograph subjects are black men with dreadlocks. (Id.) The background on the picture of Andrews is a lighter shade of grey than the grey background on the other pictures. (Id.) Andrews' head also appears to be slightly larger in the frame than in the other photographs. (Id.) Sgt. O'Rourke told the victim that the perpetrator might or might not be in the photos, but to take his time looking at each individual photograph, one at a time, without Sgt. O'Rourke being able to see them. (Sept. 19, 2018 Hr'g Tr. at 18.) With certainty, the victim identified Andrews as the shooter, and signed and dated the photograph of Andrews to signify the positive identification. (Id.; Govt. Ex. 6 (Photo Array).)

         D. Procedural Background

         As noted in the Order & R&R, Mr. Reynaldo Aligada of the Federal Defenders Office previously represented Andrews and filed a number of pretrial motions on his behalf [Doc. Nos. 24-31; 40-42]. The magistrate judge held a hearing on September 10, 2018 to address these motions. However, Mr. Aligada requested a continuance of the evidentiary portion of the hearing when the Government moved the admission of an exhibit that was not previously disclosed. (Sept. 10, 2018 Hr'g Tr. at 26-28.)

         On September 19, 2018, the hearing resumed before Magistrate Judge Schultz. Andrews stated that he wished to represent himself for purposes of the hearing and wanted to file additional motions himself. (Sept. 19, 2018 Hr'g Tr. at 3-8.) After an inquiry, the magistrate judge found that Andrews knowingly and voluntarily waived his right to counsel. (Id. at 9-10.) Thus, he granted Andrews' request to represent himself at the hearing and appointed Mr. Aligada as standby counsel. (Id.) Sgt. O'Rourke testified at the hearing and Andrews also cross examined him at length. (Id. at 21-70, 73-87.) Because the hearing was running past the close of business hours, it was continued to October 5, 2018. (Oct. 5, 2018 Hr'g Tr. at 2.)

         At the nearly seven-hour long October 5 hearing, Andrews continued to represent himself, and Mr. Aligada continued to serve as standby counsel. (Id. at 2-3.) Sgt. Pucely, Officer Schroeder, and Andrews testified. (Oct. 5, 2018 Minutes [Doc. No. 48].) Andrews filed several pro se motions at the hearing [Doc. Nos. 53-59, 65-66].

         Shortly thereafter, in light of a conflict of interest that had arisen between Andrews and Mr. Aligada, the magistrate judge granted Mr. Aligada's request to withdraw as standby counsel. (Oct. 18, 2018 Order [Doc. No. 64].) The Court then appointed Kevin O'Brien as substitute defense counsel. (Oct. 24, 2018 Order [Doc. No. 67].) Following a November 9, 2018 Feretta hearing at which Andrews appeared to give contradictory answers about his desire to represent himself, the magistrate judge gave Andrews additional time to consider his self-representation decision. (Nov. 13, 2018 Order at 2 [Doc. No. 74].) If Mr. O'Brien were to continue to represent Andrews, the magistrate judge directed Mr. O'Brien to withdraw any pro se motions that Andrews had filed when he was also represented by counsel. (Id.) The magistrate judge also gave defense counsel additional time in which to file additional pretrial motions and to reopen the evidentiary hearing in order to present additional witnesses or to recall witnesses who had previously testified. (Id.)

         Subsequently, Andrews informed the Court that he was unhappy with Mr. O'Brien's representation. (Nov. 14, 2018 Letter [Doc. No. 92].) The magistrate judge held a hearing on December 17, 2018, at which Andrews waived his right to counsel, and the magistrate judge appointed Mr. O'Brien as standby counsel. (Dec. 17, 2018 Hr'g Tr. at 4.) At the hearing, Andrews presented arguments, testified, entered exhibits, and was cross examined. (See Id. at 2-156.) The magistrate judge allowed Andrews to re-file any of the pro se motions that Mr. O'Brien had recently withdrawn. (Id. at 146-47.) Likewise, the magistrate judge gave the Government time to respond to any of the re-filed motions. (Id. at 147.)

         E. Magistrate Judge's Findings and Recommendations

         As relevant to Andrews' objections, in the Order & R&R, the magistrate judge ruled on the following procedural issues: (1) as to evidence in the Government's possession, but not yet produced to Defendant, (see Def.'s Pro Se Mot. for Discovery [Doc. No. 75]), because the Government agreed to produce the material, the magistrate judge denied Defendant's discovery motion as moot; (2) regarding Andrews' request to reopen the evidentiary hearing to call additional witnesses, and to present oral argument on his motions, (see Def.'s Pro Se Mot. for Oral Arg. [Doc. No. 110]; Def.'s Pro Se Mot. to Reopen Pretrial Mot. Hr'g [Doc. No. 111]), the magistrate judge found that Andrews had not sufficiently demonstrated a need to reopen the hearing, noting the well-developed record, which included several days of testimony and numerous memoranda; (3) as to Andrews' motion for a new detention hearing, (see Def.'s Pro Se Mot. for Detention Bond Hr'g [Doc. No. 96]; Def.'s Pro Se Mot. for Revocation of Order [Doc. No. 109]), the magistrate judge denied it, finding that none of the grounds that Andrews asserted would assure his further appearance in court or the safety of the community. (Order & R&R at 6-8.)

         With respect to the substantive rulings at issue here, the magistrate judge denied Andrews' motions to dismiss the Indictment[5] for allegedly outrageous government conduct based on the following grounds: (1) fabricated evidence; (2) destruction of exculpatory evidence; (3) withheld evidence; (4) witness tampering; (5) eye witness identification; and (6) vindictive prosecution. (Order & R&R at 9-13.) The magistrate judge also denied Andrews' Fourth Amendment motions to suppress evidence related to: (1) the exigent cell phone location information (see Def.'s Am. Mot. to Suppress Cell-Site Location Information [Doc. No. 85]; Def.'s Pro Se Mot. to Suppress Ev. [Doc. No. 104]); (2) the arrest and search of the white Yukon (see Def.'s Am. Mot. to Suppress Ev. From Unlawful Arrest & Stop & Search of GMC Yukon [Doc. No. 86]); (3) identification through the photographic array (see Def.'s Am. Mot. to Suppress Eyewitness Identifications [Doc. No. 87]); (4) the search of the blue Tahoe (see Def.'s Mot. to Suppress Ev. from Search of Chevrolet Tahoe & Request for Franks Hr'g [Doc. No. 88]; Def.'s Pro Se Mot. to Suppress Search Warrant [Doc. No. 97]); (5) percipient witness identification (see Def.'s Pro Se Mot. to Compel Disclosure of Identification Witness [Doc. Nos. 102]; Def.'s Pro Se Mot. to Suppress Identification of Defendant [Doc. No. 103]); and (6) untimely disclosures (see Def.'s Pro Se Mot. to Suppress All Late & Untimely Ev. [Doc. No. 99]; Def.'s Pro Se Mot. to Add On/Amended Mot. to Doc. No. 55 [Doc. No. 112]).

         Andrews has filed lengthy Objections to the Order & R&R, in which he advances several arguments.[6] First, he contends that Magistrate Judge Schultz was biased in the following ways: (1) making the Government's case for it and generally favoring the Government, (Objs. at 2, 7, 19, 22, 38-39, 51); (2) taking longer to respond to Defendant's motions and generally causing delay, (id. at 3-4, 11-12, 16-17, 54, 56); (3) not reading Defendant's motions, (id. at 12-13); and (4) characterizing the facts of the case in contradiction of the evidence and relying on false statements and testimony, (id. at 5, 7, 20, 24, 40-48, 50).

         In addition, Andrews appears to argue that the magistrate judge denied him due process with respect to his pretrial motions, which he argues is also indicative of bias, citing the following examples: (1) ruling on motions without holding hearings or considering evidence, (id. at 3); (2) denying him access to a law library or computer while in pretrial detention at the Sherburne County Jail, (id. at 4, 9, 17); (3) relying on exhibits that were not introduced at the evidentiary hearings, (id. at 6); (4) denying requests for defense witnesses and supporting evidence, and cutting hearings short, (id. at 8-9, 20, 35); (5) forcing him to accept Mr. O'Brien as his counsel, even though Defendant had “fired” him, (id. at 9-11); (6) taking too long to rule, (id. at 17); (7) failing to rule in point-by-point detail by addressing each motion individually, (id. at 20); (8) permitting the Government's untimely disclosure of evidence, (id. at 33-35, 55); and (9) permitting the Government to ask leading questions. (Id. at 22.)

         Further, Andrews argues that the magistrate judge improperly relied on falsified, tampered, and planted evidence. (Id. at 21, 23-30, 32, 35, 36-37, 40-43, 45, 48, 50.) He also contends that the Government has withheld exculpatory evidence. (Id. at 31-34, 46-47, 55.) In addition, he contends that his motions were tampered with, citing the removal of pages. (Id. at 23.)

         He reasserts his arguments to suppress the exigent cell phone location information, arguing that the Government was required to obtain a search warrant and failed to do so, (id. at 38-42), and the Government lied about the exigent circumstances in order to obtain the information. (Id. at 42-45.) Similarly, he argues that there were no grounds to stop or search the white Yukon, (id. at 48), the photo array was unduly suggestive, (id. at 49), and the search of the Tahoe should be suppressed because the warrant was improperly obtained, evidence was planted, and the vehicle was held for too long. (Id. at 52).

         Andrews also moves for the disclosure of the identity of the percipient witness, arguing that the video evidence demonstrates that this witness was not an eye witness to the shooting, and the Sixth Amendment grants him the right to confront the witness's accusations. (Id. at 53-54.) Further, Andrews challenges the magistrate judge's denial of reconsideration of his pretrial detention.[7] (Id. at 15-16.)

         Finally, the Court notes that in separate objections, ([Doc. No. 150]), Andrews challenges the magistrate judge's separate Report and Recommendation ([Doc. No. 144]) on Andrews' Motion to Dismiss for Speedy Trial Violations. The Court addresses the speedy trial objections in a separate order.

         II. DISCUSSION

         The district court must undertake an independent, de novo review of those portions of the R&R to which a party objects and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also D. Minn. L.R. 72.2(b)(3).

         At the outset, the Court notes that Andrews often confuses issues more properly reserved for trial, including, for example, witness credibility, and the ultimate issue of his guilt or innocence, with the legal standards and facts relevant to his suppression motions. Some of his arguments may potentially be raised at trial, subject to the requirements and standards of the Federal Rules of Evidence and Rules of Criminal Procedure, but are not germane to the suppression and dismissal motions, as noted below.

         A. Bias and Due Process

          Andrews appears to argue throughout his Objections that because bias infected the magistrate judge's analysis and recommendations, this Court should sustain his Objections and grant his motions. As noted, he contends that Magistrate Judge Schultz favored the Government, (Objs. at 2, 7, 19, 22, 38-39, 51, 56), took longer to respond to Defendant's motions and generally caused delay, (id. at 3-4, 11-12, 16-17, 54, 56), failed to read Defendant's motions, (id. at 12-13), and characterized the facts contrary to the evidence and relied on false statements and testimony. (id. at 5, 7, 20, 24, 40-48, 50). A number of Andrews' arguments concern alleged due process violations, which he claims are indicative of the magistrate judge's bias.

         Generally, accusations of judicial bias are asserted in order to seek a judge's recusal under 28 U.S.C. § 455 and § 144, not to appeal evidentiary and suppression rulings. Thus, Andrews' allegations of “bias” do not lead to the result that he seeks here-a favorable ruling on his underlying motions. Rather, under § 455, a judge or magistrate judge must disqualify himself from any proceeding in which “he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455.

         To the extent that Andrews seeks the recusal of the magistrate judge, it is denied. There is no showing of personal bias, let alone a showing that personal bias influenced the magistrate judge's Order & R&R.[8] The fact that Andrews disagrees with Magistrate Judge Schultz's findings and recommendations does not support a claim of bias. The Supreme Court has stated that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Instead, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id.

         The Court's review of the exhaustive record here shows no such “deep-seated favoritism or antagonism.” To the contrary, the magistrate judge presided over multiple lengthy hearings to afford Andrews a full opportunity to be heard. Among other things, Magistrate Judge Schultz explained the proceedings and, as necessary, the law, admitted Defendant's evidence, allowed him to fully cross-examine the Government's witnesses, present arguments, testify, and gave him additional time in which to raise pro se arguments. And the magistrate judge also issued evidentiary rulings in Andrews' favor. For example, he sustained an objection lodged by Andrews, (Oct. 5, 2018 Hr'g Tr. at 14), and overruled an objection to one of Andrews' questions. (Id. at 84.)

         1. Favoring the Government

         Through his Objections, Andrews accuses the magistrate judge of “making objections for the Government” and generally favoring the Government's presentations. (Objs. at 2, 22, 56.) He cites numerous portions of the hearing transcripts that, he argues, demonstrate this alleged favoritism and bias. (Id. at 22) (citing Sept. 19, 2018 Hr'g Tr. at 31-32, 35-40, 42- 49, 53-56, 64, 70, 75, 85-86; Oct. 5, 2018 Hr'g Tr. at 61-64, 99-101, 140, 148, 152-54, 214.) As “the most noticeable” example, Andrews points to a portion of the September 19, 2018 hearing transcript, (id.), during which Andrews asked Sgt. O'Rourke about the timing of the Government's production of an exhibit. (Sept. 19, 2018 Hr'g Tr. at 86.) Magistrate Judge Schultz properly identified the Government's objection as an objection to foundation, which he also properly sustained, as the witness lacked sufficient knowledge to answer the question:

Defendant: Can you please tell us what brought this document about after all of these months? Because the shooting happened May 15th, am I correct?
Sgt. O'Rourke: It was requested.
Defendant: It was requested when?
Sgt. O'Rourke: September 10th.
Defendant: Why?
Gov't: That's a question he can't answer, but I can, and I'll be ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.