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United States v. Bryant

United States District Court, D. Minnesota

June 7, 2019

United States of America, Plaintiff,
Andre Billy Bryant, Sr., Defendant.



         On February 5, 2019, Defendant Andre Billy Bryant, Sr. (“Bryant” or “Defendant”) was indicted on one count of Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1); one count of Possession with the Intent to Distribute Fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and one count of Possession of a Firearm During and in Relation to a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Dkt. No. 1.) This matter is before the Court on Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure (Dkt. No. 21). This case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1.

         The Court held a motion hearing on April 10, 2019. Allen A. Slaughter, Jr., Assistant U.S. Attorney, appeared on behalf of the United States of America and Manny K. Atwal, Office of the Federal Defender, appeared on behalf of Bryant, who was present at the hearing on the instant motion. During the hearing on the motion to suppress, the Government presented a witness, Special Agent Vuepao Thao, and offered five exhibits pertaining to search warrants. The parties have filed their respective post-hearing memoranda. For the reasons stated below, the Court recommends that Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure (Dkt. No. 21) be denied.


         A. The Application for Search Warrant

         At the April 10 hearing, Vuepao Thao, a Special Agent (“SA”) to the Minnesota Commerce Fraud Bureau (“CFB”), [1] testified about his investigation of automotive insurance fraud allegedly involving Bryant. SA Thao testified he submitted an Application for Search Warrant and Supporting Affidavit to Hennepin County District Judge Tamara Garcia on July 11, 2018 for Bryant's person, an apartment located in Minneapolis, and a 2014 Cadillac Sedan with the license plate XXX TRW. (Tr. 15-16;[2]Gov't Ex. 1.) The application and warrant authorized the search for documents, including documents containing the names and/or identifiers of individuals that have communicated with persons to obtain automobile insurance; records identifying all financial institutions used to facilitate payments made to and from customers; currency, bank books, deposit slips, and bank statements; electronic communication documents; documentation pertaining to automobile insurance companies; electronic storage devices and the data from those devices; proof of residency, and documentation relating to the internet; programs and manuals related to operating systems or applications; and the passwords and documentation needed to examine or operate devices, software, and/or information seized. (Id.)

         As to the basis for the warrant, the supporting affidavit described the following ongoing investigation related to insurance fraud:

• On May 1, 2018, CFB Special Agent Kritzeck, interviewed a cooperating individual identified as L.H. who stated in April 2018 he/she purchased auto insurance from an acquaintance identified as Nyeshia Davis (“Davis”). According to the informant, he/she met Davis, who was driving a white Nissan Altima, in a parking lot near his/her work where L.H. provided Davis $150. Davis then drove a short distance across the parking lot and met with a heavy-set African American male in a newer white Cadillac where she received the insurance document. L.H. said Davis returned giving him/her the GEICO insurance document. L.H. stated he/she later learned the insurance policy purchased from Davis was forged and not in force with GEICO Insurance.
• On May 21, 2018, a CFB agent working as an undercover agent (“UA”) contacted Davis using the information she provided L.H. and arranged to purchase an auto insurance policy from her. The two agreed to meet later that day in Brooklyn Center. Upon arrival, the UA observed Davis arrive in her white Nissan Altima being followed by a male driving matching the L.H.'s description in a newer white Cadillac bearing the Minnesota license plate XXX TPW. Davis and the UA met near the UA's vehicle where the UA provided Davis with $150 of pre-recorded CFB buy money in exchange for a GEICO auto insurance policy document. The UA then observed Davis walk to the white Cadillac and hand what appeared to be the money to the driver of the Cadillac before she and the male left the area in their respective vehicles.
• Additional CFB agents surveilled the white Cadillac and later confirmed that the driver was Bryant who is also the registered owner of the Cadillac. In addition, CFB agents confirmed the identity of Davis who is registered to her Nissan Altima. SA Thao also learned through Minnesota Driver Vehicle Services (“DVS”) as well as Minneapolis Public Housing records that Bryant resided at the address listed in the search warrant and that since May 21, 2018, extensive surveillance had been conducted on Bryant whereby he and his white Cadillac were observed coming and going from the residence in Minneapolis that was the subject of the search warrant application. Moreover, Bryant's Facebook page showed photos of the same Cadillac parked on the street directly in front of the residence at issue.
• Both GEICO vehicle insurance documents purchased were confirmed to be forgeries in violation of Minnesota Statute § 609.611, subd. l(b).
• SA Thao reviewed the fraudulent insurance document sold to the UA and a copy of the similar document provided by L.H. and observed that the documents were near identical in layout and character placement, with the only difference being in policy numbers and expiration dates. SA Thao firmly opined that both documents came from one single source. SA Thao also learned from GEICO that the proof of insurance provided by Bryant and Davis to the DVS for their vehicles were fraudulent policy numbers.
• SA Thao also attested that the fraudulent insurance documents purchased were in the form of an eight-by-eleven-piece of paper outlining a policy carrier and number. Based on his knowledge and experience, SA Thao asserted that current computer and printing technology allowed for printed documents to be easily modified for malicious purposes.

(Gov't Ex. 1, 00000137-39.)[3]

         Based on the forgoing information set forth in his Affidavit, SA Thao went on to assert that:

Bryant has violated MN state statutes 609.611 and 609.63 pertaining to insurance fraud and forgery. Your affiant believes Bryant is currently acting as an unlicensed insurance producer and selling forged and counterfeit insurance policies to unsuspecting individuals. Some of which believe they are driving on public roadways with legitimate auto insurance. Your affiant believes Bryant is producing these insurance policy documents on a computer or other electronic device for personal monetary gain. Therefore, your affiant is requesting a search warrant be granted authorizing your affiant and others under your affiant's direction and control to search Bryant's person, his vehicle, and his residence for evidence that he is producing fraudulent insurance documents. This search will aid in your affiant's investigation to identify individuals that have previously purchased insurance policies from Bryant and inform them that their insurance policies are not in force.

(Gov't Ex. 1, 00000139.)

         Judge Garcia issued the warrant and determined that there was probable cause that evidence of a crime would be located on Bryant's person, his apartment located in Minneapolis and in a 2014 Cadillac sedan with license plate XXX TRW. (Id. at 00000141.) However, the authorization line of the search warrant only authorized a search for Bryant and his apartment. (Id.) SA Thao testified he read the search warrant after receiving it from Judge Garcia and that he believed officers had a search warrant for Bryant, his Minneapolis residence, and the white Cadillac. (Tr. 25, 43.) SA Thao did not give other officers conducting the search a copy of the warrant, but verbally told the other officers that they had a search warrant and the scope of that warrant. (Tr. 43.)

         B. Buy-Bust Operation

         SA Thao also testified about a buy-bust operation involving Bryant that took place on July 11, 2018, after Judge Garcia issued the above-described search warrant. (Tr. 43-44.) According to SA Thao, a buy-bust is a controlled law-enforcement operation that is geared towards the arrest of an individual immediately after a criminal act has occurred. (Tr. 25-26.) The goal of the operation was to show that the insurance documents sold that same day immediately before Bryant's stop were similar to the insurance documents purchased on May 21, 2018 by the UA. (Tr. 26.)

         After receiving confirmation of the location for the July 11, 2018 purchase of automobile insurance, which was again the same location as the previous May 2018 undercover buy (the Brooklyn Center Wal-Mart parking lot), surveillance was set up in the area. (Tr. 26.) Surveillance was also established for both Davis and Bryant. (Tr. 26-27.) The buy had been initially scheduled for 1:00 p.m. but was rescheduled to 4:00 p.m. (Tr. 27-28.) During the surveillance, Bryant was seen heading to his apartment before his meeting with Davis at the Wal-Mart parking lot. (Tr. 28.)

         Davis was observed arriving in her Nissan Altima, followed directly behind by Bryant. (Tr. 27.) They met in the eastern section of the parking lot at the Wal-Mart prior to Davis's sale of the policy, where a hand-to-hand exchange of a white piece of paper was observed between Davis and Bryant, which at that time officers perceived to be the fraudulent insurance document that the UA ultimately purchased. (Tr. 28-29, 49-50.) Davis, after leaving Bryant, then proceeded to make contact with the UA at which time the UA and Davis exchanged $150 for an automobile insurance policy. (Tr. 29, 50-51.) Unlike the preceding May 21 controlled buy, Davis did go not back to Bryant after the exchange with the UA and they parted ways differently. (Tr. 29-30, 49.) SA Thao testified that the fact that Bryant was using someone else to deliver an illegal item was indicative of criminal activity. (Tr. 54.)

         SA Thao testified that it was at this point in the surveillance, given his previous knowledge, he believed the UA had been sold a fraudulent insurance policy and that Bryant had been continuing to sell fraudulent insurance policies to individuals in Minnesota since May 2018. (Tr. 30.) While the officers reviewed the policy purchased by the UA and determined that it was similar or identical to previously purchased fraudulent policies, they did not check with the insurance company to see if it was fraudulent before stopping Davis. (Tr. 47.)

         Davis and Bryant were followed out of the parking lot by police and separately stopped. (Tr. 30.) SA Thao was a part of the stop-and-arrest process involving Bryant. (Tr. 31.) Bryant was taken to custody and a search of his person was conducted incident to arrest. (Id.) Law enforcement officers discovered cell phones, wallet, cash, and a policy for Progressive insurance on Bryant's person. (Id.; see also Gov't Ex. 1, 0000143.) SA Thao testified that he would have conducted a traffic stop and search incident to arrest based on the controlled buy even if he did not have the search warrant from Judge Garcia because a crime had just occurred. (Tr. 32-33.)

         Officers also searched Bryant's vehicle. (Tr. 32.) Officers found and seized insurance documents from the glove box. (Gov't Ex. 1, 0000143.) In addition, $40 in cash was also found in Bryant's hands, which the officers believed was the payment by Davis to Bryant for the policy. (Tr. 54.) The controlled buy funds that were used for purposes of the purchase on July 11 were all found with Davis. (Tr. 55.)

         SA Thao also testified that Bryant's apartment was searched pursuant to the July 11, 2018 search warrant. (Tr. 33.) Officers seized a printer, insurance documents, a laptop, constructive possession documents, papers labeled “important”, and a laptop. (Gov't Ex. 1, 0000143.) During the search, officers observed a safe on the floor and located an insurance policy on the counter in the kitchen, which was almost identical to the same policy the UA had purchased during the controlled buy. (Tr. 33.) The safe in the apartment was unsecured and when the agents opened the unlocked safe, they discovered three firearms and a large quantity of small pills that appeared to be either Ecstasy or oxycodone at the time. (Tr. 34-35, 52.) It was later discovered that the pills contained fentanyl. (Tr. 35.)

         C. Second Search Warrant Related to Bryant's Apartment

         Based on the discovery of the items in the safe, officers drafted a search warrant to seize the items observed in the safe at Bryant's apartment. (Tr. 35.) SA Thao testified that on July 11, 2018, he submitted an Application for Search Warrant and Supporting Affidavit to Hennepin County District Judge Daniel Moreno for Bryant's apartment in Minneapolis in order to recover a Glock model 43, 9mm firearm; a Walther model PP, 7.6mm firearm; a Taurus model PT111, 8mm firearm; a large quantity of small green pills that appear to be either ecstasy or oxycodone; and a small black plastic digital scale. (Tr. 35; Gov't Ex. 2.)

         The affidavit contained a similar description of the insurance fraud investigation in its probable cause statement as was included in the application for the July 11, 2018 search warrant signed by Judge Garcia. (Gov't Ex. 2, 00000204-206.) The affidavit then stated that there was ...

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