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States v. Andrews

United States District Court, D. Minnesota

August 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NORRIS DESHON ANDREWS, Defendant.

          ORDER AND REPORT & RECOMMENDATION

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Defendant Norris Deshon Andrews moved to reopen the suppression hearing in this matter to submit additional evidence, primarily police bodycam videos, that he contends were untimely disclosed by the Government and bear upon this Court's denial of several of his prior motions. The District Court granted Andrews's request, although it did so on a limited basis.[1] On July 18, 2019, the Court held the reopened hearing. Over more than six hours, Andrews questioned the case agent who lead the federal investigation and played portions of several bodycam videos from the investigation and his subsequent seizure. Having considered Andrews's submissions, this Court finds that the new evidence does not alter its prior conclusions.

         The Court also addresses several motions Andrews has filed, each seeking either suppression or inspection of evidence, or dismissal of the indictment. For the reasons stated below, the Court recommends each of these motions be denied. Finally, to maintain the current trial date, the parties shall have seven days from the date of this Order and R&R to file and serve any objections. D. Minn. LR 72.2(a)(1), (b)(1).

         FINDINGS OF FACT

         The Court incorporates by reference the full factual background from the May 8, 2019 Order (Dkt. No. 187). Any additional relevant facts drawn from the evidence submitted during the July 18, 2019 hearing are incorporated below when they bear upon this Court's prior recommendations.

         CONCLUSIONS OF LAW

         I. Motions Within the Scope of the Reopened Suppression Hearing

         The District Court granted Andrews a reopened suppression hearing to address four narrow issues previously addressed by the Court, but on which Andrews contended he had new, relevant evidence recently disclosed by the Government. Each is discussed below.[2]

         A. Exigent Cell Phone Location Information

         Andrews previously challenged the Government's use of exigent cell phone location information, arguing that Sgt. Kelly O'Rourke, the officer who applied for the information, lied to obtain the information. Def.'s Pretrial Mot. to Suppress Evidence, Dkt. No. 104. The Court rejected this argument, finding no evidence that Sgt. O'Rourke made deliberately false statements in the application, and further finding that the salient facts Sgt. O'Rourke included in the application were borne out by the evidence. May 8, 2019 Order at 27-28. The Court agreed to reopen the hearing on this issue because Andrews stated that some of the newly disclosed bodycam footage provided “factual proof that false info was given to T-Mobile on [the] exigent application about Defendant from alleged witnesses.” June 19, 2019 Order at 6, Dkt. No. 224. During the hearing, Andrews argued that the tainted cell phone location information supplied in whole or part the probable cause for the later stop of the Yukon, which should then also be suppressed. He introduced three bodycam videos he contended bore on this issue. After reviewing Andrews's new evidence, the renewed motions are denied.

         1. Officer Bauer bodycam

         Andrews first introduced bodycam footage from Officer Benjamin Bauer, who responded to the Plymouth Avenue shooting and subsequently wrote a report. Most of the video shows Officer Bauer standing behind the apartment at 1707 Plymouth Avenue North. Def. Ex. 100 at 0:5:00-0:19:00. When he approaches the apartment, one woman is standing on the stoop. Id. at 0:05:00. She tells Officer Bauer she does not live there, and is trying to leave with her daughter. Id. at 0:05:05. A second woman comes out of the unit. Id. at 0:05:20. When asked by Officer Bauer if they saw anything, the women say they were about to walk out the door when they heard shots, but neither woman claimed to see the shooting itself. Id. at 0:08:30. Eventually, another officer approached Officer Bauer to speak with him, and Officer Bauer turned his bodycam off. Id. at 0:18:55.

         Andrews argued during the hearing that the bodycam footage shows several discrepancies from the report that Officer Bauer subsequently wrote, thus casting doubt on the report and, presumably, any reliance on it by Sgt. O'Rourke. The Court disagrees. In his report, Officer Bauer states that he spoke to a woman outside the unit at 1707 Plymouth Avenue North, and that the woman told him that she and her daughter were visiting from Texas. Def. Ex. 15. He also accurately notes that the woman said she was inside the apartment when she heard gunshots. Id. Officer Bauer does say in his report that the woman “refused to give [him] her name or Date of Birth[, ]” id., but that is neither an important fact, nor is it entirely inaccurate. Officer Bauer never got the first woman's name or date of birth, though it does not appear that he asked for it.

         Regardless, Officer Bauer's report states, consistent with the video, that he turned his bodycam off to talk to another officer. It is at this point that Officer Bauer says another woman came out of the unit and asked to speak with him off camera, at which point she told Officer Bauer the information included in his report. Whether that was the second woman seen in the video or someone else entirely is unclear. It is also irrelevant. The bodycam video does not refute any material fact in Officer Bauer's report. There were also other witnesses who supplied information to officers.[3] Def. Ex. 58 at 22. So, to the extent that Sgt. O'Rourke relied upon Officer Bauer's supplemental report, the Court finds that the bodycam video does not show Sgt. O'Rourke lied, or that any information in his request to T-Mobile is otherwise discredited.

         2. Officer Hanneman bodycam

         Andrews also introduced bodycam footage of Officer Mark Hanneman, captured when Officer Hanneman and his partner responded to a call involving Montrel Tyson's girlfriend. Def. Ex. 101. Although the focus of the visit was the alleged domestic assault by Tyson, police asked the girlfriend and her family about the shooting. The girlfriend told the officers that Tyson came to her apartment and told her he was involved with a shooting. Id. at 0:03:20. She said the guy Tyson was with was owed money. Id. at 0:09:00. Officer Hanneman showed the girlfriend a still frame from the security camera, and she believed one of the people in the photograph was Tyson. Id. at 0:15:12. Toward the end of the encounter, Tyson's girlfriend told the officers that, although she did not know the shooter's name, she had his phone number because Tyson had called him. Id. at 0:21:50. The phone number she provided is the same number Sgt. O'Rourke identified in his exigent application to T-Mobile. Id. at 0:22:20; Def. Ex. 2.

         During the reopened hearing, Andrews argued that Officer Hanneman's bodycam video showed that Sgt. O'Rourke lied during the September 10, 2018 hearing when he testified that Tyson's girlfriend identified Andrews as the shooter. Hr'g Tr. 74-77, 86-87. To the extent Andrews means this to impeach Sgt. O'Rourke's prior testimony, the Court rejects that suggestion. When Sgt. O'Rourke testified about what Tyson's girlfriend told the police, he was linking various strands of the investigation together; he clearly did not state in his application that Tyson's girlfriend had identified Andrews by name. To the contrary, Officer Hanneman's bodycam video shows officers independently linking the phone number to the suspected shooter. As such, Officer Hanneman's bodycam footage does not undermine the veracity of Sgt. O'Rourke's application to T-Mobile or the development of Andrews as a suspect in the investigation.

         3. Officer Gillies bodycam

         Finally, Andrews introduced bodycam footage from Officer Paul Gillies responding with another officer to an earlier shooting mentioned in Sgt. O'Rourke's application to T-Mobile. Def. Ex. 103. After picking up numerous bullet casings, Officer Gillies approached a man who said he had information about the shooting. Id. at 0:10:20. The man told the officers that he saw three vehicles possibly involved in the shooting: a grey van, a metallic purple Caprice, and an early 2000s blue Tahoe with no plates. Id. at 0:10:40. The Tahoe was sitting at the street corner. The man initially said he believed the van and Caprice were shooting at each other. Id. When an officer said they recovered the casings near the corner, the witness interjected “from the Tahoe.” Id. at 0:11:08. He identified the driver of the Tahoe as “kind of a big guy with dreads, ” but didn't see the passenger well. Id. at 0:11:30. As Officer Gillies walked back to his squad car, a woman approached from the ...


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