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United States v. Andrews

United States District Court, D. Minnesota

September 3, 2019

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

          Norris Deshon Andrews, Sherburne County Jail, pro se

          Daniel L. Gerdts, Minneapolis, MN, standby counsel for Defendant

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



         Before the Court is Defendant Norris Deshon Andrews' Post-Hearing Response Memorandum (Def.'s Post-Hr'g Mem. [Doc. No. 262].) Defendant, who is self-represented, signed the memorandum on August 7, 2019, and the Clerk of Court filed it on August 12, 2019. The memorandum thus crossed paths with the issuance of the August 9, 2019 Order and Report and Recommendation (“Order & R&R”) [Doc. No. 261] filed by Magistrate Judge Schultz. In Defendant's motion for an extension to file objections to the Order & R&R, filed by stand-by counsel, he noted that the Post-Hearing Memorandum did not reach the magistrate judge prior to the issuance of the Order & R&R, and asked that it be considered in connection with his objections to the Order & R&R. (See Def.'s Mot. for Extension [Doc. No. 263].)

         Although the Court granted Defendant an extension to August 23, 2019 to file objections, (Aug. 20, 2019 Order [Doc. No. 264]), he did not do so by that date, nor has he filed any since that time. Accordingly, the Court construes his Post-Hearing Memorandum as his Objections to the Order & R&R.

         The Order & R&R primarily addressed several of Andrews' prior suppression motions as they related to newly disclosed evidence presented at the reopened suppression hearing. (See Order & R&R at 1.) On July 18, 2019, the magistrate judge held the reopened suppression hearing, limited to certain issues. In the Order & R&R, the magistrate judge recommended that the rulings on Andrews' prior motions be affirmed. (See Id. at 15- 16.) Further, he ruled on additional motions that Andrews had filed, seeking either the suppression or inspection of evidence, and the dismissal of the Indictment. (Id.) Magistrate Judge Schultz recommended the denial of these motions.

         Also before the Court are two motions that Andrews filed on July 31, 2019: (1) “Defendant's Pretrial Motion to Suppress All Evidence from the Stop & Seizure of the G.M.C. Yukon on May 16th 2018 for Lost, Destroyed, and/or Missing Exculpatory Evidence by the Government” [Doc. No. 254]; and (2) “Defendant's Pretrial Motion to Suppress Any and All Evidence from the Stop, Search & Seizure of the G.M.C. Yukon- for Lost and Destroyed Material, Brady Evidence” [Doc. No. 255].

         For the reasons set forth below, Andrews' Objections are overruled and his additional motions are denied as moot.

         I. BACKGROUND

         The background of this case is presented in detail in the Court's May 8, 2019 Order [Doc. No. 187], and is incorporated by reference here. Andrews, who is self-represented, is charged with being a felon in possession of a firearm. (See Indictment [Doc. No. 1] at 1.) His trial is scheduled to begin on September 23, 2019. (Order & Trial Notice [Doc. No. 222].) For purposes of Andrews' Objections, the most relevant facts concern evidence presented at the July 18, 2019 reopened suppression hearing, which is well summarized in the Order & R&R. The Court addresses these facts in its discussion of Andrews' Objections below.


         A. Standard of Review

         As noted, before the Court are the magistrate judge's recommendations on dispositive motions to suppress evidence or dismiss the Indictment, and his ruling on a non-dispositive motion for discovery. Different standards of review apply to dispositive and non-dispositive motions. With respect to the dispositive motions, 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).

         As to the district court's review of the magistrate judge's decision on non-dispositive motions, such as the motion for discovery here, it is “extremely deferential.” Coons v. BNSF Ry. Co., 268 F.Supp.3d 983, 991 (D. Minn. 2017) (citing Reko v. Creative Promotions, Inc., 70 F.Supp.2d 1005, 1007 (D. Minn. 1999)). The Court will reverse such a ruling only if it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); L.R. 72.2(a).

         B. Motions Related to the Reopened Suppression Hearing

         1. Scope of the Reopened Suppression Hearing

         As a preliminary matter, Andrews continues to object to the fact that the Court construed his June 9, 2019 letter requesting oral argument on the question of reopening the suppression hearing as a motion to reopen the suppression hearing. (See Def.'s Post-Hr'g Mem. at 1-2.) Previously, he has argued that he merely sought permission to file the motion and would have included additional grounds for relief in a subsequent filing. (June 22, 2019 Letter [Doc. No. 227] at 1-4.)

         At the May 28, 2019 status conference, the Court informed Andrews that in order to demonstrate the need for reopening the suppression hearing, he must establish good cause, based on evidence that was unavailable to him at the prior hearings. (See July 24, 2019 Order at 8.) In his June 9, 2019 letter, filed approximately two weeks after the May 28, 2019 status conference, he made several substantive arguments in support of his request to reopen the hearing. The Court addressed these arguments in the June 19 Order, permitting the reopening of the suppression hearing on a limited basis. (June 19, 2019 Order [Doc. No. 224] at 4-8.) As noted, the reopened hearing was held on July 18, 2019, and lasted over six hours.[1] (See July 18, 2019 Hr'g Minutes [Doc. No. 242].) The hearing has now occurred, and Andrews' continued objections as to whether this Court properly construed his June 9 letter are moot.

         2. Factual Information Provided to T-Mobile

         Andrews reiterates his objections to minor discrepancies in certain evidence that has been previously entered in the record. This includes: (1) whether the shooting victims' injuries were sufficiently “life-threatening” to justify the exigent circumstances cell phone location information, (Def.'s Post-Hr'g Mem. at 3); (2) whether Sgt. O'Rourke linked Andrews' cell phone number to his name through a Google search or the Zetx system, (id.); (3) errors in the addresses provided to T-Mobile, (id.); (4) whether the shooter exited his vehicle and shot one of the victims again, (id.); and (5) whether the suspect vehicle lacked one license plate or two. (Id. at 3-5.) As the Court has previously found, none of this evidence shows that Sgt. O'Rourke deliberately “lied” in order to obtain the exigent cell phone location information from T-Mobile. (May 8, 2019 Order at 28.) To the contrary, the salient facts on which Sgt. O'Rourke relied were borne out by the evidence. (Id.)

         Nonetheless, the Court permitted the reopening of the hearing to consider Andrews' position that some of the newly disclosed bodycam videos 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.) The bodycam footage in question is from Officers Bauer, (Def. Ex. 100), Hanneman, (Def. Ex. 101), and Gillies (Def. Ex. 103). Despite Andrews' argument that this evidence impeaches or contradicts information provided to T-Mobile, (Post-Hr'g Mem. at 5-6), it does not refute any material facts contained in the officers' reports or provided to T-Mobile.

         As the magistrate judge explained, while Officer Bauer states in his report that a witness refused to provide her name or date of birth, it appears that he did not actually ask for that information. (Order & R&R at 3-4.) That is an immaterial discrepancy. Consistent with the video, his report states that he spoke with another witness, who asked to speak off camera. (Id.) It is also irrelevant whether this witness is a person previously seen on the video or not. (Id. at 4.) Other witnesses provided information to the officers. (Id.) The Court thus agrees with the magistrate judge that to the extent Sgt. O'Rourke relied on Officer Bauer's report, the bodycam footage does not discredit that information, nor does it show that Sgt. O'Rourke lied. (Id.)

         Officer Hanneman's bodycam footage shows his response to a domestic assault call involving Montrel Tyson's girlfriend. (Def. Ex. 101 (Hanneman Bodycam).) The magistrate judge rejected Defendant's argument that this bodycam video demonstrates that Sgt. O'Rourke lied during the September 10, 2018 suppression hearing when he said that Tyson's girlfriend had identified Andrews as the shooter. (Order & R&R at 4-5.) As Magistrate Judge Schultz notes, when O'Rourke testified about what Tyson's girlfriend stated, he was linking together pieces of the investigation; his application to T-Mobile did not state that Tyson's girlfriend identified Andrews as the shooter. (Id. at 5.) Rather, Officer Hanneman's bodycam video demonstrates that officers were independently linking Andrews' cell phone number to the suspected shooter. It does not impugn Sgt. O'Rourke's application to T-Mobile or the development of Andrews as a suspect in the shooting investigation.

         Officer Gillies' bodycam footage shows him responding with another officer to the earlier shooting mentioned in Sgt. O'Rourke's T-Mobile application. (Def. Ex. 103 (Gillies Bodycam).) Andrews argues that the video contradicts evidence in Gillies' report and Officer Creighton's report describing the blue Chevy Tahoe-specifically, whether it was missing front license plates or both license plates, whether it was the vehicle from which shots were fired in the earlier shooting, and whether a witness described the Tahoe's passenger or driver. (Def.'s Post-Hr'g Mem. at 6-7.)

         The Court agrees with the magistrate judge that Officer Gillies' report, stating that neighbors said the blue Tahoe was parked where the shell casings were found, is supported by the bodycam footage. (Order & R&R at 6.) Although Officer Creighton said that a witness described the Tahoe's passenger, when, in fact, the witness apparently described the driver of a grey van immediately after discussing the occupants of the Tahoe, (id.), this discrepancy is not evidence that Officer Creighton lied. (Id.) Rather, as the magistrate judge observed, (id.), he likely misunderstood the information. The Court agrees that this minor misconstruction does not discredit the veracity of Sgt. O'Rourke's T-Mobile application.

         Andrews further argues that Officer Gillies' bodycam video refers to the blue Chevy Tahoe missing two license plates, whereas the blue Chevy Tahoe in the second shooting was described as missing only the front plate. (Def.'s Post-Hr'g Mem. at 6-7.) This distinction is insignificant. Witnesses may have only seen the vehicle from one vantage point. Importantly, witnesses consistently described the same type of vehicle and indicated that it lacked one or two license plates. Distinctions between the number of missing plates do not impugn the information that Sgt. O'Rourke submitted to T-Mobile to obtain the exigent cell phone location information.

         In addition, Andrews states that the bodycam footage from Officer Mattson is apparently unavailable, but were it available, Andrews would have impeached his prior statement. (Id. at 6.) The Court rejects Andrews' rank speculation and finds that none of the bodycam footage of any of the officers discredits their reports or the T-Mobile application in any material way.

         Relatedly, Andrews again argues that the Government and law enforcement officers have withheld, lost, or selectively disclosed critical evidence and committed prosecutorial misconduct. (Id. at 8-9, 16.) There is no basis for Andrews' unfounded claims, nor was this one of the limited subjects that the Court permitted Andrews to address in the reopened suppression hearing. (June 19, 2019 Order at 3) (rejecting governmental or prosecutorial misconduct as a basis for reopening the suppression hearing).

         Accordingly, Andrews' grounds of objection concerning the information that officers provided to T-Mobile are overruled.

         3. Stop of ...

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