United States District Court, D. Minnesota
Deshon Andrews, Sherburne County Jail, pro se
L. Gerdts, Minneapolis, MN, standby counsel for Defendant
Jeffrey Paulsen and Samantha Bates, United States
Attorney's Office, for the Government
RICHARD NELSON UNITED STATES DISTRICT JUDGE.
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].)
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.
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.
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].
reasons set forth below, Andrews' Objections are
overruled and his additional motions are denied as moot.
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.
Standard of Review
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.
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).
Motions Related to the Reopened Suppression Hearing
Scope of the Reopened Suppression Hearing
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.)
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. (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.
Factual Information Provided to T-Mobile
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
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.
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.)
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
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.)
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
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
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.
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).
Andrews' grounds of objection concerning the information
that officers provided to T-Mobile are overruled.
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