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United States v. Hicks

United States District Court, D. Minnesota

September 16, 2019

United States of America, Plaintiff,
v.
Jerry Leavale Hicks (1), Defendant.

          Benjamin Bejar, Esq., United States Attorney's Office, counsel for Plaintiff.

          Douglas Olson, Esq., Office of the Federal Defender, counsel for Defendant.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE

         Defendant Jerry Leavale Hicks has been charged with five counts of Interference with Commerce by Robbery and one count of Interference with Commerce by Attempted Robbery in violation of 18 U.S.C. § 1951. (Doc. No. 14, Indictment.) The Indictment alleges that Defendant committed a series of armed robberies of CVS Pharmacy stores in the greater Minneapolis/St. Paul, Minnesota metro area between December 2018 and February 2019. (Id.) Before the Court is Defendant's motion to suppress evidence obtained from his residence, phones, and cars, as well as a DNA search and a search for records; Defendant argues that evidence was seized pursuant to search warrants lacking in probable cause. (See Doc. No. 33, Def.'s Mot. to Supp. Evidence 1.) Defendant also moves to suppress all statements, admissions, and answers made by Defendant when investigators questioned him at the time of his arrest, arguing that the interrogation was not preceded by a complete Miranda warning and a knowing, intelligent waiver of those rights, and the statement was otherwise involuntary due to the circumstances of the encounter. (See Doc. No. 34, Def.'s Mot. to Supp. Statements, Admissions, and Answers 1.) The matter was referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636 and D. Minn. LR 72.1.

         On July 1, 2019, the undersigned held a hearing on Defendant's motions. (Doc. No. 38.) Defendant requested a four-corners review of the search warrants at issue, and the testimony from Special Agent Christopher Langert and exhibits were received.[1] (See Doc. Nos. 41, 44.) The parties requested post-hearing briefing on Defendant's motions to suppress, which were filed on July 29 and August 23, 2019. (Doc. Nos. 45, 48.) For the reasons stated below, this Court recommends that Defendant's motions be denied.

         I. Motion to Suppress Evidence

         In his motion to suppress evidence, Defendant moves to suppress all physical evidence obtained as a result of the execution of six search warrants issued in this case based on lack of probable cause. In his post-hearing brief, Defendant also requests an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), with respect to the first two search warrants issued in this case because he asserts they contained erroneous information concerning a medical mask found after the robbery of a CVS in Brooklyn Center on January 15, 2019. Defendant argues that the first two warrants are “deficient and lack probable cause when the inaccurate information [about the mask] is purged from the initial warrants and that all evidence gathered . . . should be suppressed[, . . . that] the subsequent warrants are all tainted . . . and all evidence gathered pursuant to them should likewise be suppressed[, . . . and that] the brief statement taken from Mr. Hicks at the time of his arrest should also be suppressed.” (Doc. No. 45, Def.'s Post Hr'g Mem. to Suppress Physical Evid. and Statements 2.)

         A. Franks hearing

         The first issue before this Court is whether Defendant has met his showing for a Franks hearing with respect to the first two search warrants. The affidavits in support of the first two search warrants both provide background information on each affiant officers' background and experience, [2] describe an ongoing investigation into several CVS drugstore robberies in the Twin Cities area, provide a general description of three CVS robberies that took place in late 2018 and early 2019, and provide a general description of the suspect (a heavy-set black male). (See Pl. Hr'g Exs. 1, 2.) Both warrant applications then contain slightly different information describing a medical mask allegedly dropped during the commission of the robbery that occurred on January 15, 2019, and found immediately after. (See id.) Defendant contends that because the information provided regarding the mask “contain material omissions and misrepresentations of facts which were made with reckless disregard for the truth and which undermine the finding of probable cause upon which the warrants were issued, ” a Franks hearing is warranted. (Doc. No. 45 at 10.)

         The legality of a search may be subject to challenge even if conducted pursuant to a warrant. A defendant may challenge the veracity of the affidavit offered in support of probable cause. See United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999). “To warrant a hearing on the affidavit's veracity, the defendant must make ‘a substantial showing that the affidavit contains intentional or reckless false statements and [that] the affidavit, [if] purged of its falsities, would not be sufficient to support a finding of probable cause.'” Id. (alterations in original) (quoting United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997)) (citing Franks, 438 U.S. at 155-56); see also United States v. Lucca, 377 F.3d 927, 931 (8th Cir. 2004) (stating that a defendant seeking a Franks hearing must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and . . . the allegedly false statement is necessary to the finding of probable cause”) (quoting Franks, 438 U.S. at 155-56). The Eighth Circuit has “applied [the] rationale [of Franks] to cover material that has been deliberately or recklessly omitted from a search-warrant affidavit.” United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993); see also United States v. Wilson, 324 Fed.Appx. 546, 547-48 (8th Cir. 2009) (applying the two-part test for omissions). When challenging a warrant based on an omission, the defendant must show “‘that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading'” and that “‘the affidavit[, ] if supplemented by the omitted information[, ] would not have been sufficient to support a finding of probable cause.'” Jacobs, 986 F.2d at 1234 (quoting United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986)).

         The substantial showing required for a Franks hearing “is not easily made.” United States v. Engler, 521 F.3d 965, 969 (8th Cir. 2008); see also United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013) (“The requirement of a substantial preliminary showing is not lightly met . . . .” (internal quotations and citation omitted)); United States v. Milton, 153 F.3d 891, 896 (8th Cir. 1998) (“The ‘substantial preliminary showing' requirement needed to obtain a Franks hearing is not lightly met.”). A defendant must “offer specific allegations along with supporting affidavits or similarly reliable statements.” United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir. 2015). “A showing of negligence or innocent mistake is not enough to establish a Franks violation.” United States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010). “A Franks hearing must be denied unless the defendant makes a strong initial showing of deliberate falsehood or reckless disregard of the truth.” United States v. Freeman, 625 F.3d 1049, 1052 (8th Cir. 2010) (internal quotations and citation omitted). If a defendant makes the substantial showing necessary to entitle him to a Franks hearing, he must then prove his allegations before the Court will suppress evidence. Jacobs, 986 F.2d at 1234. If the defendant establishes by a preponderance of the evidence “‘the allegation of perjury or reckless disregard'” and, “‘with the affidavit's false materials set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.'” Id. (quoting Franks, 438 U.S. at 155-56).

         In this matter, Defendant seeks a Franks hearing based on his assertion that the first two search warrants issued in this case contain inaccurate information regarding the discovery of a medical mask at the scene of a robbery (which later was determined to contain Defendant's DNA). Specifically, Defendant points to the following excerpts from the warrant applications, with the bolded information highlighting the information Defendant contends was not true. In the first warrant application (the February 2019 cell phone tracker warrant), Sgt. Swierzewski stated the following:

On January 15th, 2019 at approximately 1922 hours in the City of Brooklyn Park (. . . Brooklyn Park, Hennepin County, MN) officers were dispatched to a report of a robbery of business at gunpoint at CVS Pharmacy. During the robbery a black male suspect entered the business, proceeded to the pharmacy area, jumped/climbed over a ½ door into the pharmacy area, with a handgun in his hand, demanded “Oxy” narcotics without Tylenol, and fled the area. During the robbery the suspect wiped his forehead with a cloth type item which he dropped. The item was collected by police and held for forensic processing. Suspect was described as a heavy set black male, approximately 5[']8” to 5'10” tall. Suspect was wearing a black jacket, grey scarf around his face, grey hat, black gloves, and black/dark shoes. The grey hat and mask may be a single piece.
. . . .
As part of the Task Force, Affiant has been investigating this series with Federal Partners. Affiant recovered and reviewed surveillance footage from the Minneapolis Robbery and saw the suspect approach from the North driving a dark colored Dodge Caravan. The suspect, wearing the same clothes as he is observed wearing when entering the business victim a short time later, parks his vehicle in view of multiple cameras, exits the vehicle, and removes the front and rear license plates to the vehicle before proceeding to the robbery. This is approximately 3-5 minutes prior to the suspect entering the business victim and attempting to rob the business as gunpoint. The cloth type item that dropped and collected from the Brooklyn Park robbery was sent to the Hennepin County Sheriff's Office Crime Lab (HCSOCL) for forensic analysis and testing. Affiant learned that a major male profile from this item was identified and forensically identified JERRY LEAVALE HICKS DOB: [. . .].

(Pl. Hr'g Ex. 1.) In the second warrant application (the March 2019 residence and van warrant), FBI Agent Langert stated the following:

9. On January 15, 2019, at approximately 7:20 p.m., Brooklyn Park police officers responded to a reported armed robbery of a CVS Pharmacy, located [in] Brooklyn Park, Hennepin County, MN. During the robbery a black male suspect entered the business, proceeded to the pharmacy area, jumped/climbed over a half-door into the pharmacy area, and with a black and silver handgun in his hand, repeatedly demanded “oxy” narcotics without Tylenol. The suspect was described as a heavy set black male, approximately 5'08” to 5'10” tall, wearing a black jacket, grey scarf around his face, grey hat, (the grey scarf and hat may be a single piece), black gloves, and black/dark shoes. The suspect robbed the CVS at gunpoint of approximately 1300 oxycodone tablets of various dosages, approximately 350 tablets of various dosages of Methylphenidate, a Schedule III narcotic drug, and approximately 40 pills of Morphine, a Schedule II narcotic drug, and fled the area. Surveillance footage showed the suspect carrying a small fabric medical face mask when he entered the store, and showed the suspect drop the medical face mask as he went over the half-door to the pharmacy area during the robbery. At one point, the suspect wiped his face with the medical face mask. This medical face mask was collected into evidence by the Brooklyn Park Police Department shortly after the robbery.
. . . .
12. The Hennepin County Sheriffs Office Crime Laboratory (HCSO Lab) conducted forensic DNA testing on the medical face mask the suspect dropped during the January 15, 2019, Brooklyn Park CVS robbery. The HCSO Lab determined that the sole major DNA profile from the medical face mask matched that of JERRY LEAVALE HICKS, YOB 1979. According to DVS records, HICKS is a black male, reported to be 5'7” tall and weighing 215 pounds.

(Pl. Hr'g Ex. 2.)

         After these warrants issued and were executed, Special Agent Langert filed a Declaration correcting misstatements that he had made through the above-referenced affidavits (and in-court testimony) relating to the investigation of the January 15, 2019 robbery at the CVS store in Brooklyn Park. Specifically, he stated that the following highlighted language from paragraph 9 in the second warrant was factually inaccurate:

Surveillance footage showed the suspect carrying a small fabric medical face mask when he entered the store, and showed the suspect drop the medical face mask as he went over the half-door to the pharmacy area during the robbery. At one point, the suspect wiped his face with the medical face mask. This medical face mask was collected into evidence by the Brooklyn Park Police Department shortly after the robbery.

(Pl. Hr'g Ex. 3.) Special Agent Langert stated that he had “now learned that portions of the foregoing statements were factually inaccurate in the following two ways”:

8. First, the portion of the statement that “[s]urveillance footage . . . showed the suspect drop the medical face mask as he went over the half-door to the pharmacy area during the robbery, ” and my testimony in this regard, is not accurate. Upon further review of the surveillance footage, I now believe that the suspect dropped a large piece of ...

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