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United States v. Strother

United States District Court, D. Minnesota

January 13, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
PERCY LEE STROTHER, JR., Defendant.

          BRADLEY M. ENDICOTT, ASSISTANT UNITED STATES ATTORNEY, FOR PLAINTIFF

          JOHN S. HUGHES, FOR DEFENDANT

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          JOHN R. TUNHEIM CHIEF JUDGE

         Defendant Percy Lee Strother, Jr. (“Strother”) was charged with two counts of felon in possession of a firearm - armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 942(e). On June 6, 2019, Strother filed three motions which, by rule, were referred to the Magistrate Judge: (1) Motion to Suppress Evidence Obtained in Violation of the Fourth Amendment; (2) Motion to Suppress Telephone Recordings; and (3) Motion to Sever Counts.

         On October 31, 2019, United States Magistrate Judge Tony N. Leung issued a report and recommendation (“R&R”) recommending that the Court deny Strother's Motions. Strother filed timely objections to portions of the R&R.[1] After de novo review of the issues, the Court will overrule Strother's objections, adopt the R&R, and deny Strother's Motions.

         BACKGROUND [2]

         The United States charged Strother with two counts of being a felon in possession - armed career criminal. (Indictment at 1-2, May 7, 2019, Docket No. 10.) The firearms at issue in this case were found by police during two searches that resulted from traffic stops involving Strother on October 12, 2019 and January 5, 2019. Strother moved to suppress the evidence from both stops, alleging that the evidence was obtained in violation of his Fourth Amendment right to be free of unreasonable searches and seizures.

         A. October 12, 2018 Traffic Stop

         In the early morning hours of October 12, 2019, Officer Marcus Ottney (“Ottney”) of the Minneapolis Police Department (“MPD”) observed a vehicle with a broken taillight pull out of an on-street parking space and drive away. Ottney ran the license plate of the vehicle through the National Criminal Information Center (“NCIC”) database.[3] The database indicated that the vehicle had been reported stolen in Saint Paul.

         After confirming that the vehicle that he saw matched the one in the NCIC database, Ottney stopped the vehicle and ordered the driver to throw the keys out of the window. The driver did not initially comply and Ottney had to repeat the order several times. Eventually, the driver followed the order. With the assistance of his partner, Ottney then handcuffed the driver and put him in the back seat of his MPD squad car. Ottney identified the driver as Strother and concluded from the NCIC database that Strother was not the registered owner of the vehicle. Strother told Ottney that he had recently obtained title to the vehicle. While Ottney was in the squad car with Strother, his partner searched the vehicle and found a handgun between the driver's seat and the center console.

         B. January 5, 2019 Traffic Stop

         In the evening of January 5, 2019, Sergeant Robert Topp (“Topp”) of the Plymouth Police Department (“PPD”) observed a vehicle with “very bright” headlights approaching as he was assisting with a traffic stop. Topp believed the vehicle was driving with its high-beam headlights engaged, and also saw other vehicles driving in the opposite direction. Topp got into his squad car and pulled up next to the vehicle. He saw a blue light illuminated on the dash, which further confirmed his belief that the vehicle was being driven with its high beams engaged.

         Topp pulled the vehicle over and told the driver, who Topp identified as Strother, that he had been pulled over for driving with his high beams on. Strother turned the high beams off and told Topp it was a stupid mistake. Topp noticed that Strother was sweating profusely, which he found unusual given the winter temperature. Strother also told Topp that he was driving to a nearby Extended Stay hotel, which was, according to Topp, known for criminal activity. Topp felt that Strother was behaving strangely: he avoided eye contact with Topp, was slow to answer questions, mumbled his answers, and appeared lethargic. Finally, Topp saw that the vehicle was in what he called “disarray”; center-console panels had been covered with fabric, a portion of the center console had been pried up, and the steering-wheel area had been taped.

         Based on these observations, Topp believed Strother was under the influence and in possession of narcotics. He asked Strother about his criminal record, and Strother replied that he had no felony arrests or convictions. Topp returned to his squad car and ran a check on Strother. The database report contradicted Strother, showing multiple felony convictions. Based on Strother's apparent deceptive answers, Topp radioed for a narcotics canine unit to respond to the stop to conduct a drug sniff.

         Topp returned to the vehicle and ordered Strother to get out. He then performed a horizontal-gaze nystagmus test on Strother, to investigate whether Strother was under the influence of alcohol. Although Todd did not see nystagmus, he did notice that Strother's pupils were very constricted, which suggests potential narcotics use. Todd then asked Strother whether he had anything illegal on him and asked for permission to search him. Strother consented to the search, and Todd did not find any illegal items. Todd asked Strother whether he used drugs, and Strother said that he had most recently used drugs four days earlier, on New Year's Day.

         Officer Miguel Robles (“Robles”) of the New Hope Police Department then arrived to conduct the canine sniff. Robles' dog alerted at the driver-side door, the passenger-side door, and the passenger-side headlight. Topp and Robles then searched the car and found a handgun while searching the passenger-side headlight area.

         C. Jail Phone Calls

         After Topp and Robles found the firearm, Topp placed Strother under arrest. While subsequently jailed at the Hennepin County Jail (“HCJ”), Strother made multiple telephone calls. All calls made from HCJ, other than calls to attorneys, are monitored and recorded. Persons making calls from HCJ are told their calls are recorded before dialing the number and before the call is connected; additional notification may be given depending on the length of the call. There are also call-recording notification signs posted near the HCJ telephones. Finally, when a person is booked into HCJ, they are given a form either acknowledging the receipt or waiver of a call-notification handout.

         Sergeant Seth Augdahl of the Hennepin County Sheriff's Office reviewed three calls made by Strother. In each, Strother received two warnings that his calls were being monitored and recorded. Additionally, the United States provided a form waiving receipt of the call-notification handout. The form included signatures above the lines for inmate and staff witness, but there was no testimony as to who actually signed the form.

         DISCUSSION

         I. ...


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