United States v. Branch

1

United States of America, Plaintiff, v. Deveon Marquise Branch, Defendant.

No. 22-cr-178 (SRN/DTS)

United States District Court, D. Minnesota

March 16, 2023

REPORT AND RECOMMENDATION

DAVID T. SCHULTZ, MAGISTRATE JUDGE

INTRODUCTION

Defendant Deveon Marquise Branch was charged with one count of being a felon in possession of a firearm and one count of possession of a machinegun. Branch moves to suppress evidence seized during searches executed pursuant to two warrants, the first executed on May 17, 2022, and the second executed on May 24 2022. Dkt. No. 35. Branch also moves to suppress his post-arrest Mirandized statements, arguing the statements were involuntarily induced by coercive police tactics. Dkt. No. 37; Dkt. No. 53 at 12. Additionally, Branch requests a Franks hearing. Dkt. No. 36. For the reasons discussed below, this Court recommends Branch's motions be denied.

FINDINGS OF FACT

After a confidential informant (“CI”) advised deputies from the Hennepin County Sheriff's Office Violent Offender Task Force that Branch was distributing narcotics Detective Steve Holt applied for a search warrant to perform an ion scan swab on the exterior handles, door frame, and door seams at 5240 Drew Ave N #2 (“the apartment”), where Branch was believed to reside with his girlfriend. Ex. 1 at 97.

In the affidavit supporting the warrant, Officer Holt stated the CI who was known to be reliable and had previously provided information leading to the seizure of narcotics, reported Branch was dealing fentanyl pills known as “M box pills.” Ex. 1 at 98. Detective Holt stated Defendant had been observed exiting and returning to the 5240 Drew Ave apartment complex by surveilling officers. Ex. 1 at 98. Based upon this information and a review of Defendant's criminal history, Officer Holt requested a warrant to perform an ion scan swab on the exterior handles and door frames of apartment #2 to detect trace evidence of narcotics. Id. The search warrant (the “ion scan warrant”) was issued on May 12, 2022 and executed on May 17, 2022. Id. at 101; Dkt. No. 40 at 2.

The swabs taken during the execution of the ion scan warrant tested positive for trace amounts of cocaine. Id. Based upon this evidence, Officer Holt applied for and obtained a subsequent search warrant (“the apartment warrant”) on May 19, 2022, to search the apartment for evidence of drugs and firearms. Id.; Ex. 2. The apartment warrant was executed at approximately 6 a.m. on May 24, 2022. Dkt. No. 40 at 2. Both deputies turned their body cameras off before entering the apartment, which Deputy Coleman testified is consistent with Hennepin County Sheriff's Office policy. Dkt. No. 52 at 8. There were five children present in the apartment, including Branch's 8-month-old infant. Id. at 3. On a low shelf in Branch's infant's room Officers found a loaded Glock .40 caliber handgun equipped with a “switch” to make it fully automatic. Id. No evidence of narcotics was discovered inside the apartment. Id.

Branch asserts that officers who executed the apartment warrant made coercive statements regarding the possibility of a child protection investigation based on the discovery of the handgun in Branch's child's bedroom. Dkt. 53 at 12. He alleges Deputy Henry told him to “man up” to avoid adverse consequences for the children and Branch's fiance. Id. Both Deputy Coleman and Deputy Henry testified during the evidentiary hearing that they did not recall making these statements to Branch or having any substantive conversation with him in the apartment. Dkt. No. 52. Deputy Henry denied telling Branch to “man up” and take responsibility. Id. at 24. Deputy Coleman stated that he did discuss the possibility of child protection involvement with Branch's fiance during the search, but this conversation did not include Branch nor occur in his presence. Id. at 14.

Branch was arrested and brought to the Hennepin County Jail. Dkt. No. 52 at 18. Deputy Coleman and Detective Steve Holt took a statement from Branch at the jail. Dkt. No. 46 at 9. Deputy Coleman estimated the jail interrogation occurred a couple hours after the apartment search. Dkt. No. 52 at 18-19. At the jail, Detective Holt brought Branch into the room, offered him a seat, and then activated his body camera. Dkt. No. 46 at 24. The video footage shows that Branch was read his Miranda rights, that he affirmed he understood his rights, and that he then agreed to speak with officers without a lawyer. Ex. 3. at 1:27-1:52.

Branch admitted he purchased the Glock discovered during the apartment search, and acknowledged it was equipped with a switch that converted it into a fully-automatic weapon. Id. Branch stated he had test-fired the gun, which he had bought for protection. Id. Branch became visibly upset while being asked about which of his friends his still sees, and cried when asked about his closest friend. Id. at 3:43-5:38. At no point during the taped interrogation did officers bring up child protection or otherwise make statements about Branch's children or fiance before Branch made statements about owning the Glock handgun found during the search.^[1]Ex. 3. Branch argues his statements should nonetheless be suppressed because the statements officers allegedly made during the apartment search coerced him into making the incriminating statements at the jail two hours later. Dkt. No. 12. Branch was subsequently indicted for possession of a machinegun and being a felon in possession of a firearm.

CONCLUSIONS OF LAW

I. Motion to Suppress Evidence

Branch moves to suppress evidence gathered during the execution of the May 17, 2022 ion scan warrant and the May 24, 2022 apartment warrant, contending the affidavits supporting the warrants lacked probable cause. Dkt. No. 35; Dkt. No. 53. Specifically, Branch argues the affidavit supporting the ion scan search warrant was “flimsy,” “largely conclusory,” and insufficient to find probable cause to support the search. Dkt. No. 53 at 6. He asserts the ion scan swab tested positive for cocaine, which was not the substance the CI alleged Branch was trafficking and that ion scan devices are so sensitive they are inappropriate for use on common area surfaces subject to public handling. Dkt. No. 53 at 10. As a result, Branch argues, the apartment search warrant was not supported by probable cause because it was largely based on the results of the ion scan warrant and, accordingly, the evidence seized during the execution of the apartment warrant must be suppressed because it was fruit of the poisonous tree.

A search warrant is supported by probable cause if, “based on the totality of the circumstances set forth in the application and affidavits, ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.'” United States v. Johnson, 528 F.3d 575, 579 (8th Cir. 2008) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). “The standard is ‘not a high bar,' and it ‘requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” United States v. Edwards, 891 F.3d 708, 711 (8th Cir. 2018 (quoting District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018)). “Where an informant has provided reliable information in the past, and where officers are able to corroborate important details from a current tip that a subject is engaged in drug trafficking, there is probable cause.” See United States v. Edwards, 891 F.3d 708, 711 (8th Cir. 2018).

In reviewing a warrant, “great deference” is to be accorded to the issuing judge's determination of probable cause. United States v. Hudspeth, 525 F.3d 667, 674 (8th Cir. 2008); Illinois v. Gates, 462 U.S. 213, 236 (1983). “Judges may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a search warrant ....” United States v. Alexander, 574 F.3d 484, 490 (8th Cir. 2009) (internal quotations omitted). “[T]he duty of a reviewing court is simply to ensure that the [issuing court] had a ‘substantial basis . . . for concluding' that probable cause existed.” Gates, 462 U.S. at 238-39.

A. The Ion Scan Warrant

The ion scan warrant was supported by probable cause. Detective Holt who was experienced in investigating gang activity, weapons offenses, and narcotics distribution, supplied information that the CI had previously provided reliable information resulting in the seizure of large quantities of narcotics and firearms. Ex. 1 at 1-2. The CI had informed law enforcement that Branch was dealing fentanyl pills known as “M box pills” and possessed an illegal firearm. Id. at 2. Detective Holt's affidavit connected Branch to apartment #2 at 5240 Drew Avenue, where he lived with his girlfriend. Id. Branch had been seen leaving and returning to the apartment complex to walk his dogs. Id. The affidavit recited Branch's criminal history, which included a controlled substance arrest and an aggravated assault conviction, and that Branch was a felon who was ineligible to possess firearms. Id. Based upon this information, a Hennepin County District Court judge issued the ion scan warrant for the exterior door seams, handle and door frame of 5240 Drew Ave N # 2.

As the reviewing court, this Court accords great deference to the issuing judge's determination of probable cause, determining only whether the issuing court had a substantial basis to conclude probable cause existed under the totality of the circumstances. See United States v. Hudspeth, 525 F.3d 667 at 674; Gates, 462 U.S. at 238-39. Based on the foregoing facts, this Court determines the issuing court had a substantial basis to conclude probable cause existed.

The Eighth Circuit has previously found sufficient probable cause to support a search warrant...